A court ruling Thursday may permanently close an embattled Colbert-area restaurant.
The state Court of Appeals decision overturns a zone change that allowed the McGlades Bistro and WineBar to operate.
The McGlades Bistro website announced Jan. 1 that it was “no longer open for business.”
The restaurant at the corner of Yale and Day-Mount Spokane roads opened in 2006 and gained popularity – but not with neighbors who live on the other side of Yale Road.
County planning officials agreed with the neighbors that Shawn and Theresa Gabel had turned a metal-clad fruit stand into a conventional restaurant that wasn’t allowed under the area’s Urban Reserve zoning.
As a result, the Gabels temporarily closed the restaurant in January 2007 and sued the county for issuing a string of building permits they construed as permission for the restaurant. The county paid $750,000 to settle the complaint.
County commissioners also voted, in December 2007, to change the 4.2-acre restaurant site’s comprehensive plan and zoning designations from Urban Reserve to Limited Development Area/Commercial to make the business legal. The action didn’t apply to surrounding properties.
Commissioners Todd Mielke and Mark Richard supported the change while then-Commissioner Bonnie Mager opposed it.
The restaurant’s critics appealed that decision to the Eastern Washington Growth Management Hearings Board, which ruled the comprehensive plan change violated the state Growth Management Act.
Then the Gabels challenged that decision in Superior Court, where Judge Jerome Leveque ruled the county commissioners’ action was a “site-specific” zoning decision over which the growth board had no jurisdiction.
He was wrong, the Court of Appeals branch said Thursday. State law gives growth management hearings boards exclusive jurisdiction over comprehensive plan changes, a three-judge appellate panel ruled.
The issue is muddled because, with a few exceptions, Spokane County has only one zoning possibility in each of its comprehensive plan categories. Changes generally are done simultaneously.
As a result, separating one element from the other is a bit like distinguishing poultry from chicken.
Rick Eichstaedt, a Center for Justice attorney who represented the restaurant’s opponents, said county officials advised his clients to appeal to the growth management board and then argued they should have gone to court.
“It was a bait-and-switch on the part of the county,” Eichstaedt said.
His clients were Dan Henderson, Larry Kunz, Neil Membrey, Kasi Harvey-Jarvis and the Neighborhood Alliance of Spokane County.
The Gabels’ attorney, F.J. “Rick” Dullanty Jr., said the Court of Appeals advised in an earlier ruling that appellants should take their zoning complaints to court at the same time they take comprehensive plan issues to the growth board.
A comprehensive plan decision would have to come first, but the Court of Appeals said in the earlier case that judges could wait for growth board rulings. State law allows only 21 days to appeal a zoning decision.
In the McGlades case, Dullanty said, opponents didn’t appeal the zone change. Thus, he contends, the zoning should still be valid even though the comprehensive plan change was overturned.
Thursday’s appellate ruling doesn’t address that possibility. Instead, it focuses on the growth board’s jurisdiction over comprehensive plans.
Dullanty said he hadn’t been able to reach the Gabels on Thursday to find out whether they want to ask the state Supreme Court to review their case.
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