   /FILE
       IN CLERKS OFFICE
MJPREME COURT, STATE OF WASHINGTON
     DATE   DEC 1 1 2014

~~~g
               IN THE SUPREME COURT OF THE STATE OF WASHINGTON


       HAL MOORE and MELANIE                  )
       MOORE, husband and wife; and           )
       LESTER KRUEGER and BETTY               )
       KRUEGER, husband and wife,             )          No. 90115-5
                                              )
                     Respondents,             )
                                              )
              v.                              )
                                              )          En Bane
       STEVE'S OUTBOARD SERVICE, a )
       sole proprietorship operating in       )
       Washington; STEVEN LOVE and            )
       MARY LOU LOVE, husband and wife)
       and the marital property they together )
       compose;                               )
                                              )
                     Petitioners,             )
       and                                    )
                                              )
       MASON COUNTY,                          )                    DEC 1 1 2014
                                                         Filed ----------------
                                              )
                     Defendant.               )
                                     ·------J
                 GONZALEZ, .T .---This case asks us to examine the nature of a nuisance

       per se claim. Generally, those alleging that their neighbors' activities are a

        n:uisance must prove that the activities are, on balance, unreasonable and cause

        some inconvenience, discomfort, or interference. When, however, an activity

        is a nuisance per se, plaintiffs need not show that the activity is also
Moore v. Steve's Outboard Service, no. 90115-5


unreasonable. Here, the plaintiffs sued their neighbors, arguing, among other

things, thatthe noise, smoke, fumes, and traffic associated with a small motor

repair shop was in effect a nuisance in fact and that their neighbors are subject

to nuisance per se liability because the business lacked required permits. The

trial judge entered detailed. findings of fact on the plaintiffs' nuisance in fact

claims; found that the alleged noise, smoke, fumes, and traffic related to the

business did not injure the plaintiffs' property, unreasonably detract from the

plaintiffs' enjoyment of their property, or cause cognizable damages; and

dismissed the case. The Court of Appeals reversed in part, concluding the trial

court erred by not deciding whether the business was required to obtain any

more permits. Finding that the plaintiffs did not establish that the business is a

nuisance per se, we reinstate the trial court's judgment.

                                       FACTS

       This case started as a conflict among neighbors living near Hood Canal

ofT of State Route 106 near Belfair. One of the neighbors, Steven Love, lives

on the upland side of the highway. He has been repairing boat motors on his

property, at least occasionally, since he moved there around 1986. In 1994,

Love left his old employer and established his own outboard motor

maintenance and repair operation, called Steve's Outboard Service (SOS), out

of his home and several outbuildings on his property. That same year, he filed

a Shoreline Management Act of 1971 (SMA), ch. 90.58 RCW, permit


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Moore v. Steve's Outboard Service, no. 90115-5


application proposing to build a 30' by 45' metal building on his property for

his business. After some of his neighbors expressed concerns, he withdrew the

application and instead successfully applied for a building permit to replace his

carport with an attached garage.

        On the Hood Canal side of the highway, and on the other side of the

case, are Hal and Melanie Moore and Les and Betty Krueger (collectively the

Moores). It appears the Moores became unhappy with the noise, exhaust, and

traffic associated with SOS 1 and, by 2003, began investigating ways to have it

stopped. After many unsuccessful complaints to various government agencies,

the Moores sued Steven and Mary Lou Love, SOS, and Mason County

(collectively the Loves) on a variety of grounds, including nuisance. 2 During a

two day bench trial, both sides presented witnesses and evidence, largely on

whether SOS's work created noise, fumes, or dangerous traffic conditions.

Only a small part of the evidence presented went to whether the Loves were

operating without a required permit. Most relevantly, Love testified that while

many government agencies had inspected his business in response to

complaints, many that were anonymous, no goverm11ent agency had ever told

him he was operating in violation of the law or without a required permit.

After trial, Judge Sheldon found for the defense. Among other things, the trial


1 Thetestimony about the dispute suggests its origins may have laid in earlier, unrelated
neighborhood disputes.
2
  Mason County was dismissed at summary judgment.


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    Moore v. Steve's Outboard Service, no. 90115-5


    judge found that even if the business was "in violation of the SMA, other

    Mason County or Washington State regulations or permits," the plaintiffs had

    not proved any damages and were not entitled to relief. Clerk's Papers at 242.

    The trial judge did not reach whether the Loves actually violated any laws in

    operating their business or failing to obtain any permits. Nor did the trial judge

    enter a finding that the plaintiffs failed to establish that the Loves violated any

    laws or failed to obtain any required permits, though the scant evidence

~   presented to the trial judge by the plaintiffs supported such a finding.

           The Court of Appeals largely affirmed but found the trial court erred in

    dismissing the Moores' nuisance per se claim. Moore v. Steve's Outboard

    Serv., noted at 179 Wn. App. 1013,2014 WL 312290, at *9-10. The Court of

    Appeals concluded that if SOS was operating without required permits, it was a

    nuisance per se and remanded for a new trial on that issue. 2014 WL 312290,

    at* 12. We granted review of the Loves' petition for review, denied review of

    the issues raised in the Moores' answer, and denied leave to amend the record.

                                          ANALYSIS

           Essentially, the Moores argue that using land without a required permit

    necessarily transforms the land use into a nuisance per se and is actionable in a

    private nuisance suit so long as the land use interferes with the use and

    enjoyment of the plaintiffs' land. We hold that the failure to obtain a permit

    does not transform a use of land into a nuisance per se unless the legislature has


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Moore v. Steve's Outboard Service, no. 90115-5


specifically so declared or the courts of this state have specifically so found.

Neither is the case here.

       Our legislature has defined "nuisance" expansively:

       Nuisance consists in unlawfully doing an act, or omitting to perform a
       duty, which act or omission either annoys, injures or endangers the
       comfort, repose, health or safety of others, offends decency, or
       unlawfully interferes with, obstructs or tends to obstruct, or render
       dangerous for passage, any lake or navigable river, bay, stream, canal or
       basin, or any public park, square, street or highway; or in any way
       renders other persons insecure in life, or in the use of property.

RCW 7.48.120. Despite this expansive definition, generally, an activity is a

nuisance only when it "interferes unreasonably with other persons' use and

enjoyment of their property.'' Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877

(1998) (citing Jones v. Rumford, 64 Wn.2d 559, 392 P.2d 808 (1964)). In

contrast, " [a] nuisance per se is an act, thing, omission, or use of property

which of itself is a nuisance, and hence is not permissible
                                                 .          or excusable
                                                                  .      under

any circumstance," regardless of the reasonableness of the defendant's conduct.

ld. (lead opinion by Smith, J., writing for four justices) (citing Hardin v.

Olympic Portland Cement Co., 89 Wash. 320, 154 P. 450 (1916)). 3 As our

Court of Appeals put it,

        "When the conditions giving rise to a nuisance are also a violation of
       .statutory prohibition, those conditions constitute a nuisance per se, and
        the issue of the reasonableness of the defendant's conduct and the
        weighing of the relative interests of the plaintiff and defendant is

·-----·---
3 The concurring opinio!1s did not disagree with that point but instead examine other
aspects of the case.


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Moore v. Steve's OutboardService, no. 90115-5


       precluded because the Legislature has, in effect, already struck the
       balance in favor of the innocent party."

Tiegs v. Boise Cascade Corp., 83 Wn. App. 411, 418, 922 P.2d 115 (1996)

(Tiegs !)(emphasis omitted) (quoting Branch v. W Petroleum, Inc., 657 P.2d

267, 271, 276 (Utah 1982)).

       We perceive two difficulties with the Court of Appeals' extension of

Tiegs I to the case before us. First, in both Tiegs I and Branch, the "condition"

that gave rise to the nuisance-pollution of groundwater-was the very

condition prohibited by the statutes. Tiegs I, 83 Wn. App. at 413; Branch, 657

P.2d at 276; see also Tiegs v. Watts, 135 Wn.2d 1, 15, 954 P.2d 877 (1998)

(Tiegs II). In contrast, in the case before us, the "condition" giving rise to the

alleged nuisance was the noise, fumes, and traffic associated with the boat

repair and maintenance operation, not the failure to obtain a permit. Perhaps

aware that its opinion might be read more broadly than it intended, the Tiegs I

court observed:

       "Although a rather wide range of landowner activity could conceivably
       be declared illegal and thus considered nuisances as a matter of law
       because forbidden by law, in fact only a few distinct categories of such
       conduct have emerged from the cases."

Tiegs, 83 Wn. App. at418 (quoting 8 THOMPSONONREALPROPERTY §

67.03(a)(1), at 94-95 (Thomas ed. 1994)). While the failure to obtain a

particular type of permit could be a nuisance per se if declared to be so by the

legislature or found to be so by this court, no case, statute, or ordinance has


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Moore v. Steve's Outboard Service, no. 90115-5


been drawn to our attention that would specifically make the failure to obtain

some relevant permit a nuisance, and our own research has not revealed one.

       Second, aside from a statute establishing that some violation of law is

also a nuisance per se, a nuisance per se, by its very nature, "is an act, thing,

omission, or use of property which of itself is a nuisance, and hence is not

permissible or excusable under any circumstance." Tiegs, 135 Wn.2d at 13

(citing Hardin, 89 Wash. 320). We find Motor Car Dealers' Ass 'n of Seattle v.

Fred S. Haines Co., 128 Wash. 267, 222 P. 611 (1924), illustrative. In Fred S.

Haines we found that while it might be illegal to sell cars on Sunday, selling

cars on a Sunday was not an actionable private nuisance that could be

maintained by another car dealer. !d. at 274. Since it was lawful to sell cars on

other days, "the acts complained of are not acts which constitute a nuisance at

all times and under all conditions, thus failing of one of the most important

elements of a nuisance per se." !d. The plaintiffs have not shown that the

failure to obtain a permit is a nuisance at all times and under all conditions.

Indeed, it is incidental to the gravamen of their complaint-that the business

created objectionable noise, fumes, and traffic.

       The Moores draw our attention to a criminal case, State v. Boren, 42

Wn.2d 155, 253 P.2d 939 (1953), to support their theory that nuisance per se

extends to the failure to obtain a permit. Boren had been enjoined by the King

County Superior Court from practicing dentistry without a license. !d. at 155-


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Moore v. Steve's Outboard Service, no.   90115~5



56. Observing that"[ e]ngaging in any business or profession in defiance of law

regulating or prohibiting the same is a nuisance per se, and a person so engaged

may be enjoined from so doing, even though there may be, for the wrong

committed, the legal remedy of arrest and punishment," we dismissed his

collateral challenge to the injunction as without merit. I d. at 163 (citing Puget

Sound Traction Light & Power Co. v. Grassmeyer, 102 Wash. 482, 173 P. 504

(1918)). Certainly, practicing one of the learned professions without a license

could be a nuisance per se. E.g., Boren, 42 Wn.2d at 163. Those practicing in

the learned professions, such as law, medicine, and dentistry, have special

capacity to harm those entrusted into their care. See State v. Boren, 36 Wn.2d

522,525,219 P.3d 566(1950). Thus, in those special cases, the failure to

obtain a license (or permit) could potentially be the basis of a viable nuisance

per se claim. But whether it is a nuisance to practice dentistry without being

licensed under the laws put in place to protect the public is a very different

question from whether it is a nuisance to repair motors without an SMA permit.

       Simply put, the Moores point to no provision of the SMA or any other

applicable regulatory scheme that transforms the failure to obtain a permit into

a nuisance per se, and no court that has held the failure to get a required permit

transforms a use of land into a nuisance per se. Nor did the Moores prove at

trial that Love was required to get a permit or show the failure to obtain one is a




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Moore v. Steve's Outboard Service, no. 90115-5


nuisance at all tii11es and under all conditions. We find no error in the trial

court's ·dismissal. 4

                                     CONCLUSION

       We reverse the Court of Appeals to the extent it holds that the lack of a

land use permit, by itself, is a basis for a nuisance per se claim; reinstate the

trial court's judgment; and grant the Loves' request for attorney fees on appeal.




4 Given our resolution of this issue, we decline to reach whether the nuisance per se claim
is barred by the Land Use Petition Act, chapter 36.70C RCW, or laches. We decline to
disturb the Court of Appeals' reduction of the Loves' attorney fees at trial. The Loves'
motion for attorney fees on appeal is granted.


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Moore v. Steve's Outboard Service, no. 90115-5




WE CONCUR:




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