City Of Clarkston v. Valle Del Rio, LLC ( 2016 )

FILED
NOVEMBER 1, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CITY OF CLARKSTON, a Washington )
municipal corporation, ) No. 33682-4-111
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
VALLE DEL RIO, LLC, A Washington )
Limited Liability Corporation, d/b/a )
Greenfield Company; MATT )
PLEMMONS, individually and as a )
member of Valle Del Rio, LLC; and )
Aaron Tatum, individually and as a )
member of Valle Del Rio, LLC, )
)
Petitioners. )
FEARING, C.J. - The City of Clarkston sued Valle Del Rio, LLC, to enforce
Ordinance 1532 that prohibits recreational marijuana production, processing, or place of
retail sale within Clarkston. The superior court granted Clarkston a preliminary
injunction enforcing the ordinance and barring Valle Del Rio from operating a
recreational marijuana retail outlet until resolution of the suit. After Valle Del Rio
appealed the injunction, Clarkston repealed Ordinance 1532 and now allows the
operation of marijuana retail stores within city limits. Despite the mootness of this
No. 33682-4-111
Clarkston v. Valle Del Rio
appeal, the parties request that we address the merits of their dispute. Because the parties
ask us to review an order granting a preliminary injunction and the trial court never fully
addressed the merits of the dispute after a factual hearing, we decline to address the
merits of the appeal and follow the prevailing rule of dismissing moot appeals.
FACTS
On November 6, 2012, Washington voters approved Initiative 502, which
legalized the licensed production and sale of marijuana. On November 24, 2014, the City
of Clarkston adopted Ordinance 1532 that declares: "no recreational marijuana
production, processing or place of retail sale shall be permitted within this City limits in
any zone, and no entity or person shall be issued a business license for any recreational
marijuana business." Clerk's Papers (CP) at 9.
On April 2, 2015, Matt Plemmons signed a lease for retail space in Clarkston and
spent $20,000 on improvements in order to meet state licensure requirements for a
marijuana retail store. On April 29, 2015, Plemmons and Aaron Tatum, owners of Valle
Del Rio, LLC, applied for a business license with Clarkston for the "[ r]etail sales of
paraphernalia for use with tobacco and cannabis products." CP at 104. Clarkston issued
Valle Del Rio a business license on May 5, 2015. On June 29, 2015, an undercover law
enforcement officer purchased marijuana from Valle Del Rio within Clarkston limits.
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PROCEDURE
On July 1, 2015, the City of Clarkston sued Valle Del Rio. The city requested a
declaratory judgment regarding the validity of Ordinance 1532 and injunctive relief
enjoining Valle Del Rio from continuing the retail sale of marijuana. The following day,
the trial court granted a temporary restraining order restraining Valle Del Rio from the
retail sale or distribution of marijuana within the city of Clarkston. On August 5, the trial
court conducted a hearing on show cause to compel Valle Del Rio to show why the
temporary restraining order should not remain in effect during the pendency of the action.
After the hearing, the trial court issued a preliminary injunction that extended the
restraints of the temporary restraining order.
Valle Del Rio sought discretionary review, from this court, of the preliminary
injunction. Our court commissioner ruled that Valle Del Rio is entitled to review as a
matter of right because the injunction altered the status quo when it barred the company
from its ongoing business operations. In addition to briefing by the parties, this court
granted the State of Washington leave to file an amicus brief.
On January 14, 2016, the City of Clarkston repealed Ordinance 1532, with the
repeal taking effect on January 19. Valle Del Rio now conducts business as a retail
recreational marijuana outlet within the City of Clarkston. Upon news that the city
repealed Ordinance 1532, we asked the parties to address whether the appeal is moot.
The parties agree the appeal is moot but ask us to render a decision anyway.
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LAW AND ANALYSIS
We must first determine whether to review the merits of this appeal. After the
filing of the appeal, the City of Clarkston revoked the ordinance it sought to enforce by
this suit. The parties no longer have a pending dispute. Since Clarkston no longer seeks
to preclude Valle Del Rio from conducting business, we can provide no useful relief for
the company.
A case is moot "when it involves only abstract propositions or questions, the
substantial questions in the trial court no longer exist, or a court can no longer provide
effective relief." Spokane Research & Def Fund v. City ofSpokane, 155 Wash. 2d 89, 99,
117 P.3d 1117 (2005); State v. Slattum, 173 Wn. App. 640,647,295 P.3d 788 (2013).
Generally, this court may not consider an appeal if the issue presented is moot. In re
Cross, 99 Wn.2d 373,377,662 P.2d 828 (1983); In re Det. ofR.R., 77 Wash. App. 795,
799, 895 P.2d 1 (1995).
This court will consider a moot issue if it involves matters of continuing and
substantial public interest. Bavandv. OneWest Bank, FSB, 176 Wn. App. 475,510,309
P.3d 636 (2013). The criteria to be considered in determining whether a sufficient public
interest is involved are: (1) the public or private nature of the question presented, (2) the
desirability of an authoritative determination which will provide future guidance to public
officers, and (3) the likelihood that the question will recur. In re Cross, 99 Wash. 2d at 377;
Sorenson v. City ofBellingham, 80 Wn.2d 547,558,496 P.2d 512 (1972). Washington
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courts have not addressed whether the dispute must fulfill all three factors before a court
resolves a moot issue.
The parties argue that our review of this appeal would fulfill all three factors. We
agree that the appeal fulfills two of the factors. The case involves an issue of public
importance, not just one of private interest. The appeal entails the enforcement of a city
ordinance that other cities have adopted or are considering to adopt. Many entrepreneurs
seek to open retail marijuana stores, and cities face the question of whether to permit the
sale. Division II recently entertained an appeal with the identical issue, but the parties
voluntarily dismissed the appeal before the issuance of an opinion.
We recognize the allure of an authoritative ruling on whether a city may, by
zoning ordinance, preclude marijuana sales throughout the city limits. Nevertheless, we
decline to address the merits of the appeal because of the status at which the case comes
before us. We are asked to review the validity of a preliminary injunction, not a final
decision of the superior court after a full hearing. The rules behind the issuance of a
preliminary injunction and principles behind our review of the injunction render any
decision questionable as to its solidity.
The party who seeks relief by temporary injunction must show (1) it has a clear
legal or equitable right, (2) it has a well-grounded fear of immediate invasion of that
right, and (3) the acts complained of are either resulting in or will result in actual and
substantial injury to it. Tyler Pipe Indus., Inc. v. Dep 't ofRevenue, 96 Wash. 2d 785, 792,
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638 P.2d 1213 (1982). More importantly, at a preliminary injunction hearing, the
plaintiff need not prove, and the trial court does not reach or resolve, the merits of the
issues underlying the three requirements for permanent injunctive relief. Tyler Pipe
Indus., Inc. v. Dep 't ofRevenue, 96 Wash. 2d at 792-93. Instead, the trial court considers
only the likelihood that the plaintiff will ultimately prevail at a trial on the merits. Tyler
Pipe Indus., Inc. v. Dep 't of Revenue, 96 Wash. 2d at 793. An order granting a preliminary
injunction is not a final determination on the merits of the case. League of Women Voters
v. King County Records, Elections & Licensing Servs. Div., 133 Wash. App. 374, 385, 135
P.3d 985 (2006).
We review an order granting a preliminary injunction for abuse of discretion.
Rabon v. City of Seattle, 135 Wash. 2d 278, 284, 957 P.2d 261 (1998). A trial court abuses
its discretion only when its decision is manifestly unreasonable or is based on untenable
grounds. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
If we affirmed the superior court's issuance of a preliminary injunction, we would
merely be confirming a tentative ruling about the merits. Ifwe affirmed the trial court,
we would effectively enshrine the trial court's ruling as the law, on which the entire state
of Washington may rely, despite the trial court's ruling only addressing the probability of
success. We would also render a decision without necessarily having a full factual
record. These circumstances do not herald a decision being respected as stare decisis for
other disputes involving the enforcement of a city ordinance precluding the sale and
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distribution of marijuana.
CONCLUSION
We dismiss the appeal as moot and deny either party costs on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
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Fearing,C~
WE CONCUR:
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