# King County v. Friends of Sammamish Valley

> Washington Supreme Court · September 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10588303

## Case

- **Court:** Washington Supreme Court
- **Decided:** September 19, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10588303

## Opinion text

FILE
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
SEPTEMBER 19, 2024

IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON
SEPTEMBER 19, 2024 ACTING SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

KING COUNTY, a political subdivision )
of the state of Washington, ) No. 102177-1
)
Respondent, )
)
v. ) En Banc
)
FRIENDS OF SAMMAMISH VALLEY, )
a Washington nonprofit corporation; and )
FUTUREWISE, )
) Filed: September 19, 2024
Petitioners, )
)
A FARM IN THE SAMMAMISH )
VALLEY LLC; MARSHALL LEROY )
d/b/a ALKI MARKET GARDEN; )
EUNOMIA FARMS, LLC; OLYMPIC )
NURSERY INC.; C-T CORP.; ROOTS )
OF OUR TIMES COOPERATIVE; )
REGENERATION FARM LLC; )
HOLLYWOOD HILLS ASSOCIATION; )
TERRY AND DAVID R. ORKIOLLA; )
and JUDITH ALLEN, )
)
Defendants. )
)

JOHNSON, J.—This case concerns King County Ordinance 19030

(Ordinance or Ordinance 19030), which altered zoning and business licensing
King County v. Friends of Sammamish Valley, No. 102177-1

regulations for wineries, breweries, and distilleries (WBDs), and accompanying

tasting rooms, within land designated as agricultural and rural under the King

County comprehensive plan. The issue presented is whether the Ordinance and the

investigations King County (County) undertook prior to passage comply with the

requirements set forth in the Growth Management Act (GMA), ch. 36.70A RCW,

and the State Environmental Policy Act (SEPA), ch. 43.21C RCW.

The Central Puget Sound Growth Management Hearings Board (Board)

determined that the County failed to comply with SEPA and the GMA and

invalidated portions of the Ordinance. Appeal of the Board’s final order was

certified directly to the Court of Appeals, which reversed the board decision.

Friends of Sammamish Valley (FOSV) and Futurewise sought review, arguing that

the County’s initial failure to fully engage with the threshold determination process

under SEPA and failure to address preservation of land designated agricultural

required invalidation under the GMA. The County, in response, argues that SEPA

and the GMA do not require them to consider potential environmental impacts

because the Ordinance is a “nonproject action” not requiring environmental review

under SEPA and because the GMA presumes that an ordinance is valid on

adoption. We reverse the Court of Appeals and reinstate the Board’s order.

2
King County v. Friends of Sammamish Valley, No. 102177-1

FACTS AND PROCEDURAL HISTORY

Ordinance 19030 applies to all of King County, but the focus of this case is

on the impact to the agricultural and rural areas of Sammamish Valley.

Sammamish Valley, particularly the Woodinville area, has developed into a

destination in Washington for WBDs and tasting rooms. Many alcohol related

businesses are located in the Woodinville city limits, but many have also been

established outside the city limits in unincorporated King County. The County’s

comprehensive plan designated certain areas in Sammamish Valley as appropriate

for long-term protection and classified that land as agricultural under King

County’s comprehensive plan. Expansion, authorization, and restrictions on

additional WBDs are addressed under the Ordinance.

In response to the growing adult-beverage industry, the King County

Council initiated the “Sammamish Valley Wine and Beverage Study” in 2016. The

study provided policy and code recommendations regarding economic

development, transportation, agriculture land use, and rural land use. The study

outlined accessory uses in the agricultural and rural areas and how such uses could

be expanded to serve the economic development of the community. It also

uncovered that 54 WBDs were operating in unincorporated King County, and only

4 of those had permits to operate. King County produced another action report in

3
King County v. Friends of Sammamish Valley, No. 102177-1

2018, which gave specific zoning code recommendations. The findings and

recommendations of the two studies became the basis for Ordinance 19030.

Before passage of the Ordinance, county staff completed a SEPA checklist,

in order to make a threshold determination about the potential environmental

impact of the proposed action. Admin. R. (AR) at 29-48; WAC 197-11-315. The

County’s responsible official determined that the proposed Ordinance was a

nonproject action and made a threshold determination of nonsignificance (DNS),

indicating no adverse environmental issues were implicated. AR at 26-27; WAC

197-11-310, -330, -340. As a result of the staff report, no environmental impact

statement (EIS) was conducted after the DNS. The County passed Ordinance

19030 on December 4, 2019.

The Ordinance made a number of zoning changes in rural and agricultural

areas of King County, imposing new licensing requirements for alcoholic beverage

businesses in these areas. A number of alterations were made to the existing code,

some tightening restrictions on allowed uses and others expanding allowed uses.

The Ordinance set different sizes of WBD facilities, classifying the uses as I, II, or

III. The Ordinance eliminated the requirement that beverage sales must be limited

to products produced on-site and grown in the Puget Sound and replaced it with a

requirement that 60 percent of the products processed must be grown on-site. The

Ordinance amended the former code to require that tasting and retail sales of

4
King County v. Friends of Sammamish Valley, No. 102177-1

products may occur only as an accessory to the primary WBD production use,

whereas the former code simply stated that the tasting of products must be

provided in accordance with state law. The Ordinance established temporary use

permits for large events and imposed limits on the number of guests allowed based

on the size of the facility (WBD IIs can have up to 150 people, WBD IIIs can have

up to 250 people). The Ordinance authorized that up to 25 percent of any site with

these facilities could be paved. The Ordinance also created “Demonstration Project

Overlay A” in the area adjacent to Woodinville, establishing “remote tasting

rooms.” Ordinance, Attach. A. Tasting rooms were not explicitly allowed prior to

the Ordinance, and the Ordinance provided an avenue for them to become licensed

on the parcels in the demonstration project area.

FOSV filed a petition for review with the Board on March 4, 2020,

challenging the validity of Ordinance 19030. Futurewise filed a petition for review

with the Board on March 5, 2020, challenging the same. The Board provided an

order on dispositive motions, declaring Ordinance 19030 invalid on May 26, 2020.

In sum, the Board agreed with the petitioners as to the threshold issues of the

timing and sufficiency of the SEPA checklist and determined that the Ordinance

was invalid for violations of the GMA.

The County, in an initial proceeding, appealed that order to the superior

court. The superior court reversed the Board’s order. It found that the Board had

5
King County v. Friends of Sammamish Valley, No. 102177-1

exceeded its statutory authority in reviewing the motions for summary judgment,

and had improperly applied the CR 56 standard. The matter was remanded back to

the Board, with a direction that it rescind its order of invalidity and conduct a full

hearing on the issues of SEPA and GMA compliance.

The Board held a full hearing on the merits and issued a new final decision

and order on January 3, 2022, with a corrected version issued on January 27, 2022.

The Board evaluated a number of SEPA issues and concluded that the County had

failed to establish a prima facie showing of SEPA compliance and that the County

violated SEPA by basing its DNS on an inadequate checklist. The Board also

considered a number of GMA issues and concluded that the adoption of Ordinance

19030 was clearly erroneous in light of the requirements of the GMA and SEPA,

and that the Ordinance substantially interfered with GMA goals. Sections 12-29,

and 31, and map amendments No. 1 and No. 2 of the Ordinance were declared

invalid, and the matter was remanded to the County to come into compliance.

The County again appealed, and the action was transferred to Division One

of the Court of Appeals. The Court of Appeals reversed the Board’s order of

invalidity and remanded for entry of a finding of compliance with the GMA and

6
King County v. Friends of Sammamish Valley, No. 102177-1

SEPA. King County v. Friends of Sammamish Valley, 26 Wn. App. 2d 906, 530

P.3d 1023, review granted, 2 Wn.3d 1006 (2023). We accepted review. 1

ISSUES 2

I. Does Ordinance 19030 violate the GMA?

II. Did the DNS issued for Ordinance 19030 violate SEPA?

ANALYSIS

I. GMA Compliance

Under the GMA, authority is assigned to Growth Management Hearing

Boards to adjudicate compliance. RCW 36.70A.280, .300; Lewis County v. W.

Wash. Growth Mgmt. Hr’gs Bd., 157 Wn.2d 488, 497, 139 P.3d 1096 (2006).

Planning agencies are given broad deference by the reviewing Board.

“[C]omprehensive plans and development regulations, and amendments thereto,

adopted under [the GMA] are presumed valid upon adoption.” RCW

36.70A.320(1).

The presumption of validity can be rebutted where the Board finds evidence

of a clear error based on the requirements of the GMA. “The board shall find

1
A number of amici briefs have been submitted in support of FOSV and Futurewise from
Agricultural Organizations, Black Farmers Collective, Western Washington Agricultural
Association, Orca Conservancy, Sierra Club, and Susan Boundy-Sanders and Paula Waters.
2
The parties have presented different classifications of the issues in this case, with the
two petitioners each presenting three separate issues, and the County presenting its own issues.
However, all of the issues can be boiled down to these two questions.

7
King County v. Friends of Sammamish Valley, No. 102177-1

compliance unless it determines that the action by the state agency, county, or city

is clearly erroneous in view of the entire record before the board and in light of the

goals and requirements of this chapter.” RCW 36.70A.320(3). An action is

“‘clearly erroneous’” if the Board is “‘left with the firm and definite conviction

that a mistake has been committed.’” King County v. Cent. Puget Sound Growth

Mgmt. Hr’gs Bd., 142 Wn.2d 543, 552, 14 P.3d 133 (2000) (quoting RCW

36.70A.320(3); Dep’t of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d 179, 201,

849 P.2d 646 (1993)).

When a board decision is appealed, courts review the Board’s decision

pursuant to the Administrative Procedure Act (APA), chapter 34.05 RCW. RCW

34.05.570(3). The court looks at the record before the Board and reviews the

Board’s legal conclusions de novo, giving substantial weight to the Board’s

statutory interpretations. When there are mixed questions of law and fact, the court

determines the law, and then applies the law to the facts as found by the Board.

Thurston County v. W. Wash. Growth Mgmt. Hr’gs Bd., 164 Wn.2d 329, 341, 190

P.3d 38 (2008).

The burden is on the party asserting the error to demonstrate that the Board

erroneously interpreted or applied the law, or that the order is not supported by

substantial evidence. King County, 142 Wn.2d at 553. Boards established by the

GMA are to be given deference because of the specialized experience its members

8
King County v. Friends of Sammamish Valley, No. 102177-1

are required to have.3 Courts review the Board’s order for substantial evidence—

whether a sufficient quantity of evidence exists in the record that a fair-minded

person could be persuaded of the truth or correctness of the Board’s order.

Thurston County, 164 Wn.2d at 341.

The deference afforded to planning agencies by the Board and the deference

granted to the Board by reviewing courts may seem somewhat contradictory.

However, in Quadrant Corp. v. Central Puget Sound Growth Management

Hearings Board, 154 Wn.2d 224, 110 P.3d 1132 (2005), we recognized that

deference afforded to county planning actions supersedes the deference granted by

the APA, so long as the county planning action meets and is consistent with the

goals and requirements of the GMA. We held that when a Board fails to apply the

more deferential standard of review, the ruling is not entitled to deference.

Quadrant, 154 Wn.2d at 238.

Though the parties do not substantively dispute the standard of review, the

petitioners emphasize that substantial weight should be given to the Board, while

the County emphasizes that deference must be given to county planning decisions

per the legislative intent. Here, the Board acknowledged and clearly stated that it

was applying the deferential standard of review in its ruling. Unless the facts show

3
“The board shall consist of five members qualified by experience or training in pertinent
matters pertaining to land use law or land use planning and who have experience in the practical
application of those matters.” RCW 36.70A.250(1).

9
King County v. Friends of Sammamish Valley, No. 102177-1

that the Board failed to apply the standard of review correctly, the Board decision

is entitled to deference when challenged. The determining question therefore is

whether substantial evidence shows that the County’s interpretation of the GMA is

clearly erroneous, or put another way, whether a sufficient quantity of evidence

exists in the record that a fair-minded person could be persuaded that the Board

was correct.

The GMA is found in chapter 36.70A RCW, and the rules for the GMA are

found in chapter 365-196 WAC. The GMA is “intended to recognize the

importance of rural lands and rural character to Washington’s economy, its people,

and its environment, while respecting regional differences.” RCW 36.70A.011.

The GMA was established to provide a framework for land use planning and

regulation of development, in response to unplanned growth and a lack of common

goals. WAC 365-196-010. RCW 36.70A.020 sets a number of goals, which are not

exclusive but may be supplemented by cities and counties so long as no conflict

with the GMA arises. WAC 365-196-060. The goals include encouraging urban

growth, reducing sprawl, and protecting and enhancing the natural environment.

RCW 36.70A.020.4

4
“The following goals are not listed in order of priority and shall be used exclusively for
the purpose of guiding the development of comprehensive plans, development regulations, and,
where specified, regional plans, policies, and strategies:
“(1) Urban growth. Encourage development in urban areas where adequate public

10
King County v. Friends of Sammamish Valley, No. 102177-1

The GMA requires that development regulations preserve natural resource

and critical areas, and that land adjacent to such areas not interfere in their

continued use. RCW 36.70A.060. Counties’ comprehensive plans must include

measures governing rural development and protection of the rural character of the

area, with measures such as containing and controlling rural development,

protecting critical areas, and protecting against conflicts with agricultural, forest,

and resource lands. RCW 36.70A.070(5). The GMA requires that comprehensive

land use plans must conform to the act, and any development regulations must be

consistent with and implement the comprehensive plans. RCW 36.70A.130.

Counties may also use innovative zoning techniques in agricultural lands to

conserve the areas and encourage agricultural economy, but nonagricultural uses

facilities and services exist or can be provided in an efficient manner.
“(2) Reduce sprawl. Reduce the inappropriate conversion of undeveloped land into
sprawling, low-density development.
“. . . .
“(8) Natural resource industries. Maintain and enhance natural resource-based industries,
including productive timber, agricultural, and fisheries industries. Encourage the conservation of
productive forestlands and productive agricultural lands, and discourage incompatible uses.
“. . . .
“(10) Environment. Protect and enhance the environment and enhance the state’s high
quality of life, including air and water quality, and the availability of water.
“. . . .
“(12) Public facilities and services. Ensure that those public facilities and services
necessary to support development shall be adequate to serve the development at the time the
development is available for occupancy and use without decreasing current service levels below
locally established minimum standards.”

11
King County v. Friends of Sammamish Valley, No. 102177-1

should be limited to lands not suitable for agricultural purposes. RCW

36.70A.177.5

5
“(1) A county or a city may use a variety of innovative zoning techniques in areas
designated as agricultural lands of long-term commercial significance under RCW 36.70A.170.
The innovative zoning techniques should be designed to conserve agricultural lands and
encourage the agricultural economy. Except as provided in subsection (3) of this section, a
county or city should encourage nonagricultural uses to be limited to lands with poor soils or
otherwise not suitable for agricultural purposes.
“(2) Innovative zoning techniques a county or city may consider include, but are not
limited to:
“(a) Agricultural zoning, which limits the density of development and restricts or
prohibits nonfarm uses of agricultural land and may allow accessory uses, including
nonagricultural accessory uses and activities, that support, promote, or sustain agricultural
operations and production, as provided in subsection (3) of this section;
“(b) Cluster zoning, which allows new development on one portion of the land, leaving
the remainder in agricultural or open space uses;
“(c) Large lot zoning, which establishes as a minimum lot size the amount of land
necessary to achieve a successful farming practice;
“(d) Quarter/quarter zoning, which permits one residential dwelling on a one-acre
minimum lot for each one-sixteenth of a section of land; and
“(e) Sliding scale zoning, which allows the number of lots for single-family residential
purposes with a minimum lot size of one acre to increase inversely as the size of the total acreage
increases.
“(3) Accessory uses allowed under subsection (2)(a) of this section shall comply with the
following:
“(a) Accessory uses shall be located, designed, and operated so as to not interfere with,
and to support the continuation of, the overall agricultural use of the property and neighboring
properties, and shall comply with the requirements of this chapter;
“(b) Accessory uses may include:
“(i) Agricultural accessory uses and activities, including but not limited to the storage,
distribution, and marketing of regional agricultural products from one or more producers,
agriculturally related experiences, or the production, marketing, and distribution of value-added
agricultural products, including support services that facilitate these activities; and
“(ii) Nonagricultural accessory uses and activities as long as they are consistent with the
size, scale, and intensity of the existing agricultural use of the property and the existing buildings
on the site. Nonagricultural accessory uses and activities, including new buildings, parking, or
supportive uses, shall not be located outside the general area already developed for buildings and
residential uses and shall not otherwise convert more than one acre of agricultural land to
nonagricultural uses; and
“(c) Counties and cities have the authority to limit or exclude accessory uses otherwise
authorized in this subsection (3) in areas designated as agricultural lands of long-term

12
King County v. Friends of Sammamish Valley, No. 102177-1

The land focused on in this case lies outside of the city of Woodinville and

has been designated under King County’s comprehensive plan as agricultural,

rural, or a combination of the two. This designation is significant here because an

agricultural designation carries with it a statutory requirement that cities and

counties assure the agricultural and rural nature of the land is preserved. RCW

36.70A.060(1)(a).6

In its assessment of the Ordinance, the Board focused on four areas of GMA

compliance—accessory uses, comprehensive plan farmland and environmental

policies, comprehensive plan agricultural production district buffer policies, and

County demonstration project requirements—all areas designated under the

County’s comprehensive plan.

First, the Board found that the Ordinance violated RCW 36.70A.060(1)(a)

because it failed to conserve productive agricultural land by allowing incompatible

uses, and it did not restrict agricultural accessory uses and activities to be

commercial significance.
“(4) This section shall not be interpreted to limit agricultural production on designated
agricultural lands.”
6
“Each county that is required or chooses to plan under RCW 36.70A.040, and each city
within such county, shall adopt development regulations on or before September 1, 1991, to
assure the conservation of agricultural, forest, and mineral resource lands designated under RCW
36.70A.170. Regulations adopted under this subsection may not prohibit uses legally existing on
any parcel prior to their adoption and shall remain in effect until the county or city adopts
development regulations pursuant to RCW 36.70A.040. Such regulations shall assure that the use
of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the
continued use, in the accustomed manner and in accordance with best management practices, of
these designated lands for the production of food, agricultural products, or timber, or for the
extraction of minerals.”

13
King County v. Friends of Sammamish Valley, No. 102177-1

consistent with the size, scale, and intensity of the existing agricultural uses on the

property. Also, the Ordinance’s allowing further development in areas that did not

have “‘prime soil[]’” impermissibly expanded nonagricultural uses, thus violating

RCW 36.70A.177(3)(b)(ii). AR at 49433.

Next, when reviewing consistency with comprehensive plan farmland and

environmental policies, the Board concluded that the matter was not ripe for

review until the County had remedied the SEPA and GMA noncompliance issues

the Board had already identified. The Board assessed several matters addressing

compliance with comprehensive plan agricultural production district buffer

policies, and concluded that implementing the Ordinance without adequate

environmental review and sufficient development regulations to ensure

compatibility with the natural environment would thwart the county’s

14
King County v. Friends of Sammamish Valley, No. 102177-1

implementation of King County comprehensive plan policy R-201,7 in violation of

RCW 36.70A.130(1)(e). 8

Finally, the Board addressed whether the Ordinance’s demonstration project

was consistent with established requirements set by the County. The Board found

that the remote tasting rooms in Demonstration Project Overlay A thwarted

policies and enforcement of zoning regulation King County Code 21A.32.040,

which provides, “Any use, structure or other site improvement not established in

compliance with use and development standards in effect at the time of

7
“King County’s land use regulations and development standards shall protect and
enhance the following attributes associated with rural character and the Rural Area:
“a. The natural environment, particularly as evidenced by the health of wildlife and
fisheries (especially salmon and trout), aquifers used for potable water, surface water bodies
including Puget Sound and natural drainage systems and their riparian corridors;
“b. Commercial and noncommercial farming, forestry, fisheries, mining, home-
occupations and home industries;
“c. Historic resources, historical character and continuity important to local communities,
as well as archaeological and cultural sites important to tribes;
“d. Community small-town atmosphere, safety, and locally owned small businesses;
“e. Economically and fiscally healthy Rural Towns and Rural Neighborhood Commercial
Centers with clearly defined identities compatible with adjacent rural, agricultural, forestry and
mining uses;
“f. Regionally significant parks, trails and open space;
“g. A variety of low-density housing choices compatible with adjacent farming, forestry
and mining and not needing urban facilities and services;
“h. Traditional rural land uses of a size and scale that blend with historic rural
development; and
“i. Rural uses that do not include primarily urban-serving facilities.” AR at 9236
(emphasis added).
8
“Any amendment of or revision to a comprehensive land use plan shall conform to this
chapter. Any amendment of or revision to development regulations shall be consistent with and
implement the comprehensive plan.” (The Board references RCW 36.70A.130(1)(d), but based
on the text and the context of its decision, it intended RCW 36.70A.130(1)(e).)

15
King County v. Friends of Sammamish Valley, No. 102177-1

establishment shall be deemed illegal and shall be discontinued or terminated and

subject to removal . . . .” The Board found that the Ordinance was internally

inconsistent with the zoning regulation, in violation of RCW 36.70A.130(1)(e).9 In

summary, the Board concluded that the Ordinance was inconsistent with sections

of the County’s comprehensive plan, and, as required under RCW 36.70A.130, any

land use plan and development regulations are subject to continuing review and

evaluation, including consideration of critical area ordinances and population

analysis, which the County did not do.

The Board concluded that the Ordinance was clearly erroneous based on the

entire record and in violation of the goals and requirements of the GMA because it

substantially interfered with the fulfillment of multiple GMA planning goals.

The County has argued that Ordinance 19030 does comply with the GMA,

and that the order of the Board failed to apply the law and the Board

misunderstood portions of the Ordinance and the legality of the existing WBDs.

The County argues that the Board did not follow the plain language of the GMA

and impermissibly shifted the burden of proof to the County rather than the

petitioner. Essentially, the County asserts that the Board did not give the Ordinance

the required deference and failed to understand several of its provisions.

9
“Any amendment of or revision to a comprehensive land use plan shall conform to this
chapter. Any amendment of or revision to development regulations shall be consistent with and
implement the comprehensive plan.”

16
King County v. Friends of Sammamish Valley, No. 102177-1

As discussed above, the Board did give the County the required deference.

Deference does not require the Board to rubber-stamp every action taken by the

County, but requires the Board to look closely at the Ordinance and the

requirements of the GMA and presume that the Ordinance follows those

requirements unless evidence shows otherwise. Here, the evidence did show

otherwise. Whether the WBDs are currently legal or illegal is irrelevant. Under

either interpretation, the language of the Ordinance expanded some aspects of

WBDs while placing tighter restrictions on others, and the net environmental effect

of those changes on designated agricultural land should have been considered in

the environmental review.

The County goes on to assert that the Board’s order did not align with RCW

36.70A.302 10 because the Board failed to provide facts that supported the

conclusion that the Ordinance would substantially interfere with GMA goals. The

County’s argument relies on analysis in Town of Woodway v. Snohomish County,

180 Wn.2d 165, 322 P.3d 1219 (2014), overruled in part by Chong Yim v. City of

10
“(1) The board may determine that part or all of a comprehensive plan or development
regulations are invalid if the board:
“(a) Makes a finding of noncompliance and issues an order of remand under RCW
36.70A.300;
“(b) Includes in the final order a determination, supported by findings of fact and
conclusions of law, that the continued validity of part or parts of the plan or regulation would
substantially interfere with the fulfillment of the goals of this chapter; and
“(c) Specifies in the final order the particular part or parts of the plan or regulation that
are determined to be invalid, and the reasons for their invalidity.”

17
King County v. Friends of Sammamish Valley, No. 102177-1

Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019), and Davidson Serles & Associates v.

Central Puget Sound Growth Management Hearings Board, 159 Wn. App. 148,

244 P.3d 1003 (2010). The County argues that even if a potential SEPA violation

exists, it is irrelevant because the Board did not properly find a GMA violation.

In Town of Woodway, this court stated that boards have the ability to review

plans for both GMA and SEPA violations, but the boards are limited to two

remedies—noncompliance or invalidity. 180 Wn.2d at 178. The Davidson Serles &

Associates case outlined what the Board must find in order to make a

determination of invalidity:

In sum, the Board is empowered with the authority to invalidate a
jurisdiction’s comprehensive plan or development regulations where
the Board (1) makes a finding of noncompliance, (2) remands, (3)
makes a determination supported by findings and conclusions that the
continued validity of the plan or regulation will substantially interfere
with the fulfillment of the goals of the GMA, and (4) specifies the
portion of the action that is invalid and explains why.

159 Wn. App. at 157.

Here, the Board specifically acknowledged what was necessary to invalidate

the Ordinance.11 The Board then comprehensively analyzed the legal requirements.

First, the Board entered findings of fact detailing how the Ordinance and the

County’s checklist failed to comply with SEPA and GMA provisions and cited to

which regulations were violated. Second, the Board remanded to the County with a

11
Findings of Fact 1-12; Conclusions of Law A-D. AR at 49444-46.

18
King County v. Friends of Sammamish Valley, No. 102177-1

schedule to come into compliance. AR at 49451-52. The Board’s order detailed

exactly what the County must do, including a full, environmental review.

Third, the Board provided findings and conclusions explaining how the

Ordinance substantially interferes with the fulfillment of the goals of the GMA.

The order specifically pointed to the goals found at RCW 36.70A.020(8), (10), and

(12). Those statutory sections require the maintenance of natural resource

industries and agriculture, protection of the environment including water and air

quality, and ensuring that public facilities are adequately available at the time of

occupancy and use.

A number of findings of fact laid out exactly why specific sections of the

Ordinance and map attachments 12 were invalid. For example, the Board described

that the development of rural and agricultural land with no environmental review

failed to maintain the natural resource industries and failed to protect water quality.

The issue of water runoff is particularly important in this area because the

Sammamish River is a crucial salmon route already threatened by development.

AR at 49422-23. The Board also noted that allowing large public gatherings in

rural spaces that do not have on-site sewage systems did not ensure sufficient

public facilities.

12
Sections 12-29, 31, and map amendments No. 1 and No. 2.

19
King County v. Friends of Sammamish Valley, No. 102177-1

The County’s argument is essentially that the potential environmental impact

is unknown until it occurs. But that is why the potential environmental impact is

required when considering code changes, and here the County’s DNS checklist did

not address any potential environmental impacts and concluded no potential

environmental impacts existed, violating the statutory requirements to plan.

Overall, acting without any information on the potential environmental effects of

an omnibus ordinance that affects zoning designations, types of uses, permitting

thresholds, setbacks, lot sizes, paving up to 25 percent of an area for parking,

facilities requirements, and business licensing requirements conflicts with the

requirements to protect and enhance agriculturally significant land. RCW

36.70A.020, .060. The Board’s specific findings, conclusions, and order correctly

comply with the goals of the GMA.

The County also emphasizes that RCW 36.70A.177 allows the County to

use innovative zoning techniques to make use of land and allows accessory uses

such as the type set out in the Ordinance. However, RCW 36.70A.177 does not

give counties such unlimited discretion, especially in areas identified and classified

under the County’s comprehensive plan.

In King County, 142 Wn.2d 543, we established that while counties have

broad discretion to develop plans and development regulations suited to unique

local circumstances, such discretion does not allow a proposed action to convert

20
King County v. Friends of Sammamish Valley, No. 102177-1

agricultural land to uses that do not support agricultural land preservation. The

GMA does not allow “innovative” techniques that convert prime agricultural soil

to unrelated uses. The explicit purpose of RCW 36.70A.177 is to provide for

creative alternatives that still maintain and enhance the agricultural environment.

The Board correctly concluded that the Ordinance has the opposite potential effect.

The Board found that the Ordinance interfered with RCW

36.70A.177(3)(a).13 To support this finding, the Board pointed out that the

Ordinance allowed accessory uses of wine tasting and large-scale events with no

adequate regulations and adequate setbacks to prevent conflicts with agricultural

activities. The Ordinance also has no specific restrictions on agricultural accessory

uses and activities to keep them to an appropriate size, scale, and intensity

consistent with the existing agricultural use. RCW 36.70A.177(3)(b)(ii).

In King County, we noted that the GMA requires counties to “designate

agricultural lands of long-term commercial significance,” to “assure the

conservation of agricultural lands and to assure that the use of adjacent lands does

not interfere with their continued use for the production of food or agricultural

products,” and to “conserve agricultural land in order to maintain and enhance the

agricultural industry and to discourage incompatible uses.” 142 Wn.2d at 556, 557

13
“Accessory uses shall be located, designed, and operated so as to not interfere with,
and to support the continuation of, the overall agricultural use of the property and neighboring
properties, and shall comply with the requirements of this chapter.”

21
King County v. Friends of Sammamish Valley, No. 102177-1

(emphasis removed); RCW 36.70A.020(8), .060(1), .170(1)(a). The County has the

responsibility, once that designation exists, to conserve and enhance agricultural

lands under the GMA. The Ordinance may well be the antithesis of that statutory

requirement, particularly when no environmental review has been conducted.

The holding of King County supports the Board’s order. In that case, we held

that the County could not construct temporary soccer fields in an agricultural area

because the project would result in removal of designated agricultural land from its

availability for agricultural production, and, even on a temporary planned basis, we

concluded that removal violated the statute. We noted that the GMA mandates

conservation of limited irreplaceable agricultural resource land, and recreational

facilities were not consistent with conservation. King County, 142 Wn.2d at 562-

63. Under that case, constructing temporary grass soccer fields was not consistent

with the mandates of the GMA. Applying that reasoning here, we hold that

constructing permanent WBD facilities and paved parking areas cannot be

consistent with the GMA.

The Board went into significant detail about GMA compliance and the

provisions of the Ordinance. But the requirements of the GMA are quite clear—

agricultural land must be conserved, by maintaining or enhancing the land, and by

discouraging incompatible uses. The GMA does not allow the County to presume

that expanding WBDs and tasting rooms on agricultural land, and expanding the

22
King County v. Friends of Sammamish Valley, No. 102177-1

pavement, sewage, and buildings to support them, with no environmental review is

an allowed accessory/compatible use. Though the County claims that its proposed

accessory uses are consistent with RCW 36.70A.177, without a comprehensive

SEPA review, this claim fails. A myriad of questions remains as to the agricultural

use of the properties that fall under the Ordinance and the viability of the land in

this designated agricultural area. Further questions remain as to the ability of the

County’s proposed accessory uses and how those uses actually conserve the

agricultural nature of the land, as they must. The Board properly found that the

Ordinance violated the requirements of the GMA.

II. SEPA Compliance

SEPA is found in chapter 43.21C RCW, and the rules for SEPA are found in

chapter 197-11 WAC. The goals of SEPA are to (1) create harmony between

people and the environment, (2) prevent damage to the environment, (3) stimulate

the health and welfare of humans, and (4) enrich understanding of natural

resources and systems. RCW 43.21C.010. Under SEPA, an EIS is required and

must be prepared for any proposals and actions with a probable, significant,

adverse environmental impact. RCW 43.21C.031. 14 An environmental review is

14
“(1) An environmental impact statement (the detailed statement required by RCW
43.21C.030(2)(c)) shall be prepared on proposals for legislation and other major actions having a
probable significant, adverse environmental impact. The environmental impact statement may be
combined with the recommendation or report on the proposal or issued as a separate document.
The substantive decisions or recommendations shall be clearly identifiable in the combined

23
King County v. Friends of Sammamish Valley, No. 102177-1

also required to be completed as early as possible in the planning process to ensure

that plans reflect environmental values. WAC 197-11-055(1).

SEPA sets the guideline that agencies should include in every proposal for

new legislation and major actions that significantly affect the environment, a

detailed report about (1) the environmental impact, (2) any adverse environmental

effects, (3) alternative options, (4) the relationship between short-term uses and

long-term productivity, and (5) any irreversible commitments of resources. RCW

43.21C.030(c). The agency must consider both short- and long-term impacts, and

direct and indirect impacts. WAC 197-11-060. SEPA acts as a full disclosure

directive to consider any potential environmental impacts of a project.

SEPA mandates that county planning agencies make a threshold

determination for any proposal that meets the definition of action. RCW

43.21C.033(1); WAC 197-11-310(1). Under SEPA, the definition of “action”

covers just about everything, and within that category are project and nonproject

document. Actions categorically exempt under RCW 43.21C.110(1)(a) and 43.21C.450 do not
require environmental review or the preparation of an environmental impact statement under this
chapter.
“(2) An environmental impact statement is required to analyze only those probable
adverse environmental impacts which are significant. Beneficial environmental impacts may be
discussed. The responsible official shall consult with agencies and the public to identify such
impacts and limit the scope of an environmental impact statement. The subjects listed in RCW
43.21C.030(2)(c) need not be treated as separate sections of an environmental impact statement.
Discussions of significant short-term and long-term environmental impacts, significant
irrevocable commitments of natural resources, significant alternatives including mitigation
measures, and significant environmental impacts which cannot be mitigated should be
consolidated or included, as applicable, in those sections of an environmental impact statement
where the responsible official decides they logically belong.”

24
King County v. Friends of Sammamish Valley, No. 102177-1

actions. Nonproject actions are decisions on policies, plans or programs, such as

“[t]he adoption or amendment of comprehensive land use plans or zoning

ordinances.” WAC 197-11-704(2)(b)(ii). A nonproject action is not fully exempt

from environmental review and must still comply with SEPA, unless it falls under

one of the categorical exemptions (which do not apply here). RCW 43.21C.450.

SEPA allows for phased review, and a nonproject proposal or action may be

approved based on an EIS assessing a broad impact, and any subsequent project

actions may use that EIS in a later review, requiring that environmental review

should be front loaded and forward looking. WAC 197-11-443, -060(5).

SEPA provides a checklist to assist planning agencies in making threshold

determinations. WAC 197-11-315, -960. The agency must base its threshold

determination on reasonably sufficient information on the environmental impact of

the proposal and take additional steps if such information is not available. WAC

197-11-335. The threshold determination decides whether a proposal has a

probable significant adverse impact, and, if so, will require an EIS. WAC 197-11-

300(2). “A threshold determination shall not balance whether the beneficial aspects

of a proposal outweigh its adverse impacts, but rather, shall consider whether a

proposal has any probable significant adverse environmental impacts.” WAC 197-

11-330(5). The lead agency can then either issue a DNS (if no probable significant

25
King County v. Friends of Sammamish Valley, No. 102177-1

adverse impact exists) or a determination of significance (if probable significant

adverse impact exists). 15 WAC 197-11-310(5).

A threshold determination that an EIS is not required is reviewed under the

“‘clearly erroneous’” standard, and a reviewing court will overturn an agency’s

DNS when “‘[a]lthough there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been

committed.’” King County v. Wash. State Boundary Rev. Bd., 122 Wn.2d 648, 661,

860 P.2d 1024 (1993) (alteration in original) (quoting Norway Hill Pres. & Prot.

Ass’n v. King County Council, 87 Wn.2d 267, 274, 552 P.2d 674 (1976)). The

record must show that relevant environmental factors were considered in a way

that sufficiently amounts to prima facie compliance with the requirements of

SEPA. Wild Fish Conservancy v. Dep’t of Fish & Wildlife, 198 Wn.2d 846, 867,

502 P.3d 359 (2022); Chuckanut Conservancy v. Dep’t of Nat. Res., 156 Wn. App.

274, 286-87, 232 P.3d 1154 (2010).

Further, we have held that proposed land-use related actions, such as zoning

ordinances, are

not insulated from full environmental review simply because there are
no existing specific proposals to develop the land in question or
because there are no immediate land use changes which will flow
from the proposed action. Instead, an EIS should be prepared where
the responsible agency determines that significant adverse
environmental impacts are probable following the government action.

15
A threshold DNS allows the agency to avoid a full EIS.

26
King County v. Friends of Sammamish Valley, No. 102177-1

Wash. State Boundary, 122 Wn.2d at 664. Thus, we must determine whether the

record shows that environmental impacts are probable as a result of the Ordinance.

The first matter to resolve is which SEPA checklist this court should

consider. The County produced one checklist prior to the threshold determination.

AR at 29-48. After the Board determined that the Ordinance was invalid initially,

the County attempted to come into compliance and completed another checklist.

King County’s Suppl. Br., App. E. The second checklist was not used by the

County to make a threshold decision about the Ordinance because it was not

produced until after the Ordinance was passed. The Court of Appeals did consider

the second checklist in its analysis. The petitioners assert that the Court of Appeals

erred in using the second checklist rather than the one that was actually cited by the

Board and relied on for the threshold determination.

As noted above, when a Board decision is appealed, we review the Board’s

decision and look at the record that was before the Board. In its opinion, the Court

of Appeals looked at a later version of the SEPA checklist that was not part of the

DNS and not cited by the Board. We conclude that the Court of Appeals erred in

considering a later checklist that was not part of the County’s original DNS.

Rather, we must consider the first checklist that was used in making the threshold

determination and that was reviewed by the Board.

27
King County v. Friends of Sammamish Valley, No. 102177-1

Next, we turn to the content of the SEPA checklist that was generated by the

County to make the DNS. In that checklist, the County answered nearly every

question under part B, “Not applicable for this nonproject action.” A few answers

elaborated that certain environmental elements existed, but none of the answers

provided an analysis of potential impacts of the Ordinance. AR at 33-45. Part B

addresses the environmental elements. While some of the answers in part B

acknowledged that there may be some potential environmental impact, the

checklist relied on existing laws to provide sufficient environmental protections

and did not elaborate on any protections or impact mitigation provided by the

Ordinance.

The Board determined that the checklist was insufficient to establish

compliance with SEPA. That decision was based on a number of findings. First,

the Board found that the checklist failed to address the full range of probable

impacts of the future projects that the Ordinance would allow violating WAC 197-

11-060(4).16 The Board based this on its finding that the County used existing,

unallowed WBDs as the baseline condition and failed to fully address the impact of

16
“(c) Agencies shall carefully consider the range of probable impacts, including short-
term and long-term effects. Impacts shall include those that are likely to arise or exist over the
lifetime of a proposal or, depending on the particular proposal, longer.
“(d) A proposal’s effects include direct and indirect impacts caused by a proposal.
Impacts include those effects resulting from growth caused by a proposal, as well as the
likelihood that the present proposal will serve as a precedent for future actions. For example,
adoption of a zoning ordinance will encourage or tend to cause particular types of projects or
extension of sewer lines would tend to encourage development in previously unsewered areas.”

28
King County v. Friends of Sammamish Valley, No. 102177-1

the new developments that would be authorized by the Ordinance. The County did

not address all future project actions the proposal would allow and, in fact, did not

consider impacts of any future actions in the SEPA checklist. Instead, the County

deferred all environmental review to the individual project action stage.

Second, the Board found that the Ordinance impermissibly “balanced” the

potential negative impacts of the proposal with the potential benefits, in violation

of WAC 197-11-330(5). 17 The Board noted that a SEPA checklist is meant to be a

full disclosure document, with enough information to inform the planning agency

of all likely, significant environmental impacts of the proposed action.

Third, the Board found that the checklist violated RCW 43.21C.030(c)18 and

WAC 197-11-060(4)19 because the checklist did not disclose the likely

17
“A threshold determination shall not balance whether the beneficial aspects of a
proposal outweigh its adverse impacts, but rather, shall consider whether a proposal has any
probable significant adverse environmental impacts under the rules stated in this section. For
example, proposals designed to improve the environment, such as sewage treatment plants or
pollution control requirements, may also have significant adverse environmental impacts.”
18
“Include in every recommendation or report on proposals for legislation and other
major actions significantly affecting the quality of the environment, a detailed statement by the
responsible official on:
“(i) the environmental impact of the proposed action;
“(ii) any adverse environmental effects which cannot be avoided should the proposal be
implemented;
“(iii) alternatives to the proposed action;
“(iv) the relationship between local short-term uses of the environment and the
maintenance and enhancement of long-term productivity; and
“(v) any irreversible and irretrievable commitments of resources which would be
involved in the proposed action should it be implemented”
19
“(4) Impacts.
“(a) SEPA’s procedural provisions require the consideration of ‘environmental’ impacts
(see definition of ‘environment’ in WAC 197-11-740 and of ‘impacts’ in WAC 197-11-752),

29
King County v. Friends of Sammamish Valley, No. 102177-1

environmental impacts of establishing Demonstration Project Overlay A,

eliminating the on-site production requirement or reducing the minimum lot size in

the rural area. Fourth, the Board found that the checklist failed to consider all

reasonably foreseeable impacts of the proposed Ordinance by delaying review to

the project action stage and did not consider cumulative environmental impacts, in

violation of WAC 197-11-060 and WAC 197-11-055. 20

The final conclusion of the Board was that the County failed to establish

prima facie showing of SEPA compliance. The order noted that the checklist was

inadequate because it did not contain reasonably sufficient information about

with attention to impacts that are likely, not merely speculative. (See definition of ‘probable’ in
WAC 197-11-782 and 197-11-080 on incomplete or unavailable information.)
“(b) In assessing the significance of an impact, a lead agency shall not limit its
consideration of a proposal’s impacts only to those aspects within its jurisdiction, including local
or state boundaries (see WAC 197-11-330(3) also).
“(c) Agencies shall carefully consider the range of probable impacts, including short-term
and long-term effects. Impacts shall include those that are likely to arise or exist over the lifetime
of a proposal or, depending on the particular proposal, longer.
“(d) A proposal’s effects include direct and indirect impacts caused by a proposal.
Impacts include those effects resulting from growth caused by a proposal, as well as the
likelihood that the present proposal will serve as a precedent for future actions. For example,
adoption of a zoning ordinance will encourage or tend to cause particular types of projects or
extension of sewer lines would tend to encourage development in previously unsewered areas.
“(e) The range of impacts to be analyzed in an EIS (direct, indirect, and cumulative
impacts, WAC 197-11-792) may be wider than the impacts for which mitigation measures are
required of applicants (WAC 197-11-660). This will depend upon the specific impacts, the extent
to which the adverse impacts are attributable to the applicant’s proposal, and the capability of
applicants or agencies to control the impacts in each situation.” (Boldface omitted.)
20
This section addresses timing: “(1) Integrating SEPA and agency activities. The SEPA
process shall be integrated with agency activities at the earliest possible time to ensure that
planning and decisions reflect environmental values, to avoid delays later in the process, and to
seek to resolve potential problems.” (Boldface omitted.)

30
King County v. Friends of Sammamish Valley, No. 102177-1

environmental effects in this agricultural area to support the DNS, violating WAC

197-11-335. Additionally, the content of the environmental review was not aligned

with SEPA’s goals and policies, WAC 197-11-060, and the proposal did not

include any information required by RCW 43.21C.030(c).21 The Board noted that

the Ordinance was “clearly erroneous” based on the entire record, applying the

proper standard of review and deference required of them.

The Court of Appeals reversed the Board and ordered that the DNS be

reinstated. It found that the Board used an inappropriate baseline in considering the

effects of Ordinance 19030, reasoning that the appropriate baseline from which to

gauge the impact of the Ordinance were the existing uses in the area at the time the

Ordinance was enacted. It stated that the Ordinance did not legalize any previously

illegal uses, and therefore it was speculative to evaluate the Ordinance based on the

possibility that the existing uses could have been forced to stop operations had the

Ordinance not been passed. The court also found that the County did not engage in

21
“Include in every recommendation or report on proposals for legislation and other
major actions significantly affecting the quality of the environment, a detailed statement by the
responsible official on:
“(i) the environmental impact of the proposed action;
“(ii) any adverse environmental effects which cannot be avoided should the proposal be
implemented;
“(iii) alternatives to the proposed action;
“(iv) the relationship between local short-term uses of the environment and the
maintenance and enhancement of long-term productivity; and
“(v) any irreversible and irretrievable commitments of resources which would be
involved in the proposed action should it be implemented.”

31
King County v. Friends of Sammamish Valley, No. 102177-1

any improper balancing of impacts because there was no likelihood of the

Ordinance generating new, nonspeculative adverse impacts. In doing so, the Court

of Appeals disregarded the agricultural designation under the County’s

comprehensive plan.

The County encourages us to affirm the Court of Appeals on this basis. The

County asserts that it was not required to answer the questions in part B of the

SEPA checklist because it classified the Ordinance as a nonproject action. The

County relies on WAC 197-11-315(1)(e), which states that an agency must use the

provided SEPA checklist for a threshold determination except for nonproject

proposals when the agency determines that the questions in part B do not

contribute meaningfully to the analysis of the proposal, though parts A, C, and D at

a minimum must still be completed.

The County’s argument disregards what this court has said regarding SEPA.

In Washington State Boundary, 122 Wn.2d 648, we said that a proposed land use

action is not exempted from environmental review just because there are no

current, specific development proposals or immediate land use changes that will

result from the proposed action. Rather, the rule we adopted was that an EIS must

be prepared by the relevant agency when the agency “determines that significant

adverse environmental impacts are probable following the government action.”

Wash. State Boundary, 122 Wn.2d at 664.

32
King County v. Friends of Sammamish Valley, No. 102177-1

In this case, the record discloses current, specific developments and land use

changes that are probable to result from the proposed action. The proposed action

creates opportunities for new and existing WBD businesses to open or expand

operations within land classified as rural and agricultural. The fact that businesses

have already been established, whether legal or illegal, is irrelevant. What controls

arises from the comprehensive plan’s rural and agricultural designation. Ample

evidence exists in the record showing what businesses are likely to operate in this

area, which is sufficient to inform an environmental review, as the changes under

the Ordinance apply countywide to all rural and agricultural land. The County must

consider the likely environmental impact if all the land located in the area is put to

its maximum use under the new regulation because it is very probable that the land

in this popular winery destination area and other areas will be used in that

manner.22 The Board expressly noted that the County must evaluate the potential

impacts allowed by the changed designation where these “impacts are not merely

hypothetical but can be known or are reasonably foreseeable.” AR at 49412. As the

Board found, “In sum, when a county amends its Comprehensive Plan or changes

zoning, a detailed and comprehensive SEPA environmental review is required to

22
As noted, 54 WBDs already operate, and it is entirely predictable that under the
Ordinance, more will open.

33
King County v. Friends of Sammamish Valley, No. 102177-1

understand and evaluate the impact of the change in allowable uses.” AR at 49413

(emphasis removed). We agree.

We have also established that the appropriate baseline to compare the

environmental impacts of the proposed action is the condition of the existing

environment, rather than considering the current uses of the land. Wild Fish

Conservancy, 198 Wn.2d at 872. The Court of Appeals in this case looked at the

current uses of the land, the current operating WBDs, because they erroneously

concluded that the Ordinance had no effect in reversing or enforcing the existing

code. The Court of Appeals relied on Quadrant for that premise but misunderstood

that case. That case held that counties and cities planning under the GMA may

consider vested rights in the land when determining whether land is characterized

by urban growth. Quadrant, 154 Wn.2d at 228. It did not say that the appropriate

baseline is to consider unlicensed existing uses of the land, and the case did not

look at agriculturally designated land but, instead, land designated as an urban

growth area. The baseline that the Court of Appeals considered is not useful in this

case because it is an ever-changing status as buildings are constructed and land is

developed. This view is not consistent with the protections of agricultural land

under the GMA.

The Board looked at the current condition of the land, noting that the land is

primarily agricultural and rural in nature, and the Ordinance would have an effect

34
King County v. Friends of Sammamish Valley, No. 102177-1

on the existing condition of the land. This comparison is consistent with our

analysis in Wild Fish Conservancy, where we said that it is useful to establish a

baseline environmental condition to compare a proposal’s impact. 198 Wn.2d at

871. The designation of the land as agricultural defines the existing environmental

condition.

We agree that the Board made the proper comparison between the Ordinance

and the baseline condition of the environment within this rural and agricultural

zone. The Ordinance allows much of the agricultural and rural land in Sammamish

Valley and elsewhere in King County to serve as semiretail event space, potentially

impacting the environment. While some businesses already exist and impact the

condition of the land, under the Ordinance, more structures will be built, land will

be paved, and water usage and sewage will inevitably increase, all having a very

likely impact on the condition of the land and a negative impact on the

environment. Since under the GMA conservation and enhancement of

agriculturally designated land is required, and this land is agricultural and rural, the

proper baseline to consider is that land designation or condition because such a

designation controls the planning decisions.

The County asserts that the Ordinance changes the zoning code to enact

stricter requirements and therefore does not require environmental review. But that

argument misses the point of SEPA. The County disregards the language in WAC

35
King County v. Friends of Sammamish Valley, No. 102177-1

197-11-330(5), which requires that a threshold determination may not balance the

beneficial aspects of a proposal with its adverse impacts. Even where proposals are

designed to in some ways improve the environment, significant adverse

environmental impacts could result and must still be reviewed for what adverse

impacts are likely to occur overall. The County has argued that the Ordinance will

tighten the controls on WBDs and connected events. However, allowing expanded

businesses and events may still impact the environment and, as such, must be

reviewed for those potential adverse impacts. Potential positive impacts are

irrelevant.

Importantly here, the type of land that is affected by the Ordinance must

impact the breadth of the SEPA analysis. The land in question is mostly

agricultural and is designated as such. Agricultural land that is specifically

designated must be maintained and enhanced for potential future use under the

GMA, even if the land is not being used for agricultural production currently. The

GMA requirement ensures the land is preserved for future agricultural uses. “The

County [is] required to assure the conservation of agricultural lands and to assure

that the use of adjacent lands does not interfere with their continued use for the

production of food or agricultural products.” King County, 142 Wn.2d at 556.

That agricultural designation has an effect on the SEPA review considerations for

ordinances that impact such land. Any action (even creating a temporary, grass

36
King County v. Friends of Sammamish Valley, No. 102177-1

soccer recreation field, see King County, 142 Wn.2d at 545) that removes potential

future productivity of agricultural land may have a probable significant

environmental impact.

The County argues further that the Board has the authority only to invalidate

an ordinance for noncompliance with the GMA, so under its view, even if the

County did fail to follow SEPA threshold determination requirements, because

there is no GMA violation, the Board should not have invalidated the Ordinance.

We disagree. As stated above, without full environmental review, the Ordinance

does violate the GMA. Further, the Board is specifically tasked with review of

SEPA compliance, as outlined in RCW 36.70A.280 and .300. To conclude that the

Board may review SEPA compliance but take no action for noncompliance would

disregard the statutory power designated to the Board. Under that statutory

directive, the Board must follow the steps for a determination of invalidity laid out

in RCW 36.70A.302, which the Board here correctly did.

Overall, we find that the Board did establish sufficient facts showing that the

County failed to consider potential environmental impacts in its SEPA checklist.

The Board found that the checklist did not disclose any potential environmental

impacts of the Demonstration Project Overlay A, which establishes remote tasting

rooms in a rural area not previously allowed. The checklist did not disclose any

environmental impacts for expanding WBDs into rural, agricultural areas. The

37
King County v. Friends of Sammamish Valley, No. 102177-1

checklist did not address likely environmental impacts of removing the on-site

production requirement and replacing it with a requirement that 60 percent of the

products processed on-site must be grown on-site, and the loophole it creates in not

requiring that a specific amount of sales must be of products produced on-site. The

checklist did not address any likely environmental impacts associated with

reducing minimum lot size or with allowing more events to occur during the

summer months through temporary use permits or any potential water pollution

effects of these changes.

The Board concluded that it was left with the definite and firm conviction

that a mistake had been committed when the County issued the DNS. We agree.

Overall, the number of changes created by the Ordinance, and the complete lack of

engagement with the environmental portion of the SEPA checklist by the County

supports the Board’s conclusion. The County must meaningfully engage in the

SEPA process when making a threshold determination and must complete a full

environmental review where significant environmental impacts are likely to occur

on land designated as agricultural.

CONCLUSION

We reverse the Court of Appeals and reinstate the Board’s final decision and

order.

38
King County v. Friends of Sammamish Valley, No. 102177-1

:(&21&85

39
No. 102177-1

STEPHENS, J. (dissenting in part)— Land use planning in Washington takes

place at the county level, and the Growth Management Hearings Board is tasked

with reviewing county planning and zoning actions to ensure compliance with the

Growth Management Act (GMA), ch. 36.70A RCW, and with the State

Environmental Policy Act (SEPA), ch. 43.21C RCW. The Growth Management

Hearings Board may invalidate a county action it finds to be in conflict with the

requirements of the GMA, and it may order additional environmental review if it

finds an action noncompliant with SEPA. But in fulfilling this oversight role, both

under the GMA and SEPA, the Growth Management Hearings Board must afford

deference to the county, presuming the validity of its actions absent a showing of

clear error. Only where the factual record leaves the board with a “‘firm and definite

conviction that a mistake has been committed’” should it intercede, and the party

challenging the action has the burden of demonstrating such error. Lewis County v.

W. Wash. Growth Mgmt. Hr’gs Bd., 157 Wn.2d 488, 497-98, 139 P.3d 1096 (2006)

(quoting Dep’t of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wn.2d

179, 201, 849 P.2d 646 (1993)). This deferential standard of review requires that

the board fully and accurately consider what the challenged plan or development

regulation entails, as both a legal and factual matter.
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

Here, the Central Puget Sound Growth Management Hearings Board (Board)

misinterpreted several provisions of King County Ordinance 19030 (Ordinance or

Ordinance 19030). The Board also failed at times to presume the county’s

compliance with SEPA and the GMA absent an affirmative showing to the contrary.

These errors caused the Board to erroneously invalidate the bulk of Ordinance

19030. I would largely affirm the well-reasoned opinion of the Court of Appeals,

which properly construes the Ordinance and measures its impact in light of existing

conditions under prior code. With one exception, discussed below, I would hold that

the Ordinance complies with SEPA and the GMA, and remand to the Board for entry

of a corrected order.

DISCUSSION

This case concerns challenges to Ordinance 19030 under both SEPA and the

GMA. Part I of this opinion addresses the Board’s SEPA analysis. With one

exception, I agree with the Court of Appeals that the Board’s findings are erroneous

and should be reversed. Part II of this opinion concerns the Board’s GMA analysis

and explains how the Board misapplied the statute and erroneously invalidated the

ordinance.

2
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

I. SEPA

SEPA is a procedural statute aimed at “injecting environmental awareness

into all levels of governmental decision-making.” Columbia Riverkeeper v. Port of

Vancouver USA, 188 Wn.2d 80, 104, 392 P.3d 1025 (2017) (Stephens, J. dissenting).

SEPA requires, at a minimum, that an agency’s responsible official make a threshold

determination as to whether an action will “[have] a probable significant, adverse

environmental impact.” RCW 43.21C.031, .033. This determination must be based

on information reasonably sufficient to evaluate the environmental impact of the

proposal and the agency must complete an environmental checklist to document its

analysis. WAC 197-11-335, -315. Based on this checklist, the agency’s responsible

official must then issue a determination of significance or a determination of

nonsignificance (DNS), as the case may be. WAC 197-11-310, -330. It is incumbent

on the agency to show that “‘environmental factors were considered in a manner

sufficient to amount to prima facie compliance with the procedural requirements of

SEPA.’” Chuckanut Conservancy v. Dep’t of Nat. Res., 156 Wn. App. 274, 286-87,

232 P.3d 1154 (2010) (quoting Juanita Bay Valley Cmty. Ass’n v. City of Kirkland,

9 Wn. App. 59, 73, 510 P.2d 1140 (1973)).

When challenged, a county’s determination that a full environmental review

is unnecessary—or would be better deferred to a later stage of development—should

3
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

be reversed only where the Board finds it “clearly erroneous” on the facts presented

in the record. Norway Hill Pres. & Prot. Ass’n v. King County, 87 Wn.2d 267, 273-

74, 552 P.2d 674 (1976). Generally, if the Board finds a SEPA violation, it must

remand for the county to come into compliance, and, pending further environmental

review, the challenged action remains in effect absent a finding of GMA invalidity.

When the Board finds an action noncompliant with SEPA, and judicial review is

sought, courts review the Board’s legal conclusions de novo and its factual findings

for substantial evidence. Thurston County v. W. Wash. Growth Mgmt. Hr’gs Bd.,

164 Wn.2d 329, 190 P.3d 38 (2008). A party aggrieved by an agency decision is

entitled to relief if they can establish one of the grounds enumerated in the

Administrative Procedure Act (APA): the relevant grounds here being that the

agency erroneously interpreted or applied the law or that the agency order is not

supported by substantial evidence when viewed in light of the whole record before

the court. RCW 34.05.570(3)(d), (e).

King County’s responsible official—Ty Peterson—was presented a checklist

in which much of the impact analysis was reduced to some variation of “[n]ot

applicable for this nonproject action.” Admin. R. at 33-45. The county had

concluded that either the Ordinance was unlikely to significantly alter the status quo

or that the impacts were too speculative to meaningfully review until after specific

4
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

proposals were submitted. There is nothing inherently wrong with deferring

environmental review to the project stage. Indeed, as the Board noted in its order,

“project level impacts may properly be deferred to the permitting stage.” Clerk’s

Papers (CP) at 19. However, it is not permissible to defer environmental review for

“impacts that are allowed by virtue of the change in designation itself.” CP at 19.

In other words, “an agency may not postpone environmental analysis to a later

implementation stage if the proposal would affect the environment without

subsequent implementing action.” Spokane County v. E. Wash. Growth Mgmt.

Hr’gs Bd., 176 Wn. App. 555, 579, 309 P.3d 673 (2013). The question here is

whether, based on the record, Ordinance 19030 has any effects that would likely

impact the environment and that should have been included in the checklist to inform

Mr. Peterson’s decision to issue a DNS.

The Board answered yes to this question, concluding that there were

reasonably foreseeable environmental impacts that would flow directly from the

Ordinance and that failure to at least consider those impacts in the checklist was

clear error. Specifically, it found that (A) the county should have measured the

anticipated impact of the Ordinance using a baseline condition that included no

WBD uses rather than accepting existing “illegal” uses as part of the status quo, (B)

the elimination of the on-site production requirement from the prior code would

5
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

“greatly facilitate the proliferation” of WBDs, (C) the demonstration project

established by the Ordinance would override the requirement that 75 percent of the

sites embraced by the Agricultural Production Buffer Special District Overlay (APB)

be maintained as open space and would permit development previously disallowed,

(D) the reduction in minimum lot sizes for WBDs in the rural area (RA) would lead

to the proliferation of businesses in the RA zone, and (E) the system of temporary

use permits created by the Ordinance would likely increase the frequency and

intensity of events held at WBDs in the RA zone. CP at 22-32. The county assigns

error to each of these findings, so I will consider them in turn. Given the deference

owed to county planning and the legal framework for GMA and SEPA review, I

conclude that the Board erred with respect to each finding except its analysis of

section 25(E)(1) of the Ordinance.

A. The county appropriately factored existing WBD uses into the baseline
environmental condition for purposes of its threshold determination

In evaluating the likelihood and intensity of environmental impacts, it is

useful for agencies to establish a “baseline” condition against which the impacts of

future conditions can be predicted. Wild Fish Conservancy v. Wash. Dep’t of Fish

& Wildlife, 198 Wn.2d 846, 869, 502 P.3d 359 (2022). How to ascertain the

appropriate baseline will vary depending on the facts of the case, but we recently

6
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

indicated it should consider the “condition of the existing environment.” Id. at 872.

In Wild Fish Conservancy, we held the appropriate baseline condition for the land—

which had previously been used to farm Atlantic salmon, a use that would shortly

be disallowed—was the “existing condition of the environment of Puget Sound,

which ha[d] been subject to commercial salmonid farming for over three decades.”

Id. We rejected the petitioner’s contention that the baseline should be the condition

of Puget Sound without salmonid farming, instead, recognizing that the proposal

“‘must degrade the existing condition of the environment to have significant adverse

impact.’” Id. at 871. In other words, the agency may appropriately take the

environment as it finds it and need determine only whether its action is likely to

further significantly degrade the environment. Failure to improve or restore

environmental conditions is not an adverse environmental impact in itself. Id.

Certainly, the concerns voiced by petitioners here evoke sympathy, at least in

the abstract. If the county were to turn a blind eye to noncompliant uses that degrade

the land, and then amend its regulations to bless those same noncompliant uses, this

could effectively short-circuit SEPA review. The Board believed such was the case,

finding that Ordinance 19030 legalized existing “illegal” uses of the land that had a

negative environmental impact and that the county failed to consider the conditions

that would exist on the land had it fully enforced existing code provisions. But as

7
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

the Court of Appeals correctly pointed out, the record does not support this

conclusion. On the contrary, the existing King County Code (KCC) already

permitted WBD uses in the agricultural and RA zones and allowed for tasting rooms

in the RA zone.1 It does not follow that because some of those businesses may have

been noncompliant with the prior code to some degree, the county could have shut

them down entirely, resulting in a baseline without WBDs. Further, the licensing

scheme under section 11(B) of Ordinance 19030 requires existing WBDs to either

demonstrate that their business complies with prior code—in which case the

environmental impact would remain constant—or that it has taken steps to comply

with the expanded requirements of Ordinance 19030.

The Board misinterpreted the legal effect of Ordinance 19030 by failing to

account for the full extent of WBD development already permissible under prior

code. This, in turn, led the Board to the erroneous conclusion that the environmental

impact to be considered was the difference between the Sammamish Valley absent

any such uses and the proliferation of uses it foresaw under Ordinance 19030—a

stark and erroneous comparison. The appropriate analysis, which the county

1
Ordinance 14781, enacted in 2003, added “winery/brewery” as a permitted use in the A
and RA zones and allowed tasting of products produced on-site. In 2013, the county
enacted Ordinance 17539, adding distilleries to the list of permitted uses alongside wineries
and breweries, and subject to the same development conditions.
8
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

followed, instead compares the potential environmental impacts of prior code—

which already authorized much of what Ordinance 19030 addresses—to determine

whether any aspects of Ordinance 19030 would clearly intensify the environmental

impacts of WBDs in excess of what was previously allowable. Without a clear

understanding of what was previously allowed, the Board did not reasonably afford

deference to the county’s determination. A discussion of the remaining SEPA

findings demonstrates more specific ways the Board mischaracterized the nature of

the change brought about by Ordinance 19030 and thus erroneously invalidated the

Ordinance.

B. The Board erroneously interpreted Ordinance 19030 as eliminating the on-
site production requirements and paving the way for “sham” WBDs to sell
products produced off-site

King County’s prior code allowed for the “tasting of products produced

onsite.” King County Ordinance 17539. Ordinance 19030 amends this language to

read that “tasting and retail sales of products produced on-site may occur only as

accessory to the primary winery, brewery, distillery production use and may be

provided in accordance with state law.” The Board interpreted the prior code as

limiting tasting to only those products produced on-site and read Ordinance 19030

as instead permitting tasting and sales of beverages produced anywhere. This is a

clear misreading of the Ordinance. By its express terms, Ordinance 19030

9
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

authorizes tasting and retail sales only of “products produced on-site” and further

limits these activities by requiring they be subordinate to the primary winery,

brewery, or distillery production use.

The majority likewise misstates the effect of Ordinance 19030 as creating a

“loophole” by failing to require a specific amount of sales be from products produced

on-site. Majority at 38. A proper reading of the Ordinance shows that it requires

100 percent of beverage sales be of products produced on-site. And whereas prior

code did not actually define when a product could be deemed “produced on-site,”

Ordinance 19030 requires at least two stages of production—including crushing,

fermenting, barrel or tank aging, or finishing—occur on-site, and that one of these

activities be crushing, fermenting, or aging. There is nothing to suggest how this

amendment is likely to lead to a proliferation in WBD facilities when, if anything, it

is more restrictive than prior code in defining what may be sold at WBD facilities.

C. The Board erred in reading Ordinance 19030 as conflicting with county
policies governing the development of residential subdivisions within
agricultural production buffer districts

The Board further concluded that by establishing the demonstration project—

which newly allows for “remote tasting rooms” (RTRs) on 13 parcels of land in the

RA zone—the Ordinance was likely to have additional environmental impacts,

especially in view of the fact these developments would be allowed within an APB
10
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

in violation of KCC 21A.38.130. This code provision dictates that for residential

subdivisions locating in an APB, “[l]ots shall be clustered in accordance with K.C.C.

21A.14.040 and at least seventy-five percent of a site shall remain as open space,

unless greater lot area is required by the Seattle-King County department of public

health.” The Board read Ordinance 19030’s provisions governing the development

of RTRs as “overrid[ing] existing code.” CP at 24. But as the Court of Appeals

pointed out, there is no conflict between the Ordinance and APB policy because, by

its express terms, the policy applies only to residential subdivisions. King County v.

Friends of Sammamish Valley, 26 Wn. App. 2d 906, 530 P.3d 1023 (2023). The

Board’s contrary reading is clearly erroneous.

D. It is unclear that reducing the minimum lot size for WBD II uses would
result in a net increase in parcels eligible for WBD development

The Board found that by reducing the minimum lot size for WBD uses in the

RA zone from 4.5 to 2.5 acres, Ordinance 19030 “increases the number of parcels

eligible for siting of WBD[s].” CP at 25. But again, the Board failed to consider the

proper baseline as to how many parcels could already be developed for WBD uses

and the intensity of environmental impacts reasonably anticipated from those uses.

As the county points out, prior code made virtually every parcel in the RA zone

eligible for some level of WBD development under the allowance for “home

11
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

industries.” Per KCC 21A.30.090, home industries may be sited on parcels one acre

or greater. In assessing the impact of Ordinance 19030, the county reasonably

assumed that eliminating home industry WBDs while simultaneously decreasing the

minimum lot requirement for some WBD uses in the RA zone to 2.5 acres would

have a neutral impact on the overall intensity of development and its attendant

environmental impact. While other approaches might have been taken, it was not

clear error for the county to offset the newly allowed and disallowed uses in its

assessment.

E. The Board failed to consider the extent to which special event permitting
for WBDs was already allowed under prior code, which contained fewer
express limitations on the discretion of permit issuers

The Board opined that Ordinance 19030 would newly allow the county to

“exempt WBD [e]vent [c]enters from zoning restrictions,” using a system of

temporary use permits, thereby overriding zoning limitations on building occupancy,

use of portable toilets, parking, performance stages, tents, traffic controls, and

operating hours, and all without any “attempt to quantify the amount of development

that will become allowable.” CP at 26. The Board also stated that the Ordinance

would allow WBD II and III facilities to cluster their special events in the summer

months by changing the allowance from 2 per month to 24 per year, and chafed at

the checklist’s failure to “disclose what number of events currently occur with such

12
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

concentration being prohibited.” CP at 26-27. The Board’s analysis here is flawed

in two regards. First, the Board failed to note that temporary use permits were

already available under prior code and that prior code contained fewer express

limitations on what permit reviewers could approve. 2 Second, in assessing the

relative environmental impact of Ordinance 19030 vis-à-vis prior code, the Board

failed to make the proper comparison between the maximum use the land could be

put to under each scenario. Beyond mere surmise, the Board provided no basis for

determining whether, as a practical matter, limiting events to 2 per month would

result in fewer events per year than if WBDs could host all of them during the

summer. Given the language of the provisions, we must assume the full allotment

of events would occur under either scheme, and there is therefore no “expansion” of

the number of allowable events. At any rate, the county did not clearly err in

assessing impacts based on such an assumption.

2
Previously, KCC 21A.32.100, governing temporary use permitting, provided only that a
permit was required for “[a] use not otherwise permitted in the zone that can be made
compatible for a period of up to sixty days a year” or the expansion of an established use
that “(1) [i]s otherwise allowed in the zone; (2) [i]s not inconsistent with the original land
use approval; (3) [e]xceeds the scope of the original land use approval; and (4) [c]an be
made compatible with the zone for a period of up to sixty days a year.” Prior code
contained no clear direction on when the need for a permit would be triggered and
contained no express limitations on occupancy.
13
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

However, the Board was right to call out Ordinance 19030’s exemption for

WBDs II and III uses in section 25(E)(1). That proviso waives the requirement that

WBD II and III uses be pursuant to a temporary use permit in specific circumstances:

if the WBDs were already operating under a Washington State Liquor and Cannabis

Board production license before the effective date of Ordinance 19030, the parcel

on which they operate is at least 8 acres, the structures used for events maintain a

setback of at least 150 feet from interior property lines, the parcel is located in the

RA zone, the parcel has direct access to a principal arterial or state highway, and the

events not use amplified outdoor sound before 12:00 p.m. or after 8:00 p.m. If these

criteria are met, the venue is free to hold as many as 96 events a year without need

for any temporary use permits.

The Board found there were five parcels in the Sammamish Valley that could

take advantage of this exemption and that the county made no attempt to quantify

how much additional impact could be expected. CP at 27. I agree the record

supports the Board’s conclusion that this amendment would likely result in an

appreciable uptick in events on the covered properties, and that SEPA requires

something more than a cursory glance before the county could reasonably conclude

the environmental impacts would be insignificant. Accordingly, I join in affirming

the portion of the decision invalidating this provision.

14
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

Overall, however, the Board failed to afford proper deference to the county’s

assessment of environmental impacts because it conducted its review using a flawed

understanding of the baseline against which to assess Ordinance 19030 and the effect

of its provisions. Without taking into account the existing conditions prior to the

Ordinance, the Board could not reliably identify what actually changed and whether

any changes would likely result in additional environmental impacts beyond those

that could be expected under prior code. This is true for all the Board findings save

its analysis of the exemption for WBD II and III uses outlined in section 25(E)(1) of

the Ordinance, where the negative impact is clearly shown. I would reverse the

Board’s findings of SEPA noncompliance except as applied to this single provision,

for which I would affirm both the remand order and the order of invalidity.

I turn now to the Board’s determination that the Ordinance is out of

compliance with the GMA.

II. GMA

The GMA, dating to 1990, requires counties with specified populations to

adopt comprehensive growth management plans. RCW 36.70A.040. Unlike SEPA,

which is a procedural statute, the GMA imposes substantive limitations on the

planning discretion of covered jurisdictions. Relevant here are those provisos

mandating the designation and preservation of agricultural lands. Additionally, the
15
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

GMA requires that comprehensive plans be internally consistent and that

development regulations be “consistent with and implement the comprehensive

plan.” RCW 36.70A.130(1)(e). A regulation or land use decision that fails to

generally conform to the county’s comprehensive plan is, by extension, a violation

of the GMA and invalid. In this case, the Board found Ordinance 19030 violated

the GMA provisions governing allowable accessory uses on agricultural lands, and

that it further violated the GMA by internally conflicting with King County’s own

plan concerning agricultural production district buffer zones and policies concerning

the preservation of rural land uses.

When reviewing plans and development regulations for compliance with the

GMA, the Board must presume validity “unless [the Board] determines that the

action by the . . . county . . . is clearly erroneous in view of the entire record before

the [B]oard and in light of the goals and requirements of [the GMA].” RCW

36.70A.320 (1), (3). When a Board’s final order is challenged under the APA, courts

review its findings of fact for substantial evidence, and its legal conclusions de novo,

although we accord substantial weight to the Board’s interpretations of the GMA’s

requirements in view of its experience and technical expertise in this area. Thurston

County, 164 Wn.2d at 341-42.

16
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

A. The Board erroneously read Ordinance 19030 to authorize the
repurposing of prime agricultural lands in violation of RCW
36.70A.170 and RCW 36.70A.177

A mandatory element of comprehensive plans is the designation of

agricultural lands of long-term commercial significance. RCW 36.70A.170. Once

so designated, the county must protect these agricultural lands and ensure that the

uses of adjacent lands do not interfere with their continued viability as farmland.

RCW 36.70A.067. While the GMA permits counties to use “innovative zoning

techniques” to encourage the economy in agricultural areas, their discretion is

constrained by the mandate to reserve prime agricultural soils for agricultural uses.

RCW 36.70A.177; King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 142

Wn.2d 543, 14 P.3d (2000). To that end, RCW 36.70A.177 places specific

limitations on accessory uses in agricultural zones. If the accessory use is

nonagricultural—for example, developing new buildings, parking, or supportive

uses—such use must be designed and operated in a manner that does not interfere

with the overall agricultural use of the property and neighboring properties;

specifically, nonagricultural uses may not be located outside the general area already

developed, and they may not convert more than one acre of agricultural land. RCW

36.70A.177(3)(a), (b)(ii). The GMA advises counties to limit accessory uses to

portions of the land with poor soils or that are otherwise unsuitable for agriculture.

17
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

RCW 36.70A.177(1). If the accessory use is agricultural, it must be designed and

operated in harmony with the agricultural uses of the property, although the GMA

imposes no quantitative spatial limitations on such uses. RCW 36.70A.177(3)(b)(i).

The Sammamish Valley Agricultural Production District is designated

agricultural land. Unless and until the county redesignates this area, the primary use

must be agricultural. RCW 36.70A.030(3), .060. The Board believed Ordinance

19030 stood at odds with this requirement, finding it thwarts the conservation of

productive agricultural land in violation of RCW 36.70A.060(1)(a); fails to restrict

agricultural accessory uses to those that are consistent with the size, scale, and

intensity of existing agricultural uses of the property in violation of RCW

36.70A.177(3)(b)(ii); allows the conversion of agriculturally viable land to

incompatible uses in violation of RCW 36.70A.177(3)(b)(ii); and sanctions events

that are likely to interfere with the continued agricultural uses of WBD properties

and neighboring lands in violation of RCW 36.70A.177(3)(a), RCW

36.70A.070(5)(c)(v), and RCW 36.70A.060(1)(a). This was error because these

conclusions lack support in the record.

To start, the Board’s order is unduly skeptical—mocking, even—of the

county’s argument that wine making—and by extension, wine tasting—could be

considered an agricultural accessory use, retorting that “[u]nder this definition,

18
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

consuming a hamburger at a fast-food tasting room is an agriculturally-related

experience if some portion of the meat, lettuce, tomato or other ingredient are

produced onsite.” CP at 37. This ignores that viticulture plainly is agriculture, and

that the on-site production requirement, paired with the requirement that 60 percent

of inputs be grown on-site, means that over half the WBDs sales must be derived

from produce—for example, grapes—grown on the property. RCW 36.70A.030(6)

(“‘Agricultural land’ means land primarily devoted to the commercial production of

. . . viticultural . . . products.”) To the extent the order acknowledged the Ordinance’s

restrictions, it dismissed the 60 percent threshold as sufficient for GMA compliance

on the ground that “[the county] cites no statute that allows [it] to establish that a use

is accessory by setting a bright-line threshold of onsite production or

manufacturing.” CP at 39. This approach unduly restricts planning discretion and

turns the standard of review on its head, requiring that the county affirmatively prove

GMA compliance rather than making the petitioners prove noncompliance.

The Board also found the Ordinance would increase the amount of agricultural

land available for development, both in the quantity of eligible parcels and the

portions of which such lands could be converted to buildings, parking, or other

accessory uses. As to the quantity of eligible parcels, the Board again credited the

petitioners’ claim that reducing the minimum acreage to site a WBD II in the RA

19
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

zone from 4.5 to 2.5 acres would increase the number of WBDs in the area and

increase the chance that those uses could conflict with neighboring farms in the A

zone. But as discussed above, this concern is not substantiated in the record, the

Board having failed to account for the number of parcels already eligible for WBD

development under prior code.

At a more granular level, the Board was concerned that by instructing WBDs

in the A zone to site their nonagricultural accessory structures on portions of the land

“‘without prime agricultural soils,’” the Ordinance, by negative implication,

encourages them to build on soils that, while not “prime,” are still viable farmland.

CP at 37 (quoting Ordinance 19030). The Court of Appeals dismissed this concern,

explaining that in applying Ordinance 19030, “the County must follow section .177,

it may permit WBDs in agricultural lands only when the primary use on site is

growing crops or raising livestock, and it may permit WBD facilities to be sited only

on portions of agricultural land unsuitable for agricultural purposes.” Friends of

Sammamish Valley, 26 Wn. App. 2d at 932-33. Neither interpretation is entirely

correct, in my view.

RCW 36.70A.177 states that nonagricultural accessory uses shall be confined

to those portions of the land “already developed for buildings and residential uses

and shall not otherwise convert more than one acre of agricultural land to

20
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

nonagricultural uses.” This means the accessory structures—whether buildings,

parking, or supportive uses—must be clustered near existing development. Of

course, this might mean that viable agricultural land directly abutting existing

buildings will be converted, but in no case more than one acre. Ordinance 19030

could be read to conflict with this, at least insofar as it suggests development may

occur either on land within the already developed portion of agricultural lands or on

lands without prime soils, whether clustered near existing development or not. But,

this reading does not follow if there is a way to harmonize these provisions.

Associated Gen. Contractors of Wash. v. State, 2 Wn.3d 846, 864, 544 P.3d 486

(2024) (“we attempt to harmonize statutes even if they are not completely

ambiguous”). And indeed, they can be harmonized: where a portion of the land has

already been developed for buildings and residential uses, nonagricultural uses must

be sited in this general area and shall not convert more than one acre of agricultural

land. If, however, the land has not previously been developed, a nonagricultural

accessory use must be confined to lands without prime soils and again may not

convert more than one acre of agricultural land. Further, all accessory uses must be

designed and operated “so as to not interfere with, and to support the continuation

of, the overall agricultural use of the property and neighboring properties.” RCW

36.70A.177(3)(a).

21
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

Lastly, there are insufficient findings to support the Board’s conclusion that

events of the size and frequency permitted by the Ordinance, without additional

setback requirements, would violate the GMA by interfering with agricultural uses

of neighboring properties. The Board failed to presume such uses are GMA-

compliant and require a clear showing to the contrary. Moreover, as the Court of

Appeals noted, the Board “overlook[ed] that temporary use permits are subject to

the County’s discretion to impose limitations to avoid the conflicts the Board fears.”

Friends of Sammamish Valley, 26 Wn. App. 2d at 936. The Board’s concerns seem

more focused on the county’s ability or willingness to diligently enforce its code

provisions than on the express provisions of the Ordinance being challenged.

Applying the required presumption that the county will enforce the new code, there

is no basis for the Board’s finding of noncompliance with the GMA.

B. Ordinance 19030 does not fail to generally conform with the
county’s comprehensive plan and policies

Finally, the Board’s conclusion that Ordinance 19030 conflicts with the

county’s own comprehensive plan and policies is unsupportable. RCW

36.70A.130(1)(e) requires that “[a]ny amendment of or revision to development

regulations shall be consistent with and implement the comprehensive plan.” The

Board found several aspects of Ordinance 19030 to conflict with King County’s

22
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

comprehensive plan (KCCP) and concluded they were invalid under the GMA.

Specifically, it found Ordinance 19030 failed to conform with KCC 21A.38.130

(Special district overlay – agricultural production buffer) and KCC 21A.32.040

(Nonconformance – abatement of illegal use, structure or development). 3 The first

finding is plainly unsupported, as explained above: the Board erred in concluding

the demonstration project violated the county’s APB policy SO-120 because that

provision deals solely with the development of residential subdivisions in APB

zones. The Court of Appeals correctly recognized that “Ordinance 19030 does not

authorize any ‘residential subdivisions’ and does not authorize any use that would

not still be subject to SO-120.” Friends of Sammamish Valley, 26 Wn. App. 2d at

939.

The Board also found the demonstration project violated KCC 21A.32.040,

which states:

Any use, structure or other site improvement not established in
compliance with use and development standards in effect at the time of
establishment shall be deemed illegal and shall be discontinued or
terminated and subject to removal pursuant to the provisions of K.C.C.
Title 23.

3
The petitioners also challenged Ordinance 19030 as inconsistent with KCCP farmland
and environmental policies but the board found the matter was not ripe for review “until
the County has remedied the areas of SEPA and GMA noncompliance already identified.”
CP at 42.
23
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

The Board believed existing WBD uses within the demonstration project zone were

“apparently unlawful” and would be subject to termination under this code

provision, and that by “legalizing” these uses, Ordinance 19030 frustrates the policy

of KCC 21A.32 .040. CP at 48-49. But again, this conclusion rests on the faulty

premise that the uses were, in fact, “illegal” and terminable through code

enforcement. This conclusion is not supported by substantial evidence, as there is

no showing that enforcement actions would have succeeded in shuttering any

existing WBDs in the Sammamish Valley.

In sum, the Board erred in finding Ordinance 19030 violates the GMA

because it misconstrued key provisions and erroneously put the burden on the county

instead of requiring the Ordinance challengers to prove noncompliance. The

Board’s finding that Ordinance 19030 would lead to a proliferation of WBD

developments in excess of what was already permissible requires conjecture and is

unsupported by the record. Further, the Board failed to accord section 18(B)(3)(g)

of the Ordinance a reasonable construction that would avoid conflict with RCW

36.70A.177(3)(b)(ii), as required by settled rules of statutory construction. It also

erred in concluding that Ordinance 19030 conflicts with KCC 21A.38.130, as that

provision is plainly inapplicable to the type of development contemplated by the

challenged Ordinance. And finally, the Board’s conclusion that KCC 21A.32.040

24
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

required the county to seek the abatement of existing WBD uses rests on the faulty

premise—unsupported by the record—that those uses were illegal under the prior

code. The Court of Appeals properly reversed the Board’s finding of noncompliance

with the GMA, and so would I.

CONCLUSION

The Board’s SEPA and GMA analyses suffer from a fundamental

misunderstanding of what Ordinance 19030 permits, how it differs from prior code,

and its compatibility with related provisions of the GMA and the county code. At

times, the errors arise from a misreading of the Ordinance itself or relevant portions

of SEPA and the GMA. These are legal errors subject to reversal under RCW

34.05.570(3)(d). In addition, key factual findings are unsupported by sufficient

evidence that, coupled with the Board’s failure at times to presume the county’s

compliance absent a showing to the contrary, undercuts the Board’s ultimate

determination of SEPA and GMA noncompliance and constitutes both a legal and

factual error subject to reversal under RCW 34.05.570(3)(d) and (e). I would affirm

the Court of Appeals and reverse the Board’s final order—except as to that portion

of its decision invalidating section 25(E)(1) of the Ordinance for noncompliance

with SEPA.

25
King County v. Friends of Sammamish Valley, No. 102177-1
(Stephens, J., dissenting)

26

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10588303. Public record. Not legal advice.