King Cnty. v. Friends of Sammamish Valley

• Decision Date: 27 February 2023
• Docket Number: 83905-5-I
• Parties: KING COUNTY, a political subdivision of the state of Washington, Petitioner, v. FRIENDS OF SAMMAMISH VALLEY, a Washington nonprofit corporation; and FUTUREWISE, Respondents, A FARM IN THE SAMMAMISH VALLEY LLC; MARSHALL LEROY d/b/a Alki Market Garden; EUNOMIA FARMS, LLC; OLYMPIC NURSERY INC.; C-T CORP.; ROOTS OF OUR TIMES COOPERATIVE; REGENERATION FARM LLC; HOLLYWOOD HILLS ASSOCIATION; TERRY and DAVID R. ORKIOLLA; and JUDITH ALLEN, Defendants.
• Court: Court of Appeals of Washington

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KING COUNTY, a political subdivision of the state of Washington, Petitioner,
v.
FRIENDS OF SAMMAMISH VALLEY, a Washington nonprofit corporation; and FUTUREWISE, Respondents,

A FARM IN THE SAMMAMISH VALLEY LLC; MARSHALL LEROY d/b/a Alki Market Garden; EUNOMIA FARMS, LLC; OLYMPIC NURSERY INC.; C-T CORP.; ROOTS OF OUR TIMES COOPERATIVE; REGENERATION FARM LLC; HOLLYWOOD HILLS ASSOCIATION; TERRY and DAVID R. ORKIOLLA; and JUDITH ALLEN, Defendants.

No. 83905-5-I

Court of Appeals of Washington, Division 1

February 27, 2023

OPINION

BIRK, J.

King County (County) adopted Ordinance 19030 (Ordinance), amending its land use code governing winery, brewery, and distillery (WBD) facilities. Friends of Sammamish Valley (FoSV) and Futurewise, among others, challenged the Ordinance before the Growth Management Hearings Board for the Central Puget Sound region (Board). FoSV and Futurewise contend that proliferation of WBDs in the Sammamish Valley would have significant

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environmental consequences that the County failed to recognize and evaluate. The Board agreed and invalidated most of the Ordinance. We conclude that when its limitations are properly interpreted, Ordinance 19030 is not likely to lead to the development FoSV and Futurewise predict, and the County was correct when it issued a determination of nonsignificance that the Ordinance will not have a probable significant adverse environmental impact. We reverse the Board's order of invalidity and remand for entry of a finding of compliance with the Growth Management Act (GMA), chapter 36.70A RCW, and the State Environmental Policy Act (SEPA), chapter 43.21C RCW.

I

A

Although Ordinance 19030 amends the King County Code applicable throughout the county, the parties focus on its impact in the Sammamish Valley. This area runs from Redmond, Washington northward along State Route 202 toward Woodinville, Washington. To the west of the Sammamish Valley lie incorporated areas of the cities of Redmond, Kirkland, and Woodinville. The Sammamish Valley includes lands zoned agricultural in a designated agricultural production district. The "broad Sammamish River Valley trough" includes a migratory salmon river and prime farmland. To the east of the agricultural area lie upslope lands zoned rural area. Upland areas to the east drain through eleven mapped small creeks down the valley slopes and into the Sammamish River. Upland drainage potentially affects agricultural land in the valley if increased

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drainage leads to the land being waterlogged. Drainage also potentially affects the suitability of the river as a wildlife habitat.

Woodinville has become a destination known for its wineries and tasting rooms. Eastern Washington is recognized as a grape growing region for wine. In some cases, grapes from Eastern Washington have been transported to the Woodinville area for fermenting and processing. Numerous wineries, breweries, and distilleries have located inside the Woodinville city limits. Within its limits, Woodinville provides urban services such as water, sewer, police, fire, traffic control, and surface water management. Historically, a few wineries were established outside the Woodinville city limits, in unincorporated King County. The appropriateness and legal status of these establishments was disputed in submissions to the County during its consideration of Ordinance 19030.

In September 2016, the County published the "Sammamish Valley Wine and Beverage Study" (Study). The Study's stated primary objective was to develop County policy and code recommendations for economic development, transportation, land use, and agriculture. The study area included Woodinville, Kirkland, Redmond, rural areas, and agricultural production districts. The Study found that wine production grew steadily from 1990 to 2013. Although King County was found to be the second largest producer of wine in Washington, it is not noted as a grape growing region and the wineries and tasting rooms in the County are largely representative of wineries using grapes from Eastern Washington. The Study found that Woodinville is one of two hubs in Washington for wine related

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retail. The Study was identified as part of the background for Ordinance 19030. The Study was followed by a 2018 "Action Report" that was described as the "County's response to the policy recommendations outlined in [the Study]." The Action Report included discussion of both transportation and agriculture in the Sammamish Valley.

In 2017 and 2018, local residents documented in submissions to the County that it had entered into agreements with property owners in the Sammamish Valley concerning alleged nonconforming uses of their properties for adult beverage businesses. One letter identified eight businesses in unincorporated King County just outside Woodinville city limits that were asserted to be operating as "Tasting Rooms" in violation of King County Code with alleged pending code violations in late 2019. Opponents of Ordinance 19030 asserted the prospect the County might relax code requirements and permit new adult beverage business in the unincorporated areas was resulting in land speculation, driving up prices into a range that would make agricultural or traditional rural uses not cost effective.

Among the asserted code violations predating Ordinance 19030 was an online review of Castillo de Feliciana Vineyard and Winery LLC complaining about the establishment's reliance on a "porta potty for [a] bathroom," to which the business replied it was "required by [the] County to have all patrons on Friday nights" use portable toilets. A newspaper referenced Sal Leone, owner of a wine tasting room asserted to be "running afoul of [the] County for operating in an area set aside for agriculture," who appealed and "says if he doesn't win, he'll get stinky

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pigs and loud roosters for rural ambience." In a news story, the owners of Chateau Lill Events LLC reportedly stated, "[T]here simply hasn't been enough space" at their location "to produce wine," so "the tasting room and event facility has been separate" and it was" 'already a stretch to call it a winery.' "

In another case, the County served a notice and order on Icarus Holdings LLC and Vladen Milosavljevic. The County alleged proposed and existing construction and businesses violated the subject property's zoning as agricultural. At a contested hearing, the hearing examiner declined to reach whether plans for a winery and distillery use were consistent with code, because the plans had not yet come to fruition and "the zoning code is in flux, with extensive pending legislation on wineries and distilleries." The hearing examiner concluded a bakery on the site appeared to violate code, because it was not allowed in the agricultural zone and it appeared to exceed the scope of a previous owner's permit for "retail agricultural products." However, the hearing examiner allowed the bakery to continue while the owners transitioned to a legal use.

Several documents were submitted in regard to "Matthews Estate" (Matthews),^[1] including its construction of a 3,000 gallon holding tank for on-site sewage disposal, stormwater pollutant violations dating back to 2006 associated

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with fermentation tanks and effluent from grape crushing,^[2] a 2012 citation for conversion of a garage into business space for wine production, tasting room, and an office without required permits and holding "Events/Concerts" without an approved temporary use permit, and an agreement by Matthews not to protest sewer extension if it becomes available. In an enforcement case, the owners of Matthews entered into a settlement agreement with the County in anticipation of pending adult beverage code changes.

Over a weekend in late August 2017, Matthews hosted what one resident described as "[t]he outrage of the 'White Party,'" photographs of which depicted bumper-to-bumper traffic blocking the road "for hours," open land filled with cars parking under a cloud of dust, portable toilets, food trucks, King County sheriff deputies directing guests across the road, and an assemblage of persons in all-white attire, and which was reported as having "attracted about 1,500 millennials"

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and involved "parking 500 to 600 cars across the street on farmland." A resident told the County that "up until 2016 the 'wineries' were having music past midnight" and Matthews is not a winery but a "wine bar." The County became aware that Matthews was referred to as a "nightclub" in an online review.

On March 28, 2018, the County sent a letter to Matthews's owners notifying them that it had verified a complaint of an expansion of their business. The County viewed Matthews's use of a grass area for wine business related activities as an expansion contrary to the settlement agreement. The County noted the property continued to be used for events and activities, which required a temporary use permit the owners had not requested. The County concluded these violations breached the settlement agreement, advised Matthews's owners to cease using the grass area for winery activities, and advised Matthews's owners to submit a temporary use permit application for events occurring on the property. In response to a letter from the owners' attorney, the County paused enforcement action pending an updated adult beverage ordinance.

B

On April 24, 2019, the County published its SEPA environmental checklist (Checklist). The Checklist relied on both the Study and the Action Report. The Checklist stated Ordinance 19030 was a nonproject action that is not site specific and would apply throughout unincorporated King County. For section B of the Checklist, which constituted most of the Checklist, the majority of the responses concerning the environmental elements of the proposal were "not applicable for

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this nonproject action." In response to a question asking about proposed measures to ensure...