Peyote Canyon, LLC v. County of Benton
34600-5
| Wash. Ct. App. | Jul 27, 2017Background
- After Initiative 502 legalized recreational marijuana, Benton County allowed marijuana production in several zones, including Rural Lands 5 (RL-5).
- Jerry Van Zuyen (Peyote Canyon) applied for a tier 3 producer license and began remodeling a pole building and erecting an 8-foot fence at his RL-5 property while his license application was pending.
- Neighbors complained about potential incompatibility of marijuana production with RL-5 uses (odor, pesticides, lighting/security, crime, aesthetics) and reported permit noncompliance; the county issued permit correction requests.
- On May 12, 2015, the Benton County Board adopted Ordinance 561 as an emergency interim zoning measure (a moratorium) prohibiting marijuana production in RL-5; the county held public hearings and extended the interim ordinance (Ordinance 562) before adopting a permanent ban (Ordinance 565).
- The county denied Peyote Canyon’s building permit (citing the interim ordinance), the denial was upheld administratively, and Peyote Canyon sued under LUPA and sought declaratory relief challenging the sufficiency of emergency findings; the trial court granted summary judgment for the county.
Issues
| Issue | Van Zuyen's Argument | County's Argument | Held |
|---|---|---|---|
| Whether an emergency finding was required to adopt an interim zoning moratorium | Board failed to (sufficiently) identify facts establishing an emergency; findings are conclusory | Board need not make an "emergency" finding because statute for interim measures differs | Court: Emergency finding is required under the Planning Enabling Act and case law; appellant not required to attack trial court's subsidiary conclusions |
| Whether Ordinance 561's emergency declaration was supported by sufficient facts | Findings only list generic "concerns," insufficient to show emergency | Findings about public complaints, risk of undermining zoning, and judicially-noticeable facts suffice | Court: Face of ordinance and judicially-noticeable facts supported the emergency; declaration not palpably false |
| Mootness of appeal after LUPA dismissal | Appeal of emergency ordinance still provides effective relief; not moot | Claim is moot because LUPA dismissal not appealed | Court: Not moot; invalidating Ordinance 561 could permit permit processing and vested rights protections |
| Scope of judicial review of legislative emergency declarations | Court should examine underlying record to test findings | Judicial review is limited to face of ordinance and judicially-noticeable facts | Court: Review limited; will not inquire into full record; declaration conclusive unless obviously false |
Key Cases Cited
- Smith v. Skagit County, 75 Wn.2d 715 (1969) (interim zoning via map and ordinance may be adopted as emergency to protect public welfare)
- Byers v. Bd. of Clallam County Comm'rs, 84 Wn.2d 796 (1974) (interim zoning must be a temporary emergency measure; lengthy detailed ordinances require full procedures)
- Matson v. Clark County Bd. of Comm'rs, 79 Wn. App. 641 (1995) (moratoria and interim emergency measures are narrow tools to prevent actions that would defeat future land-use regulation)
- Jablinske v. Snohomish County, 28 Wn. App. 848 (1981) (RCW 36.70.790 grants counties authority for emergency interim measures; normal notice/hearing requirements do not apply to such emergencies)
- Federal Way v. King County, 62 Wn. App. 530 (1991) (courts limited to ordinance's face and judicially-noticeable facts when reviewing emergency declarations)
- Swartout v. City of Spokane, 21 Wn. App. 665 (1978) (vague, conclusory emergency findings invalidate emergency enactment)
- Abbey Road Group, LLC v. City of Bonney Lake, 167 Wn.2d 242 (2009) (vested rights doctrine protects developers from post-application changes in land-use regulations)