132 Wn. App. 515, Davis v. Taylor

[No. 24041-0-III. Division Three. April 20, 2006.]

JAMES DAVIS ET AL ., Appellants , v. MICHAEL TAYLOR ET AL ., Respondents . [1] Agriculture - Nuisance - Agricultural Exemption - Purpose. The Right-to-Farm Act (RCW 7.48.300 -.310, .905) exempts certain agricultural activities from nuisance actions. The act

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was enacted in direct response to the urbanization of rural communities and the resulting increase in nuisance actions related to agricultural activities conducted on farmland.

[2] Agriculture - Nuisance - Agricultural Exemption - Applicability - Test. An "agricultural activity" is not exempt from nuisance liability under RCW 7.48.305 of the Right-to-Farm Act (RCW 7.48.300 -.310, .905) unless the activity (1) is consistent with good agricultural practices, (2) was established prior to surrounding nonagricultural activities, and (3) does not have a substantial adverse effect on public health and safety.

[3] Agriculture - Nuisance - Agricultural Exemption - Construction - Narrow Application. RCW 7.48.305 of the Right-to-Farm Act (RCW 7.48.300 -.310, .905), under which certain agricultural activities are not actionable as nuisances, effectively codifies the common law coming-to-the-nuisance defense and is narrowly applied to protect only those farms in urbanizing areas.

[4] Municipal Corporations - Ordinances - Construction - Consistency With State Law. A local ordinance should not be interpreted in a manner that renders the ordinance inconsistent with state law.

[5] Municipal Corporations - Ordinances - Validity - Conflict With State Law - Test. A local ordinance conflicts with a state statute if the ordinance permits that which the statute forbids or prohibits that which the statute permits. A local ordinance that conflicts with and cannot be harmonized with state law is invalid.

[6] Agriculture - Nuisance - Agricultural Exemption - Activity Preceding Surrounding Nonagricultural Activities - Local Ordinance - Consistency. A local ordinance providing that "a farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of adjacent land or other land in the general area" will be interpreted to mean that a farm operation that did not exist before a change in the land use or occupancy of adjacent land is not exempt from nuisance liability, even if the farm itself predates the change. This interpretation avoids a conflict with RCW 7.48.305 of the Right-to-Farm Act (RCW 7.48.300 -.310, .905), under which an "agricultural activity" is not exempt from nuisance liability unless the activity was established prior to surrounding nonagricultural activities.

[7] Agriculture - Nuisance - Agricultural Exemption - Activity Preceding Surrounding Nonagricultural Activities - Conversion of Agricultural Activities. A new agricultural activity on an existing farm is not exempt from nuisance liability under RCW 7.48.305 of the Right-to-Farm Act (RCW 7.48.300 -.310, .905) unless the conversion occurred prior to the surrounding nonagricultural activities.

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Nature of Action: Residential homeowners living adjacent to a cherry orchard sought a declaration that the orchard owners' use of propane cannons and cherry guns to protect the crops from birds constituted a nuisance and sought an injunction prohibiting the orchard owners from continuing the activities. At the time that the homeowners purchased their lot and built their home, the orchard was an apple orchard, which did not require the use of cannons and guns. Only after the homeowners purchased their lot and built their home did the orchard owners convert their crops from apples to cherries and begin using the cannons and guns.

Superior Court: The Superior Court for Yakima County, No. 04-2-02043-2, E. Thompson Reynolds, J., on March 8, 2005, entered a summary judgment in favor of the orchard owners, ruling that, although their activities constituted a nuisance under state law, they were protected by a county right-to-farm law.

Court of Appeals: Holding that neither the state right-to-farm law nor the county right-to-farm law exempted the orchard owners from nuisance liability for their use of propane cannons and cherry guns to protect their cherry crops, the court reverses the judgment and remands the case for entry of a judgment in favor of the homeowners.

Robert E. Lawrence-Berrey, Jr. , for appellants .

James S. Elliott (of Velikanje Moore & Shore, P.S. ), for respondents .

¶1 SWEENEY, C.J. - State and county right-to-farm laws insulate farmers from liability for nuisances that preexist residential development. Here, after a neighboring residential development had been well established, the defendant

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farmers changed their orchard from an apple orchard to a cherry orchard and then started using loud guns to scare away birds. The trial judge concluded that Yakima County's version of the right-to-farm law accommodated this new noisy activity because the farm preexisted the residential development. We conclude that it is the farming practice or activity that controls, not the fact that a farm predates development. And we therefore reverse and remand for entry of judgment for the homeowners enjoining the activity.

FACTS

¶2 James and Gail Davis purchased a lot in an existing residential subdivision in 1989. They built a house on the lot. The lot was in a quiet neighborhood, adjacent to an apple orchard. The apple orchard had been there for nearly 50 years.

¶3 Michael and Rhonda Taylor bought the apple orchard in 1991. They operated the land as an apple orchard until 1997. They then converted the apple orchard to a cherry orchard. The cherry trees did not produce a crop until 2001. Birds damaged the Taylors' cherry crop. The Taylors began the use of propane cannons and cherry guns in 2001 to protect their cherry crops.

¶4 The propane cannons and cherry guns are fired within 100 feet of the Davises' home. They are fired from sunrise to sunset from May through July. The noise shakes the Davises' house. They cannot leave their windows open. "[T]he noise is so loud inside [the] home, with the windows closed , as to cause a startle reflex even when [Mr. and Ms. Davis] know it is coming." Clerk's Papers (CP) at 42. Mr. and Ms. Davis cannot peacefully enjoy their home.

¶5 The Davises sued the Taylors to have the noise declared a nuisance. They sought an injunction. The Taylors moved for summary judgment on the strength of state and county "right-to-farm" laws. The Davises also moved for summary judgment. The trial court concluded that the Taylors' activities were a nuisance under state law, but

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nonetheless were permitted by Yakima County's version of the right-to-farm law. It then dismissed the Davises' complaint.

DISCUSSION

¶6 The question presented is whether this nuisance (propane cannons and cherry guns) is insulated from liability by either the state or county right-to-farm laws.

¶7 The Davises argue that the right-to-farm laws only protect preexisting agricultural activities - not these new or expanded activities. They maintain that these new activities (the guns) were not preexisting agricultural activities. And these farming activities effectively destroy the peace of their well-established neighborhood.

¶8 The Taylors respond that their farm has always been just that - a farm. And the use of these guns is a well-accepted farming practice. They argue that the mere fact that they changed the crop here from apples to cherries did not change the basic nature of the activity - it is still a farm. And they maintain they are entitled to farm it according to the best agricultural practices, which includes these guns.

STANDARD OF REVIEW

¶9 We review a trial court's grant of summary judgment de novo. Tucker v. Hayford , 118 Wn. App. 246 , 251, 75 P.3d 980 (2003). Summary judgment will be granted where there are no genuine issues of material fact and the issues presented can be resolved as a matter of law. Id. ; CR 56(c).

[1]¶10 A nuisance is "[any] obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of . . . life and property." RCW 7.48.010 . But right-to-farm laws exempt "agricultural activities"; they are not nuisances by definition. RCW 7.48.300 -.310, .905; Alpental Cmty. Club, Inc. v. Seattle Gymnastics Soc'y , 154 Wn.2d 313 , 317, 111 P.3d 257 (2005). The right-to-farm act was a direct response to the urbanization of rural commu

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nities and the increase in nuisance actions related to " 'agricultural activities conducted on farmland.' " Alpental Cmty. Club , 154 Wn.2d at 317 (quoting RCW 7.48.300 ); Vicwood Meridian P'ship v. Skagit Sand & Gravel , 123 Wn. App. 877 , 882-83, 98 P.3d 1277 (2004).

[2]¶11 The state right-to-farm act exempts "agricultural activities" if the activity meets three conditions. RCW 7.48.305; Buchanan v. Simplot Feeders Ltd. P'ship , 134 Wn.2d 673 , 680, 952 P.2d 610 (1998). The "agricultural activit[y]" must be (1) "consistent with good agricultural . . . practices," (2) it must be " established prior to surrounding nonagricultural . . . activities ," and (3) it must not "ha[ve] a substantial adverse effect on the public health and safety." RCW 7.48.305 (emphasis added). An "agricultural activity" is "a condition or activity which occurs on a farm in connection with the commercial production of farm products." RCW 7.48.310(1). "Noise" is listed as an "agricultural activity." Id. More accurately, noise is the result of certain agricultural activities.

[3]¶12 The legislature intended that the right-to-farm act be applied narrowly to protect only those farms in " urbanizing areas ." Buchanan , 134 Wn.2d at 682 -83; Alpental Cmty. Club , 154 Wn.2d at 320 . The act effectively codified the "coming to the nuisance defense" (where a party moves to an existing nuisance). Alpental Cmty. Club , 154 Wn.2d at 320 ; Buchanan , 134 Wn.2d at 683 (a party cannot move next to a farm and then complain that the existing agricultural activities are a nuisance).

¶13 Yakima County passed similar legislation. YAKIMA COUNTY CODE (YCC) §§ 6.22.010-.040 (1990). Yakima County protects "farm operation[s]" from being considered a nuisance. YCC §§ 6.22.010-.040. The "farm operation" must conform "to generally accepted agricultural and management practices" and it must have " existed before a change in the land use or occupancy of adjacent land or other land in

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the general area ." YCC §§ 6.22.020, .030«1»(emphasis added). A "farm operation" is "a condition or activity which occurs on a farm in connection with the commercial or educational production of farm products." YCC § 6.22.010(b). Like the comparable state statute, "noise" is listed as a "farm operation." Id.

[4, 5]¶14 We attempt to interpret a county ordinance so that it does not conflict with state law. Entm't Indus. Coal. v. Tacoma-Pierce County Health Dep't , 153 Wn.2d 657 , 663, 105 P.3d 985 (2005). "A [county ordinance] conflicts with a [state] statute when it permits what is forbidden by state law or prohibits what state law permits." Id. Ordinances that cannot be harmonized with state law are invalid. Id.

[6]¶15 Mr. and Ms. Taylor read YCC § 6.22.030 broadly, more broadly than we will. "A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of adjacent land or other land in the general area." YCC § 6.22.030. The Taylors argue that their activities are not a nuisance since an actual farm (an apple orchard) existed before Mr. and Ms. Davis built their house. Resp't's Br. at 18-19. Their interpretation would permit the use of any farm operation as long as a farm existed before the change in use of the adjacent land. For us, this interpretation yields a result that conflicts with state law. Entm't Indus. Coal. , 153 Wn.2d at 663 . RCW 7.48.305 requires that an "agricultural activity" exist before local development in order to be exempt from a nuisance action. YCC § 6.22.030 would, then, be invalid under the Taylors' suggested interpretation. Entm't Indus. Coal. , 153 Wn.2d at 663 .

¶16 We read YCC § 6.22.030 as applying to farms or farm operations . Here, we are concerned with "noise"; this is a

«1»"A farm operation shall not be found to be a public or private nuisance if the farm or farm operation conforms to generally accepted agricultural and management practices." YCC § 6.22.020. "A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of adjacent land or other land in the general area." YCC § 6.22.030.

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"farm operation." YCC § 6.22.010(b). The ordinance then requires that the "noise" caused by the farm exist before a change in the adjacent land to benefit from the exemption. YCC § 6.22.030. This reading is consistent with state law. RCW 7.48.305 , .310(1); see Entm't Indus. Coal. , 153 Wn.2d at 663 .

¶17 Here, the increased noise level caused by the Taylors' use of propane cannons and cherry guns began after the Davises built their house. The orchard had previously been quiet and pastoral. The propane cannons and cherry guns were not used in the apple orchard. This activity (farm operation) followed only after the adjoining residential neighborhood was well established. The Taylors' use of propane cannons and cherry guns is then a nuisance. RCW 7.48.010 . And it is not, then, insulated from a nuisance action under the state right-to-farm act or its counterpart, the Yakima County Code. RCW 7.48.305 , .310(1); YCC §§ 6.22.010(b), .030.

[7]¶18 The Taylors further argue that state law defines "agricultural activity" to include the "conversion from one agricultural activity to another." RCW 7.48.310 (1); Resp't's Br. at 31-32. They argue that they are, therefore, exempt from liability for a nuisance since they are entitled to change their crop. And they say that necessarily implies that they can adopt measures necessary to protect that crop. But even if we accept this definition for "agricultural activity," the statute still requires that the conversion take place before local development. RCW 7.48.305 , .310(1).

[ The "conversion from one agricultural activity to another"] conducted on farmland . . . , if consistent with good agricultural . . . practices and established prior to surrounding nonagricultural . . . activities , are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety.

RCW 7.48.305 (emphasis added); RCW 7.48.310 . New or expanded activities, after local development, are not ex

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empt from a nuisance liability. RCW 7.48.305 , .310; see Buchanan , 134 Wn.2d at 680 .

¶19 The Taylors' use of propane cannons and cherry guns is a new and expanded activity. RCW 7.48.305 , .310; see Buchanan , 134 Wn.2d at 680 . It is an activity that significantly increased the orchard's noise level. The Taylors' use of propane cannons and cherry guns is not, then, exempt from a nuisance action under state or local law. RCW 7.48.305 , .310(1); YCC §§ 6.22.010(b), .030. The trial court correctly concluded that the Taylors' activities violate state law. CP at 7; RCW 7.48.010 , .305, .310(1). We disagree, however, with the court's conclusion that the Yakima County Code protects the activities. CP at 5-7; YCC §§ 6.22.010-.040.

¶20 We therefore reverse the summary judgment in favor of the Taylors and remand for entry of summary judgment in favor of the Davises.

SCHULTHEIS and KATO , JJ., c