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Zoning, Nuisance, and Barking Dogs

One barking dog is private nuisance, many is a public one.  Under either circumstance, counties and cities have remedies for these problems.  Complaints are made to the Code Enforcement of the local government, and to Animal Control.  If there are questions on licensing of animals, the auditor of each county may be source to challenge eligibility.  Nearly all local governments have Internet forms for lodging formal complaints.

The denser the zoning in a locality the less chance a citizen has in abating the nuisance.  In turn, less-dense areas (suburban residential, single-family residential, or moderate family residential), are where barking nuisances are most noticeable and governed.   Through the Growth Management Act of 1991, local governments must designate land use areas in their territory.  Residential areas are buffered from the commercial and industrial zones.  If in a residential zone a neighbor boards more than say five or so dogs (depending on the code of the local government), he or she may be in violation of the zoning ordinances for creating a kennel.  When the animals increase, so to do the structures housing them—which may be another land use violation.

Aerial photos often show the unusual growth.  When a private kennel expands, it is not just the boarding of animals that grows, it’s the associated enlargement of space for pet exercise, grooming, daycare, etc.  Using as an example the Pierce County Code (most local government codes will be close or similar on the subject), in PCC 18A.33.200, the allowed land use categories are listed:  Residential, Civic, Utilities, Public Facilities, Business, Resource, and Commercial.  Of that group, “animal boarding” is not a residential use but a “resource use.”  Under PCC 18A.33.260, resource use includes “animal production, boarding, and slaughtering uses which involve the commercial raising or boarding of animals or production of animal products, such as eggs or dairy products produced on-site, but excluding the slaughtering and processing of animals unless conducted in a mobile slaughter unit which is operated in accordance with State and Federal regulations. Examples include grazing, ranching, dairy farming, commercial stables, riding academies, and breeding and boarding kennels.”  It does not sound like a residential use.

A kennel cannot be called an “accessory” to a residence either.  In PCC 18A.37.020, residential accessory use prohibits dogs and cats if their number exceeds “any combination of five dogs or cats that individually exceed seven months of age.”  PCC 18A.33.260(D).  If a kennel tries to obtain a license, which is required, the location cannot be in violation of the land uses surrounding it.  Minimum requirements for kennel facilities require that they “shall comply with all applicable zoning regulations.”  PCC 5.24.030(D)(2). Violations of the chapter are misdemeanors and include license revocation.

Upon determination of a public nuisance, the prosecuting attorney may under PCC 5.24.150 exercise the civil remedies of “abatement, damages, and/or mandatory or prohibitory relief.”  Under RCW 9.66.010, a public nuisance exists when the activities of the defendant “… annoy, injure or endanger the safety, health, comfort, or repose of any considerable number of persons.” See also Stegriy v. King County Board of Appeals, 39 Wn. App. 346, 349, 693 P.2d 183, 186–87 (1984), where using the King County Code, KCC 11.04.060(B)(4), the court affirmed the county’s decision not to issue a kennel license because the kennel was incompatible with the surrounding development.

There are defenses against shutting down a kennel in a residential zone.  For example, the owner petitions the county for variances, conditional use or nonconforming use permits.  If those methods are not available, the kennel could claim “nonconfirming use” in a non-statutory setting.  Such use is the right to continue operation of a use nonconforming to existing zoning, but was legal before the area became a residential zone.  Nonconforming use “applies to lots, structures, and uses which were legally established prior to the adoption, revision, or amendment of Title 18A PCC, and which remain legal, but have become nonconforming as a result of this Title’s application.”

Even if the kennel was operating legally before the rezone, such use shall never expand:  “Nonconforming uses and structures shall not be enlarged, expanded, extended, replaced, or altered.”  PCC 18A.70.030(A).  “Where a nonconforming use or structure exists, the use or structure can be replaced or altered provided the original size and location of the use or structure is not increased or relocated in a manner which increases the degree of nonconformity or creates additional impacts.”  PCC 18A.70.030(I).

Case law is in accord, “[A] protected nonconforming status generally grants the right to continue the existing use but will not grant the right to significantly change, alter, extend, or enlarge the existing use.  Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 7, 959 P.2d 1024 (1998)citing R. Settle, Washington Land Use § 2.7(d), and discussing generally State ex rel. Miller v. Cain, 40 Wn.2d 216, 221, 242 P.2d 505 (1952).  To boot, the prevailing public policy in Washington is to severely limit if not abolish nonconforming uses.  Anderson v. Island County, 81 Wn.2d 312, 323, 501 P.2d 594 (1972).  A kennel legally founded, thus, would be limited to the number of existing animals and structures before the downzone.

There is also a cause of action in the superior court for nuisance, i.e., the barking existing in a legal zone or under nonconforming use but still illegal.  “A nuisance is an obstruction to the free use of property that interferes with the comfortable enjoyment of life and property.  The Noise Control Act of 1974 was enacted to abate and control noise which adversely affects the health, safety, and welfare of the people, the value of property, and the quality of the environment.  RCW 70.107.010; 910.  Washington defines an actionable nuisance as, “. . . an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property.”  RCW 7.48.010, see also WAC 173–60–040(1).

All remedies apply, “[n]othing in this chapter shall be construed to deny, abridge, or alter alternative rights of action or remedies in equity or under common law or statutory law, criminal or civil.”  RCW 70.107.060.  Thus, even if the kennel is a legal business otherwise in compliance with regulations, if its operation “substantially annoys the comfort of others or essentially interferes with their use and enjoyment of property,” it will constitute a nuisance and may be abated or enjoined.  Tiegs v. Watts, 135 Wn. 2d 1, 13, 954 P.2d 877 (1998); Bruskland v. Oak Theater, Inc., 42 Wn. 2d 346, 350–51, 254 P.2d 1035 (1953).  “Coming to the nuisance” is sometimes used as a defense, i.e., the kennel was there before the homes grew up around it.  The Restatement of Torts, 2d, § 380D advises “coming to the nuisance may be considered a defense to legal action but not a bar.  However, allowing a nuisance to continue would effectively “condemn all the land in his vicinity to a servitude without paying any compensation, and so could arrogate to [itself] a good deal of the value of the adjoining land.”   30 Real Estate Law Journal, Oswald (2001).

Excessive barking cannot exist in a residential zone, nor can a kennel continue if illegal at its creation.  It cannot, thus, establish nonconforming use for its present-day operations.  Even if it had such use, it cannot expand beyond the size it operated under when legal, i.e., the size it was at the downzone.  For unreasonably interfering with the neighbors’ peaceful enjoyment of their homes, a kennel is a public nuisance subject to a court’s order of abatement.  Either way, the public’s rights are protected.

About the Author
Thomas L. Dickson
Posted - 01/27/2018 | Washington