William and Kathleen Schorer v. Benton County

CourtCourt of Appeals of Washington
DecidedApril 11, 2013
Docket30558-9
StatusUnpublished

This text of William and Kathleen Schorer v. Benton County (William and Kathleen Schorer v. Benton County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William and Kathleen Schorer v. Benton County, (Wash. Ct. App. 2013).

Opinion

FILED

APRIL 11, 2013

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

WILLIAM L. and KATHLEEN SCHORER, ) No. 30558-9-111 husband and wife; BARTON E. and ) CORIENE K. SCHORER, husband and ) wife; and WILLIAM SPURGEON, a single ) man, BONNIE DUNHAM; JAMIE and ) TINA MUNSON, husband and wife; ) CURT WILLIAMS, a single man, ) UNPUBLISHED OPINION RICHARD J. and DIANA L. MAXWELL, ) husband and wife; and TOM J. and TAMI ) S. LaFORTUNE, husband and wife, ) ) Respondents, ) ) v. ) ) BENTON COUNTY, a political subdivision ) of the state of Washington; WALTER ) BEAR and JANE DOE BEAR, husband ) and wife, SCOTT and SHEILA A. LOSEY, ) husband and wife, ) ) Appellants. )

BROWN, J. - Walter and Cynthia Bear applied for a special use permit from

Benton County to use their property as a home base for their trucking and excavating

business. The county approved their request. Local homeowners, William L. and

Kathleen Schorer, Barton and Coriene Schorer, William Spurgeon, Bonnie Dunham,

Jamie and Tina Munson, Curt and Norma Williams, Diana Maxwell, and Tom and Tami No. 30558-9-111 Scharer v. Benton County

LaFortune, successfully requested declaratory relief. The Bears appeal, contending the

homeowner's restrictions and protective covenants (RPCs) do not apply to their

property. We agree, and reverse.

FACTS

In December 2007, the Bears purchased a 3.5 acre lot in Benton County. The

deed identified the property as being a part of Short Plat 2907. Short Plat 2907 is part

of Short Plat 655. The Bears purchased the property to use as a base for their trucking

and excavating business. They applied for a special use permit from Benton County.

At a December 2008 public hearing, several neighbors attended and opposed the

application. But the county granted the Bears' special use permit. In response, the

neighbors filed a RCW 36.70C, Land Use Petition Act (LUPA) petition and requested

injunctive and declaratory relief, arguing the special use permit should not have been

granted by the county.

The parties agreed to stay the LUPA petition and injunctive relief request pending

a decision on the declaratory relief request. The neighbors requested declaratory relief,

arguing the 1994 RPCs bar the Bears from having a belly dump and diesel truck on

their property. The RPCs specifically state that they apply to:

That portion of the North half of the Southwest quarter of Section 28, Township 8 North, Range 30 East, W.M. Benton County, Washington, lying Westerly of a line extending from a point on the North line of said subdivision, which point is 835 feet East of the Northwest corner of the Northeast quarter of the Southwest quarter of said Section, to a point on the South Line of said subdivision which point is 400 feet East of the Southwest

No. 30558-9-111 Schorer v. Benton County

corner of the Northeast quarter of the Southwest quarter of said Section.

Clerk's Papers (CP) at 160. The parties stipulated this description "describes lots 13,

16, 17 [and] 18." CP at 32. The Bears own lot 11 which is part of Short Plat 2907. It is

undisputed they have no interest in lots 13, 16, 17 or 18.

Following the property description in the RPCs, a series of clarifying exceptions

delineate the properties to which the covenants do not apply. The final exception

paragraph states, "AND EXCEPT County Roads and recorded Easements. This legal

description is for Short Plat 653 Lots 1 through 4, Short Plat 654 Lots 1 through 4, Short

Plat 655 Lots 1 through 4, and Short Plat 656 Lots 1 through 4." CP at 160. The Bear

property is in Short Plat 2907, a part of Short Plat 655.

The RPCs limit the use of property, "for open storage for construction of1 rental

equipment. No inoperable farm machinery, including tractors and trucks may be held

on the property. No used machinery or scrap equipment, implements, automobiles or

conspicuous parts of such equipment, which serve no purpose in operation of the

estate, may be held or accumulated on the property." CP at 161.

Following a bench trial, the trial court found the legal description to be adequate

to bind the Bear property. The court further found Bears' parking of the diesel truck and

belly dump trailer on their property violates the covenants. The court, therefore, granted

1 Evidence was offered below that the use of the word, "of' was a scrivener's error and it should have read, "or." But this evidence was stricken by the court and the Bears do not appeal that ruling. See Br. of Appellant at 5.

3 No. 30558-9-111 Schorer v. Benton County

the neighbors' request for declaratory relief. The LUPA petition was later dismissed.

The Bears appealed.

ANALYSIS

A. RPC Applicability

The issue is whether the RPCs apply to the Bears' property. The Bears contend

their property is not listed in the RPCs, and even if it was, the RPCs do not preclude

placement of the truck and trailer on their property.

When no factual disputes exist and an appellant seeks reversal of the trial court's

legal conclusions, we review the trial court's decision on declaratory relief de novo.

Casey v. Chapman, 123 Wn. App. 670, 678, 98 P.3d 1246 (2004). We review a trial

court's interpretation of restrictive covenants de novo. Rainer View Ct. Homeowners

Ass'n, Inc. v. Zenker, 157 Wn. App. 710, 719, 238 P.3d 1217 (2010), review denied,

170 Wn.2d 1030 (2011).

Our primary task is to determine the covenant drafters' intent. Wimberly v.

Caravello, 136 Wn. App. 327, 336, 149 P.3d 402 (2006). Basic rules of contract

interpretation apply to the court's review of restrictive covenants. Id. Under such rules,

reviewing courts must generally give words in a covenant their ordinary, usual, and

popular meaning unless the entirety of the agreement clearly demonstrates a contrary

intent. Hearst Commc'ns, Inc. v. Seattle Times, 154 Wn.2d 493,504, 115 P.3d 262

(2005). In order to be ambiguous, a covenant must be uncertain or two or more

reasonable and fair interpretations must be possible. White v. Wilhelm, 34 Wn. App.

763,771,665 P.2d 407 (1983). But ambiguity is not a prerequisite for a court to

examine the context surrounding the execution of a contract. Berg v. Hudesman, 115

Wn.2d 657, 669,801 P.2d 222 (1990).

The parties stipulated that the legal description to which the RPCs apply are

limited to lots 13, 16, 17 and 18. It is undisputed the Bears have no interest in lots 13,

16, 17 or 18. Following the property description in the RPCs, there are a series of

clarifying exceptions setting forth descriptions of property to which the covenants do not

apply. The final exception paragraph states, "AND EXCEPT County Roads and

recorded Easements.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Knight v. American National Bank
756 P.2d 757 (Court of Appeals of Washington, 1988)
Baxter v. Jones
658 P.2d 1274 (Court of Appeals of Washington, 1983)
White v. Wilhelm
665 P.2d 407 (Court of Appeals of Washington, 1983)
Berg v. Ting
886 P.2d 564 (Washington Supreme Court, 1995)
Berg v. Hudesman
801 P.2d 222 (Washington Supreme Court, 1990)
RAINIER VIEW COURT HOMEOWNERS v. Zenker
238 P.3d 1217 (Court of Appeals of Washington, 2010)
Wimberly v. Caravello
149 P.3d 402 (Court of Appeals of Washington, 2006)
Hearst Communications v. Seattle Times Co.
115 P.3d 262 (Washington Supreme Court, 2005)
Hearst Communications, Inc. v. Seattle Times Co.
154 Wash. 2d 493 (Washington Supreme Court, 2005)
Casey v. Chapman
98 P.3d 1246 (Court of Appeals of Washington, 2004)
Wimberly v. Caravello
136 Wash. App. 327 (Court of Appeals of Washington, 2006)
Rainier View Court Homeowners Ass'n v. Zenker
157 Wash. App. 710 (Court of Appeals of Washington, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
William and Kathleen Schorer v. Benton County, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-and-kathleen-schorer-v-benton-county-washctapp-2013.