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, 

Respondent, 

v. 

VALLE DEL RIO, LLC, A Washington 

Limited Liability Corporation, d/b/a 

Greenfield Company; MA TT 

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. 

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No. 33682-4-111 

UNPUBLISHED OPINION 

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appealed the injunction, Clarkston repealed Ordinance 1532 and now allows the 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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Clarkston v. Valle Del Rio 

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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Clarkston v. Valle Del Rio 

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 of Spokane, 155 Wn.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. of R.R., 77 Wn. 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 Wn.2d at 377; 

Sorenson v. City of Bellingham, 80 Wn.2d 547,558,496 P.2d 512 (1972). Washington 

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Clarkston v. Valle Del Rio 

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 of Revenue, 96 Wn.2d 785, 792, 

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No. 33682-4-111 

Clarkston v. Valle Del Rio 

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 of Revenue, 96 Wn.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 Wn.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 Wn. 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 Wn.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 Wn.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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Clarkston v. Valle Del Rio 

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. 

~ ~- Fearing,C~ 1 

WE CONCUR: 

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