Yakima County v. MLM Entertainment, LLC
| Decision Date | 14 April 2020 |
| Docket Number | 36289-2-III |
| Parties | YAKIMA COUNTY, a political subdivision of the State of Washington, Respondent, v. MLM ENTERTAINMENT, LLC, a Washington limited liability company, d/b/a STICKY BUDZ; MUFFET LAND, LLC, a Washington limited liability company; TANDEM, LLC, a Washington limited liability company; AD LIB ENTERPRISES, LLC, a Washington limited liability company; and DEF CLOWN, LLC, a Washington limited liability company, Appellants. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
MLM Entertainment, LLC, which is licensed by the Washington State Liquor and Cannabis Board (WSLCB) as a tier 3 marijuana producer and a marijuana processor, appeals the trial court's summary judgment order declaring its Yakima County operations a nuisance and issuing a warrant of abatement.[1] We affirm.
About a year after Washington voters approved Initiative 502 (I-502) providing for the licensed and regulated production processing and sale of recreational marijuana, the Yakima County Board of Commissioners (Board) adopted a six-month moratorium prohibiting production, processing, and retailing in unincorporated areas of Yakima County. Following a public hearing process, the Board adopted Ordinance 4-2014, making the prohibition permanent in June 2014. The ordinance was and remains codified in Title 19 of the Yakima County Code (YCC) at YCC 19.30.030(7).
Notwithstanding the prohibition, MLM Entertainment LLC, dba Sticky Budz began production and processing operations on property located in an unincorporated area of the county in December 2014.
In February 2018, the county commenced an action against MLM seeking a declaration that the conditions on the MLM property constituted a public nuisance and asking for injunctive relief and a warrant of abatement. It alleged that the production and processing operations were a public nuisance because they were in violation of the county code.
In answering the complaint, MLM asserted nine affirmative defenses, including that YCC 19.30.030(7) and its enforcement violated MLM's federal and state constitutional rights and its rights under state laws.
After several months, the county moved for summary judgment on all of its claims against MLM and three entities that had intervened to challenge the county's ordinance and its enforcement. In support of its nuisance claim, the county argued that MLM's land use violated the county's development code, Title 19 YCC, and thus MLM's land use was a public nuisance under the county's building code, Title 13 YCC. The evidentiary support for its motion included substantial documentation of the history of the Board's adoption of Ordinance 4-2014.
In opposing the county's motion, MLM argued that the county had not identified any type of harm from its operations that RCW 7.48.120 identifies as a nuisance.[2] It acknowledged that the county pointed to MLM's alleged code violation as entitling it to relief. But it argued, "Critically, nothing in the development code (or building code) expressly states that marijuana land uses are a public nuisance." Clerk's Papers (CP) at 669.
MLM also argued that "[a]n ordinance may not make a thing a nuisance, unless it is in fact a nuisance," citing Kitsap County v. Kev, Inc., 106 Wn.2d 135, 138-39, 720 P.2d 818 (1986) and Greenwood v. The Olympic, Inc., 51 Wn.2d 18, 21, 315 P.2d 295 (1957). It contended that the only arguable evidence of an actual nuisance presented by the county was citizen input during the proceedings leading up to the adoption of Ordinance 4-2014 and, gleaning 16 "generalities" from that input (an example being, "[m]arijuana is a gateway drug"), CP at 673, it argued that many of the generalities from citizen input did not qualify as facts, based on personal knowledge, as required by CR 56(e). It also selected seven of the generalities and showed they were disputed with declarations from three experts whose overarching theme was that marijuana use presents a lesser risk to the user than alcohol.
Finally, MLM argued that the county was not entitled to judgment as a matter of law because prohibiting the production, processing and retail sale of marijuana violates equal protection.
After hearing argument of the motion, the trial court granted it and issued a warrant of abatement. MLM appeals.
When the issue on appeal is the entry of summary judgment, our review is de novo; we engage in the same inquiry as the trial court. Grundy v. Thurston County, 155 Wn.2d 1, 6 117 P.3d 1089 (2005). Summary judgment is appropriate if the pleadings demonstrate that there is no genuine issue as to any material fact. CR 56(c). We view all facts and all reasonable inferences in the light most favorable to the nonmoving party. Rhoades v. City of Battle Ground, 115 Wn.App. 752, 758, 63 P.3d 142 (2002). Summary judgment is proper only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
In appealing the grant of summary judgment, MLM identifies two issues. It contends, first, that there are genuine issues of material fact whether its operations constituted a public nuisance. Its second contention is that YCC 19.30.030(7) violates equal protection by unreasonably distinguishing between those within the class (marijuana producers and sellers) and those outside the class (alcohol producers and sellers). We address the issues in that order.
"'Nuisance is "a substantial and unreasonable interference with the use and enjoyment of land."'" Grundy, 155 Wn.2d at 6 (quoting Bodin v. City of Stanwood, 79 Wn.App. 313, 318 n.2, 901 P.2d 1065 (1995) (quoting, in turn, 1 William H. Rodgers, Environmental Law § 2.2, at 33 (1986))).
Washington's law of nuisance is codified in chapter 7.48 RCW, which broadly defines "nuisance" as "unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others . . . or in any way renders other persons insecure in life, or in the use of property." RCW 7.48.120; Grundy, 155 Wn.2d at 6. Nuisance claims may be brought either by private individuals for damages and abatement of public or private nuisances or, in the case of public nuisances, may be brought by public entities. RCW 7.48.020. A public nuisance is a nuisance that "affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal." RCW 7.48.130.
The county contends that provisions of its county code make the production, processing and retail sale of marijuana a "nuisance per se," as a result of which it was not required to present evidence that MLM's operations were annoying, injuring or endangering county residents. But MLM points to the decisions in Greenwood and Kev as holding that municipal and county ordinances "may not make a thing a nuisance, unless it is in fact a nuisance." Greenwood, 51 Wn.2d at 21; Kev, 106 Wn.2d at 138.
The facts and outcome in Greenwood are helpful to MLM. The Supreme Court held in that case that a wide stairway lacking an intermediate handrail required by the Seattle building code was not a nuisance, notwithstanding a municipal ordinance saying that a failure to conform to the building code "'shall be deemed . . . a nuisance.'" 51 Wn.2d at 20 (alteration in original) (quoting Seattle building code § 1097 (1942)). The court reasoned that "[c]ommon sense and common experience indicated that a failure to have intermediate handrails on stairs which had been in constant use by the public for almost thirty years, did not constitute a public nuisance, the 1942 Seattle city ordinance to the contrary notwithstanding." Id. at 21.
The Supreme Court's considerably more recent decision in Kev distinguishes Greenwood, however, in a manner not helpful to MLM. While it repeats Greenwood's holding, stating, "[a]n ordinance may not make a thing a nuisance, unless it is in fact a nuisance," it states in the next breath, "Engaging in any business or profession in defiance of a law regulating or prohibiting the same, however, is a nuisance per se." 106 Wn.2d at 138 (citing State v. Boren, 42 Wn.2d 155, 163, 253 P.2d 939 (1953); State v. Gedarro, 19 Wn.App. 826, 832, 579 P.2d 949 (1978)). Kev speaks approvingly of County of King ex rel. Sowers v. Chisman, in which this court enforced an ordinance restricting topless dancing, explaining that where the ordinance specifically provided for injunctions against violation of its provisions:
106 Wn.2d at 139 (quoting Chisman, 33 Wn.App. 809, 819, 658 P.2d 1256 (1983)). See accord Kitsap County v. Kitsap Rifle & Revolver Club, 184 Wn.App. 252, 277, 337 P.3d 328 (2014).
Under controlling authority, then, if MLM's operations are a prohibited nuisance by ordinance, they are a nuisance per se.
MLM's next argument is that only by a too-attenuated analysis can the Yakima County Code be read to declare marijuana production, processing and retail sale to be a nuisance. Ordinance 4-2014 prohibited such operations, but did not declare them to be a nuisance. In its complaint, the county alleged that MLM's property use was a public nuisance under statute, under YCC 6.20.010, YCC 13.25.060(1) "and other applicable YCC provisions." CP at 25. In its memorandum in support of its motion for summary judgment, the county...
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