City Of Bainbridge Island, V. Lindenbaum Family Trust
CourtCourt of Appeals of Washington
Date FiledNovember 10, 2026
Docket61414-6
StatusUnpublished
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Full Opinion
Filed
Washington State
Court of Appeals
Division Two
November 10, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CITY OF BAINBRIDGE ISLAND, a No. 61414-6-II
Washington municipal corporation,
Respondent,
v.
LINDENBAUM FAMILY TRUST, and UNPUBLISHED OPINION
RICHARD LINDENBAUM and JAMIE
MILES, a marital community,
Appellants.
CRUSER, J.—Dr. Richard Lindenbaum and Dr. Jamie Miles (the Lindenbaums) have owned
property, in a trust, on Bainbridge Island, Washington since 2015. They raise goats, pigs, and
poultry and have built fences and bridges on their property. The property also contains a wetland
and two streams, which are considered “critical areas” under state law and city code. The City of
Bainbridge Island cited the Lindenbaums for several violations of its city code and ultimately filed
a nuisance action against them when they failed to bring their property into compliance. The trial
court granted the City’s motion for summary judgment and granted a permanent injunction, a
warrant of abatement, civil penalties, and attorney fees.
The Lindenbaums, together with the Trust, now appeal, arguing that the trial court erred in
granting summary judgment because their actions do not constitute a nuisance per se or a public
No. 61414-6-II
nuisance. They seek reversal of the permanent injunction, the warrant of abatement, the civil
penalties imposed, and the order awarding attorney fees.
We reject the Lindenbaums’ challenge to the trial court’s order granting summary
judgment to the City of Bainbridge Island because the Lindenbaums’ code violations are a
nuisance per se and there is no genuine dispute of the material facts underlying these code
violations. We decline to address the assignments of error for the permanent injunction, warrant
of abatement, civil penalties, and attorney fees orders because the Lindenbaums’ brief either omits
or does not adequately address these orders. Accordingly, we affirm.
FACTS
I. BACKGROUND
In 2015, Dr. Richard Lindenbaum and Dr. Jamie Miles (the Lindenbaums) purchased
property on Bainbridge Island, Washington. The Lindenbaums placed the property in the
Lindenbaum Family Trust (the Trust), of which Dr. Lindenbaum is trustee. The Lindenbaums raise
goats, pigs, and poultry on the property. The Lindenbaums, along with the Trust, are the defendants
in this nuisance action (Defendants).
According to the City of Bainbridge Island, the Defendants’ property contains a category
III wetland and two type F (fish-bearing) streams: Dripping Water Creek and an associated
tributary. The wetland and streams are all considered “[c]ritical areas” under state law and the
Bainbridge Island Municipal Code (BIMC). RCW 36.70A.030(12);1 BIMC § 16.20.190(A)(20).
1
RCW 36.70A.030 was amended in 2025 and 2026. Because these amendments do not affect our
analysis, we cite the current version of the statute. LAWS OF 2026, ch. 232, § 6; LAWS OF 2025, ch.
267, § 2.
2
No. 61414-6-II
The Washington State Legislature enacted the Growth Management Act, ch. 36.70A RCW,
in part to designate and protect the State’s critical areas. See RCW 36.70A.060;2 RCW
36.70A.170. Chapter 16.20 BIMC incorporates and enforces the Growth Management Act. BIMC
§ 16.20.010(B). This chapter of the BIMC designates and classifies critical areas that are
“ecologically sensitive and hazardous” and implements protections for these areas to “achieve no
net loss of their functions and values and allow for reasonable use of public and private property.”
BIMC § 16.20.010(A). The BIMC defines “[c]ritical areas” as “aquifer recharge areas, fish and
wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and
wetlands.” BIMC § 16.20.190(A)(20).
The guidelines, restrictions, and prohibitions of the chapter apply “to all development, uses
and activities within areas or adjacent to areas designated as critical areas.” BIMC § 16.20.020.
The BIMC provides that “[n]o action shall be taken by any person . . . which results in any
alteration of a critical area except as consistent with the purposes, intent, requirements,
development standards and goals of this chapter.” Id.
Streams designated as a critical area require buffer areas that “shall remain as undisturbed
or enhanced vegetation areas for the purpose of protecting the integrity, function, and value of
stream resources.” BIMC § 16.20.110(E)(1). Depending on the stream classification, the buffer
width requirement ranges from 50 to 200 feet. BIMC § 16.20.110(E)(2). Wetlands also require
buffers, which range anywhere from 25 to 300 feet depending on the category of the wetland, the
level of impact of land use, and other wetland characteristics. BIMC § 16.20.140(I)(4). Alterations
2
RCW 36.70A.060 was amended in 2026. Because this amendment does not affect our analysis,
we cite the current version of the statute. LAWS OF 2026, ch. 232, § 6.
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No. 61414-6-II
to critical areas and corresponding buffer zones often require a permit. See BIMC §§ 16.20.070,
.110(D)(1).
The BIMC’s zoning provisions concerning agriculture and livestock also address critical
areas. Any manure generated by livestock must be stored properly to avoid runoff from entering
streams or wetlands or corresponding buffers. BIMC § 18.09.030(A)(1)(b)(v). Livestock grazing
areas must maintain a vegetative buffer from wetlands and streams. BIMC §
18.09.030(A)(1)(b)(iii). The provisions also set density limits on livestock and poultry. BIMC §
18.09.030(A)(1)(a). A property owner who wishes to exceed these limits may do so only if the
City has approved a farm management plan. BIMC § 18.09.030(A)(1)(c).
II. CODE VIOLATIONS AND SERIES OF EVENTS
The City was first made aware of potential code violations on the Lindenbaums’ property
when it received an anonymous complaint in November 2023. The complaint stated that goats and
other livestock on the property were emitting a “foul odor.” Clerk’s Papers (CP) at 89. In December
2023, the City received another report complaining about the odor and a large number of livestock,
as well as fencing that was installed in the wetland and over a creek. The City received a similar
report in February 2024, which included photographs of the fencing.
In April 2024, a city code enforcement officer conducted a site visit of the property by
observing from a neighboring property. The officer observed pigs and a wire mesh fence in the
property’s critical areas. In June 2024, the City received a new complaint reporting a rat infestation
on the property. The BIMC requires permits for alterations to critical areas, including removing
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No. 61414-6-II
vegetation and building new fencing.3 The BIMC also requires a farm management plan approved
by the city for densities of livestock that exceed existing limits.4 The City could not locate any
record of the Lindenbaums having any critical areas permits or an approved farm management
plan for the property.
On July 29, 2024, the City issued a “Notice of Violation and Order to Correct” to Dr.
Lindenbaum. Id. at 116 (capitalization altered). The “Description of Violation” provides:
“[L]ivestock were observed grazing, rooting and foraging causing destruction of soils, vegetation
3
BIMC § 16.20.070(A) provides:
Any proposal to alter any critical area and/or required buffer including, but not
limited to, earthwork including grade and fill activity, alteration of site hydrology
including water temperature and characteristics of water sources, removal or
alteration of vegetation, and construction or siting of buildings, structures, facilities,
utilities, hard surfaces and other related infrastructure, shall require a critical area
permit unless it qualifies as an exempt activity, as provided in BIMC § 16.20.040.
Installing fencing is only exempt from requiring a critical areas permit if it is low impact. Under
its list of exemptions, the BIMC includes:
The installation of low impact fencing within critical area buffers provided the
location does not result in restricting wildlife movement, the location and
installation is the least impactful to the critical area and buffer as possible, and there
is no alternative to fencing to achieve the purpose of the fence.
BIMC § 16.20.040(A)(10).
BIMC § 16.20.110(D)(1) also provides: “Any development, use or activity within any fish and
wildlife habitat conservation area shall require a critical area permit unless it qualifies as an exempt
activity, as provided in BIMC § 16.20.040.”
4
BIMC § 18.09.030(A)(1)(c) provides:
Variations from the limits on maximum numbers of large or small livestock or
poultry set forth in subsection A.1.a of this section, or from the management
standards in subsection A.1.b of this section, are only permitted through the
approval of a farm management plan approved by the city, its designee, or a
qualified third party as approved by the director.
Note that BIMC § 16.20.140(G)(1)(c) also generally prohibits “[n]ew or expanded agriculture.”
5
No. 61414-6-II
and water quality of a fish-bearing stream and vegetated wetlands.” Id. (capitalization altered).
The notice further states: “It is a violation of City code to install fencing or have unmanaged farm
animals within a fish bearing stream, a wetland and their respective buffers without a permit and
an approved farm management plan adhering to the standards in BIMC 18.09.030.A.” Id. The
notice gave Dr. Lindenbaum seven days to contact the City to set up a meeting to discuss a
compliance plan. Dr. Lindenbaum did not schedule this meeting.
In August 2024, the City received an email from a neighbor of the property reporting the
presence of rodents as well as goats grazing in the property’s critical areas. On September 10,
2024, the City conducted another site visit of the property, again observing from a neighboring
property. The City observed: damage to vegetation that appeared to have been eaten away by
livestock; bridges over a stream; rat holes around the fence line; and hay dispersed throughout the
critical areas.
On September 27, 2024, the City issued an emergency order against the Lindenbaums and
physically posted the notice on the property. The emergency order stated that the property owner
had not complied with the July 29, 2024 Notice of Violation and Order to Correct, and that the
City had observed the construction of new fencing through the property’s wetlands. The
emergency order required the Lindenbaums to immediately cease clearing vegetation and building
the fence. The emergency order also required the Lindenbaums to schedule a meeting with the
City by October 11, 2024, to discuss a restoration plan. The Lindenbaums would then need to
submit a restoration plan to the City for approval and subsequently implement the restoration plan.
On October 3 and October 11, 2024, the City received more complaints of the rat
infestation affecting neighboring properties as a result of the Defendants feeding their livestock
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No. 61414-6-II
near the property line. The Lindenbaums also failed to meet the October 11 deadline to schedule a
meeting with the City. As a result, on October 11, 2024, the City issued a “Notice of Assessment
of Civil Penalties,” assessing a civil penalty of $1,000 per day, beginning on October 11, 2024,
until the Lindenbaums came into compliance. Id. at 247 (capitalization omitted).
When a property owner fails to comply with an emergency order, the BIMC provides:
“Any condition described in the emergency order which is not corrected within the time specified
is hereby declared to be a public nuisance and the director is authorized to abate such nuisance
summarily by such means as may be available.” BIMC § 1.26.060(B). Chapter 16.20 BIMC also
provides: “Any development or activity carried out contrary to the provisions of this chapter shall
constitute a public nuisance and may be enjoined as provided by the statutes of the state of
Washington.” BIMC § 16.20.170(F).
On December 17, 2024, the City filed a public nuisance lawsuit against the Defendants in
Kitsap County Superior Court based on their failure to comply with the emergency order following
the Notice of Violation and ongoing rat infestation of the property. On April 29, 2025, the
Defendants allowed the City onto the property for the first time to conduct a site inspection. Prior
to the site inspection, a senior planner for the City confirmed that the City’s mapping showed the
property contained a category III wetland and two type F streams. During the site inspection, a
water resources specialist for the City confirmed that these classifications were correct. Also
during the site inspection, the City observed at least 6 pigs and 6 piglets, at least 40 waterfowl, and
several goats. The City observed pigs roaming the critical areas on the property and signs of rats,
including rat holes and traps, and found no evidence of a manure management plan. The City also
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No. 61414-6-II
discovered unpermitted fencing in streams and wetland buffers and unpermitted bridges and
boardwalks in the streams and wetland themselves.
III. PROCEDURAL HISTORY
The trial court granted the City’s motion for partial summary judgment to dismiss the
Defendants’ affirmative defenses and counterclaims.5 The City then moved for summary judgment
on its nuisance claims and requested a permanent injunction, a warrant of abatement, and an order
granting civil penalties and attorney fees. The trial court granted the City’s motion, but stayed the
accrual of civil penalties from October 11, 2024, to the date of the order. The Defendants appeal.
DISCUSSION
We review an order granting summary judgment de novo and view all facts in the light
most favorable to the nonmoving party. Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille County,
1 Wn.3d 815, 824, 533 P.3d 400 (2023). We consider only the evidence and issues that were
brought to the trial court’s attention. RAP 9.12. Summary judgment is proper if “there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” CR 56(c). “A genuine issue of material fact exists if the evidence would be sufficient for
a reasonable jury to find in favor of the nonmoving party.” Zonnebloem, LLC v. Blue Bay Holdings,
LLC, 200 Wn. App. 178, 182-83, 401 P.3d 468 (2017).
The party moving for summary judgment bears the initial burden of showing there is no
genuine issue of material fact. Id. at 183. After the moving party meets this initial burden, “the
burden shifts to the nonmoving party to set forth specific facts that rebut the moving party’s
5
The Defendants did not appeal the trial court’s order granting this motion for partial summary
judgment.
8
No. 61414-6-II
contentions and show a genuine issue of material fact.” Id. Conclusory statements, speculation,
and argumentative assertions are insufficient to create a genuine issue of material fact. Greenhalgh
v. Dep’t of Corrs., 160 Wn. App. 706, 714, 248 P.3d 150 (2011).
I. THE BIMC VIOLATIONS AND FAILURE TO COMPLY WITH THE EMERGENCY ORDER
The Defendants argue that their code violations do not constitute a nuisance per se.
The Defendants advance two arguments in support of this claim. First, they argue that
failure to obtain a permit to install fencing does not constitute a nuisance per se. Second, they argue
that the violations underlying the City’s nuisance per se claim are invalid because these violations
are based on an inaccurate classification of the stream on the Defendants’ property, and there is
evidence to suggest that the water on the property is derived from a man-made cistern. We disagree
with the Defendants and hold that the Defendants’ code violations constitute a nuisance per se
because the BIMC specifically declares these violations to be a public nuisance. We also conclude
that neither the Defendants’ disagreement with the City’s stream classification nor their purported
evidence that the source of water on the property was a man-made cistern raises a material dispute
of fact about whether their conduct violated the BIMC.
A. Legal Principles
A nuisance in fact is an unreasonable interference with the use and enjoyment of the
property of another. Moore v. Steve’s Outboard Serv., 182 Wn.2d 151, 155, 339 P.3d 169 (2014).
A public nuisance is a nuisance that “affects equally the rights of an entire community or
neighborhood, although the extent of the damage may be unequal.” RCW 7.48.130.
Both a nuisance in fact and a public nuisance can rise to the level of a nuisance per se when
the nuisance is of the type of activity that is not permissible or excusable at any time or under any
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No. 61414-6-II
circumstances, “regardless of the reasonableness of the defendant’s conduct.” Moore, 182 Wn.2d
at 155. To establish nuisance per se, there must be “a showing that a statutory violation has
occurred and that the action is in fact a nuisance and remains a nuisance under all circumstances.”
Animal Legal Def. Fund v. Olympic Game Farm, Inc., 1 Wn.3d 925, 932, 533 P.3d 1170 (2023)
(alteration in original). When an activity is prohibited by statute or ordinance, that activity is
considered impermissible under any circumstances. Kitsap County v. Kitsap Rifle & Revolver
Club, 184 Wn. App. 252, 277, 337 P.3d 328 (2014). However, “failure to follow a law does not
transform conduct ‘into a nuisance per se unless the legislature has specifically so declared or the
courts of this state have specifically so found.’ ” Animal Legal Def. Fund, 1 Wn.3d at 932 (quoting
Moore, 182 Wn.2d at 154).
B. Application
The Defendants argue that failure to obtain permits to install fencing and graze livestock
in critical areas despite having been ordered to do so in the emergency order issued to them
following the Notice of Violation does not constitute a nuisance per se without a showing of
inherent injury. We disagree.
A nuisance per se claim requires that: (1) a statutory violation occurred; (2) the action
giving rise to the statutory violation is a nuisance; and (3) this action is a nuisance under all
circumstances. Id.
First, the City has demonstrated that a statutory violation has occurred. The City’s site
inspections revealed that the number of livestock on the property violates BIMC § 18.09.030(A)(1)
and that unpermitted structures and grazing livestock in the streams, wetlands, and buffers violate
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No. 61414-6-II
several provisions under BIMC § 16.20.110 and BIMC § 16.20.140. Failure to correct the
conditions in the emergency order also violated the BIMC. See BIMC § 1.26.060(B).
Second, the Defendants’ actions giving rise to the statutory violations are a nuisance
because the City has specifically declared certain code violations to be a public nuisance. Our
supreme court held in Moore that “the failure to obtain a permit does not transform a use of land
into a nuisance per se unless the legislature has specifically so declared or the courts of this state
have specifically so found.” 182 Wn.2d at 154. In Moore, the plaintiffs contended that the
defendants’ use of their land without a permit as required by law constituted a nuisance per se. Id.
The supreme court concluded: “While the failure to obtain a particular type of permit could be a
nuisance per se if declared to be so by the legislature . . . no case, statute, or ordinance has been
drawn to our attention that would specifically make the failure to obtain some relevant permit a
nuisance.” Id. at 156.
Here, in contrast, the City relies on BIMC § 1.26.060(B), which provides that the failure
to correct conditions described in an emergency order constitutes a public nuisance. The BIMC
provides: “Any condition described in the emergency order which is not corrected within the time
specified is hereby declared to be a public nuisance and the director is authorized to abate such
nuisance summarily by such means as may be available.” BIMC § 1.26.060(B) (emphasis added).
Chapter 16.20 BIMC also provides: “Any development or activity carried out contrary to the
provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by
the statutes of the state of Washington.” BIMC § 16.20.170(F) (emphasis added). Failure to obtain
permits for fencing, bridges, and other unpermitted structures, as well as failure to obtain a city-
approved farm management plan, was encompassed within the emergency order issued to the
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No. 61414-6-II
Lindenbaums. Because the Defendants’ code violations are specifically codified as a public
nuisance in the BIMC, the Defendants’ conduct is distinguishable from the conduct in Moore.
The Defendants’ assertion that the City is required to demonstrate inherent injury is
unavailing. When a nuisance rises to the level of a nuisance per se, the City need not additionally
show that a defendant’s conduct was unreasonable and the court need not weigh the relative
interests of the parties. Moore, 182 Wn.2d at 155. This is so because when a nuisance per se has
been found to exist, “ ‘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), aff’d
sub nom. Tiegs v. Watts, 135 Wn.2d 1, 954 P.2d 877 (1998) (plurality opinion) (emphasis omitted)
(quoting Branch v. W. Petroleum, Inc., 1982 UT 276, 657 P.2d 267); see also Moore, 182 Wn.2d
at 155.
Third, the Defendants’ actions giving rise to the nuisance would be a nuisance under all
circumstances. We have held that a “nuisance per se is an activity that is not permissible under any
circumstances, such as an activity forbidden by statute or ordinance.” Kitsap Rifle, 184 Wn. App.
at 277. In Kitsap Rifle, the Kitsap County Code (KCC) provided that “ ‘any violation of this title
shall constitute a nuisance, per se,’ ” id. at 286 (quoting KCC 17.110.515), and “ ‘[a]ny use . . . in
violation of this title is unlawful, and a public nuisance.’ ” Id. (alterations in original) (quoting
KCC 17.530.030). We concluded that the defendant’s unpermitted development work violated
code provisions. Id. (citing KCC 12.10.030). Thus, we held that the defendant’s unpermitted
development work and expansion of use “constituted a nuisance as a matter of law.” Id.
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No. 61414-6-II
Here, the Defendants’ failure to comply with the emergency order is an activity that is
forbidden under any circumstances under the BIMC. Therefore, the Defendants’ actions giving
rise to the nuisance is a nuisance under all circumstances.
In their effort to avoid summary judgment in the City’s favor, the Defendants assert that
there is a material dispute of fact about whether Dripping Water Creek is actually a type F stream
and whether the wetland on the Defendants’ property was caused naturally or by a man-made
cistern.
A type F stream is a fish habitat that requires a 200-foot buffer area. BIMC §§
16.20.190(A)(77)(a), .110(E)(2). The Defendants assert that there is a lack of fish in the stream,
thus creating a genuine issue of material fact about whether Dripping Water Creek is correctly
classified as a type F stream. It is not clear whether Defendants believe this evidence demonstrates
that they did not commit the underlying code violations that generated the emergency order or
whether it shows that their actions were reasonable, thereby negating a finding that they created a
nuisance. With respect to the former, the Defendants failed to timely challenge the Notice of
Violation,6 and the resultant findings that they committed the violations were neither before the
superior court nor this court. With respect to the latter, the reasonableness of the Defendants’
actions is not at issue because the nuisance in this case is a nuisance per se.7
6
After the City issued the Notice of Violation, the Defendants failed to schedule a meeting with
the City to discuss a compliance plan and failed to request a review of the notice by the City’s
planning director within seven days.
7
We also note that the Defendants’ obligation to comply with the BIMC does not depend on
whether, at any given moment, there are actually fish present in the stream. Indeed, we would be
rewarding a violation of the BIMC if, by violating the BIMC, a landowner had effectively
destroyed the fish habitat that the BIMC was crafted to protect. For this reason, Defendants’
argument is illogical at best.
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No. 61414-6-II
Regarding the alleged man-made cistern, the Defendants argue that this evidence would
show that the property’s wetlands are “dry for much of the year,” thus, again, defeating the City’s
ability to classify the stream as a type F stream. Br. of Appellant at 11. But this, again, assumes
that the underlying violations that were the subject of the Notice of Violation were before the
superior court at summary judgment or are properly before this court. As we explained above, they
are not. We also reiterate that the nuisance in question is a nuisance per se, rendering the
reasonableness of the Defendants’ actions immaterial.
Further, as the City points out, the Defendants did not introduce any evidence or make any
argument about the cistern in their response to the City’s summary judgment motion or during the
hearing on summary judgment. The reference to the cistern appears in only the June 30, 2025
declaration of Dr. Miles attached to the Defendants’ opposition to the City’s motion for partial
summary judgment, which is not before this court. Moreover, the trial court did not list Dr. Miles’
June 30, 2025 declaration as one of the items it considered in deciding the City’s motion for
summary judgment. When considering a party’s appeal of a summary judgment motion, we
“consider only evidence and issues called to the attention of the trial court.” RAP 9.12.
We conclude that the City is entitled to summary judgment and the trial court did not err
in granting its motion.8
8
The City additionally argues, as it did below, that to the extent the Defendants’ arguments could
be perceived as a challenge to the underlying Notice of Violation that they failed to timely
challenge, such an argument is barred because it can only be brought through a lawsuit under the
Land Use Petition Act (LUPA), ch. 36.70C RCW. In light of our resolution of this case, we need
not address this argument.
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No. 61414-6-II
II. PUBLIC NUISANCE
The City argues that in the event we do not conclude that summary judgment is warranted
on the nuisance per se claim based on the Defendants’ failure to comply with the emergency order,
we should hold that summary judgment is warranted on the City’s claim that the Defendants’
activities created a public nuisance based on the rat infestation and the odor emanating from the
property.
The Defendants counter that there is a genuine dispute of material fact about whether the
odors and rat infestation were caused by them or were caused by farm animals on neighboring
properties. The Defendants also offered evidence purporting to show there had been a 90 percent
reduction in the rodents on the property as a result of professional pest control.
But as the City notes, our conclusion that summary judgment in favor of the City is
warranted on the negligence per se claim renders further analysis of this issue unnecessary. We
therefore decline to consider these arguments.
III. WARRANT OF ABATEMENT AND CIVIL PENALTIES
In addition to the trial court’s order granting summary judgment, the Defendants also
appeal the trial court’s order granting a permanent injunction, a warrant of abatement, civil
penalties, and attorney fees. Because the claims regarding the permanent injunction, the civil
penalties, and the attorney fees are unsupported by adequate briefing, we decline to consider them.
We also reject the Defendants’ challenge to the warrant of abatement.
A. Warrant of Abatement
The trial court issued a warrant of abatement and an order requiring the Defendants to pay
the City civil penalties of $1,000 per day, as accrued from October 11, 2024, to the date of the
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No. 61414-6-II
order. The Defendants contend that the trial court’s order for a warrant of abatement “violated
Appellants’ procedural due process rights” because RCW 7.48.260, in their view, explicitly
requires a trial before a party can be “ ‘adjudged guilty of a nuisance.’ ” Br. of Appellant at 15-16.
RCW 7.48.260 provides, in relevant part:
When, upon indictment or information, complaint or action, any person is
adjudged guilty of a nuisance, if it be in superior court the court may in addition to
the fine imposed, if any, or to the judgment for damages or costs, for which a
separate execution may issue, order that such nuisance be abated, or removed at the
expense of the defendant, and after inquiry into and estimating, as nearly as may
be, the sum necessary to defray the expenses of such abatement, the court may issue
a warrant therefor.
There is nothing in this statutory provision that expressly provides that a nuisance action
may only be resolved by a trial. Rather, it merely provides that an adjudication of guilt to nuisance
is a precondition to the issuance of a warrant of abatement. Notably, the Defendants cite no
authority interpreting this provision in the manner they suggest, nor do they offer any real argument
on this claim.
An assignment of error must be supported by adequate argument and citation to authority.
RAP 10.3(a)(6). “We do not address issues that a party neither raises appropriately nor discusses
meaningfully with citations to authority.” Saviano v. Westport Amusements, Inc., 144 Wn. App.
72, 84, 180 P.3d 874 (2008). When citation to relevant authority is absent, we “assume that
counsel, after diligent search, has found none.” DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d
122, 126, 372 P.2d 193 (1962). We decline to examine this claim further in light of the Defendants’
inadequate briefing.
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No. 61414-6-II
B. Civil Penalties
The trial court stayed the civil penalties from the date of the order, stating that the penalties
would resume only if the Defendants failed “to comply with any deadline set out in this order,”
and ordering that they would be owing for the period between October 11, 2024, up until the date
of the order. CP at 377. In challenging the civil penalty set forth in the order, the Defendants argue
that because the trial court acknowledged that it had the power to stay further fines, and “failed to
do so,” the fine imposed was “excessive” and “bypasse[d] the constitutional right to a jury
determination of the underlying liability.” Br. of Appellant at 16. This sentence is confounding.
First, as it relates to the fines that might accrue after the entry of the order, the trial court
did, in fact, stay those fines under the condition that the Defendants comply with the trial court’s
order. Furthermore, beyond merely referencing the legal concepts of “excessive fine[s]” and the
“constitutional right to a jury,” the Defendants make no argument about how these principles of
law are violated by the trial court’s order. Br. of Appellant at 16.9
If the Defendants’ challenge is actually a challenge to the fine that accrued prior to the date
of the court’s order, they offer this single sentence that could be read as support of this contention:
“The court expressed concern during the hearing about the propriety of ‘continuing to assess this
thousand dollars a day’ without final resolution, effectively acknowledging the punitive nature of
the relief before trial.” Id. (quoting Verbatim Rep. of Proc. at 27). This sentence is not followed
by citation to authority or any argument about what legal principle is violated by the trial court’s
9
To the extent the Defendants offer any argument on point, they contend that because there
remains a material dispute of fact precluding summary judgment—a contention we have
rejected—any order imposing a fine must be vacated. This argument is meritless.
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No. 61414-6-II
order. Here again, the Defendants’ argument is inadequate for us to review this claim of error.
RAP 10.3(a)(6); Saviano, 144 Wn. App. at 84.
We reject the Defendants’ challenges to the warrant of abatement and the civil penalties.10
ATTORNEY FEES ON APPEAL
The City asks us to award it attorney fees as the prevailing party under BIMC § 18.33.010.
There is no question that BIMC § 18.33.010(I) permits an award of attorney fees to the City. It
provides that in an injunction or abatement proceeding brought by the City, “the person violating
and/or failing to comply with any provisions of this title shall be liable for the costs and reasonable
attorneys’ fees incurred by the city in bringing, maintaining and/or prosecuting such action.”11 We
award attorney fees on appeal to the City in an amount to be determined by our commissioner.
CONCLUSION
The City is entitled to summary judgment because there is no genuine dispute of material
fact. Accordingly, we affirm the trial court’s grant of summary judgment, as well as the warrant
of abatement and its orders imposing a permanent injunction, civil penalties, and attorney fees.
10
The Defendants also include the permanent injunction and the trial court’s attorney fee award to
the City in their notice of appeal. However, they do not assign error to either of these portions of
the trial court’s order, nor do they provide any argument about these issues in their opening or
reply brief. The only mention the Defendants make to attorney fees is in the reply brief, in response
to the City’s request for attorney fees on appeal. Again, we do not discuss issues to which no error
was assigned and no argument was offered. RAP 10.3(a)(4), (6); Emmerson v. Weilep, 126 Wn.
App. 930, 939–40, 110 P.3d 214 (2005).
11
The City also cites RCW 4.84.010 as the basis for attorney fees, but that statute deals with
statutory attorney fees and is inapplicable here. Instead, the City should have cited RAP 18.1.
Nevertheless, BIMC § 18.33.010(I) plainly permits an award of fees.
18
No. 61414-6-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
CRUSER, J.
We concur:
VELJACIC, C.J.
PRICE, J.
19