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Originally published December 22, 2006 at 12:00 AM | Page modified December 22, 2006 at 12:26 AM

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Justices reject local vote on critical-areas rules

In a loss for property-rights advocates, a 7-2 court majority ruled that a local referendum isn't a lawful way to challenge King County's controversial land-use regulations.

Seattle Times staff reporter

Rural property owners can't overturn King County's strict development rules by referendum, the state Supreme Court ruled Thursday.

The court's 7-2 decision leaves in place the critical-areas ordinance and two companion laws that generated a backlash from landowners after the Metropolitan King County Council adopted them in 2004.

Property-rights advocates were incensed about the laws, particularly one that required builders on rural lots to keep from 50 to 65 percent of the land in native vegetation.

But because the state's Growth Management Act directs local governments to protect critical areas such as salmon-bearing streams and update their regulations based on "the best available science," voters can't overturn those laws by local referendum, Justice Tom Chambers wrote for the majority.

"The sovereignty of the people of individual localities gives way to the people of the State's greater sovereignty," his opinion said.

Justices Gerry Alexander, Bobbe Bridge and Susan Owens concurred. Two separate concurring opinions were written by Charles Johnson and Barbara Madsen. Mary Fairhurst signed onto those opinions.

"The majority opinion, when stripped of its unnecessary rhetoric and hyperbole," Charles Johnson wrote, "can be summarized simply: where the state law requires local government to perform specific acts, those local actions are not subject to local referendum."

Justice James Johnson, with Richard Sanders in agreement, dissented from what he called a "strained reading" of the Growth Management Act.

"Even more disturbing," James Johnson wrote, "is the majority's apparent disregard of this court's historical presumption in favor of the people's right of referendum."

The ruling, though not unexpected, was yet another blow to property-rights advocates.

In November, state voters handily rejected Initiative 933, which would have required local governments to compensate landowners for losses caused by land-use regulations.

Voters this fall also re-elected three Supreme Court justices who were challenged by candidates either known as property-rights advocates or backed by the Building Industry Association of Washington.

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"In Washington state and maybe other places we're simply moving away from the concept of private property into more collectivist control of everything," said Rodney McFarland, of May Valley, the president of the Citizens' Alliance for Property Rights. "I don't think that's good."

McFarland had submitted the petitions requesting that King County put its 2004 land-use rules on the ballot.

Tim Trohimovich, planning director of the pro-growth-management group Futurewise, which went to court to block the referendums, welcomed the court ruling. (Futurewise's suit against McFarland was filed under the group's former name, 1000 Friends of Washington. The case title is 1000 Friends of Washington v. Rodney McFarland.)

"We need effective growth management," Trohimovich said. "The voters have recognized it and the courts have recognized it — and in all those cases by a pretty wide margin."

McFarland's position had been supported in court by state Attorney General Rob McKenna. But among those siding with Futurewise was the Master Builders Association of King and Snohomish Counties, which said local land-use referendums could undermine the predictability builders need to do business.

Keith Ervin: 206-464-2105 or kervin@seattletimes.com

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