Can You Sue for a Barking Dog?

Dogs are known as man’s best friends. They can also be a nuisance and create major problems between neighbors. But can you sue for a barking dog? If there is one dog barking, it is considered to be private nuisance, but if there are many dogs involved, the problem becomes a public one.

Fortunately, Washington counties and cities have remedies for problems with nuisance dogs. Complaints can be made to the Code Enforcement of the local government and to Animal Control. If there are questions on licensing of animals, you may be able to challenge the dog’s eligibility with the auditor of your county. Nearly all local governments have Internet forms you can use to make formal complaints.

If filing these complaints do not solve the problem, there are circumstances where you can sue the owner for a barking or nuisance dog or for zoning violations. To find out whether a lawsuit is the best way to go, it pays to get legal assistance.

The zoning, nuisance, and barking dog lawyers at Dickson Frohlich Phillips Burgess have over 100 years of combined experience in all areas of real estate law. We offer a free consultation to discuss your problems with nuisance dogs and determine the best way to take care of the situation. Call now for a free case evaluation at 206-621-1110.

Can You File a Complaint for a Barking Dog?

Allowing dogs to bark excessively or continuously is against the law, and you can file a complaint against the dog owner with your local municipality. However, if the dog’s owner is your neighbor, it may help to first speak with the owner to see if the issue can be resolved before reporting the nuisance. If this is not an option or a conversation has not worked, you may then want to report the dog.

Each city has its own ordinances and forms to file complaints. For example, in Tacoma, you can:

• Report a barking dog, at TacomaFIRST 311 by clicking on ‘Make a Request’ and select Animal Issue
• Call 311 from within the Tacoma city limits
• Fill out and mail the Barking Statement Form

Dog Kennel Noise Complaint

Through the Growth Management Act of 1991, local governments must designate land use areas in their territory. Residential areas are separated from the commercial and industrial zones. It is harder to regulate barking nuisances in areas of dense populations, such as cities, than it is in less dense areas, such as suburban residential, single-family residential, or moderate family residential areas.

Depending on local government codes, people who board more than five or so dogs in residential areas can be found in violation of the zoning ordinances for creating a “kennel,” and possible violations increase as well. 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. If the structures housing the dogs increase, this may be another land-use violation.

If your nuisance and barking dog complaint involves enough dogs to be considered a kennel, you have more opportunities to file a lawsuit for the multiple violations that may be involved.

To win a lawsuit, your attorney will have to prove that:

• The dog situation is a “nuisance,” usually considered to be any unreasonable or unlawful condition that interferes with the use of someone’s property.
• The noise (or other problem) is excessive and unreasonable.
• You have suffered damages, such as actual physical discomfort and annoyance, as a result.

Our attorneys can help look for evidence that proves your case, such as aerial photos that show unusual growth. Call Dickson Frohlich Phillips Burgess for a free consultation about your dog kennel noise complaint at 206-621-1110.

What is Considered Excessive Barking?

What is considered excessive barking varies according to locality and situation. For example, in Clark County, animal noise nuisance is considered to be when the animal howls, yelps, barks or makes other noises that disturb a person or neighborhood to an unreasonable degree. These noises must be continuous for 10 or more minutes or intermittent for 30 or more minutes. This excludes noises made by livestock on land zoned to allow livestock.

Dog Kennel in Residential Area Laws

There are many local laws regulating how land is allowed to be used that can apply to dog barking situations. We will look at the Pierce County Code as an example, since most local government codes will be close or similar.

• PCC 18A.33.200 lists land use categories:  Residential, Civic, Utilities, Public Facilities, Business, Resource, and Commercial.  Of that group, “animal boarding” is not a residential use but a “resource use.” 
• PCC 18A.33.260 says resource use includes: “animal production, boarding, and slaughtering uses which involve the commercial raising or boarding of animals or production of animal products. Examples include grazing, ranching, dairy farming, commercial stables, riding academies, and breeding and boarding kennels.”  This does not sound like a residential use.
• 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.
• PCC 5.24.030(D)(2) Minimum requirements for kennel facilities require that they “shall comply with all applicable zoning regulations.” Violations are misdemeanors and include license revocation.
• PCC 5.24.150 exercises the civil remedies of “abatement, damages, and/or mandatory or prohibitory relief.”
• RCW 9.66.010 says 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.”
• 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.

Fighting Dog Kennels in Residential Areas

Dog owners will often try to come up with defenses against shutting down a dog kennel in a residential zone. For example, the owner may petition the county for variances, conditional use or nonconforming-use permits. If the use was legal before the area became a residential zone, the kennel could claim “nonconforming use” in a non-statutory setting.

Our attorneys will fight this based on laws that show that even if the kennel was operating legally before the rezoning, it is not allowed to expand use. According to PCC 18A.70.030(A), “Nonconforming uses and structures shall not be enlarged, expanded, extended, replaced, or altered.”

Also, “[w]here 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).

Supporting case laws include:

• “[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).
• Also, 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 that is legally founded would therefore 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).

Contact Us for Help with Zoning, Barking and Nuisance Dogs

Excessive barking is not allowed in a residential zone, nor can a kennel be allowed to continue if illegal when created. It cannot establish nonconforming use for its present-day operations, nor expand beyond the size it operated under when legal. If a kennel unreasonably interferes with the neighbors’ peaceful enjoyment, the kennel is a public nuisance subject to a court’s order of abatement.

Either way, the public’s rights are protected by Washington law. If you are having problems with zoning, nuisance, and barking dogs, the real estate attorneys at Dickson Frohlich Phillips Burgess are here to defend your rights.

Call Dickson Frohlich Phillips Burgess today for your free consultation at 206-621-1110 to discuss your options.