Q & A on the Ordinance Passage, the GMHB, and FoSV Status
This Q&A is in response to statements from King County, and in particular from the Ordinance sponsors Councilmembers Kathy Lambert and Claudia Balducci. Some of their statements were reiterated in a recent press release from Councilmember Balducci immediately after the Dec 4 2019 vote. Additionally, Q&A regarding the GMHB challenge and FoSV status have been added in January 2020.
Q: The press release issued from Councilmember Claudia Balducci after passage of the Ordinance made it sound like there were big problems with the prior regulations for WBDs and that they’re all tightened up and fixed now with passage of the Ordinance. But that’s not what FoSV is saying. What’s going on?
A: The press release was very misleading. Press coverage of the release amplified the confusion. In short, the prior KC regulations for WBDs was quite clear and a new, expansive Ordinance was not needed to deal with violators. More importantly, the new Ordinance most definitely does not tighten regulations and in fact opens KC Rural Area and farmland to urban use development. For much more detail on various aspects of this argument please scroll down to further questions below.
Q: So we lost the vote and didn’t accomplish our objective. Shouldn’t we just give up?
A: Thanks to your support FoSV was already able to submit to the official King County record over 1,000 pages of legal arguments and supporting evidence. The GMHB requires all evidence to be submitted before the legislation passes. We worked hard to be good citizens and get the County to fix the Ordinance before passage and when they refused, we asked that it be voted down. But we were also realistic and knew we would likely end up in a legal challenge, based on the history of how these negotiations tend to go with government entities considering development interests vs rural citizens, the environment and farming. So FoSV members and our legal team worked very hard to get a solid case on the record. A summary of the case is here. While there is never a guarantee of a positive outcome in legal proceedings, we are confident we have a very strong case that the Ordinance violates the GMA in a number of ways.
We gained some important concessions in the Ordinance language which, without going into the legal weeds, will help us going forward. We swayed 4 of the 9 Councilmembers to vote NO on what would have likely been pushed through unanimously. King County Executive Dow Constantine, despite drafting the Ordinance, ultimately ended up not signing it (see Q& A below for more info). Strong public opposition, a tight vote, and lack of Executive signature should help us with the GMHB.
FoSV also built relationships with a number of key local and state-wide organizations. We are working on the legal challenge with Futurewise, a state-wide organization that focuses on proper implementation of GMA and is arguably the definitive voice on GMA issues. We will also seek involvement and advice from other organizations. Some of the letters of opposition to the Ordinance from key organizations are here. We are not alone in this fight.
Perhaps most importantly, FoSV is now a strong community of citizens who are working together to protect our KC rural areas, watersheds and farmland. FoSV members have worked tirelessly throughout this entire process on myriad tasks which has benefited us all. Every day new citizens join our cause. The stakes are too many and too high. FoSV will continue to fight hard to protect our rural areas and farmland.
Q: Knowing that FoSV threatened to take legal action, would the KC Council not have researched the legal ramifications of passing the Ordinance?
A: Many different factors influence County Councilmembers when they vote. Taking the legally correct action does not always rise to the top of the list. Councilmembers are not always convinced the action they take is in fact legal. Councilmember Balducci co-sponsored the Ordinance and the Sammamish Valley APD farmland is in her district. Here is her view of the pending appeal:
“I felt I did the best I could but I totally understand an appeal – an objective third party decision by the GMHB or a court will be appropriate and healthy in my view.”
County actions have been challenged through appeals to administrative bodies and courts many times. Sometimes the County actions have been upheld. Sometimes they have been ruled illegal.
One of the most important legal precedents requiring governments to protect farmland arose out of King County action to allow a large sports complex to be developed on Sammamish Valley farmland. Several people who subsequently became founders of FoSV, working with the Hollywood Hill Association, appealed the County action to the Growth Management Hearings Board. The Board ruled that the County’s action violated the Growth Management Act and was illegal. The State Supreme Court upheld the ruling.
In a separate matter, when King County attempted to allow the large greenhouse site at NE 124th and Redmond-Woodinville Road (SR-202) to be redeveloped as a retail store, some of our founders appealed the action to the King County Hearing Examiner, arguing the action would create significant environmental impacts and could not be undertaken without conducting environmental review. The Hearing Examiner agreed and granted the appeal.
Q: Do you have experienced attorneys working on this GMHB challenge?
A: The attorneys working on our challenge are specialists in the GMA and land use case law, and have extensive experience. They are the same attorneys who won the appeals described above.
Q: Did the County do an environmental review on the impacts of the Ordinance?
A: No. The County did not produce what is known as a SEPA Checklist, nor an Environmental Impact Statement (EIS), which is sometimes required for certain legislation. Washington’s State Environmental Policy Act (SEPA) was enacted in 1971 to ensure that state and local agencies considered effects on the environment during their decision-making processes. As part of a general effort to create a comprehensive statutory review scheme, SEPA requires the identification and evaluation of possible impacts a government proposal may have on the environment.
SEPA's purposes are:
To declare a state policy which will encourage productive and enjoyable harmony between humankind and the environment;
To promote efforts which will prevent or eliminate damage to the environment and biosphere; and [to]
Stimulate the health and welfare of human beings; and
To enrich the understanding of the ecological systems and natural resources important to the state and nation.
Q: Didn’t the County lose an appeal on another land use decision in the Sammamish Valley because they did not produce a SEPA checklist?
A: Yes. As mentioned above, when the County attempted to allow a site containing large greenhouses to be developed as a retail store, the Hearing Examiner agreed it could not be approved without an environmental review. Lack of environmental review for the Ordinance is one of the key arguments that will be made to the GMHB.
Q: Is saving the farmland in the Sammamish Valley and elsewhere in King County really that important?
A: At a time when climate change requires bold action, our local government has passed legislation that will directly degrade our environment and ability to create local food security. Our planet has lost 1/3 of its farmable land in the last 40 years. The US is losing productive soil at 10x the rate it takes to regenerate it (Source: Food Revolution Network). Increased flooding, drought and fires are exacerbating the rate of farmland destruction. King County has some of the most productive soils in the country. The Sammamish Valley alone, if farmed to full potential, could annually supply local, organic vegetables to 80,000 people (Source: Root Connection). Furthermore, topsoil creation is one of the fastest and easiest ways to sequester the immense amount of atmospheric carbon that we must in the next 11 years.
Q: I heard Executive Dow Constantine did not end up signing the Ordinance. Is that true?
A: Yes. The Ordinance was initially produced by Executive Constantine and his staff and submitted to the KC Council for review in April 2018. CM Kathy Lambert sponsored the Ordinance on Council and was joined by CM Balducci as a co-sponsor in January 2019. The KC Council passed the Ordinance on December 4, 2019. After passage Executive Constantine had three options. He could sign it, veto it, or let it take effect without his signature. He had 10 business days to make that decision. He refused to sign or veto it and on December 19, 2019 the Ordinance was deemed enacted without his signature.
Q: So how long is this GMHB challenge going to take?
A: A notice of adoption of the Ordinance was published in the Seattle Times on January 8, 2020. From the date of this notice anyone wishing to challenge the Ordinance has 60 calendar days to submit a petition. The GMHB then has 180 days (approximately 6 months) to respond with a decision. During the 180 days a number of hearings and other legal steps will occur. Details on the process can be found here.
Q: Does the Ordinance “tighten up” regulations on wineries, breweries, and distilleries (WBDs) in King County?
A: No. It allows the following expanded urban use activities in the Rural Area (RA) and Agricultural (A) zones that are not legal today. It also allows WBDs on smaller lot sizes. The four major ways it expands uses are:
(1) Remote tasting rooms are not allowed in the RA today. Overlay A in the Sammamish Valley allows 13 parcels to be permanently converted to remote tasting rooms. Remote tasting rooms are drinking establishments where no alcohol production occurs. They can serve wine by the glass or bottle, have live music, dancing, and bring in food trucks or catered food.
It appears the primary reason for Overlay A is to legitimize five of the nine Sammamish Valley violators (Casa Felciana, Cougar Crest, Cave B, Forgeron, and Sky Mead). Yet Overlay A contains 13 parcels and extends south well past the violators’ sites along Redmond-Woodinville Road. It turns out the southernmost parcel is owned by Greg Lill. Mr. Lill has proposed large-scale development of the Sammamish Valley. His existing, violating event center business - Chateau Lill - directly benefits from the Ordinance, and the Overlay A boundary appears to have been finely tailored to facilitate expansion of Mr. Lill’s retail drinking establishment operations in the RA.
(2) Event centers are not allowed in the RA or A lands today. Overlay B which allowed for event centers was removed from the Ordinance. But it was subsequently replaced with what is referred to as the Dunn Amendment. This amendment allows WBDs across King County on RA and A lands, that are at least 8 acres in size and meet other conditions, to operate as event centers - essentially a substitute for Overly B. Today events generally require Temporary Use Permits, giving nearby citizens an opportunity to weigh in before future permits are granted. With this amendment, once event centers receive their permit, they are allowed to continue indefinitely as an event center with no input from citizens, even if there are negative consequences. In the Sammamish Valley, Mr. Lill’s Chateau Lill location benefits from this amendment, and there may be others.
(3) Existing code for WBDs is clear. Specifically, code states: “sales are limited to products produced on-site” in RA and A zones. So today a WBD in the RA or A zones cannot legally truck in alcohol from Walla Walla or elsewhere to sell onsite.
In the just passed Ordinance the definitions and permitted uses for WBDs is vague, confusing and full of loopholes, and allows adult beverages to be trucked in from elsewhere. The Ordinance allows the following scenario:
I own a big winery, Winery X, in Walla Walla that makes great wine. Ordinance goes into effect. I go get another winery license for Winery Y (cheap $200 and easy paperwork process) for my A zoned parcel in the Sammamish Valley. I plant a few grapes out back. I “make wine” from those grapes. I could actually really make a tiny batch of wine from those grapes or I could pretend to and just bring in a barrel to “ferment and age” and say I am making wine from those grapes (who would know). Either way I can then truck in pallet loads of wine from my real winery X in Walla Walla and sell them along with the wine that I “make” onsite at sham winery Y.
The key here is State liquor law allows wineries to cross sell if the ownership structure is the same. So, if I have a real winery in Walla Walla and I set up a sham winery here under the same ownership, I can use my sham winery as a sales outlet for my real winery. State law permits cross selling. The Ordinance specifically references state law, only requiring me to “ferment and age” which I can do in a barrel and doesn’t prevent me from trucking in bottles from elsewhere.
This is what Rooster coffee shop/bakery on A land that just recently set up sales of wine and distilled spirits appears to be doing to get legal.
If I want to do a sham winery in the RA it’s even easier. Since I don’t have to grow anything onsite, all I have to do is store a barrel that is “fermenting and aging” (that I bring in from my Walla Walla winery), and I can truck in bottled wine from Walla Walla. This is exactly what Matthews is doing today and how they will be legitimized by the Ordinance.
To be as tight as today’s code, the Ordinance needs to say, “WBD sales are limited to products produced on-site.” And it doesn’t. It’s really that simple. WBD businesses want retail outlets in King County. They will mostly keep their production facilities in Eastern WA close to source materials (e.g. grapes, grains, etc) for cost and quality reasons. There are over 1000 wineries, 450 breweries and an unknown number of distilleries in WA state. The number of wineries is expected to grow by over 1,000 in the coming years. Demand for retail outlets is large and will continue to rapidly grow. The question before the citizens of the county now is: where do we want these retail drinking establishments to go? In the rural area neighborhoods? On the farmland? In the cities?
(4) Today WBD minimum lot size is 4.5 acres. With the Ordinance WBDs are allowed on any lot of 2.5 acres or greater on an arterial. This impacts hundreds if not thousands of lots across the county. Another issue is that the definition of “arterial” is somewhat vague and is expected to change over time.
Q: Doesn’t the Ordinance define hours, parking lot sizes and other restrictions on these businesses?
A: Yes, there are some new restrictions on hours, parking lot sizes and setbacks from neighboring properties. But remote tasting rooms, event centers and sham WBDs are urban use businesses that should not be in rural neighborhoods or on farmland in the first place. The Ordinance attempts to mitigate the damages from harmful expansion of retail uses into the Rural and Agricultural Areas by including some “tightening-up constraints.” For example, a remote tasting room is limited to 500 sq. ft. of outdoor space for retail drinking area, and WBDs can only use 30% of their indoor space for retail drinking.
Some of these constraints will be difficult to enforce or are mostly irrelevant. For example, how is code enforcement going to stop Matthews customers at 9pm on a Saturday night from wandering outside their allotted areas? And parking lots sizes are somewhat irrelevant in a world of dedicated shuttles, Lyft and off-site parking schemes.
Q: Doesn't the Ordinance require a WBD on Agricultural (A) lands to grow 60% of their source materials (grapes, potatoes, grains, etc.) onsite?
A: Yes. Today the code requires businesses on A lands to source 60% of their source materials from Puget Sound Counties. So requiring the source materials to be grown on the actual site is an improvement. But this restriction is rendered irrelevant by the loose definitions that permit ‘sham’ WBDs as described in the first question above.
If the core definitions for WBDs allow for sham operations, then any other seemingly positive restrictions such as sourcing requirements really don’t matter. It all comes back to the core WBD definitions.
Q: Didn’t the County say the reason for updating code was because the current code is vague and unenforceable?
A: Yes, that’s what they said. But the foundational premise for “updating” the winery, brewery, distillery land use code is flawed. The problem is not in the current code; it’s in the failure to enforce it. Existing code for adult beverage businesses is clear. Specifically, code states: “sales are limited to products produced on-site.” The nine Sammamish Valley violators all truck in product from their production facilities in Eastern Washington or elsewhere. None of them produce on site. Code enforcement can deal with the nine Sammamish Valley violators using this one clause alone. A new ordinance is not needed.
Q: But didn’t the County also say that they have issues with beverage industry businesses operating under the Home Occupation code?
A: Yes. In particular there are a couple of breweries down in the Black Diamond area that are apparently operating under the home occupation code and have received complaints. We are not following the details on these specific businesses so we cannot comment further on them.
There is broad recognition at the County that the entire body of home occupation code needs to be rewritten, not just for WBDs but in general. The Ordinance does not allow future WBDs to open under home occupation, to stop further problems. A new WBD I category has been created with clearer rules, to allow for very small WBDs that replace the home occupation category. Any home occupation beverage businesses operating legally today will be grandfathered. There are a few in the Sammamish Valley area, for example Adams Bench. It is important to note that none of the nine Sammamish Valley violators are living on their properties, so this section of code does not or should not apply to them.
If the County really wanted to solve their beverage industry home occupation problem (which they have spoken about extensively) they could simply have passed an Adult Beverage Ordinance that cleans up home occupation - and in fact this suggestion was made by the Council Chair, Rod Dembowski. The vast majority of the current Ordinance has absolutely nothing to do with home occupation.
Q: Wow, it sounds like we have huge issues with beverage industry violators! How many of them are there?
A: There are only 12 or 13 beverage industry violators county-wide. Nine of these are in the Sammamish Valley and all could be dealt with easily using existing code. An ordinance that tears open rural and agricultural lands county-wide to urban use development is most definitely not needed to deal with violators. At most an ordinance that clears up any home occupation issues may be warranted.
The Woodinville area alone is home to over 130 adult beverage businesses. The vast majority of these businesses are operating legally. Unfortunately, we have a few rotten apples in the bottom of the barrel that are causing all the problems.
Q: Does the ordinance really provide clearer rules, as it says in the Balducci press release?
A: Definitely not. The Ordinance is over 100 pages long and is unnecessarily complex and confusing. It contains a wide range of topics, and cross references within itself, to other parts of King County code, and even worse to state liquor laws. You actually need to understand state liquor laws to understand what the Ordinance allows. Even very experienced land use attorneys get lost in it and sometimes spend hours sorting out what it really says. If experienced attorneys can barely get through it, how are businesses owners, citizens and code enforcement supposed to use it?
Q: Balducci’s press release says “It does not allow bars or remote tasting rooms to proliferate. In the rural areas, these businesses will have to produce onsite the beverages they sell.” Are those things true?
A: No. Today remote tasting rooms/bars/pubs/event centers (aka drinking establishments) are legal in the urban growth areas (cities). The Ordinance rewards the existing violators and opens up new RA and A parcels to drinking establishment through the mechanisms described in the first question above.
Additionally, remote tasting rooms in the RA do NOT have to produce anything under the Ordinance. They are blatant drinking establishments. Loopholes in the WBD definitions and the event center amendment make it really easy for WBDs in the RA to produce little or no beverage and run their drinking establishment.
Q: What was the final vote?
A: On Decemeber 4 the KC Council narrowly voted 5-4 to pass the Ordinance. Councilmembers Dembowski, Gossett, Upthegrove and Kohl-Welles voted against the Ordinance. Councilmembers Lambert, Balducci, McDermott, Dunn and von Reichbauer voted for the Ordinance.
Q: Who are the Sammamish Valley violators?
A: You can find them on this page. Land speculators can be found here.