FoSV Letter to the King County Council
Memo To: Chair Dembowski and King County Councilmembers CC: Executive Dow Constantine, Erin Auzins, Karen Wolfe
From: Friends of Sammamish Valley
Date: November 10, 2019
RE: WBDs: The “Problem” is Enforcement – Not the Current Code
The foundational premise for “updating” the winery, brewery, distillery land use code is flawed, based on a false narrative that current code is vague and unenforceable. The premise that Proposed Ordinance 2018-0241 “tightens-up” current code is also flawed. Unfortunately, some comments made during the Oct 7, 2019 COW meeting tend to accept these premises, which on closer examination are not supported by facts or data. (Exhibit D).
The problem is not in the current code; it’s in the failure to enforce it.
Existing code for adult beverage businesses is clear. (Exhibit A). Specifically, code states: “sales are limited to products produced on-site.” The eight 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 eight Sammamish Valley violators using this one clause alone. A new ordinance is not needed.
Home occupation code complaints can also be dealt with using existing code. Some home occupation breweries in the South Sound have generated complaints because on-site drinking has grown to a scale that disrupts neighbors. Home occupation requirements that “sales of on-site services to patrons are arranged by appointment” and “one parking stall for patrons when services are rendered on-site” and “closing hours of 5pm on weekdays and 7pm on weekends” are sufficient to contain a small Rural Area home occupation brewery from turning into a full-scale pub. (Exhibit A).
Only twelve beverage industry businesses county-wide have active complaints, and all can be dealt with using existing code.
Under the guise of “tightening up” code, the Proposed Ordinance actually opens up the Rural and Agricultural Areas to retail drinking establishments – businesses not allowed under the current code. It does so through Overlay A, fundamental flaws in the definitions and permitted uses of WBDs, and event centers. (Exhibit B). The commercial infrastructure needed for these retail establishments does not exist in the Rural and Agricultural Areas, is unaffordable, and is expressly against the County’s Comprehensive Plan and the GMA. (Exhibit C).
The Proposed Ordinance also increases WBD building sizes and reduces WBD minimum lot size from 4.5 to 2.5 acres, opening up many more parcels throughout the county for WBD usage. (Exhibit B). A new analysis conducted on just one square mile of Rural Area reveals that 40 parcels could be converted to WBDs with up to 328,500 sq. ft. of alcohol production and sales space. (Exhibit F). The impact of the Proposed Ordinance throughout King County Rural and Agricultural Areas is significant.
The Proposed 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. Remote tasting rooms are not allowed at all under the existing code and should not be permitted in the Rural Area in the first place. Not to mention that of some of these constraints are extremely difficult to enforce once customers are on-site.
The Proposed Ordinance is completely inconsistent with decades of carefully upheld land use policy. It rewards a handful of persistent violators, some of whom have already proposed even broader commercial development for the Sammamish Valley farmland. (Exhibit E). Rewarding violators drives further land speculation. The County must take a very strong stand against the violators and speculators by upholding the Urban Growth Boundary, or our farmland and Rural Area buffers will be lost forever.
There may be some room for limited discrete improvements in the current code. But a 100+ page, extremely confusing Ordinance that in effect opens up Rural and Agricultural Areas to retail development does not improve the current code. Nor does it solve the real problem – lack of code enforcement.
Numerous constituencies including farmers, environmental organizations, legally operating businesses and residents from throughout the County have extensively documented all the negative impacts of the current violators and the Proposed Ordinance. Adoption of the Proposed Ordinance could cause much harm before a court or the Growth Management Hearings Board would be able to intervene.
Please vote NO on the Proposed Ordinance.
Exhibit A: Current King County Zoning
Definitions
“Wineries”, “Breweries” and “Distilleries” are defined, classified and regulated as manufacturing facilities. The primary activity of these facilities is manufacturing of wine, beer and distilled spirits. Any winery, brewery or distillery that requires a conditional use permit is “limited to processing agricultural products”.
Zoning Conditions
Businesses manufacturing wine, beer, and liquor (“Adult Beverages”) on Rural and Agricultural sites must meet certain conditions:
On sites zoned Agricultural, manufacturing of Adult Beverages is allowed only as an accessory use. The primary use of the site must be farming or raising livestock. An “accessory use” is defined as being subordinate and incidental to the primary use.
In both Rural and Agricultural Areas, floor area of structures used for processing may not exceed 3,500 square feet unless a conditional use permit is obtained. The area devoted to tasting shall be included in the floor area limitation.
In Rural Areas the minimum lot size is 4.5 acres for facilities up to 3,500 square feet.
Sixty percent or more of the products processed on Rural and Agricultural sites must be grown in Puget Sound counties.
Whenever a conditional use permit is required, the following conditions must be met:
If the total floor area of structures exceeds 6,000 square feet in Rural and Agricultural Areas:
The minimum site size (two or more lots under common ownership) is ten acres; and
At least two and one-half acres of the site must be used for growing agricultural products.
The facility shall be limited to processing agricultural products and sixty percent or more of the products processed must be grown in Puget Sound Counties.
Except on Vashon-Maury Island, the total maximum floor area for processing and all accessory uses is 8,000 square feet. A below-grade basement up to 8,000 square feet is also allowed. (Structure size limits exclude historic structures). On Vashon-Maury Island the floor area for processing and all accessory uses, including below-grade basements is limited to a total of 6,000 square feet (total above and below-grade).
Off-street parking is limited to one hundred and fifty percent of the minimum requirement. The minimum requirement is 0.9 of a space per 1,000 square feet of manufacturing area, plus 1 space per 50 square feet of tasting area.
Structures and areas used for processing must be set back a minimum of seventy-five feet from property lines adjacent to rural area and residential zones (excluding historic structures).
Tastings and Sales
Manufacturing facilities may offer tastings of beverages produced on site. Beverages produced elsewhere may not be served.
Manufacturing facilities are limited to sales of products produced on-site for consumption off site as an accessory use to the primary manufacturing land use. “Accessory Use” is defined as an activity that is subordinate and incidental to the primary manufacturing activity. Beverages produced elsewhere may not be sold.
Sanitation and Water Use
Wineries, breweries and distilleries must comply with all health, water and wastewater regulations:
Wineries, breweries and distilleries shall comply with Washington State Department of Ecology and King County board of health regulations for water usage and wastewater disposal. Wineries, breweries and distilleries using water from exempt wells shall install a water meter.
Winery Special Events on Agricultural and Rural Sites
Limited to two events per month.
All parking must be accommodated on site.
A temporary use permit is required.
Home Occupation
Under King County Code, section 21A.30.080 the following restrictions, among others, apply to home occupation businesses in the Rural zone:
No more than one nonresident employee shall be permitted to work on-site for the home occupation or occupations;
In addition to required parking for the dwelling unit [the homeowners], on-site parking is provided as follows:
One stall for each nonresident employed by the home occupations; and
One stall for patrons when services are rendered on-site;
There shall be no exterior evidence of a home occupation, other than growing or storing of plants or a permitted sign, that would cause the premises to differ from its residential character. Exterior evidence includes, but is not limited to, lighting, the generation or emission of noise, fumes or vibrations as determined by using normal senses from any lot line or on average increase vehicular traffic by more than four additional vehicles at any given time
Sales are limited to:
Mail order sales;
Telephone, Internet or other electronic commerce sales with off-site delivery; and o Items accessory to a service provided to patrons who receive services on the premises;
On-site services to patrons are arranged by appointment;
Customer visits and deliveries shall be limited to the hours of 8:00 a.m. to 7:00 p.m. on weekdays, and 9:00 a.m. to 5:00 p.m. on weekends
Exhibit B: Ordinance Expands Alcohol Sales onto Rural and Agricultural Lands
Despite claims by King County to the contrary, the Proposed Ordinance does not “tighten up” regulations on alcohol sales and production. In fact, it significantly relaxes regulations in the current code as follows:
The Ordinance legalizes retail “Remote Tasting Rooms” in Demonstration Project Overlay A, in the Sammamish Valley Rural Area.
This particular location could not be worse as it already serves as an ecological buffer for the farmland, protecting it from runoff from upslope residential activities and requiring 75% non-impervious surface. (SO-120 Agricultural Production District Overlay). Any number of WBDs can jointly operate their bars in one remote tasting room facility. These facilities have no production and are purely retail sales outlets. The name “Tasting” is a misnomer, as they can serve alcohol by the glass and bottle. “Demonstration Project” is also a misnomer as these locations become legally non-conforming after 5 years and are permanent.
It appears the primary reason for Overay A is to legitimize five of the eight 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. Are the Councilmembers aware that the southern-most parcel – a single family home – is owned by Greg Lill? Mr. Lill has proposed large-scale development of the Sammamish Valley (Exhibit E). His existing event center business in the Rural Area, Chateau Lill, directly benefits from the Proposed Ordinance, and the gerrymandered boundary obviously benefits him. It appears Overlay A has been tailored to facilitate expansion of Mr. Lill’s retail drinking establishment operations in the Rural Area, or at a minimum it certainly gives that impression.
The Ordinance legalizes sham WBDs that really operate as retail bars with no production.
Until recently, wineries actually made wine, through all the steps of the production cycle: from crushing the grapes, to fermenting the grapes, blending and bottling. The same has been true for breweries and distilleries. And anyone who has walked into an actual winery, brewery, or distillery knows these manufacturing facilities use up lots of space for equipment. But that is not the scenario the Proposed Ordinance legitimizes. A new “sham winery acting as a bar” business model has emerged.
One business in the Sammamish Valley Rural Area – Matthews – has decided to call itself a winery even though it only stores a couple of barrels in a back closet. Matthews is owned by Diane and Cliff Otis. Cliff is also a co-author on the proposed large-scale development of the Sammamish Valley. (Exhibit E). All their wine is trucked in from their state-of-the-art winery in Walla Walla. They use all their space in the Sammamish Valley location for a retail bar, as there is no manufacturing equipment. They serve wine by the glass and bottle, have live music and dancing, and bring food trucks and other entertainment onsite. They’ve been referred to online as a nightclub and they’re packed on a typical Friday night. They’ve recently served over 400 customers in just one day.
All of this is occurring in a location with no commercial infrastructure – no sidewalks, lighting, or turn lanes, and with no urban sewer hookup, but only grossly undersized holding tanks with no septic drain field whatsoever. The majority of their property serves as a parking lot, severely compacting the soils. This property sits in the SO-120 buffer zone, which is supposed to be rural land with 75% impervious soils, in order to protect downslope farmland from toxic runoff. Immediately across the road is an active organic vegetable farm.
Matthews has invented a new business model – a sham winery acting as a bar – which the County hasn’t had to deal with before. Today, the King County code classifies alcoholic beverage production as a manufacturing activity. Sales of beverages are an ancillary activity. Under current code, sales are limited to sales of products produced on-site.
The Proposed Ordinance removes the sentence on WBD manufacturing facilities in the current code that says they are “limited to sales of products produced on-site and incidental items where the majority of sales are generated from products produced on-site.” This sentence has been replaced with language that says: “tasting and retail sales of products produced on-site may occur….” The devil is always in the details. The new language does not specifically limit sales to products produced on-site and leaves the origin of some products open to possible interpretation. Why is the current, perfectly clear language being changed?
The Proposed Ordinance also attempts to redefine production by stating that a WBD must “conduct two stages of production such as crushing, fermentation, distilling, barrel or tank aging, and finishing. At least one of the stages of on-site production shall include crushing, fermenting, or distilling.” With this definition a winery can “ferment and finish” or “ferment and age” or “ferment and make up whatever stage they want to” and satisfy the definition. Wine can be fermented and aged in a barrel. Throw a couple of barrels in the back, truck in wine from elsewhere by arguing that is not dis-allowed in the Proposed Ordinance, and a sham winery is legal. This is exactly what Matthews is doing today and their operation will be legitimized under the Proposed Ordinance.
Most WBD businesses are looking for retail distribution in King County, not locations for production. Most will keep production in Eastern WA near to their source materials (e.g., grapes, grains) due to cost and quality reasons. KC legitimizes sham wineries in the Proposed Ordinance through the loopholes described above which generates a significant negative impact across 2.5 and 4.5-acre properties throughout rural King County. In a recent analysis of just one square mile of Rural Area near Redmond, it was determined that 40 parcels could be converted to WBDs, resulting in up to 328,500 sq ft of commercial space related to alcohol. In just one square mile. Within Rural Area neighborhoods. (Exhibit F) This can happen all over rural King County.
Over the last 18 months numerous organizations and individuals have repeatedly pointed out to the County that they need to require all stages of beverage production and limit sales and tastings to products produced on-site in order to prevent legitimizing WBD retail outlets across King County Rural and Agricultural Areas. If the Council does not fix the WBD definitions in the Proposed Ordinance the County will legitimize Matthews and the many new sham WBDs who will certainly follow this new business model.
The Ordinance allows WBDs on 8+ acres an unlimited number of events with no mitigation process.
Today, WBDs are limited to 2 events per month and they must get at Temporary Use Permit (TUP), a process which allows for some input from the community and requires renewal that could be denied if the use is deemed inappropriate for the location. Temporary use permits are just that — temporary. They are not intended to permanently authorize a business activity that is not allowed by the applicable zoning. Under the current zoning code, TUPs must be renewed annually and the maximum number of consecutive renewals is five.
The Proposed Ordinance allows WBDs with an existing state liquor license for a Rural Area site that is eight acres or larger, to waive the TUP process, subject to certain setbacks and other restrictions. This means these businesses can permanently conduct an unlimited number of events, with up to 250 guests, with no process in place to review or mitigate uses that are incompatible with the surrounding area. Together with the loopholes in the WBD definitions described above, this really means that full-on event centers with no beverage production will be legitimized.
The waiver of the TUP requirement, added on at the last minute in the most recent KC Committee of the Whole (COW) meeting, is clearly designed for one business — Chateau Lill (owners: Greg & Stacy Lill) — a Sammamish Valley event center violator. At least four other locations may also be legitimized by this provision.
The Ordinance reduces the minimum lot size required for a WBD and increases the building sizes and allowed parking in the Rural Area and Agricultural zones
The Ordinance includes a 44% reduction in the current minimum lot size required for a WBD from 4.5 acres in RA and A to 2.5 acres. Allowed building sizes are increased from 3,500 sq ft to 6,000 sq ft on 4.5-acre properties. The 3,500 sq ft buildings previously allowed on 4.5 acres are now allowed on 2.5 acres. Because parking lot size is tied to the size of the building, parking lot sizes also increase throughout the Rural Area and Agricultural zones. By reducing the lot size and increasing building sizes the Proposed Ordinance inappropriately increases the density of manufacturing activities, and with the fundamental flaws in the WBD definitions, retail outlets as well, in Rural and Agricultural Areas.
Exhibit C: Ordinance Incompatible with Infrastructure and Land Use Policies
If adopted, the proposed Adult Beverage Ordinance would allow businesses selling alcoholic beverages to expand into Rural and Agricultural Areas. The Ordinance will fundamentally change our system of land use regulation in King County by expanding impacts generated by retail facilities, customers, and traffic beyond Urban Areas onto Agricultural Lands and into Rural Communities.
It will create needs in Rural and Agricultural Areas for sewer, water and stormwater facilities; require expanded streets and sidewalks; and increase needs for law enforcement.
These needs for urban services exceed the capacity of the minimal public services and infrastructure provided in Agricultural and Rural Communities.
Expanding retail activities outside of Urban Areas will require increased public spending on infrastructure and services that the County cannot afford, and that is contrary to the express policy stated in the KCCP that services should be kept at rural levels.
This fundamental expansion of land use impacts to Agricultural and Rural Areas is incompatible with the character and natural environment of these communities. If adopted, the repercussions of the Adult Beverage Ordinance will violate SEPA, the GMA, Countywide Planning Policies and the King County Comprehensive Plan, all of which mandate that the County preserve Agricultural Lands and protect natural systems and Rural character.
Exhibit D: Select Comments from 10/7/19 COW Meeting and Rebuttal
A recording of the KC Committee of the Whole (COW) meeting on October 7, 2019 is available at http://king.granicus.com/MediaPlayer.php?view_id=4&clip_id=7737. Councilmembers deliberated on the Ordinance starting at 1:14:58 on the recording. Below are some highlights from that discussion and a response to some of the more relevant statements.
CM Upthegrove asked what “allowable retail uses” in the RA and A zones are under current code and whether products are “required to be manufactured on-site.” Council Central Staff Erin Auzins confirmed for wine and beer that products are currently “limited to sales of products produced on-site.” Her response is consistent with the assertion we make throughout this document.
In a discussion of her amendment to increase the allowable “tasting” space in a WBD from 15% to 30%, CM Lambert said that in the original Executive version of the Proposed Ordinance a WBD owner “can use 100% in your property” [for tasting, of the square footage allowed for your WBD]. She argued going from 100% to 15% was too radical and that 30% was more reasonable.
Her argument is completely flawed and highlights a fundamental disconnect in the discussion. The Executive version does not say that 100% of a production facility can be used for tasting. No WBD today, under the current code, can dedicate 100% of their facility to retail tasting space. They need to actually produce alcoholic beverages because they can only sell what they produce on-site, and sales is an ancillary use to manufacturing the product. Production of alcoholic beverage requires large equipment which takes up lots of room. Anyone who has ever visited a real WBD knows this. The Executive version also requires that WBDs manufacture alcoholic beverages. CM Lambert can only be referring to the code violator Matthews as her baseline. Matthews illegally uses 100% of their space as a retail drinking establishment and event center. Starting with 100% as a baseline for the argument is nonsensical.
In her closing remarks CM Balducci said that it is time to move on and make a decision about the Ordinance. She continued to say that “anything we do with an Ordinance we can change with an Ordinance”, implying if we don’t get it right in this ordinance we can fix it with another one later. This is unfortunately and tragically untrue when it comes to land use and allowing commercial development in Rural and Agricultural Areas. Once land is paved over, it is paved over forever. There is no going back.
CM Balducci said, “we know what the on-the-ground impacts are of the current code. You can go out there and see it.” Again, this presumes the problem is with the current code. The “on-the-ground impacts” we see are created by code violators, illegally operating in disregard of the current code. The problem is lack of code enforcement of the current code, not the code itself, as discussed elsewhere in this document. This particular comment highlights another fundamental disconnect within the entire Proposed Ordinance discussion.
CM Balducci commented on some feedback she has received from the code enforcement division, as it related to the current code. She said she heard that “if the current code were enforced, winery and adult beverage businesses would not be required to conduct any stage of production of their product on-site.” While it is true that the current code does not specifically spell out which or how many stages of production are required to manufacture an adult beverage, the code does very clearly say that sales are limited to products produced on-site. So, if a WBD business is not actually making adult beverages on site, then it will have nothing to sell. Furthermore, sales are allowed only as an ancillary use to the primary manufacturing activity. The problem is not that the existing code doesn’t spell out the stages of production. The real problem is that the code enforcement division, for reasons that are unknown, did not use the on-site production requirement in the existing code to deal with businesses that are not producing and are very clearly trucking in product from elsewhere to sell.
CM Balducci stated that she believes a large part of the challenge [with negative impacts] in the Sammamish Valley is due to the presence of the City of Woodinville Tourist District, which lies in the middle of the Valley. What she failed to acknowledge, or perhaps recognize, is the fact that the Tourist District has commercial infrastructure. It is hooked up to the public sewer system, it has 3 roundabouts for ingress/egress, sidewalks and lighting. The hotel planned for development will also have underground parking. Comparing the impacts of urban use development in the Rural Area to similar development in a commercial area has to take into consideration the available infrastructure, or lack thereof.
The Tourist District is inside the Urban Growth Area (city). The Sammamish Valley RA and A lands do in fact abut this District. CM Balducci implies in her continued comments on the Tourist District that because its impacts are so great, the impacts created in the Rural Area by the Proposed Ordinance are minor in comparison, and that the Proposed Ordinance is “fair and balanced”. First, this ignores the point about infrastructure mentioned above, which greatly mitigates the impact of the Tourist District. More worrying, it ignores the whole point of the Growth Management Act which carves out specific areas for development within the Urban Growth Area (UGA), as delineated by the Urban Growth Boundary. Just because rural land is on the edge of the UGA where denser development exists, does not mean that less impactful urban use development on the rural land is OK. In fact, the opposite is true. The Urban Growth Boundary was put in place to prevent exactly this kind of “trickle, trickle” urban sprawl development.
CM Balducci stated that SEPA analysis is not required when proposed code is “more restrictive” than current code…as the rationale for why no environmental impact study was completed. The Proposed Ordinance allows remote tasting rooms in the Rural Area, WBDs on 2.5 acres, and unlimited number of events at certain WBDs. None of this is allowed under current code. The Proposed Ordinance is not more restrictive. She also said, in so many words, she doesn't believe there is going to be any significant environmental impacts from this Ordinance. She did not provide any evidence to support her claims. A SEPA analysis is a requirement for expansion of this nature in order to determine what, if any, environmental impacts will occur with changes to land use.
Exhibit E: Violators Commercial Vision for the Sammamish Valley
This recommendation is part of a submission to the King County PRE Committee Meeting on July 17, 2017. It was submitted by the names below, some of whom are Sammamish Valley violators, and is on the public record at https://www.kingcounty.gov/council/committees/Planning_Rural_Service_and_Environment.aspx.
