In its November 18 win in court, North Bend may finally have resolved an issue about sensitive uses in the city.
The win, against tattoo artist David Herman, supported the city’s move to restrict tattoo and piercing shops to a few locations and zones within the city. King County Superior Court Judge Barbara Linde dismissed Herman’s lawsuit, with prejudice, and issued an order prohibiting Herman from operating a tattoo business out of his North Bend home.
“North Bend has established the existence of a clear legal and equitable right to enforce the terms of its properly adopted ordinances, and to expect Herman to comply with those ordinances,” Judge Linde wrote in the injunction order.
North Bend’s City Council voted March 5, 2013, to prohibit any home-based businesses and specifically tattoo and piercing parlors and medical marijuana groups, from operating in city residential zones that do not already allow the businesses. The action, passed as an emergency ordinance by a split vote of the council, resulted in an immediate ban on the home-based tattoo business Herman had planned to open April 1, 2013, on Ballarat Avenue, in the Downtown Commercial zone.
That zone did not allow tattooing, but did allow adult entertainment facilities with a conditional use permit.
It was also, said North Bend City Administrator Londi Lindell, a reflection of the city’s past decision to separate “sensitive uses” which also included adult entertainment and check-cashing businesses. Each type of business has a limited area of operation, as outlined in the city’s table of permissible uses.
On June 18, 2013, the council completed the emergency ordinance process, including two public hearings, with a regular amendment to the city’s zoning and table of permissible uses. The change banned tattooing and piercing as home-based businesses throughout the city, but allowed them in parts of the Interchange Commercial and Interchange Mixed Use zones near North Bend’s freeway exits.
The city’s Planning Commission, asked to review the code following the March vote, recommended allowing tattooing in parts of the Downtown Commercial zone, but a majority of the council rejected the idea. The proposed changes from the planning commission would not have affected Herman’s shop, anyway.
Herman filed a lawsuit claiming more than $300,000 in damages from the city in October, and the case went to trial Sept. 12, 2014, concluding on Sept. 17.
“Mr. Herman was bringing a constitutional challenge because the art of tattooing is protected by the U.S. Constitution,” said Lindell.
The judge dismissed the case, and issued the injunction against Herman continuing to operate.
Herman has declined to comment on the issue. His company website site indicates that he is no longer operating in the North Bend site, and is making plans to relocate to another city.
Utility district suit
Another lawsuit pending against North Bend is still in litigation. Seven owners, representing about 20 properties in the city’s Utility Local Improvement District No. 6 have been suing the city for their high sewer assessments. The property owners claimed the city failed to follow procedure in updating its plans for the sewer system to serve the area, and thus the property assessments were incorrect.
The Washington Court of Appeal annulled their $1.5 million in assessments in October, 2013, but the city corrected its procedural error, then reassessed the properties. The group recently offered a settlement deal to the city, and the council voted at its Oct. 7 meeting to reject the group’s proposal and counter with an offer of $200,000 to fully settle the issue.
The city has not yet received a response.
