Two legal challenges mount against CAO
October 2, 2008 · Updated 11:33 AM
SNOQUALMIE VALLEY - Less than a month after the Metropolitan King County Council passed a set of controversial development regulations, two legal challenges have been brought by residents against it.
A series of referendums were filed earlier this month with the county and a lawsuit is expected to come soon that will contest a set of critical areas, stormwater and clearing and grading ordinances, known collectively by many landowners as the Critical Areas Ordinance (CAO). The development regulations, which would apply to all land in the county's unincorporated areas, have been called the strictest in the nation by opponents, and needed safeguards to the county's rural areas by supporters.
One of the most contentious parts of the new ordinances has been a provision that all plots of land retain 50-65 percent of their native vegetation. There are also substantial increases in the size of buffers near wetlands and wildlife habitats.
As progress moved forward on the CAO over the past year, opponents and rural council members threatened legal challenges should it pass. Councilman Rob McKenna questioned the constitutionality of the ordinances, and Councilman Dave Irons said the ordinances would be a "full-employment program for every land-use attorney in the Puget Sound region."
Just prior to its passage by a 7-6 vote on Oct. 25 by the County Council, the CAO was defended as legal by the county. Department of Development and Environmental Services Director Stephanie Warden said it is normal for any land-use regulation to be contested, and that the county was certain the laws it was passing would hold up in court.
"We think we have a defensible package," she said.
Talk of a legal challenge became a reality on Nov. 5 when a property-rights group called The Citizens' Alliance for Property Rights filed three referendums, each seeking to halt the passage of each one of the three ordinances that make up the CAO package. The referendums, should they be validated, would cause each of the parts of the CAO to be voted on by residents of the county's unincorporated areas as early as next fall.
Rodney McFarland, president of the property rights group, said his group plans to hit the streets this week to start gathering signatures. In order to get the referendums on the ballot, each one must be validated by residents of the county's unincorporated area. The minimum number of signatures must equal 8 percent of the total ballots cast in the last election for county executive. McFarland estimated that number to be 8,200, but plans on getting 12,000 for each one to be safe. The group must gather the signatures before the end of the year.
"After the first of the year, there will be no chance for referendum," McFarland said. "We'll have to explore other legal options."
Other options may include being part of a lawsuit that will be filed by a group that calls itself the largest nonprofit law firm dedicated to protecting private-property rights. Last week, the Pacific Legal Foundation announced that it intended to file a lawsuit against the county in hopes of repealing the CAO once it goes into effect after the first of the year.
"We have been following this [CAO] for some time," said Sam Rodabaugh, a Bellevue lawyer who will file the suit on behalf of the foundation.
Rodabaugh said finding landowners for the suit has been easy, as his office has been contacted by multiple landowners throughout the county's unincorporated area. He does not know how many landowners will ultimately be a part of the suit, but his office is still considering cases.
The parts of the CAO, which is hundreds of pages long, that the suit will address are still being determined. Rodabaugh said the suit will address only the most burdensome aspects of the ordinances, such as the clearing and grading ordinance that requires 50-56 percent of land be left with native vegetation. He also said the foundation will be trying only to repeal the CAO and is not looking for monetary damages.
The suit will be filed with the King County Superior Court in the next couple of weeks, Rodabaugh said, and he added he had no idea how long the case would take. Should the referendums succeed, there will be no need for the suit.
Although the King County Prosecuting Attorney's Office has not seen the lawsuit, legal challenges were expected, said Dan Satterberg, chief of staff for the prosecuting attorney. Satterberg said legal counsel from the office was sought by county staff throughout the development of the CAO and that the County Council believes it has approved a legal set of ordinances.
Neither of the challenges came as a surprise to County Council Chairman Larry Phillips either, who said land-use issues, in and out of the urban areas, always stir strong emotions.
"It is the most volatile and divisive issue that we deal with," he said.
Phillips said the county will be discussing budget items this month that will help rural landowners use the CAO once it is implemented after the first of the year. He said all 13 members of the council have expressed interest in allocating money that will pay for services meant to explain the guidelines for the new development regulations.