Open Letter to FoSV Supporters: Results of Superior Court Order

On April 16 King County Superior Court Judge David Steiner issued an Order regarding King County’s appeal of the Beverage Ordinance invalidation

April 28, 2021

Dear FoSV Supporters,

On Friday April 16, King County Superior Court Judge David Steiner issued an Order regarding King County’s appeal of the Growth Management Hearings Board (GMHB) invalidation of the King County Adult Beverage Ordinance. Four decisions were included in the Order. (Note that we’re doing our best to compress complex legal issues worked out over several months into a few paragraphs. Hang in there with us for a few minutes!)

(1) The GMHB has jurisdiction over DPO A
The County argued that the GMHB does not have jurisdiction over Demonstration Project Overlay A (DPO A) that allows remote tasting rooms in the Sammamish Valley Rural Area because under the Ordinance DPO A is supposedly temporary. We pointed out that under the Ordinance the “demonstration” may end, but the remote tasting rooms can legally remain forever. The judge rejected the County’s argument and ruled that the GMHB has jurisdiction over DPO A. This is a big win!

(2) The GMHB has jurisdiction over code enforcement language
The County claimed that the GMHB does not have jurisdiction over the code enforcement language in the Ordinance which states “the county does not intend to begin enforcement proceedings for a minimum of 12 months after the effective date of the ordinance.” (our emphasis added) The language effectively means the County could put the Ordinance in place and then sit on its hands and not enforce it until after violations have had a year or likely longer to become entrenched. The judge ruled that the GMHB does have jurisdiction. This is another big win!

(3) The GMHB must conduct a full hearing before invalidating the Ordinance based on SEPA
On highly technical procedural grounds under the Administrative Procedures Act (APA), the judge reversed the Growth Management Hearings Board’s (GMHB) invalidation of the Adult Beverage Ordinance. The GMHB invalidated the Ordinance based on its determination that, as a matter of law, the County in adopting the Ordinance had failed in several ways to comply with the State Environmental Policy Act (SEPA). The judge held that the GMHB should not have decided the question of SEPA compliance through “summary judgment” even though it is a procedure commonly used in courts and administrative tribunals such as the GMHB. He ruled that the GMHB must instead conduct a full hearing before ruling on SEPA compliance.

It is not unusual for judges to lack expertise in particular areas of law, especially complex ones such as SEPA/GMA. As we mentioned in our last email to you, Judge Steiner acknowledged during the April 2 oral hearing that his area of expertise was not GMA, SEPA, land use, zoning or APA appeals. FoSV attorneys do not agree with the aspect of Judge Steiner’s Order disallowing the GMHB’s summary judgment approach and believe it reflects a misunderstanding of the law. The decision also reflects the judge’s failure to understand the fundamental purpose of SEPA which is to provide the decisionmaker (the King County Council) and the public with adequate information related to environmental impacts of the Ordinance prior to adoption.

(4) The GMHB cannot take further action pending a decision on an appeal to a higher court, or expiration of the 30- day appeal period without filing of an appeal
If you recall, early on while its appeal was pending, King County asked for and obtained from Superior Court a Stay so that it would not have to comply with the GMHB invalidation before the Superior Court issued a decision on the County’s appeal. In his decision on King County’s appeal, the judge ordered that the Stay previously entered would remain in effect for 30 days or if an appeal of his decision was taken to a higher court until such appeal was resolved. The Stay extended by the judge bars the GMHB from taking any action in the Ordinance case. This means that, until the Stay expires, the GMHB cannot reverse its Invalidation Order and hold a hearing per the judge’s decision. So, for the moment, and until/if/when the Stay is lifted, the GMHB Order invalidating the Ordinance remains on the books.

The County, FoSV, and Futurewise had until Monday, April 26 to file a motion for reconsideration to Judge Steiner, asking him to look again at any one of the above decisions. None of the parties asked for reconsideration.

Phew. Okay, we know this all sounds very confusing and complex. Well, it is. But FoSV and Futurewise attorneys are on top of it. The appeal decision deadline is May 17. We will have more information for you once we decide the best path forward. For now, we wanted to relay the judge’s decisions and what happened regarding reconsideration.

In other news related to the Ordinance, King County Executive Dow Constantine was recently interviewed by the 45th District Democrats Endorsements Committee. Executive Constantine is up for reelection this fall and is seeking the 45th District Dems endorsement. A couple of their interview questions related to the Ordinance. The endorsement committee asked Exec Constantine whether he would direct KC Prosecuting Attorney Dan Satterberg to stop legal defense of the Ordinance so the County can develop legislation that actually upholds protections for rural and resource lands. Exec Constantine replied that he would “be happy to tell him [Satterberg] to stand down so we can put in place an ordinance that accomplishes our policy goals.” (Note: Exec Constantine is the KC Prosecuting Attorney’s client, and he has significant influence over which legal matters are pursued.)

Exec Constantine also acknowledged during the interview that retail activities are not appropriate on rural and resource lands. The 45th is waiting for a response from Exec Constantine on the results of his meeting with Mr. Satterberg, as they further consider his endorsement.

So, you can see that multiple resolution paths are being pursued. Thanks, as always, for your patience and support on this worthwhile journey. We’ll be back shortly.

- The Friends of Sammamish Valley Team