Judge grants preliminary injunction against business

EPHRATA - A judge granted a preliminary injunction against a Moses Lake recycling company, preventing it from operating at its present location.

Grant County Superior Court Judge John Antosz ruled J K Recycling violated a conditional use permit by running a scrap yard on the property.

Antosz ruled the defense's argument that the proceedings should go through a different process didn't apply in this case.

"The (Land Use Petition Act) statute, which the defendant argues the county should bring this under, is a, emphasis added, review of a land use decision," he said. "Here this is not the court reviewing a land use decision."

The judge continued by saying seeking an injunction isn't a "land use decision." 

State law defines a land use decision as "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals."

Antosz denied defense attorney Harold Moberg's argument that the county code allowed storage yards to be used to store scrap metal. He said if Kelly Hellewell didn't agree with the conditional use permit, he should have appealed it.

"It appears in the conditional use permit that's attached to the preliminary injunction that conditional use is only for the short term of only disabled vehicles. Any other material is not permitted for storage by the permit," Antosz said.

The final argument Antosz addressed was whether using the land as a recycling center rose to the level of "public nuisance." The county argued it did because it was allegedly involved in cases of stolen metal. Antosz said the violation of the permit was all that was necessary for it to rise to the level of a "public nuisance."

"There's some indication in some of these cases that the court can, if there's a violation of a conditional use permit or a zoning ordinance, the court can issue an injunction," he said. "This court cannot impinge upon or set upon certain decisions made by legislative body."

Antosz pointed out if the legislative body put in place provisions to seek an injunction, the court could act.

"Here, as cited in the county's brief, there are regulations that specifically state ... that a violation of the code is per se a nuisance and worthy of enjoining," he said. "That's what I was struggling with: Well OK, this is a violation of the conditional use permit. Do I issue an injunction, just because it has been violated? And I think where I tip over to saying, 'Yes, I do,' is where specifically it's defined as a nuisance and the county can seek an injunction."

Antosz gave the county the injunction, but limited it to the land. He said Hellewell couldn't store or accumulate scrap metal, but he could still purchase it.

"I can only direct what can be done on property; that is, he shall not store or accumulate scrap metal or maintain a recycling operation."