Judge rules out ballot fight on land-use rules

A King County Superior Court judge yesterday ruled that the county's new and controversial critical-areas ordinances, designed to protect habitat and water quality and reduce flooding in rural areas, cannot be challenged by voter referendums filed by rural East King County residents.

Judge Palmer Robinson declared the ballot measures "beyond the scope of the referendum power" provided in the King County Charter and the Washington Constitution, a decision both sides said agreed with higher-court precedent that local referendums can't overturn critical-areas ordinances mandated by the state Growth Management Act.

Still, property-rights advocates said they plan to appeal to the state Supreme Court.

The critical-areas ordinances, adopted by the Metropolitan King County Council last October, have riled rural residents from Duvall to Enumclaw. The most controversial provision requires property owners in unincorporated King County to preserve vegetation on 50 to 65 percent of their land, depending on lot size, when they develop.

On Dec. 28, the Citizens' Alliance for Property Rights applied to put three referendums to overturn the ordinances on the March 8 ballot. The group collected 17,000 signatures for each of the measures.

King County joined two environmental groups, 1000 Friends of Washington and the Center for Environmental Law and Policy, in a lawsuit to block the referendums.

Both sides in the case agree that Robinson's decision yesterday is consistent with past state Supreme Court decisions. But the crux of the legal fight has been a disagreement over whether those high-court decisions are right.

In a 1994 case involving critical-areas regulations in Whatcom County, the Supreme Court held that local regulations adopted to comply with the state's Growth Management Act cannot be overturned by local referendum.

"We think that the Supreme Court got that wrong," said Rod McFarland, president of the Citizens' Alliance for Property Rights. "We think that the Legislature did not intend these things to be exempt from referendum and initiative."

Since prior decisions by the state Supreme Court cannot be overturned by a lower-court judge, McFarland said Robinson's ruling was not a surprise.

"We had to get through this to get to the Supreme Court, where this issue can be looked at again," he said.

But Tim Trohimovich, planning director for 1000 Friends of Washington, said he thinks a Supreme Court reversal is unlikely.

"I'm frankly a little surprised that [opponents] are going after the [Whatcom County] case," he said. "The principle that land-use regulations can't be adopted or amended by initiative or referendum has been law for 30 years."

In 2002, the state Supreme Court declined to hear arguments on a Clallam County case that Trohimovich said is "exactly on all fours" with the present case.

"We believe that the Supreme Court will reaffirm the position it took" in earlier cases, he said.

McFarland has 30 days to appeal the ruling. After an appeal is filed, the high court will decide whether to hear it.

Unless the state Supreme Court reverses Robinson's decision before Jan. 21, which both sides agree is unlikely, the critical-areas referendums won't appear on the March 8 ballot. If the high court were to side with the referendum backers, the referendums could be eligible to be on the ballot in county elections in April, May, September or November. In the meantime, the new critical-areas ordinances are in effect, said Carolyn Duncan, public-affairs manager for Sims.

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