# Petition for Writ of Certiorari — Star Northwest, Inc. v. City of Kenmore, Washington (No. 08-1247) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0375%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text Supreme Court, U.S. FILED ioe f a \i? Tins 081247 APRT - 2009 OFFICE OF THE CLERK IN THE Supreme Court of the United States STAR NORTHWEST, INC., a Washington corporation d/b/a Kenmore Lanes and 11'" Frame Restaurant & Lounge, Petitioner, Vv. CITY OF KENMORE, a Washington municipal corporation, and KENMORE CITY COUNCIL, the legislative body of the City of Kenmore, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES Court OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI Patt J. DayTon Counsel of Record LESLIE C. CLARK SHORT CRESSMAN & BuRGESS PLLC 999 Third Avenue, Suite 3000 Seattle, WA 98104 (206) 682-3333 Counsel for Petitioner i QUESTION PRESENTED Star Northwest, Inc. d/b/a Kenmore Lanes and 11" Frame Restaurant & Lounge (“Kenmore Lanes”) operates a bowling alley, restaurant and card room in Kenmore, King County, Washington that has done business in Kenmore for more than 30 years. Its card room, the sole card room in Kenmore, has been continually licensed by the State of Washington since 1974. In December 2005, the Kenmore City Council adopted an ordinance banning the operation of social card rooms in the City of Kenmore. The ordinance did not grant Kenmore Lanes any amortization period in which it might recoup its capital investments by permitting its operation as a nonconforming use. Instead, it provided that the ordinance would become effective in 10 days. The record below indicates that without the revenues from the card rooim, the entire business is not profitable and would be forced to close. The district court and Ninth Circuit have rejected Kenmore Lanes’ Fourteenth Amendment based substantive due process challenge to the ordinance. The question presented is Whether the United States Court of Appeals for the Ninth Circuit erred in concluding that the Kenmore, Washington ordinance satisfied Fourteenth Amendment substantive due process requirements, in direct conflict with the Washington Supreme Court’s opinion that the Fourteenth Amendment requires that when local governments “terminate nonconforming uses . . . they are constitutionally required to provide a reasonable amortization period.” Rhod-A-Zalea v. Snohomish County, 1386 Wash. 2d 1, 10, 959 P2d 1024, 1029 (1998) (citation omitted). ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT The caption contains the names of all parties to the proceeding below. Star Northwest, Inc., d/b/a Kenmore Lanes and 11" Frame Restaurant & Lounge, a Washington corporation, has no parent, and no publicly held company owns 10% or more of the corporation’s stock. iil TABLE OF CONTENTS Page QUESTION PRESENTED .................. 1 PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ............0... ii py OS hey i 9 ili TABLE OF APPENDICES .................. Vv TABLE OF CITED AUTHORITIES ......... vi Co ee re ] CONSTITUTIONAL PROVISION INVOLVED STATEMENT OF THE CASE ............... 2 OO eesnoeoeseeeeeveeeeeeveeeveveeeweeeeeeeeereeeeeeeeeet ee @ @ I. The Washington Supreme Court Has Held that a Business Owner Has a Federal Substantive Due Process Right to an Amortization Period on Termination of a Legal Nonconforming Use, and Its Conclusion Is Consistent with Decisions eR go ae 9 iv Contents Page II. The Ninth Circuit Did Not Square Its Federal Substantive Due Process Analysis with the Decisions of the Washington Supreme Court or Those of Go Is Si ease neue keeecenes 16 III. The Ninth Circuit’s Rejection of Kenmore Lanes’ Fourteenth Amendment Substantive Due Process Clause Conflicts with this Court’s Jurisprudence. ................ 18 en EE oe es cea ewe Fane Kes 24 TABLE OF APPENDICES Appendix A — Amendment And Order Of The United States Court Of Appeals For The Ninth Circuit Denying Petition For Rehearing Filed I ov i bsg ke v6 0 RRO SS AOR RE Appendix B — Memorandum Of The United States Court Of Appeals For The Ninth Circuit Filed May 26, 2006 oo ccccisccccnces Appendix C — Corrected Order On Motion For Summary Judgment Of The United States District Court For The Western District Of Washington At Seattle Dated August 10, 2006 eoses@¢@oaeveeec eae Ceezpeoespeaeee see OQ@aetceaeeeeoe*ae taeewene 6 6666 66 Appendix D — City Of Kenmore, Washington Ordinance Adopted December 19, 2005 ..... Page vi TABLE OF CITED AUTHORITIES Page Cases Agins v. City of Tiburon, 447 U.S. 255 (1980) ...... Pe ee re 19 Armendanz v. Penman, 70 foe tek Coen UF, 1096) 2... ccc ccc cece 18 Austin v. Older, 283 Mich. 667, 278 N.W. 727 (1988) ......... 11 Bateson v. Geisse, S57 F.2a 1300 (9th Cir. 1988) .............5. 22 City of Akron v. Chapman, 160 Ohio St. 382, 52 Ohio Op. 242, fog SAL oe. ll City of Seattle v. Martin, 54 Wash. 2d 541, 342 P2d 602 (1959) ........ 13 City of University Place v. McGuire, 144 Wash. 2d 640, 30 P3d 453 (2001) ........ 13 Commonwealth v. Hashem, 526 Pa. 199, 589 A.2d 1378 (1991) ........... 10 County of Sacramento v. Lewis, ge Eg ee 19, 20, 21 vil Cited Authorities Page Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. 2007) ................ 18 Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir, 1990) ..........0000- 21-22 Dent v. West Virginia, SO Sees AE 5.5 64 ona bee ee eeea aes 19, 21 Dock Watch Hollow Quarry Pit, Inc. v. Township of Warren, 142 N.J. Super. 103, 361 A.2d 12 (1976) ..... 14 Ebel v. City of Corona, 767 F.2d 635 (Oth Cir. 1985) .........ccccee, 1] Goldblatt v. Town of Hempstead, OW ads PAD hoa 6 ok on win sae kde seas 14 Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363 (1957) .......... 11, 14 Griswold v. Connecticut, Pe Bee Oe CR nv cee hese coer es evcties 21 Harris v. Mayor and City Council of Baltimore, 35 Md. App. 572, 371 A.2d 706 (1977) ....... 15 Hoffman v. Kinealy, S89 S.W2d 745 (Mo. 1965) ........cccceees 1] Vili Cited Authorities Page Incorporated Village of Brookville v. Paulgene Realty Corp., 24 Misc. 2d 790, 200 N.Y.S.2d 126 (1960) .... 14 League to Save Lake Tahoe v. Crystal Enters., 685 F.:2d 1142 (9th Cir. 1982) ............5.%. 11 Lee & Eastes v. Pub. Serv. Comm’n, 52 Wash. 2d 701, 328 P2d 700 (1958) ........ 12 Lingle v. Chevron U.S.A. Inc., 644 U:S. 528 (2005) ..........4.. 16, 17, 18, 19, 20 Lucas v. S.C. Coastal Council, Cte SE CEE) csc vecvcesnencers 12, 22, 23 Matter of Toys “R” Us. v. Silva, 89 N.Y.2d 411, 654 N.Y.S2d 100, 676 N.E. 2d 862, 865 (1996) ................ 15 Memphis Light, Gas & Water Div. v. Craft, NE sie 10s beak be kx 23 Miller & Son Paving, Inc. v. Wrightstown Township, 42 Pa. Commw. 458, 401 A.2d 392 (1979) ..... 14 N. Pacifica LLC v. City of Pacific, 626 F.3d 478 (9th Cir. 2008) ........ccccees 18-19 Ix Cited Authorities Page Northend Cinema, Inc. v. City of Seattle, 90 Wash. 2d 709, 585 P2d 1153 (1978) ....... 1] People v. Miller, 304 N.Y. 105, 106 N.E.2d 34 (1952) ......... 14 Rhod-A-Zalea v. Snohomish County, 136 Wash. 2d 1, 10, 959 P2d 1024 (1998) ... passam Shanks v. Dressel, 540 F.3d 1082 (9th Cir. 2008) ............... 20 State ex. rel. Miller v. Cain, 40 Wash. 2d 216, 242 P2d 505 (1952) .... 11, 12,18 State ex rel. Ogden v. Bellevue, 45 Wash. 2d 492, 275 P2d 899 (1954) ........ 12 State v. Thomasson, 378 P2d 441 (Wash. 1963)............ 7, 11, 12, 2 Town of Castle Rock, Colorado v. Gonzales, oGU.S. 748 GDG) 33 Sa. ss - Esorewnnas 22, 23 Township of Orion v. Weber, 83 Mich. App. 712, 269 N.W.2d 275 (1978) ... 14 Watanabe v. City of Phoenix, 140 Ariz. 575, 683 P2d 1177 Chris. C2. App. SRR) oss... bis. ate ie oe 14 Cited Authorities Page Wolff v. McDonnell, CS Ct 7! ) 19 Wolverine Sign Works v. City of Bloomfield Hills, 279 Mich. 205, 271 N.W. 823 (1987) ......... 14 Constitutional Provisions Fourteenth Amendment to the United States Constitution .............. passim Statutes MEAD gn icecectecdenaccccsecess l Rules Supreme Court Rule 10(a) ................... 9 a wea dks secu a ane ewes 6, 7 Other Authorities 1 Kenneth H. Young, Anderson’s American Law of Zoning, § 6.04 at 489 (4th ed. 1995) ...... 10 4A Norman Williams Jr., American Land Planning Law, at 225 (rev. vol. 1986) ...... 10, 11 SA McQuillin, Municipal Corporations, § 25.90 UE MED cick cae civcs cs suiseieecs 10 ] Petitioner Star Northwest, Inc. d/b/a Kenmore Lanes and 11" Frame Restaurant & Lounge (“Kenmore Lanes”) respectfully submits this Petition for a Writ of Certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit. OPINIONS BELOW The Ninth Circuit issued a Memorandum decision on May 28, 2008. Appendix (hereinafter “App.”), infra, 8a-12a. On Appellant’s Petition for Panel Rehearing, on January 7, 2009, the panel issued an order amending its May 28, 2008 Memorandum. App., infra, la-2a. Neither the Memorandum nor the Order is published. The judgment of the district court (App., infra, 13a- 23a) is not published. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISION INVOLVED The Fourteenth Amendment to the United States Constitution provides in relevant part: {[NJor shall any State deprive ahy person of life, liberty, or property, without due process of law. 2 STATEMENT OF THE CASE Kenmore Lanes is a community-oriented business featuring a bowling alley, restaurant, bar, and card room in Kenmore, King County, Washington (the “City”). It is the City’s largest private employer with approximately 220 full-time and part-time employees. Kenmore Lanes’ bowling alley has been in continuous operation at the same location since 1958. Its 11° Frame card room has been operating continuously under license from the Washington State Gambling Commission at that location since approximately 1974. No other card rooms operate in the City. Prior to acting to ban social card rooms, the City was apparently not concerned with any impact of gambling at Kenmore Lanes. It did not undertake any investigation of the impact of card room operations in the community. Nor were council members aware of any evidence that card rooms had been the source of unusual criminal activity in Kenmore or that they caused injury to surrounding communities. To the contrary, there is widespread community acceptance of gambling in Kenmore, King County and the state of Washington. State-authorized gambling activities are ubiquitous in Kenmore, a city of more than 18,000, and other King County communities. Washington Lottery tickets and pull tabs are sold throughout the City and across King County. Charitable poker games in which participants take half the pot are sponsored by local grocery stores. Card rooms operate at 48 locations in King County. 3 In 2005, the City Council held hearings on the question of whether it.would adopt a ban on social card room operations in the City of Kenmore. The City Council knew that banning card rooms would cause financial injury to the owner of Kenmore Lanes, but did not investigate whether closing the card room would force closure of the bowling alley and the restaurant. It did not investigate how many employees worked at Kenmore Lanes and how many would lose their jobs if card rooms were banned. The City Council did know that it had the option of banning all card rooms, but delaying the effective date. Based on an email from the City Manager and a statement by the City Attorney at a public meeting, the City Council knew that the City Attorney had opined that “the council could adopt a ban on card rooms effective at a future date.” That strategy would, in effect, give Kenmore Lanes an amortization period in which to recoup the value of the business that would be lost. The City Council did not do that. At a December 19, 2005, Kenmore City Council meeting, the City circulated a draft ordinance to ban gambling. As circulated, the draft ordinance would have allowed Kenmore Lanes to remain in business through 2006. The last sentence of Section 1 of the ordinance stated this result as follows: Nothing in this ordinance shall be construed to prohibit the continued operation of any licensed social card game during the remainder of the current term of any license issued by the State Gambling Commission for any such social card game. 4 The then-current term of Kenmore Lanes’ card room license ran through December 31, 2006. Thus, as recommended to the Kenmore City Council, the draft ordinance gave Kenmore Lanes (and the employees) 2 year’s notice of the intended closing. After closing the public hearing on the draft ordinance to ban gambling at the December 19, 2005 meeting, one of the council members moved to delete the last sentence of Section 1, intentionally denying Kenmore Lanes its right to operate for the duration of its current license. The motion passed and modified Section 1 of the ordinance as follows: Pursuant to RCW 9.46.295, “social card games,” as that term is defined in RCW 9.46.0282 as now in effect or may subsequently be amended, are prohibited within the City of Kenmore. Social card games shall not be permitted, maintained or operated as a commercial stimulant for the operation of any business primarily engaged in the selling of food or drink for consumption on the premises, nor for any other reason or under any other circumstances. Nothing in this ordinance shall be construed to otherwise change the scope of any current license issued by the State Gambling Commission. Nethitge in-this-ordinance-shatt be construed to 5 The City Attorney stated that the ordinance, as amended, could be interpreted to mean that the City Council’s action violated state law which prohibits cities from changing the scope of an issued license, and suggested further analysis. With little discussion, the City Council adopted Ordinance No. 05-0237, as amended (the “Ordinance”). App., onfra, 24a-31a. The record is devoid of any explanation of the reasons the City Council took to ban all card rooms because the Ordinance states no purpose and the City objected to deposition testimony from council members about their decision-making process. The Ordinance provides no relief and no amortization period for Kenmore Lanes’ existing, licensed card room. The Ordinance was scheduled to become effective on December 29, 2005, 10 days after the December 19" meeting. App., infra, 30a, 31a. The profits from the card room subsidize Kenmore Lanes’ bowling alley, the restaurant, the employee benefits, and all of Kenmore Lanes’ community and charitable activities. If the card room must close, then the entire business will close. Relocation of Kenmore Lanes’ card room, restaurant, and bowling alley to a different location would cost more than the business is worth. There are no viable locations in King County for a new card room. Even if a location could be found, the costs of moving the business and the delay in rebuilding goodwill make relocation impracticable. This means that if the Ordinance is enforced, Kenmore Lanes will close, and Kenmore Lanes will lose the entire value of its investment, calculated at $4,936,000, as of December 31, 2005. 6 Before the Ordinance became effective, Kenmore Lanes filed suit against the City of Kenmore and Kenmore City Council (collectively the “City”) in the United States District Court for the Western District of Washington seeking injunctive relief and damages, and alleging, in part, that the Ordinance violated its Fourteenth Amendment right to substantive due process and entitled Kenmore Lanes to relief under 42 U.S.C. § 1983. On December 28, 2005, the district court granted Kenmore Lanes’ motion for temporary restraining order. In March 2006, the temporary restraining order was ccntinued as a preliminary injunction pending trial pursuant to stipulation of the parties. On August 10, 2006, the district court granted summary judgment dismissing Kenmore Lanes’ federal claims. App., infra, 13a-23a. It reasoned that Kenmore Lanes did not have a property right supporting a Fourteenth Amendment claim because state licensed gambling is “vice”-like and has no constitutional protection, and Kenmore Lanes had no “vested right” to operate a card room based on a Washington Administrative Code provision, WAC 230-04-175. App., znfra, 17a. Kenmore Lanes timely appealed and asked the United States Court of Appeals for the Ninth Circuit to issue a Stay preventing enforcement of the Ordinance during the appeal. On September 28, 2006, the Ninth Circuit granted the motion for stay. Based on that stay, Kenmore Lanes and its card room remains open to this day. 7 In a May 28, 2008 Memorandum (App., infra, 3a- 12a), the Ninth Circuit affirmed the district court’s ruling, but with somewhat different reasoning. The Ninth Circuit accepted for the purpose of analysis that Kenmore Lanes’ card room “qualifies as a nonconforming use within the meaning of [Kenmore] Municipal Code § 18.20.1860.” App., infra, 5a. It also recognized that “Washington courts have recognized a federal] constitutional right, under the Fourteenth Amendment substantive due process guarantee, to a reasonable amortization period for nonconforming uses terminated by state or local regulation. See State v. Thomasson, 378 P2d 441, 443 (Wash. 1963); Rhod-A- Zalea v. Snohomish County, 959 P2d at 1029.” App., infra, 6a. The Ninth Circuit rejected Kenmore Lanes’ federal substantive due process claim, however, reasoning that “[tjhose nonconforming uses that are not vested rights under Washington law, however, are not entitled to the benefit of an amortization period” and “luJnder Washington law, a gambling license cannot create a vested right.” App., infra, 6a-7a. The Ninth Circuit said nothing about the district court’s “vice”- like exception to constitutional rights. The Ninth Circuit’s conclusion that under Washington law a gambling license cannot create a vested right was anchored in WAC 230-04-175, which provided that “the issuance of any license by [the state gambling] commission shall not be construed as granting a vested right in any of the privileges so conferred.” This was error because WAC 230-04-175 had been repealed in January 2008, prior to the Ninth Circuit decision, and could not undermine Kenmore Lanes’ claim to a property right. Kenmore Lanes explained this to 8 the Ninth Circuit in a timely motion for panel rehearing, filed June 9, 2008. In an order issued on January 7, 2009 (App., infra, la-2a), the Ninth Circuit panel amended its prior Memorandum, deleting its entire analysis of Kenmore Lanes’ federal substantive due process claim and reliance on the repealed WAC provision in Section 2 of its Memorandum and substituted a new Section 2. App., infra, 2a. In its revised analysis, the Ninth Circuit ignored the Fourteenth Amendment substantive due process right to an amortization period for nonconforming uses terminated by state or local regulation recognized by the Washington Supreme Court that it had noted in the May 28, 2008, Memorandum and stated merely that Kenmore Lanes had failed to meet the “exceedingly high burden of proving that a challenged land use regulation fails to advance a legitimate government purpose.” App., infra, 2a. The Ninth Circuit did not attempt to reconcile its conclusion with the Washington Supreme Court opinions that it had cited in its earlier Memorandum. REASONS FOR GRANTING THE PETITION The Ninth Circuit has differed, without explanation, from clear contrary decisions from the Washington Supreme Court, applying federal substantive due process principles to property rights recognized under Washington state law and requiring that legal nonconforming uses may not be terminated without allowing an adequate amortization period. The Washington Supreme Court decisions are not outliers on this question. Many state appellate courts have reached the same conclusion under either substantive due process or takings principles. The split between the Ninth Circuit and the state courts presents the important question whether governments are free to ban legal nonconforming uses without any amortization period to allow the business owner to recoup its investment or mitigate its loss. Thus, this Court’s Rule 10(a) is satisfied, and a Writ of Certiorari should issue. I. 9 The Washington Supreme Court Has Held that a Business Owner Has a Federal Substantive Due Process Right to an Amortization Period on Termination of a Legal Nonconforming Use, and Its Conclusion Is Consistent with Decisions of Many Other States. The Ninth Circuit’s May 28, 2008 Memorandum, accurately summarized applicable Washington law: It is well established under Washington law that the City may regulate a non-conforming use with “subsequently enacted reasonable police power regulations.” Rhod-A-Zalea & 35", Inc. v. Snohomish County, 959 P.2d 1024,1029 (Wash. 1998). The City is not required to allow a nonconforming use to exist indefinitely because “local governments have the authority to preserve, regulate and even, within constitutional limitations, terminate nonconforming uses.” * * * 2. Washington courts have recognized a federal constitutional right, under the Fourteenth Amendment’s’ substantive 10 due process guarantee, to a reasonable amortization period for nonconforming uses terminated by state or local regulation. See State v. Thomasson, 378 P2d 441, 443 (Wash. 1963); Rhod-A-Zalea, 959 P2d at 1029. App., infra, 6a. This substantive due process analysis is anchored in the Washington Supreme Court’s state law-based judgment that termination of a legal existing use impairs a property interest. When zoning laws were first enacted in the United States in the early Twentieth Century, states wrestled with how existing uses should be treated that did not comply with uses allowed in the new zoning designations.' There was a widespread belief that such nonconforming uses could not be terminated unless after a period of abandonment.” Over time, states continued to struggle with the issue because a nonconforming use’s “grandfathered” status often created a local monopoly power which discouraged the business from ceasing operations.® While some states still forbade the forced termination of a legal business,* eventually many states 1. 4A Norman Williams Jr., American Land Planning Law, at 225 (rev. vol. 1986) (the issue of nonconforming uses has been “one of the most important questions in American planning law”). 2. See 1 Kenneth H. Young, Anderson’s American Law of Zoning, § 6.04 at 489 (4th ed. 1995). 3. 8A MeQuillin, Municipal Corporations, § 25.90 at 73 (3d ed. 2003). 4. See,e.g., Commonwealth v. Hashem, 526 Pa. 199, 589 A.2d 1378 (1991) (amortization of a pre-existing use is per se (Cont'd) 11 came to a compromise position: nonconforming uses could not be immediately abolished but could be terminated after a phasing out, or “amortization” period.® Washington, like many states, grounds this right to a pre-cessation amortization period in the Fourteenth Amendment.° There is no federal law of zoning so federal courts must look to state law. League to Save Lake Tahoe v. Crystal Enters., 685 F.2d 1142, 1144 (9th Cir. 1982); see also Ebel v. City of Corona, 767 F.2d 635, 639 (9th Cir. 1985) (applying balancing test from Northend Cinema, Inc., v. City of Seattle, 90 Wash. 2d 709, 585 P2d 1158, 1159-60 (1978)). They also look to state law to “define and determine the range of interests that qualify for (Cont'd) confiscatory); Hoffman v. Kinealy, 389 S.W.2d 745 (Mo. 1965) (six-year amortization period was unconstitutional as a taking of private property for public use without just compensation); City of Akron v. Chapman, 160 Ohio St. 382, 52 Ohio Op. 242, 116 N.E.2d 697 (1953) (an ordinance allowing a city to remove a legal nonconforming use even after a “reasonable” time was unconstitutional). 5. 4A Norman Williams Jr., American Land Planning Law, at 225 (rev. vol. 1986); see also League to Save Lake Tahoe v. Crystal Enters., 685 F.2d 1142, 1146 (Yth Cir. 1982). 6. See, e.g., State v. Thomasson, 61 Wash. 2d 425, 428, 378 P2d 441, 443 (1963) (due process grounds); State ex. rel. Miller v. Cain, 40 Wash. 2d 216, 218, 242 P2d 505, 506 (1952); Compare, Austin v. Older, 283 Mich. 667, 278 N.W. 727, 730 (1938). And see Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 308, 129 A.2d 363 (1957) (“{I]t is unreasonable and unconstitutional for a zoning law to require immediate cessation of nonconforming uses otherwise lawful”) (surveying cases). 12 protection as property” under the Fifth and Fourteenth Amendments. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992). The Washington Supreme Court has consistently held that property owners have rights to continue to operate a legitimate business despite a change in zoning. State v. Thomasson, 61 Wash. 2d 425, 428, 378 P2d 441, 443 (1963); State ex rel. Ogden v. Bellevue, 45 Wash. 2d 492, 495, 275 P2d 899, 901-02 (1954); State ex rel. Miller v. Cain, 40 Wash. 2d 216, 218, 242 P2d 505, 506 (1952). This is consistent with the Washington courts’ recognition that a business like Kenmore Lanes’ card room is a valuable property interest: Property is a word of very broad meaning and when used without qualification may reasonably be construed to include obligations, rights and other intangibles as well as physical things. And property is a term of broad significance, embracing everything that has exchangeable value, and every interest or estate which the law regards of sufficient value for judicial recognition. The right to operate a lawful business is a property right. Lee & Hastes v. Pub. Serv. Comm’n, 52 Wash. 2d 701, 704, 328 P2d 700, 702 (1958) (internal citations omitted) (emphasis added). Applying this property right, Washington allows a nonconforming use to be terminated, but it cannot be constitutionally done without providing for a reasonable amortization period. Rhod-A-Zalea, 959 P2d at 1029 (“Loeal governments, of course, can terminate 13 nonconforming uses but they are constitutionally required to provide a reasonable amortization period”). Moreover, this right is not balanced against the goals of government regulation. It will be allowed to continue even though the use is considered to be “detrimental to important public interests.” Jd. at 1027. The harm from depriving a property owner of his business outweighs the public interest in immediately abolishing the nonconforming use. /d. (noting that although a nonconforming use may be detrimental to the public health, safety, morals, or welfare, it cannot be immediately ceased without infringing on the property owner’s constitutionally-protected rights); see also City of University Place v. McGuire, 144 Wash. 2d 640, 648- 49, 30 P3d 453, 457 (2001); City of Seattle v. Martin, 54 Wash. 2d 541, 544, 342 P2d 602, 603-04 (1959); Miller, 242 P2d at 508 (a nonconforming gasoline service station use was allowed to continue indefinitely where the harm to the property owner in losing the business outweighed the public’s interest in terminating the use). Neither the City of Kenmore, nor the district court nor the Ninth Circuit has attempted to argue that the Washington Supreme Court incorrectly applied federal constitutional law to termination of a legal nonconforming use. To the contrary, decisions of other states are consistent with Washington's explication of federal constitutional law. The Washington cases, themselves, cited extensively this Court and to decisions of other states. In concluding that nonconforming uses were subject to later-enacted regulations enacted for the health, safetv and welfare of the community, the Washington Supreme Court in 14 Rhod-A-Zalea cited Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962); Miller & Son Paving, Inc. v. Wrightstown Township, 42 Pa. Commw. 458, 401 A.2d 392 (1979); Watanabe v. City of Phoenix, 140 Ariz. 575, 683 P2d 1177 (Ariz. Ct. App. 1984); and Dock Watch Hollow Quarry Pit, Inc. v. Township of Warren, 142 N.J. Super. 103, 361 A.2d 12 (1976). 959 P2d at 1029. And, its conclusion that an ordinance immediately terminating a nonconforming use is invalid cited to Township of Orion v. Weber, 83 Mich. App. 712, 269 N.W.2d 275 (1978), and Incorporated Village of Brookville v. Paulgene Realty Corp., 24 Misc. 2d 790, 200 N.Y.S.2d 126 (1960). 7d. In Township of Orion, the court surveyed decisions of the Michigan Supreme Court, e.g. Wolverine Sign Works v. City of Bloomfield Hills, 279 Mich. 205, 271 N.W. 828 (1937), holding that immediate termination of existing legal uses is arbitrary and illegal, and invalidated new restrictions on an existing sand and gravel operation as confiscatory. 269 N.W.2d at 280. In Paulgene Realty, the court surveyed prior decisions of the New York courts holding that a legal nonconforming use may not be subsequently terminated, e.g. People v. Miller, 304 N.Y. 105, 107, 106 N.E.2d 34 (1952), and refused to apply subsequently adopted police power-based regulations to a legal existing use. 24 Misc. 2d at 795, 795. Other states have reached the same conclusion. In Grant v. Mayor and City Council of Baltimore, the Maryland Court of Appeals surveyed cases analyzing 15 the constitutional implications of termination of a legal nonconforming use and concluded: It soon was and still generally is held that it is unreasonable and unconstitutional for a zoning law to require immediate cessation of nonconforming uses otherwise lawful. Anne Arundel County v. Snyder, 186 Md. 342, 346; Amereihn v. Kotras, 194 Md. 591, 601 and cases cited; Jones v. City of Los Angeles (Cal.), 295 P 14; Standard Oil Co. v. City of Bowling Green (KY.), 50 S.W. 2d 960; Des Jardin v. Town of Greenfield (Wis.), 53 N.W. 2d 784. 212 Md. at 308.’ See also Matter of Toys “R” Us. v. Silva, 89 N.Y.2d 411, 416, 654 N.Y.S2d 100, 108, 676 N.E. 2d 862, 865 (1996) (nonconforming uses cannot be summarily terminated “{d]ue to constitutional and fairness concerns regarding the undue financial hardship that immediate elimination of nonconforming uses would cause to property owners”). 7. Grant has been followed and reaffirmed in multiple Maryland decisions. Harris v. Mayor and City Council of Baltimore, 35 Md. App. 572, 578, 371 A.2d 706 (1977). 16 II. The Ninth Circuit Did Not Square Its Federal Substantive Due Process Analysis with the Decisions of the Washington Supreme Court or Those of Other States. After recognizing the Washington Supreme Court’s articulation of the federal substantive due process right to an amortization period in its May 28, 2008 Memorandum, the Ninth Circuit switched course in its January 7, 2009 order on petition for rehearing to delete its discussion of the Washington cases and substitute citations to federal decisions—cases that pre-dated its May 28, 2008 Memorandum. App., infra, 2a. The Ninth Circuit now cited Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542 (2005), for the proposition that “[a]} plaintiff challenging land use regulation under a federal substantive due process theory must demonstrate that the regulation ‘fails to serve any legitimate governmental objective’ rendering it ‘arbitrary or irrational.’” App., infra, 2a. The Ninth Circuit did not explain why Kenmore Lanes’ challenge did not meet that standard; it may be reasonably inferred that the City’s unstated, but apparent, purpose of ending card room operations was regarded as serving a legitimate government objective. The panel’s reading of Lingle is plainly inconsistent with the Washington Supreme Court decisions describing a federal substantive due process right to an amortization period on termination of a legal nonconforming use and similar decisions in other states. The Washington Supreme Court was satisfied that regardless of the legitimacy of the local government's 17 purpose, termination of a legal nonconforming use triggered a constitutional right to a reasonable amortization period. The Court explained that nonconforming uses are subject to subsequently enacted reasonable police power regulations and such regulations will only be invalidated when they immediately terminate the use. This is because “a nonconforming use has a ‘vested’ or ‘protected’ right to continue without being subject to immediate termination.” Rhod-A-Zalea, 959 P2d at 1027. Thus, the Washington Supreme Court held that an ordinance immediately terminating a legal nonconforming was a substantive due process violation regardless of the reasonableness of the City’s purpose. Kenmore Lanes will explain below that the Ninth Circuit’s reading of Lingle is incorrect, and the substantive due process standard is satisfied here because arbitrariness or irrationality of government action can be proved through the rejection of an amortization period, not merely the apparent goal of the government action. For the purposes of judging whether a Writ of Certiorari should issue, however, the split between the Ninth Cireuit and the Washington Supreme Court is clear. 18 III. The Ninth Circuit’s Rejection of Kenmore Lanes’ Fourteenth Amendment Substantive Due Process Clause Conflicts with this Court’s Jurisprudence. In Lingle, this Court clarified the dividing line between Fifth Amendment takings clause claims and Fourteenth Amendment substantive due process claims, explaining that a takings clause challenge “presupposes that the government has acted in pursuit of a valid public purpose,” whereas a substantive due process claim seeking invalidation of an allegedly arbitrary regulation is “logically prior and distinct from the question whether a regulation effects a taking.” Lingle, 544 U.S. at 543. The Court explained that “[n]o amount of compensation can authorize” an arbitrary government action. /d. See also id. at 548 (“today’s decision does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process”) (Kennedy, J., concurring). The Court’s observation in Lingle that arbitrary or irrational regulations may be invalidated as violative of the Fourteenth Amendment due process clause led panels of the Ninth Circuit to resurrect substantive due process claims for property deprivations. “Lingle pulls the rug out from under [the Ninth Circuit’s] rationale for totally precluding substantive due process claims based on arbitrary or unreasonable conduct ... and indicates that a claim of arbitrary action is not [a claim precluded by the Fifth Amendment takings clause].” Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855 (9th Cir. 2007) (limiting Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996)). See also N. Pacifica LLC 19 v. City of Pacific, 526 F.3d 478, 484 (9th Cir. 2008) (“In recent years, substantive due process law in the context of land-use regulation has taken a winding path”) (citing Lingle, 544 U.S. at 542) (other citations omitted). In explaining that the Agins “substantially advance[s] legitimate state interests” standard is not relevant to a Fifth Amendment taking, Lingle, 544 U.S. at 531-32 (citing Agins v. City of Tiburon, 447 U.S. 255 (1980)), the Court commented that the “substantially advances” test has “some logic in the context of a due process challenge.” /d. at 542. In this reference to substantive due process considerations, the Court did not purport to set forth, or to alter, the applicable test in a substantive due process challenge. See id. Nevertheless, the Ninth Circuit apparently read this language to state a standard that government action will satisfy substantive due process standards if the government has a reasonable goal, no matter how arbitrarily it acts in furtherance of that goal. This gives short shrift to the Court’s substantive due process cases and the state cases giving constitutional protection to termination of nonconforming uses. This Court has “emphasized time and again that ‘the touchstone of due process is protection of the individual against arbitrary action of government.’” County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (cited by Lingle, 544 U.S. at 542). See also Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U.S. 114, 123 (1889)”). In the substantive context of the due process 20 clause, protection against arbitrary government action means that government power must not be exercised “without any reasonable justification in the service of a legitimate governmental objective.” Lewis, 523 U.S. at 846 (citation omitted). The Ninth Circuit’s decision below failed to analyze whether the City had a reasonable justification for the immediate impact of the Ordinance on Kenmore Lanes. After appropriately quoting Lingle for the proposition that a government act is invalid if it “fails to serve any legitimate governmental objective,” App., 77/fra, 2a, the Ninth Circuit made no attempt to apply that standard to assess whether the City had a legitimate government objective for a regulation that would close Kenmore Lanes’ business immediately, without any opportunity to recoup its investment. Rather than offering any analysis, the Ninth Circuit cited a second decision, this one from the Ninth Circuit; Shanks v. Dressel, 540 F-3d 1082, 1028 (9th Cir. 2008) (challenging the issuance of a building permit within a historic district). App., 7rfra, 2a. The Ninth Circuit did not acknowledge that the challenge in Shanks concerned an executive action not a legislative one. 540 F.3d at 1088 (“When executive action like a discrete permitting decision is at issue, only ‘egregious official conduct can be said to be arbitrary in the constitutional sense’”).° 8. The Lewis Court explained that the analysis of whether an act is arbitrary differs for legislative actions as opposed to executive actions: While due process protection in the substantive sense limits what the government may do in both (Cont'd 21 In contrast to the necessary showiug of “conscience shocking” behavior that must be proved for an executive action to have violated substantive due process guarantees, Lewis, 523 U.S. at 846, a claim that a legislative action violated due process may be proved by a showing that the action complained of has caused an arbitrary or irrational impact. Cf Dent, 129 U.S. at 121-22, 128 (declaring more than 100 years ago that the right to follow any lawful calling, business, or profession “cannot be arbitrarily taken from [persons], any more than their real or personal property can be thus taken” and only finding no substantive due process violation because the legislation at issue set vital minimum skill thresholds for the practice of medicine). See also Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (legislation banning birth control measures had an unreasonable impact on marital privacy rights). Likewise, the Ninth Circuit has, on other occasions, recognized that an unjustified denial of a right is an unreasonable impact subject to invalidation. See, e.g., Del Monte Dunes at Monterey, Ltd. v. City of Monterey, (Cont'd) its legislative ...and its executive capacities ... criteria to identify what is fatally arbitrary differ depending on whether it is legislation or « :necific act of a governmental officer that is at iss. Lewis, 523 U.S. at 846 (emphasis added) (internal citations omitted). Lewis, itself, concerned executive action, not legislative. Lewis described the long-standing and extremely high standard for invalidating executive action under the due process clause: “[F Jor half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience.” Id. (emphasis added). 22 920 F.2d 1496, 1508 (9th Cir. 1990) (reversing summary judgment in favor of defendant city when the city council had “abruptly changed course and rejected [a land use permit application], giving only broad conclusory reasons”); See also Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988) (refusal to issue building permits afforded applicant no “process, let alone ‘due’ process,” amounting to a substantive due process violation). The Fourteenth Amendment does not itself create rights that are protected from unreasonable impacts of legislative action. Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 756 (2005). Rather, “entitlements are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Jd. (citations omitted). See also Lucas, 505 U.S. at 1030 (same) (citations omitted). The question of whether a state law-created property interest creates a claim of entitlement protected by the due process clause “begins with a determination of what it is that state law provides.” Castle Rock, 545 U.S. at 757 (declining to defer to the Tenth Circuit’s construction of state law because that court “did not draw upon a deep well of State-specific expertise”). As explained above, Washington has long-recognized a property right in the operation of a business, subject to protection under the Fourteenth Amendment from termination without a reasonable amortization period. Rhod-A-Zalea, 959 P2d at 1029; Thomasson, 378 P3d at 443. The Ninth Circuit accepted that nonconforming uses constitute protectable property interests in Washington but failed to explain its departure from Washington’s interpretation that the Fourteenth Amendment protected such rights from summary termination. 23 Where state law has established a clear right, as Washington has here, this Court has considered summary termination of that right to constitute a due process violation. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 486 U.S. 1, 11-12 (1978) (cited in Castle Rock, 545 U.S. at 757 (water customers who had a state law-created right to water service which could only be terminated for cause asserted a “legitimate claim for entitlement’ within the protection of the Due Process Clause”). In such circumstances, summary deprivation of the right is arbitrary regardless of the reason. Here, the Ninth Circuit’s withdrawal of the portion of its May 28, 2008 Memorandum “look[ing] to state law to ‘define and determine the range of interests that qualify for protection as property’” (App. infra, 7a (citing Lucas, 505 U.S. at 1030)), meant that its substituted conclusion that Kenmore Lanes had not met an “exceedingly high burden” was offered without any analysis of the underlying right at issue or of the application of Fourteenth Amendment protections to that right. The record is devoid of any rational reason for summarily terminating Kenmore Lanes, and there is ample evidence that the City Council’s decision to make its ban effective in 10 days was arbitrary and irrational. This Court’s resuscitation of the Fourteenth Amendment’s due process clause as a means of challenging land use regulations signaled the Court’s interest in clarifying the constitutional challenges available in land use regulation contexts. Having reopened the due process door, this Court should grant certiorari to consider the Ninth Circuit’s unreasoned rejection of Kenmore Lanes’ Fourteenth Amendment amortization period claim which is in conflict with decisions of the Washington Supreme Court. 24 CONCLUSION For the reasons stated above a Writ of Certiorari should issue. Respectfully submitted, Pau. J. Dayton Counsel of Record LESLIE C, CLARK SHorT CRESSMAN & BurGEss PLLC 999 Third Avenue, Suite 3000 Seattle, WA 98104 (206) 682-3333 Counsel for Petitioner APPENDIX la APPENDIX A — AMENDMENT AND ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DENYING PETITION FOR REHEARING FILED JANUARY 7, 2009 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 06-35801 STAR NORTHWEST INC., a Washington corporation doing business as Kenmore Lanes and 11th Frame Casino, Plaintiff-Appellant, Vz CITY OF KENMORE, a Washington municipal corporation; et al., Defendants-Appellees. No. 06-36029 STAR NORTHWEST INC., a Washington corporation doing business as Kenmore Lanes and 11th Frame Casino, Plaintiff-Appellant, V. City of Kenmore, a Washington municipal corporation; et al., Defendants-Appellees. 2a Appendix A ORDER Before: B. FLETCHER, PAEZ and N.R. SMITH, Circuit Judges. The memorandum filed on May 28, 2008 is amended as follows: On pages 4 through 5, delete Section 2 and replace it with the following paragraph: 2. Kenmore Lanes argues that the City violated its Fourteenth Amendment right to substantive due process by failing to provide a reasonable amortization period for nonconforming uses banned by Ordinance. We disagree. A plaintiff challenging land use regulation under a federal substantive due process theory must demonstrate that the regulation “fails to serve any legitimate governmental objective,” rendering it “arbitrary or irrational.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542 (2005); see also Shanks v.. Dressel, 540 F.3d 1082, 1088 (9th Cir.2008) (“T]he ‘irreducible minimum’ of a substantive due process claim challenging land use action is failure to advance any legitimate government purpose.” (citation omitted)). Kenmore Lanes has not met this “exceedingly high burden” here, and dismissal of this claim was therefore proper. See Shanks, 540 F.3d at L088. With the above amendment, the panel has voted to deny the petition for rehearing. The petition for panel rehearing is therefore DENIED. No further petitions for rehearing shall be filed. 3a APPENDIX B — MEMORANDUM OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FILED MAY 28, 2008 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 06-35801 STAR NORTHWEST INC., a Washington corporation doing business as Kenmore Lanes and 11th Frame Casino, Plaintiff-Appellant V. CITY OF KENMORE, a Washington municipal corporation; KENMORE CITY COUNCIL, the legislative body of the City of Kenmore, Defendants-Appellees No. 06-36029 STAR NORTHWEST INC., a Washington corporation doing business as Kenmore Lanes and 11th Frame Casino, Plaintiff-Appellant, v. CITY OF KENMORE, a Washington municipal corporation; KENMORE CITY COUNCIL, the legislative body of the City of Kenmore, Defendants-Appellees 4a Appendix B MEMORANDUM* Argued and Submitted March 10, 2008 Seattle, WA Before: B. FLETCHER, PAEZ, N.R. SMITH, Circuit Judges. Plaintiff-Appellant Star Northwest (“Kenmore Lanes”) operates a bowling alley, restaurant, and card room in Kenmore, King County, Washington. In No. 06- 35801, Kenmore Lanes appeals the district court’s grant of summary judgment to Appellees, the City of Kenmore (the “City”) and the Kenmore City Council (the “Council”), in Kenmore Lanes’ civil rights action challenging, on federal and state law grounds, the constitutionality of a City ordinance that banned the operation of card rooms within city limits. In No. 06- 36029, Kenmore Lanes appeals from the district court’s grant of attorneys’ fees in the amount of $180,552 to the City. In challenging the district court’s summary judgment ruling,’ Kenmore Lanes argues that: 1) its card room, the 11th Frame, is a nonconforming use entitled to operate indefinitely under Kenmore Municipal Code * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. We review de novo a district court's decision to grant a motion for partial summary judgment. Delta Savings Bank ». United States, 265 F.3d 1017, 1021 (9th Cir.2001). Sa Appendix B sections 18.20.1860 and 18.75.030; 2) Kenmore Lanes has a federal constitutional right to an amortization period upon termination of its nonconforming use; 3) Kenmore Ordinance 05-0237 (the “Ordinance”) violates Kenmore Lanes’ substantive due process rights under Washington Constitution, Article I, section 3; and 4) Kenmore Lanes’ federal Fifth Amendment takings claim is ripe for adjudication. Finally, Kenmore Lanes argues that 5) the district court erred in denying its request for discovery regarding the City Council’s decisionmaking process when it enacted the Ordinance.? We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1. For purposes of this discussion, we assume, without deciding, that following adoption of the Ordinance, Kenmore Lanes’ card room qualifies as a nonconforming use within the meaning of Municipal Code section 18.20.1860. The City, however, is not required to allow the card room to operate indefinitely, as Kenmore Lanes asserts. The text of section 18.75.0380 is permissive; it states that “[o|nce created pursuant to KMC 18.20.1860, a nonconformance may be continued in a manner consistent with the provisions of this chapter.” KMC § 18.75.030 (emphasis added). It is well established under Washington law that the City may regulate a non- conforming use with “subsequently enacted reasonable police power regulations.” Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 186 Wash.2d 1, 959 P2d 1024, 1029 (1998). The City is not required to allow a non- 2. We review a district court’s discovery rulings for abuse of discretion. Blackburn v. United States, 100 F.3d 1426, 1436 (9th Cir.1996); Hall ». Norton, 266 F.3d 969, 977 (9th Cir.2001). 6a Appendix B conforming use to exist indefinitely because “local governments have the authority to preserve, regulate and even, within constitutional limitations, terminate nonconforming uses.” /d. at 1028. The district court correctly granted summary judgment on this issue. 2. Washington courts have recognized a federal constitutional right, under the Fourteenth Amendment’s substantive due process guarantee, to a reasonable amortization period for nonconforming uses terminated by state or local regulation. See State v. Thomasson, 61 Wash.2d 425, 378 P2d 441, 443 (1963); Rhod-A-Zalea, 959 P2d at 1029. Kenmore Lanes argues that it is entitled to such an amortization period for the City’s termination of its card room operations. Those nonconforming uses that are not vested rights under Washington law, however, are not entitled to the benefit of an amortization period. See Rhod-A-Zalea, 959 P2d at 1029. Under Washington law, a gambling license cannot create a vested right. The Washington Administrative Code provides that “the issuance of any license by the [gambling] commission shall not be construed as granting a vested right in any of the privileges so conferred.” WAC § 230-04-175. We look to state law to “define and determine the range of interests that qualify for protection as property” under the Fifth and Fourteenth Amendments. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Accordingly, because Kenmore Lanes cannot, under Washington law, have a vested interest in the continued operation of its card room gambling business, it is not constitutionally entitled to an amortization period. Ta Appendix B 3. Next, Kenmore Lanes argues that the Ordinance violates its substantive due process rights under Article 1, section 3 of the Washington Constitution. We disagree. Washington courts apply a three-pronged test to determine whether an ordinance violates substantive due process. Presbytery of Seattle v. King County, 114 Wash.2d 320, 787 P2d 907, 912-13 (1990). Under this test, we consider whether the ordinance 1) is aimed at achieving a legitimate public purpose, 2) uses means that are reasonably necessary to achieve that purpose, and 3) is unduly oppressive on the person regulated. Edmonds Shopping Cir. Assoc. v. City of Edmonds, 117 Wash.App. 344, 71 P3d 238, 242 (2003). On this record, we agree with the district court that each of these elements weighs against a finding that the Ordinance violates Kenmore Lanes’ substantive due process rights, and we conclude that dismissal of this claim was proper. See id. at 248; Paradise, Inc. v. Pierce County, 124 Wash.App. 759, 102 P3d 173, 181 (2004). 4, Kenmore Lanes next argues that the district court errer in conciuding that its federal Fifth Amendment takings claim was not yet ripe for adjudication. We disagree. A federal takings claim is not ripe until the claimant has sought, and been denied, compensation through state procedures for claims of regulatory takings or inverse condemnation. Williamson County Reg'l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). We have previously found Washington’s mechanism for adjudicating claims of regulatory takings to be adequate and a necessary prerequisite to a federal 8a Appendix B takings claim. Macri v. King County, 126 F.3d 1125, 1129 (9th Cir.1997). Here, it is undisputed that Kenmore Lanes did not take this step prior to filing the instant action in federal court. Neither of the arguments advanced by Kenmore Lanes persuade us that its takings claim should be exempted from this requirement. While Washington courts have yet to address the impact of Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), on federal takings analysis, it would be premature to conclude that the Washington courts will not, if presented with Kenmore Lanes’ takings claim, apply the standard adopted by the Supreme Court in Lingle. Furthermore, the Court has solidly rejected the argument that the ripeness rule is unfair because a claimant might be collaterally estopped from litigating its federal takings claim if it pursues state court remedies, and we are bound to do the same here. San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 328, 341-48, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). 5. Finally, Kenmore Lanes challenges three discovery rulings by the district court that limited the scope of discovery regarding the Council’s decisionmaking process in adopting the Ordinance because such discovery was relevant and necessary to its claims. It is well-settled, however, that inquiries into a legislator’s deliberative process in reaching a particular legislative decision are, absent extraordinary circumstances, prohibited by the “deliberative process” privilege. See 9a Appendix B City of Las Vegas v. Foley, 747 F.2d 1294, 1297-98 (9th Cir.1984). Our review of the record persuades us that the district court’s discovery rulings were narrowly tailored to preclude Kenmore Lanes from inquiring into the individual, subjective motivations of Council members regarding their purpose in adopting the Ordinance and did not prohibit any discovery that would have been relevant to the constitutional claims at issue in this case. Given the discretionary standard of review applicable to discovery rulings, we therefore affirm. Blackburn, 100 F.3d at 1486. Kenmore Lanes also challenges the district court’s award of attorneys’ fees and costs to the City.* First, Kenmore Lanes argues that the district court erroneously interpreted the mandatory filing deadline of Federal Rule of Civil Procedure 54(d)(2). Additionally, Kenmore Lanes argues that the district court erroneously awarded fees for 1) claims on which the City did not prevail and 2) work outside the parties’ attorney fee agreement, including work originating in the Office of the City Attorney and time spent responding to public records requests made under the authority of the Washington Public Disclosure Act. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and reinand. Kenmore Lanes first argues that the City’s motion for attorneys’ fees was untimely under Rule 54(d)(2) and, 3. We review for abuse of discretion a district court’s award of attorneys’ fees, including the amount of the award. Tutor- Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059 (9th Cir.2006). 10a Appendix B as a result, the district court could not grant the City’s untimely motion. We are not persuaded. Regardless of whether the motion was untimely, the district court had discretion to reach the merits of the late motion. The district court noted that the motion was filed four days after the Rule 54 deadline, and that Plaintiff was not prejudiced by the late filing. A district court has broad jurisdiction to grant attorneys’ fees and costs. Davis v. Mason County, 927 F.2d 1478, 1487 (9th Cir.1991). On this record, we conclude that the district court did not abuse its discretion in reaching the merits of the City’s motion for attorneys’ fees and costs. Kenmore Lanes next argues that the district court erred in failing to segregate fees relating to claims on which the City prevailed from fees relating to claims on which it did not prevail. We agree that a defendant is not a “prevailing party” with regard to claims dismissed without prejudice. See Branson v. Nott, 62 F.3d 287, 293 (9th Cir.1995) (“Where a complaint has been dismissed for lack of subject matter jurisdiction, the defendant has not prevailed over the plaintiff on any issue central to the merits of the litigation.” (internal quotation marks and citation omitted)). W2 therefore conclude that the district court should not have considered the City the prevailing party with respect to Kenmore Lanes’ Fifth Amendment takings claim and its state law gambling tax revenue claim for purposes of calculating attorneys’ fees and costs. Accordingly, we reverse the district court’s award of attorneys’ fees and costs as to those two claims. We remand so that the district court may determine the amount of reasonable fees due the City lla Appendix B for the claims on which it prevailed. See Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986) (holding that for purposes of claiming a fee award pursuant to 42 U.S.C. § 1988, “counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended.”). Finally, Kenmore Lanes argues that the district court erred by failing to segregate and deny fees for 1) matters originating in the office of the City Attorney and 2) publie record requests made by Short, Cressman & Burgess, PLLC. We agree. The district court’s order granting the City’s motion reflects an award of fees for time spent by the City’s attorneys on matters completely unrelated to the litigation between the parties. Because the City is entitled to recover fees only for its attorneys’ work on claims on which the City actually prevailed, Boeing Co. v. Sierracin Corp., 108 Wash.2d 38, 738 P2d 665, 682-83 (1987), it was an abuse of discretion for the district court to award those unrelated fees to the City. On remand, the district court should review the City’s billing records and should not award fees for time spent on matters unrelated to the claims on which the City was the prevailing party. No. 06-35801: AFFIRMED. No. 06-36029: REVERSED and REMANDED. In No. 06-85801, Appellees shall recover their costs on appeal. In No. 06-36029, Appellant shall recover its costs on appeal. 12a APPENDIX C — CORRECTED ORDER ON MOTION FOR SUMMARY JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE DATED AUGUST 10, 2006 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE NO. C05-2133P STAR NORTHWEST, INC., d/b/a KENMORE LANES and 11" FRAME CASINO, Plaintiff(s), v. CITY OF KENMORE, et al., . Defendant(s). CORRECTED ORDER ON MOTION FOR SUMMARY JUDGMENT This corrected order of summary judgment seeks to redress errors in the Court’s original order (Dkt. No. 90) which were brought to light in Plaintiff’s Motion for Reconsideration (Dkt. No. 96). On August 10, 2006, the Court held a telephonic conference in which counsel for all parties (Paul Dayton for Plaintiff, Dan Lossing and Jayne Freeman for Defendants) participated. Although Defendants did not respond in writing to Plaintiff’s Motion for Reconsideration, agreement with Plaintiff’s l3a Appendix C positions on the two issues presented for reconsideration (first, that Plaintiff’s Sixth Cause of Action for refund of gambling tax revenues had not been addressed by the summary judgment motion and therefore survived the Court’s ruling on that motion; second, that dismissal of Plaintiff’s takings claim for non-ripeness should have been without prejudice) was voiced orally. Defendants City of Kenmore and Kenmore City Council sought an order of summary judgment dismissing Plaintiff’s claims against them for enacting an ordinance banning the operation of social card rooms within the Kenmore city limits. Having reviewed the briefing, exhibits and declarations of both sides and having heard oral argument on the motion, the Court found that there were no genuine issues of material fact and that Defendants were entitled to judgment as a matter of law. The Court’s corrected order on summary judgment shall be entered as follows: The Court PARTIALLY GRANTS Defendants’ motion for summary judgment and DISMISSES all of Plaintiffs’ claims except Plaintiff’s Sixth Cause of Action (which was not the subject of Defendants’ motion); the dismissed claims shall all be dismissed with prejudice except for Plaintiff’s claim that Defendants’ action constituted a taking without just compensation, which claim shall be dismissed without prejudice. l4a Appendix C BACKGROUND By statute (the Washington Gambling Act), the state legislature preempted the fields of gambling licensing and regulation. RCW 9.46 .285. The statutory scheme invests a limited authority in the state’s counties and cities as regards gambling: [A] city ... may absolutely prohibit, but may not change the scope of license, [ sic ] any and all of the gambling activities for which the license was issued. RCW 9.46.295. On March 10, 2003, the Kenmore City Council (“the Council”) passed an ordinance, No. 03-167, that banned card rooms, but permitted Plaintiffs’ operation (the “11th Frame”) to remain open under a “grandfather” clause. Def Mtn, Batchelor Decl. at pp. 477-504. In the wake of the decision in Edmonds Shopping Center Assoc. v. City of Edmonds, 117 Wn.App. 344 (2003),' King County Superior Court Judge Lukens ruled that Defendants could not selectively permit some gambling establishments and not others, but were required to either permit or ban all gambling. On December 19, 2005, the Council passed Ordinance 05-0237 (“the Ordinance”), prohibiting social 1. “Instituting a schedule to phase out existing gambling activities is not absolutely prohibiting gambling activities ... [Differentiating between existing and future uses is more regulatory in nature, thus violating RCW 9.46.925.” Edmonds, 117 Wn. App. at 352. 15a Appendix C card rooms within the City. Batchelor Decl. at pp. 11-18. The termination of existing operations was to be effective immediately (at the end of December 2005), with no grandfathering or amortization period. Plaintiffs filed this lawsuit, alleging causes of action for regulatory taking, violations of state and federal substantive due process and injuries under § 1983. Plaintiffs then filed for a preliminary injunction to permit them to continue operations during the pendency of this litigation; on the eve of the injunction hearing, the parties reached an agreement and the card room has remained in operation throughout the course of this action. DISCUSSION Plaintiffs attack the Ordinance on three grounds: (1) the Ordinance results in the card room being transformed into a “legal nonconforming use” which is entitled to continue indefinitely or at least be “reasonably amortized”; (2) the Ordinance works a taking on Plaintiffs’ enterprise for which they are entitled to compensation; and (3) the Ordinance is a violation of state and federal substantive due process. This opinion will examine each argument in turn. Nonconforming use The Kenmore Municipal Code defines a non- conformance as: [A]ny use... established in conformance with the city of Kenmore rules and regulations in l6a Appendix C effect at the time of establishment that no longer conforms to the range of uses permitted in the site’s current zone ... due to changes in the code or its application to the subject property. KMC 18.20.1860. Plaintiffs’ card room fits the qualifications of a “nonconforming use” under this definition: it was established in the 1970s before the incorporation of the city (Pitfs Decl. of Evans, Dkt. No. 8) and as late as 2003 was permitted to remain in operation by virtue of a “grandfather” clause to an ordinance which otherwise operated to ban card rooms within the city. Batchelor Decl. at pp. 477-504. It is only by virtue of the Ordinance in question that it “no longer conforms to the range of uses permitted in the site’s current zone...” The Kenmore development regulations further state that, “[o]nce created pursuant to KMC 18.20.1860, a nonconformance may be continued in a manner consistent with the provisions of this chapter .” KMC 18.75.0380. It is Plaintiffs’ position that these regulations combine to dictate that the city must permit any nonconforming use to continue indefinitely. This is not a supportable contention. First of all, the language of KMC 18.75.0300 is permissive: “... a nonconformance may be continued .. .” The language of the Ordinance clearly speaks to an intention not to permit card rooms to continue in Kenmore. 17a Appendix C Secondly, Plaintiffs’ position is at odds with the holding of the leading Washington case on nonconforming uses, Rhod-A-Zalea & 85th, Inc. v. Snohomish County, 1386 Wash.2d 1 (1988). The Washington Supreme Court observed that “[cJourts have consistently recognized that nonconforming uses are subject to later enacted reasonable police power regulations.” Jd. At 9 (citations omitted). Clearly, even if Plaintiffs’ card room constitutes a legal nonconforming use, Defendant is not constrained from doing anything but permitting the 11th Frame to remain in operation indefinitely. Plaintiffs, however, claim support from Rhod-A- Zalea’s holding that “[l]ocal governments, of course, can terminate nonconforming uses but they are constitutionally required to provide a reasonable amortization period.” Jd. at 10 (citation omitted). Plaintiffs claim that the card room, if not entitled to operate indefinitely, must at least be afforded a “reasonable” time period during which to amortize their loss. In response, Defendant cites to Edmonds’ and a later case (Paradise, Inc. v. Pierce County, 124 Wash.App. 759 (2004)*) for their holdings that the Washington Gambling Act does not permit the 2. “Instituting a schedule to phase out existing gambling activities is not absolutely prohibiting gambling . . . it is regulation.” Edmonds, 117 Wn.App. at 358. 3. “[BJecause the County could not regulate gambling, a ban on gaming was the only means available to realize the public purpose of stopping card room gaming.” Paradise, 124 Wash.App. at 775. 18a Appendix C municipalities to “regulate” gambling operations by building in amortization periods or grandfather clauses. This opinion does not seek to reconcile that apparent conflict; rather the Court finds that the Rhod- A-Zalea holding concerning amortization for nonconforming uses does not apply to gambling operations like Plaintiffs’. The protection afforded nonconforming uses springs from the “vested rights” accorded such uses by virtue of the fact that the uses were legal when they originated: “The right to continue a nonconforming use despite a zoning ordinance which prohibits such a use in the area is sometimes referred to as a ‘protected’ or ‘vested’ right.” Rhod-A-Zalea, 136 Wash.2d at 6. But the state has specifically exempted gambling licenses from the creation of any vested rights. The Washington Administrative Code states: “[T]he issuance of any license by the commission shal] not be construed as granting a vested right in the privileges so conferred.” WAC 230-04-175. Plaintiffs cannot avail themselves of the protections traditionally granted nonconforming uses because they cannot claim a vested right in the continued operation of their gambling operation. Defendants are within their statutory and constitutional authority to exercise their police power by terminating the gaming use immediately. 19a Appendix C Takings Private property shall not be taken for public use, without just compensation. U.S. Constitution, Amendment V. Plaintiffs seek such compensation pursuant to a regulatory taking, but their claim to this constitutional protection suffers from two fatal defects. The first concerns whether Plaintiffs even have a “private property” interest in their card room operation which the Constitution will protect. In U.S. and Fed. Communications Commission v. Edge Broadcasting Co., 509 U.S. 418 (1993), the Supreme Court stated that gambling “implicates no constitutionally protected right; rather, it falls into a category of ‘vice’ activity that could be, and frequently has been, banned altogether.” Jd. at 426. The Court finds that this holding, combined with the WAC admonition that the issuance of a gambling license “shall not be construed as granting a vested right in the privileges so conferred,” renders Plaintiff unable to claim a protectable right in the operation of the 11th Frame card room. In addition to the absence of a constitutionally protected right, Plaintiffs brought this claim directly in federal court. A federal takings claim is not ripe until the claimant has sought, and been denied, compensation through state procedures for such claims. Williamson Co. Reg. Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95 (1985). Washington’s mechanism for adjudicating claims of regulatory takings has been found adequate and a necessary prerequisite 20a Appendix C to a federal takings claim. Macri v. King County, 126 F.3d 1125 (9th Cir.1997). Plaintiffs have completely failed to pursue a regulatory takings claim in state court. Plaintiffs’ interpose two objections to this requirement. The first is that the pursuit of such a determination in state court would be “futile” and therefore nonperformance should be excused. Plaintiffs point to the two threshold inquiries that state law takings claims require (“First, whether the regulation destroys or derogates a fundamental property ownership attribute. Second, whether the regulation seeks less to prevent a harm than to impose a requirement to provide an affirmative public benefit.” Pitfs Memo, fn. 21.) and then assert, without authority or explanation, that “[t]hey cannot be proved here.” Id. at p. 15. It is not at all apparent to this Court why this should be the case. In point of fact, the argument that their right to continue operation of the card room is a “fundamental property ownership attribute” is one of the central tenets of Plaintiffs’ position in this lawsuit. Plaintiffs fail to establish that pursuing adjudication of their compensation claim through state court would be a futile and useless act. Plaintiffs’ second objection to the standard federal takings claim prerequisite is both theoretical and unpersuasive. Plaintiffs cite to San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 3238, 125 S.Ct. 2491 (2005) and quote the San Remo opinion to suggest that the Supreme Court intended to eliminate or somehow disavow the Ninth Circuit’s Macm holding 2la Appendix C requiring the adjudication of a takings claim through the state compensation process. The language which Plaintiffs quote‘ is in fact pre- Williamson language and is cited in a context which in no way suggests that an “exhaustion of state remedies” requirement is overly stringent or unfair. In actuality, there is language in the San Remo opinion suggesting the Williamson requirement of state exhaustion ought to be re-examined but (as Plaintiffs acknowledge) the language is only found in the concurring opinion and (as careful reading of the selection reveals) it is more in the nature of a musing or a suggestion than a pronouncement with any precedential value. The fact remains that Willzamson and Macri are still valid legal authority and this Court will not accent Plaintiffs’ invitation to ignore them. The takings claim is not ripe and will accordingly be dismissed without prejudice. Both parties provided briefing on whether the action before this Court satisfies the substantive elements of a takings claim. On the basis of the finding that Plaintiffs’ takings claim is not yet ripe, this opinion does not reach the merits of that cause of action. 4. “[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” 125 8.Ct. at 250 22a Appendix C Substantive Due Process Plaintiffs’ federal and state substantive due process claims must be analyzed separately. At both the state and federal levels, a three-part test (with slight variations) is employed. The test considers: 1. Whether the regulation is aimed at achieving a legitimate public purpose; 2. Whether it uses means that are “reasonably necessary” to achieve that purpose (the federal test asks if the means are “rationally related” to the purpose); and 3. Whether it is unduly oppressive on the landowner. Edmonds, 117 Wash.App. at 364; Pearson v. City of Grand Blanc, 961 F.2d 1211, 1223 (6th Cir.1992). The Court declines to reach the issue of whether Plaintiffs have a supportable federal substantive due process claim. Defendants cite a line of federal authority which clearly holds that “the scope of substantive due process does not extend to areas addressed by other, more specific provisions of the Constitution.” Armendariz v. Penman, 75 F.8d 1811, 1326 (9th Cir.1996); see also Squaw Valley Dev. v. Goldberg, 375 Ii3d 936, 948 (9th Cir.2004); Madison vu. Graham, 316 F.3d 867, 870-71 (Mont.2002) (“Since deciding Armendariz, this court has consistently held that 23a Appendix C substantive due process claims are precluded where the alleged violation is addressed by the explicit textual provisions of the Fifth Amendment’s Takings Clause.”). The Armendariz court notes that the Supreme Court has been steadily moving away from extending substantive due process protections to purely economic interests such as those of Plaintiff’s. 75 F3 at 1318. Neither in their briefing nor at oral argument have Plaintiffs responded to this clear federal precedent, and the Court will assume on that basis that Plaintiffs concede the validity and impact of the Armendariz rationale. Plaintiffs’ federal substantive due process claim will be dismissed. Plaintiffs fare no better under the state substantive due process analysis: 1. Legitimate public purpose: Plaintiffs argue that, since the Council did not explicitly state a purpose for the Ordinance, this Court must accept Plaintiffs’ contention that the purpose was to prohibit the proliferation of ecard rooms. The language of the Ordinance belies that argument—the only rational reading of its wording is that its purpose is to prohibit all card rooms, not merely halt the spread of them.’ The Edmonds court found a 5. And the firmly established Edmonds/Paradise precedent prohibiting municipalities from only banning the future establishment of card rooms has been discussed at length supra 24a Appendix C legitimate public purpose to that municipality’s ordinance (a) in the testimony presented at council meetings (although there is evidence that there was testimony from supporters and detractors of social card rooms, Plaintiffs do not dispute that there was some sentiment in the community in favor of banning gambling) and (b) in the “historical acceptance of the regulation of gambling as a valid exercise of the police power and the explicit authorization by the Legislature in RCW 9.46.295 to permit municipalities to prohibit gambling absolutely.” 117 Wash.App. at 365. The Court finds that Defendants’ intention to ban social card rooms represented a legitimate public purpose. 2. Reasonably necessary: Edmonds and Paradise make it clear that, in the state of Washington, under RCW 9.46.295, anything short of a complete ban would amount to an impermissible “regulation” of gambling. Edmonds, at 365; Paradise, at 181. The Court finds that the Ordinance was reasonably necessary in order for Defendants to prohibit gambling as they were authorized to do by the Legislature. 3. Unduly oppressive: The leading state case ( Presbytery of Seattle v. King County, 114 Wn.2d 320 (1990)) lists several factors to consider in weighing oppressiveness: 25a Appendix C a. The nature of the harm to be avoided: As has been discussed fully supra, gambling has long been considered an activity which is legitimately the subject of the exercise of a municipality’s police power; b. The availability and effectiveness of less drastic protective measures: Again, as fully explicated above, the current state of statutory and case law dictates that the municipality which wishes to prohibit gambling is constrained from any “less drastic protective measures” than a complete and immediate ban; ce. The economic loss suffered by the properly owner: The Court is aware of Plaintiffs’ claim that the closing of the card room will doom the associated enterprises of the bowling alley and restaurant which also occupy the property in question. Pltfs Memo, p. 18. However, the Court is mindful of the fact that Plaintiffs still own a valuable piece of commercial property for which many possible profitable uses remain—the effect of Defendants’ action has been to restrict one activity, not to deny 26a Appendix C Plaintiffs the opportunity to turn the property to any profitable use (as would be the case had the property been turned to usé as a public park or wildlife preserve). The Court does not find that the Defendants’ proper exercise of its police power for a legitimate public purpose is outweighed by the nature of Plaintiffs’ economic loss. d. The property owner’s ability to anticipate the regulation: The Court finds some merit in Plaintiffs’ contention that their lengthy existence within the community, coupled with the “grandfather” status accorded the 11th Frame in the 2003 ordinance and the fact that as originally written the 2005 ordinance allowed the card room to live out the length of its current license (the final version of the Ordinance eliminated this provision), may have impaired their ability to anticipate the municipality’s action. However, these considerations must be balanced against other facts: the existence of the Washington Gambling Act empowering municipalities to prohibit gambling, the 2003 rulings in Edmonds and Paradise upholding the 2/a Appendix C exercise of that power by other municipalities, and Judge Lukens’ ruling in the wake of Edmonds that Defendants’ moratorium was an inappropriate “regulation” of gambling in violation of RCW 9.46.295. Additionally, the finite nature of the gambling license itself—the fact that Plaintiffs had to face a process of reapplication and possible denial of the license annually—constituted some notice that their continued existence was never assured. At best these countervailing factors balance each other out and, in the grand weighing-and-balancing scheme of the test for “undue oppression,” they cannot be said to tip the scales in Plaintiffs’ favor. It is the opinion of this Court that an examination of all the factors necessary for establishment of a substantive due process violation under state law yields the conclusion that Plaintiffs have not, as a matter of law, succeeded in making their case for this cause of action. Accordingly, both the federal and state substantive due process claims will be dismissed on summary judgment. 28a Appendix C CONCLUSION Finding no genuine issues of disputed material fact, the Court finds that Defendants are entitled to partial summary judgment as a matter of law. The card room is not entitled to the protections accorded legal nonconforming uses because Plaintiffs have no vested rights in its gambling license or operation. Plaintiffs’ takings compensation claim is not yet ripe. The federal courts do not recognize a substantive due process claim where a party has a more specific unjust takings claim and Plaintiffs have not satisfied the conditions for a finding of a substantive due process violation under state law. This order does not dismiss Plaintiffs’ Sixth Cause of Action. The remainder of Plaintiffs’ claims are hereby DISMISSED; the Ninth Cause of Action is dismissed without prejudice. The clerk is directed to provide copies of this order to all counsel of record. Dated: August 10, 2006 s/ Marsha J. Pechman Marsha J. Pechman U.S. District Judge 29a APPENDIX D— CITY OF KENMORE, WASHINGTON ORDINANCE ADOPTED DECEMBER 19, 2005 CITY OF KENMORE WASHINGTON ORDINANCE NO. 05-0237 AN ORDINANCE OF THE CITY OF KENMORE, WASHINGTON, PROHIBITING SOCIAL CARD GAMES WITHIN THE CITY; AMENDING CHAPTER 18.20 OF THE KENMORE MUNICIPAL CODE; AMEND- ING SECTIONS 18.25.040 AND 18.25.070 OF THE KENMORE MUNICIPAL CODE TO PROHIBIT SOCIAL CARD GAMES WITHIN THE CITY; PROVIDING FOR SEVERABIL- ITY; AND ESTABLISHING AN EFFECTIVE DATE WHEREAS, the City of Kenmore has adopted a Comprehensive Plan in compliance with the Growth Management Act; and WHEREAS, gambling activities are not adequately addressed in the City’s Comprehensive Plan, Interim Zoning Code or other interim development regulations; and WHEREAS, in March of 1999, the City Council adopted a moratorium on applications for social card game gambling within the City, and has extended the moratorium every six months until March 20, 2003; and WHEREAS, Division 1 of the Court of Appeals issued its opinion on June 26, 2003, in Edmonds Shopping Center 30a Appendix D Assoc., et al. v. City of Edmonds, affirming that cities may prohibit any or all gambling activities, but calling into question cities’ ability to exercise zoning or other general police powers over licensed gambling activities; and WHEREAS, the Court of Appeals has also ruled that cities lack the authority under current statutory language to “grandfather” existing social card games conducted at premises licensed by the State Gambling Commission or to amortize the continued existence of any such social card games; and WHEREAS, the Legislature has granted clear authority to the City Council in RCW 9.46.295 to absolutely prohibit within the City of Kenmore any or all gambling activities authorized by the Legislature; and WHEREAS, the City Council had conducted numerous public meetings and public hearings and has otherwise received significant public comment regarding the city’s regulation of legal gambling activities; and WHEREAS, the City Council desires to adopt an ordinance prohibiting social card games throughout the City pursuant to RCW 9.46.295 and the City Council’s constitutional authority to regulate the public health, safety, and welfare in a manner consistent with the general law; 3la Appendix D NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENMORE WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Social Card Game Prohibited. Pursuant to RCW 9.46.295, “social card games,” as that term is defined in RCW 9.46.0282 as now in effect or may subsequently be amended, are prohibited within the City of Kenmore. Social card games shall not be permitted, maintained or operated as a commercial stimulant for the operation of any business primarily engaged in the selling of food or drink for consumption on the premises, nor for any other reason or under any other circumstances. Nothing in this ordinance shall be construed to otherwise change the scope of any current license issued by the State Gambling Commission. Section 2. Social Card Game Defined. Chapter 18.20 (Technical Terms and Land Use Definitions) of the Kenmore Municipal Code is amended to add a new definition to read as follows: 18.20.2782 Social Card Game. “Social card game” is defined as set forth in RCW 9.46.0282, as now in effect or as may be subsequently amended or re-codified. 32a Appendix D Section 3. Permitted Uses - Retail Land Uses. Section 18.25.070(A) (Retail Land Uses) of the Kenmore Municipal Code is amended at SIC Code 58, the table for “Eating and Drinking Places,” to read as follows: 18.25.070 Retail land uses. RESOUCE | RESIDENTIAL COMMBRICALANDUSTRIAL A U N c R o ! 0 * 8 oO & t N R B ‘ M re] F D I A G M 1: 1 U z c N H U o c s oO u 8 N N F T N L fe 0 ' A R E T Fe R T L i U 8 4 Y A & t oO 8 L e rs) re) 6 U ia 0 U s M $ i T 8 i N { U N t A s Eg § L i s s N $ i s $ _ * $ SiC# | SPECIFIC A mt @ NH ca RB i) i LAND 1-4 | 12-48 USB \ eee . eee eee eee eee eee P21 38 | Gating and oi tn PiddL Pai P2i ?2i eee 33a Appendix D Section 4. Permitted Uses - Development Conditions. Section 18.25.070(B) (Retail Land Uses - Development Conditions) of the Kenmore Municipal Code is amended to read as follows: B. Development Conditions. 1. Reserved. 2. Only hardware and garden materials shall be permitted. 3. a. Limited to products produced on-site. b. Coveted sales areas shall not exceed a total area of 500 square feet. 4. No permanent structures or signs. 5. Limited to SIC Industry No. 5331, Variety Stores, and further limited to a maximum of 2,000 square feet of gross floor area. 6. Limited to a maximum of 2,000 square feet of gross floor area. 7. a. The floor area devoted to retail sales shall not exceed 3,500 square feet. b. Sixty percent or more of the average annual gross sales of agricultural products sold through the store over a five-year period shall be derived from products grown or produced in the city of Kenmore. At the time of the initial application, the applicant shall submit a reasonable projection of the source of product sales. 34a Appendix D c. Sales shall be limited to agricultural produce and plants. d. Storage areas for produce may be included ina farm store structure or in any accessory building. e. Hours of operation shall be limited to 7:00 a.m. to 9:00 p.m. during May through September and 7:00 a.m. to 7:00 p.m. during October through April. Outside lighting is permitted if no off-site glare is allowed. 8. Excluding retail sale of trucks exceeding one-ton capacity. 9. Only the sale of new or reconditioned automobile supplies is permitted. 10. Excluding SIC Industry No. 5813 - Drinking Places. 11. No outside storage of fuel trucks and equipment. 12. Excluding vehicle and livestock auctions. 13. Reservea. 14. Notin R-1 and limited to SIC Industry No. 5331 - Variety Stores, limited to a maximum of 5,000 square feet of gross floor area, and subject to KMC 18.30.220. 15. Not permitted in R-| and limited to a maximum of 5,000 square feet of gross floor area and subject to KMC 18.30.220. 16. Not permitted in R-1 and excluding SIC Industry No. 5813 - Drinking Places, and limited to a maximum of 5,000 square feet of gross floor area and subject to KMC 18.30.220. 35a Appendix D 17. Retail sale of livestock is permitted only as accessory to raising livestock. 18. Limited to the R-1 zone. 19. Limited to the sale of livestock feed, hay and livestock veterinary supplies with a covered sales area of not more than 500 square feet. The 500- square foot limitation does not include areas for storing livestock, feed, hay or veterinary supplies or covered parking areas for trucks engaged in direct sale of these products from the truck. 20. a. Covered sales areas shall not exceed a total area of 2,000 square feet. b. Sixty percent or more of the average annual gross Sales of agricultural products sold through the store over a five-year period shall be derived from products grown or produced in the city of Kenmore. At the time of the initial application, the applicant shall submit a projection of the source of product sales. c. Sales shall be limited to agricultural produce and plants. d. Storage areas for produce may be included in a farm store structure or in any accessory building. e. Hours of operation shall be limited to 7:00 a.m. to 9:00 p.m. during May through September and 7:00 a.m. to 7:00 p.m. during October through April. Outside lighting is permitted if no off-site glare is allowed. 21. Social card games, as defined by this Title are prohibited. 36a Appendix D Section 5. Permitted Uses - Recreational/cultural land uses. Section 18.25.040(A) (Recreational/cultural land uses) of the Kenmore Municipal Code is amended at SIC Code 7999, the table for “Amusement and Recreation Services,” to read as follows: | : | BESO ERICALINDYSTRIAL A TY iT) N c R [e) i a R R & o E F N os B B § MM o F ° { A A a MM ‘ ' U c W N H uv o c $ U 8 Lal N E ui t n R 0 ‘ A a T E e ag x L j u $ $s & ¥ A R J i Go 8 L z 6 D D ° B U ie) € E D uv s N x M & t E T 7 B i uN ' ' U N & A A § & 8 i L ‘ $s s N $s E s ‘ | S63 | SPECIFICLAND USE A R14 Ries NB c aS °o ‘ eos eee eee ete eer toe oe eee oon BY | Amescmeni asd Recreation Savio et °8 ? ? (4) cis cis BR RB im RB B am ese soe eae oe eo oer eee eae oes J 37a Appendix D Section 6. Permitted Uses - Development Conditions. Kenmore Municipal Code Section 18.25.040(B) (Recreational/cultural land uses - Development Conditions) is hereby amended to read as follows: B. Development Conditions. 1. The following conditions and limitations shall apply, where appropriate: a. No stadiums on sites less than 10 acres; b. Lighting for structures and fields shall be directed away from residential areas; c. Structures or service yards shall maintain a minimum distance of 50 feet from property lines adjoining residential zones, except for structures in on-site recreation areas required in KMC 18.35.170 and 18.35.180. Setback requirements for structures in these on-site required recreation areas shall be maintained in accordance with KMC 18.30.030; d. Facilities in the A zones, or in a designated rural forest focus area, shall be limited to trails and trailheads and active recreation facilities, including related accessory uses such as parking and sanitary facilities. Active recreation facilities shall be limited to those properties within the agricultural production district (APD) that are acquired before designation of the APD, using voter-approved recreation funds, state funds mandated for recreation funds or King County board of recreation funds. Active recreation uses allowed on parcels as 38a Appendix D noted in this subsection may be transferred to other parcels within the same APD. However, active recreation from lands outside of the APD shall not be relocated to any parcel within an APD. Where those facilities are permitted within an APD, the following deed restrictions shall be applied: (1) Active recreation uses shall be designed in a manner that visually screens adjacent agricultural uses from park users and that restricts physical trespass onto adjacent agricultural production district properties; (2) Buildings associated with recreational uses shall be limited to restroom facilities, picnic shelters and storage/maintenance facilities for equipment used on-site; (3) No use that permanently compacts, removes, sterilizes, pollutes or otherwise materially impairs the future use of the soil for raising agricultural crops shall be allowed; (4) Any soil surfaces temporarily disturbed through: construction activities shall be restored in a manner consistent with agricultural uses, including restoration of the original soil horizon sequence, as soon as practical following the disturbance; (5) Access to recreational uses shall be designed to minimize impact on the surrounding agricultural production district and should be limited to direct access along district boundaries whenever feasible; and 39a Appendix D (6) Although the recreational use of agricultural production district properties may be long term, the use shall be recognized as an interim use of the production district’s prime agricultural soils. As such, any acquisition funding or policy restrictions for the recreational use of the property shall be viewed as subordinate to the city’s prior commitment to the preservation of prime agricultural soils and the viability of local agricultural production. If the city declares through action of the city council a critical shortage of agricultural soils to accommodate an active soil- dependent agricultural proposal, the city shall initiate a process to relocate any recreational uses off the subject property and to make the property available for re-establishment of agricultural activities; and e. Overnight camping is allowed only in an approved campground. 2. Reserved. 3. Reserved. 4. Limited to recreation facilities subject to the following conditions and limitations: a. The bulk and scale shall be compatible with residential or rural character of the area; b. For sports clubs, the gross floor area shall not exceed 10,000 square feet unless the building is on the same site or adjacent to a site where a public facility is located or unless the building is a nonprofit facility located in the urban area; and 40a Appendix D c. Use is limited to residents of a specified residential development or to sports clubs providing supervised instructional or athletic programs. 5. Limited to day moorage. 6. Adult entertainment businesses shall be prohibited within 330 feet of any property zoned R or containing schools, licensed daycare centers, public parks or trails, community centers, public libraries or churches. In addition, adult entertainment businesses shall not be located closer than 3,000 feet to any other adult entertainment business. These distances shall be measured from the property line of the parcel or parcels proposed to contain the adult entertainment business to the property line of the parcels zoned R or that contain the uses identified in this subsection. 7. Clubhouses, maintenance buildings, equipment storage areas and driving range tees shall be at least 50 feet from residential property lines. Lighting for practice greens and driving range ball impact areas Shall be directed away from adjoining residential zones. Applications shall comply with adopted best management practices for golf course development. 8. Limited to a golf driving range as an accessory to golf courses. 9. Reserved. 10. a. Only in an enclosed building, and subject to the licensing provisions of KMC Title 5; 4la Appendix D b. Indoor ranges shall be designed and operated so as to provide a healthful environment for users and operators by: (1) Installing ventilation systems that provide sufficient clean air in the user’s breathing zone, and (2) Adopting appropriate procedures and policies that monitor and control exposure time to airborne lead for individual users. 11. Only as accessory to a park or in a building listed on the National Register as an historic site or designated as a city of Kenmore landmark subject to Chapter 18.75.KMC. 12. Reserved. Social card games, as defined by this Title are prohibited. 13. Subject to the following: a. The park shall abut an existing park on one or more sides, intervening roads notwithstanding; b. No bleachers or stadiums are permitted if the site is less than 10 acres, and no public amusement devices for hire are permitted; ec. Any lights provided to illuminate any building or recreational area shall be so arranged as to reflect the light away from any premises upon which a dwelling unit is located; and d. Al! buildings or structures or service yards on the site shall maintain a distance not less than 50 feet from any property line and from any public street. 42a Appendix D 14. Excluding amusement and recreational uses classified elsewhere in this chapter. 15. Limited to golf driving ranges and subject to subsection (B)(7) of this section. 16. Subject to the following conditions: a. The length of stay per party in campgrounds shall not exceed 180 days during a 365-day period; and b. Only for campgrounds that are part of a proposed or existing city park, which are subject to review and public hearings through the department of parks and recreation’s master plan process. 17. Only for stand-alone sports clubs that are not part of a park. Section 7. Transmittal. The City Clerk is directed to transmit a certified copy of this Ordinance to the State Gambling Commission. Secticn 8. Severability. Should any section, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this Ordinance be pre- empted by state or federal law or regulation, such decision or pre-emption shall not affect the validity of the remaining portions of this Ordinance or its application to other persons or circumstances. 43a Appendix D Section 9. Effective Date. This Ordinance shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication. ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF ON THE 19" DAY OF DECEMBER, 2005. CITY OF KENMORE s/ Steven Colwell Steven Colwell, Mayor ATTEST/AUTHENTICATED: s/ Lynn Batchelor Lynn Batchelor, City Clerk Approved as to form: s/ Rod P. Kaseguma Rod P Kaseguma, City Attorney Filed with the City Clerk: December 13, 2005 Passed by the City Council: December 19, 2005 Ordinance No. 05-0237 Date of Publication: December 23, 2005 Effective Date: December 29, 2005 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0375%3A1. Public record. Not legal advice.