20110299 Motion for Summary Judge 02072012I
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8 BEFORI TFIL" HEARINCr F.XAMIN~R
9 CITY OF YF.LM
10 RL•': APPEAL OF BARBARA WOOD AND MOTION ,ANND ME4K)RAND[I1vt FOR
JIM PARK Sl1MMARY J[mGMGN7 ON APPEAL OF
DETERMINATION OF NON-
1 I CASE NUMBER: 20110299 ~ CONFORIvfING U5L"
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13 COME NOW Barbara Wood and .lim Park ("Woad and Park" or "Appellants"), by and
14 through their undersigned counsel, and hereby move the Heazing Examiner to b~•ant Wood and
I $ Pazk summary judgment. reversing the City of Yelm's letter determination and notice of violation
16 dated November 17, 2011 (the "Decision"). 'This action centers on the agricultuval use of
17 Appellants' property, a property that, consistent with the historic agrarian nature o1'this portion of
1g "Thurston County, has always been used as such. Specifically, Appellants themselves have used
19 the property for agriculture uses fir over 35 years, and well preceding annexation into the City.
2p Prior to annexation, a],~•iculture was a primary allowed use of Appellants' propem~. While over
21 the past 35 years Appellants' agriculnUal uses have rotated between troth livestock grazing and
22 crop (principally hay) cultivation and production. as explained below both uses are considered
23 "agricultural" uses. 'The City cannot now arbitrarily limit the scope of this allowed pre-existing
24 non-conforming use by restricting the specific type of agricultural uses that may hereafter exist at
25 the property.
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MOl1ON AND MEMORANDUM FOR SUMMARY Jl1OGMENT l'ARUDI•~ I aw c;ROrv PLLC
PACE I 606 COLI:Mn1A ti NW.4c ut 212
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I 1. BACKGROhNU FACTS
2 Rood and Park owm property located at 16135 Railway Road SE (the "Railway Property"
3 or "Propem ") now located in the City of Yelm. wood and Park have used their Property for
q agricultural uses since at least 1984, nearly a decade prior to its annexation into the City of Yclm
j in 1993. At that time, this part of the County was predominantly rural and supported by
6 agriculntra! practices. Appellants' Property consists of an approximate 12-acre parcel fronting
7 Railway Road SF_. and historically and presently used for a variety of agriculture wes.l The
g Property contains a farmhouse, and an approximate 5.000 square foot ham. As recently as 2010,
9 Appellants pertbnned substantial work on the barn, including reroofing it under City approved
lU permits.
)) Prior l0 1993, the Railway Property was located in unincorporated 7'hursk,n County. Prior
)2 to its annexation, the Property was zoned RuraliResidential 1 /j (RR l i_5) under the Thurston
) 3 County zoning code. Declaration of .loseph Rehberger ("Rehherger Decl.") at l;xhibit_e A and B.
)q 'ITtursam County's RR 1/j zone provided at the time that "~a~griculture" is an allowed and
1 j "primary" use. Rehberger llccl. at F,xhihit A (TCC 20.09.020 (19R0). In 1993 the City of Yelm
l6 annexed the Property. Rehberger Dec). at Exhibit 13. 'llte Property was annexed into the City
)'7 under the Cin•'s then RA 1-j zoning designation. and the City has since rezoned the Railway
lg Properly to Moderate Density Residential District (R-6). Under the current R-6 zoning
I9 designation, agriculture is no longer an allowed use. S'ee YMC 17.1 5.020.
2p Appellants base their present motion on facts undisputed by the City. It is undisputed that
~) from 1984 through 2000, the Property was used to raise livesuxk, and that from 2000 through the
?? 2011 growing season, the Propert}• has been cultivated and harvested for crop (Tray) pnxiuction.
23 Rehberger Decl. at Exhibit P. Then in 201(1, a13er refurbishing the barn, replacing appropriate
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26 ' To Appellants' knowledge. the pnipcny has always been put to agriwltural use- Building permits associated with
the property confirm that the c~isting tram wax f first constructed in the early 19G(h, and hence, agriculwml use
27 prudaled Appellants' ownership ul'thc pmpcrty by, at a minimum. u~cr 20 years.
MOTION AND MEMOKANDUM FOR SUMMARY JUDGMENT' CAACdnI~ I..~wt;ROUrvrrc
YACiE2 etu,couau+tnst Nw,stnrrzr?
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) Fencing, and rehabilitating the Property, Appellants rctumed livestrx:k to the Property for grazing
2 purposes. /d.
In April 2011, the City notified Appellants that the keeping of livestock is not an allowed
4 use under the current zoning classification (R-6 ). Rchbcrger Decl. at F.xhibil C. Over the course
5 of the next several months, Appellants provided the City evidence showing agricultural use of the
6 Property since 1984, which the ('ity "accept[ed] ... as accurate." Rchhergcr Decl. at Exhibits D.
7 E. and F. Nevertheless. by notice dated November 17, 201 I. the Cily determined that "tlte keeping
g of livestock on [the] property at 16135 Railway Road SE is not apre-existing non-conforming use
q pursuant to the Yelm Zoning Code." Rehbergcr Dccl. at Exhibit F. Park and Wood timely
lO appealed, and now bring this motion seeking summary reversal and dismissal of the City's notice
)) of violation.
12 11. ISSL!F.S PRF.SF.NTEI)
1; I . Whether Appellants Park and Wood's use of the Property lift agricultural purposes
14 (including both livestock and crops) represents a legal preexisting nonconforming use.
15 2. If yes. where it is undisputed that the Property continues to be used for its
16 preexisting nonconforming agricultural use, whether the City may distinguish between certain
17 types of agricultural uses for proposes of establishing abandonment of specific agricultural uses
Ig under YMC' 17.93.030 and Washington law.
19 lll. ARGUMENT AND AUTHORITY
20 A. Standard of Rcvicw
21 Summan judgment is appropriate whether the docurttents on file, together with any
22 supporting affidavits or declarations, "show that there is no genuine issue as to any rttatcrial fact
23 and that the moving party is entitled to judgment as a matter of law." CR 56(c).
24 Oncc the moving party has submitted adequate affidavits, the
burden shifts to the nonmoving party to set forth specific facts that
25 sufficienth rebut the moving pam•'s contentions and disclose the
existence of a material issue of fact. The notmoving party may
26 not, however, rely on speculation. argumentative assertions that
unresohed factual issues remain, or in having its affidavits
27 considered at face value.
MOTION ANU MEMORANDUM FOR SUMMARY JLIU(iMENT C'nccentn 1-nw Cxu~rPLLC
M16 ('.rn t mole St. NW, Svnt 212
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I Uor:hrosk)~ t~. 1•trrmers Ins. Co. of 11'ash., 84 Wn. App. 245.253, 928 P.2d 1127 { 1496) (internal
2 citation omitted).'
? $. Agriculture Represents a l.rgal Prc-esistin& iVon-Conforming Csr .Associated with the
16135 Railway Property
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5 There is no genuine dispute as to the fact that the 16135 Railway Road SF. Propcriy ww
6 used for agricuhunll purposes from 1984 through the date of annexation into the City in 1993, and
7 beyond. fhe City also agrees that, as part of those agricultural uses, the Properyy was used rite the
8 keeping and gracing of livestoxk from 1984 through 2000. Agriculture was a legally allowed
9 primary use of the Property 1984 through annexation.
10 Contrary to the City's determination in its November 17, 201 I Decision (determining that
I I "the keeping of livestock on JthcJ propeny at 1613 Railway Road SE isnot a per-existing
13 nonconforming use"), agricultural uses, itxluding the keeping of livesttck is apre-existing non-
13 conforming use. Prior to annexation, the Railway Pn+perty was z~7ned RR 1/S under the Thurston
14 County Toning code. the County's RR U5, as it existcti \vhile Park and Wood were using the
15 Properly for agricultural purposes, and in 1993 immediately prior to annexation, provided that
16 "Agriculture" watt an allowed and "priman"use. 1~CC 20.09.020 (1980).' Thurston County
17 Codes zoning code at the time dclined "Agriculture" as:
I g the use of a tract nl land for (a) the tilling of the soil; (bl the
raising, harvesting and processing of crops or plant growth of any
19 kind, including forestry; lc) pasturage: (d) horticulture: (el
Dairying; (t) raising ofpoultrv and livestock:... .
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~ 1 TCC 20.03.04(-(3) (I 980).
2~ Park and W'ood's use of the Railway Pmperty for the harvesting of crops, pasturage, and
~3 the raising ul' poultry and livestock w•as defined as "agriculture" under the then-applicable zoning
24 ~ As Appellants' motion arguments ~rc bclsed on tlx f:u:ts as accept<tl b} the ('ity. Appellants' m\wion is simi4lr in
pomlre to a merlon for failure m state a claim urxkr CR I Z(bNh) nr motion fur judgment on the pleadingv under
'?$ CR 121c1. Aa Appellants have submined .umc limited addilitrl:d rc idcnce, fcx mntevt purposes, [he E!eamincr mny
treat thin mrNion a\ one fur summary judgment under the a~mersion pnwisioas of <'R 12(hl. Ba>cd on this limited
26 ~>tnturc. Appclhmts rcarne the right m prrsem ncco and additional evidence at hearing, if necc>.ary, n:garding their
agricullunl use. and intent to continue the stuuc.
2'] 'Sec Rcht+crgcr Uccl. al F,~hibit A
S1lTfION AND MF.'MORANDUM FOR SUMMARY N[X;MENT C,\x iron I \u GRU1rPLLC
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I code immediately preceding annexation. See rd. Hence, Appellants' use of the Property at the
2 time of annexation represented a legal pre-existing use. To the extent agriculture use laser hecame
3 non-conforming under the current zoning R-6 designation, that agriculture use remained a legal
4 pre-existing non-conforming use. City of Univ. Place v.:McGuire. 144 Wn.2d 64U. 648. 3U P.3d
j 453.457 (2001) ("'A nonconforming use is a use which lawfully existed prior to the enactment of
6 a zoning ordinance. and which is maintained after the ef[ective date of the ordinance, although it
7 does not comply with the zoning restrictions applicable to the district in which it is situated."').
g While nonconfomting to the current zoning designation, there is no question that agriculture use of
9 the Property legally existed at the time of annexation. As apre-existing nonconforming use,
10 Appellants' agricultural use was a vested propcm~ right that continued following annexation. ,See,
11 e.R .Pioneer Trading Co.. Inc•. v. Pierce County, 146 Wn. App. 60G, 614, 191 P.3d 928, 932
12 (2008) ("[l]egal nonconforming uses are vested legal rights").
13 As recited in [he Decision, the City accepts as accurate the evidence that livestock had been
1 q kept at the Property between 19R4 and 2000. So, as a matter of law, agricultural use, including the
1 j keeping of livestock, was and remains a legal "pre-existing nonconforming use." 1'he statement to
16 the contrary in the Notice of Violation is erroneous as a marier of law based on the undisputed
17 facts. As the City cannot show that Appellants ever intended to abandon or discontinue use of the
I g Propem• for agriculture purposes, the City's Notice of Violation cannot be sustained.
19 C. Ncifher the Thurston County Code Nor the Yelm Municipal Codc Differentiate
Behveen Agricultural Uses
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21 The principal question hetiire the F,xaminer is whether the City can establish that
22 Appellants discontinued their agricultural use of the Railway Property such that YMC 17.93.030
23 may apply. It cannot. The 16135 Railway Property was put to consistent and unintertvpted
24 agricultural use since at (cast 1984. The City does not dispute this fact. Nor does the City allege
2j that there has been any interruption in the use of the Property for agricultural purposes. Rather,
26 [he City alleges in its notice of violation that the types of agricultural uses have varied since
27 annexation, rotating between the raising and production of livestock and the raising and production
MOTION AND MEMORANDIiM FOR SUMMARY JUUGMCNT Cns~ onto ~.awi{Rnnr el_l.c
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I of crops. The City seeks to differentiate between customary agricultural uses, drawing an
unsupported distinction txaween the "keeping of livestock" and other agricultural uses, such as
3 trop or hay production. There is no Legal basis in the Cude to support this distinction.
4 Fint, to determine whether Appellants' use represents apre-existing legal use, it is
5 instructive to review the applicable County zoning designation. .4s discussed above, the County`s
6 RK I /~ zone, prior to annexation, provided that "Agriculture." and hence all agriculture, was an
7 allowed primary use in the zone. TCC 20.09.020 (1980). In fact the code went on to specifically
g provide than the term "primary use" included all uses permitted by right in the zone. TCC
y 20.03.040(104) (1980). Under the pre-annexation code, :~ppcllants' allowed "agricultural" use
10 included all aspects of that use, including both crop and livestock production. Appellants'
11 continued use of the Property for agricultural purposes thus permits just that--continued use of the
l2 Property for all agricultural purposes.
l3 Srcnnd, the Yelm Municipal Code also does not differentiate between types of agricultural
14 uses. The Code defines "agricultural purposes" as:
15 "Agricultural purposes" means and includes the growing ul' field
and nursery crops. row crops. trees. and vines and the feeding of
16 Ibwl and livestock.
17 YMC 13.24.030 (emphasis added). The Code separa[ely defines "commercial agriculture" as:
1 R "Commercial agriculture" means those activities conducted on
lands defined in RCW' R4.34.02(1(2), and activities involved in the
19 production of crops or livestock li:r wholesale trade.
~0 YMC 13.16.020. That provision, reinforcing that "agriculture" includes both crops and livestock.
21 goes on to specity when that agriculture use is deemed to have discontinued, providing:
~2 An activity ceases to be considered commercial agriculture when
the area on which it is conducted is proposed for com ersion to a
23 nonagricultural use or has lain idle Ibr more tlu~tt five years, unless
the idle land is rcgisterod in a federal or state soils conservation
24 program, or unless the activity is maintenance or irrigation ditches,
laterals, canals or drainage ditches related to an existing and
~~ ongoing agricultural activity.
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MOTION .4ND MEMORANDUM FOR SUMMARY 1lIDGMENT C.+sc.5oia l ~l~ ceuu.•PLLC
606 COLLMtlLA JI. NW,YIUT[^_12
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1 YMC 13.16.020.° Since 2004, the 16135 Railway Property has not been put to a "nonagricultttral
2 use" or''lain idle" for five or more years, let alone a single year. Further, the City's position, and
3 intent to arbitrarily distinguish between types of agricultural uees, conflicts with iLs ow'n
4 Comprehensive Plan and the State Growth Management Act, chapter 36.70A RCW (the "GMA").`
g The common meaning of the term "agricultwe" also does not support the distinction the City
6 WIShC510 makC. See WEBSi'ER'S THIRD 1VEw INTERVA'I'IONAL DICTIONARY 44 (201)2) (dCtlnillg
7 agriculture as "the science or art of cultivating the soil, harvesting crops, and raising livestock'.''
g Finally. as a practical matter. it is worth noting the reasons why the County's original
g zoning provisions, as well ac the City's current definitions, did not. and do not, draw a distinction
1 p among types of agricultural uses. First, rotational practices such as crop rotation and rotational
I I grazing and haying arc considered standard agricultural practices..See generally Declaration of
12 Brian 'Thompson ("Thompson Deol.") at r¶ I -fi. Rotational practices arc critical to the prevention
13 of soil depletion, maintenance of soil fertility, reduction of erosion, and preservation of necessary
14 soil nutrients. Rotating crops and livestock serves similar benefits and actually prnvide for natural
I5 fertilization and replenishment. Planned rotation may vary in lime and can be up to several years,
16 depending nn the rotating uses and soil conditions. Thompson Decl. at ¶ 4. Second, the economic
p realities of agriculture require flexibility in land management and crop and livestock production.
1 g Requiring a farther and owner of agricultural land to restrict his or her use to a single crop or a
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' As further reinforcement, YMC 13.16.020 refers to and incotporntes RCW 84.34.020(2), which provides, that
20 "I Qarm and agricultural land" refers to land "(d)evoted primarily to the production of livestock or agricultural
commodities for cornmcrcial purpascs;'again not diffcrcntinting bei,veen the Iwo. RCW 84.34.020(2xs)(i).
21 `'fhe City's Camprchcnsivc plan, its primary planning and land use documcm, expressly adop(s and incurporat
Sutte's 6MA goals, specifically including the maintenance of natural resource industries. which commits the C
22 •'maintainlingl and enhanling~ natural resource-haaYl indmtries, including productive timber, agricultural and
fisheries industries:' and committing to "cncouraglingl the cunsen'atinn of ,productive agricultural lands " i
23 Yclm's Comprehensive plan and Joim plan with'I'hunton County at II-2 (2f1(N)1(cmphasis added). The GMA
'agricuhunl land" as "land primarih dcvo0.~d to the a,mmcrcial pn,duction n( huniatltuml, viticultural, florist:
24 dairy, apiary. cege[able, or animal products or of berries. grain, hay, straw, turf, seed. Christmas trees not subju
the excise tax imposed by "k('W 84.33.100 through 84.33.130, finfish in upland hatcheries. or livcsuxk, and tt
25 long-term commercial significance fur agricultural pnx)uction." RCW 36JOA.0311f2). While the (iMA grants
jurisdictions ^exihiti[y in adopting zoning related to agricultural lands, it also instructs that chose techniques "sf
26 he designed to conserve agricultural lands and rnamrage the agricultural economy:' RCW 36.70A.177.
"Sec YMC 17.06.020 ("W'ords, terms and phrases contained within this chapter, and their interpretation, are ge
77 haled upon common custom and meanings set forth in broadly recognized dicrionanes.").
MOT1nN AND MEMORANDUM POR SUMMARY JUDC;MEN'f t:ASCnnrA tow GrtouP Pt.Lc
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1 dedicated use would be poor resource management and economically deswctive. The City's
2 interpretation runs counter to sound agricultural practices and would have the practical cf7ect of
3 eventually forcing the cessation of all agricultural practices, since as they are rotated, the City
q would allege abandonment. 'Phis runs counter to the vested. albeit nonconli~rrning nature of the
j use, the practical realities of ab~iculture in western Washington, and the applicable code
6 provisions.
7 IV'. CONCLUSION
g Based on the foregoing. Appellants` respectfully rcyuest the Iixarnincr rule on summary
9 lodgment. and without necessity of a hearing. that. as matter of law, the agriculture use of the
l0 Railway Propem~ represents a legal pre-exiting non-conforming use, that. based on the accepted
1 l facts, the CiR~ cannot meet its burden of showing that Appellants abandoned or discontinued their
12 agricultural use. and that vested property right may include both crop and livestock production.
1 ; Appellants rcyuest reversal and dismissal of the City's Notice of Violation.
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1$ DATED [his ~" day of February 2012.
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17 CASCADIA LAW GROUP PLLC
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1 `l .losep~rger. 1L'SBA No. 3jjj6
2U Attorneys for Appellants Rarbaza Wood and Jim Pazk
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MOTION nND MF,MORANDUM POR SUMMnR\' IUDGMENT ~-1++•+n~n (..+N~ ~RUUP r~~c
PAGG 8 non cm rnutia Sr NW. Suoe? i2
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