                                                                       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CURT WILLIAMS, a single man,               )        UNPUBLISHED OPINION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


                                            2

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.



                                             4

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


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. This legal description is for Short Plat 653 ... Short Plat 654 ...

Short Plat 655 ... and Short Plat 656." CP at 160. The Bear property is in Short Plat

2907, which is part of Short Plat 655.

       Based on the RPC clear language, the Bears' property is not listed in the

description of property to which the RPCs apply; rather, it is indirectly referenced in an

exceptions paragraph. While the neighbors argue this is enough to modify the legal

description, the statute of frauds prevents such modification. See Knight v. American

National Bank, 52 Wn. App. 1,4,756 P.2d 757 (1988) (the statute of frauds requires

that agreements pertaining to property be reduced to a written instrument that embodies

"all essential and material parts of the contemplated [agreement] with sufficient clarity.")

"An agreement containing an inadequate legal description ... is void and is not subject

to reformation." Berg v. Ting, 125 Wn.2d 544, 554, 886 P.2d 564 (1995). Accordingly,

the Bears are not subject to the RPCs because their property is not listed in the legal



                                             5

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


description to which the RPCs apply. The trial court erred in concluding otherwise when

it granted declaratory   ~elief.

        Even assuming the RPCs apply to the Bears, the portion of the RPCs that is the

subject of this appeal states that the RPCs limit the use of property, "for open storage

for construction of 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. Thus, solely inoperable tractors or trucks are excluded. The Bears' truck and

tractor were operable and part of their business. Thus, their placement on the Bears'

property is not restricted under the RPCs.

       Reversed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be field for public record pursuant to RCW

2.06.040.



                                                        Brown, J.
WE CONCUR:




Kulik, J.




                                             6

