State's high court hears land regulation arguments

Dean A. Radford
Journal Reporter

The state Supreme Court heard oral arguments Thursday in a case with implications for cities and counties that regulate land use -- which is all of them in the state.

The case stems from the outrage in rural areas of King County over the adoption in 2004 of three controversial regulations -- the Critical Areas Ordinance, as well as ordinances on clearing and grading, and on stormwater runoff.

Some rural property owners argued those rules trampled on their property rights. Foes got the signatures of about 17,000 registered voters calling for a vote to overturn them.

But sponsor Rodney McFarland of May Valley was stopped cold when a Superior Court judge agreed with county attorneys that the three ordinances aren't subject to referendum or public vote because they were adopted to implement the state's Growth Management Act.

McFarland's appeal of that ruling to the state Supreme Court has pitted two cherished principles against one another: local government's authority to control growth and protect the environment, and voters' right to tighten the reins on government that has overstepped that authority.

At stake, according to Karen Wolf, a top policy adviser to County Executive Ron Sims, ``is the ability to plan in a comprehensive and cohesive way. It's all about balancing.''

With a referendum, the public could chip off land-use regulations that are necessary to accomplish county's overall planning goals, she said.

But McFarland vigorously argues against stripping the public's right to have a final say on matters that affects its livelihood. ``This is our entire life,'' he said.

Former County Council member Steve Hammond of Enumclaw, who stood in a large crowd listening to the oral arguments before the court, said the issue is whether the state's Growth Management Act ``can do violence to the King County Charter.''

The home-rule charter gives counties some governmental functions normally reserved for the state and allows for initiatives and referenda.

Whether the state Legislature intended to strip citizens of the right to overturn land-use regulations with a referendum is at the heart of the current matter. The legal issues center on the 1994 case, Whatcom County vs. Brisbane, in which the Supreme Court decided that voters don't have that right.

McFarland's attorneys argue that decision is flawed.

Typically, the court doesn't issue its written decisions for six to 18 months. McFarland waited for nearly a year before he heard whether the court would even consider his appeal. That was a victory in itself.

In the meantime, the three ordinances at the heart of the controversy are in effect.

A big unanswered question is what happens to all the actions taken under those regulations if the court rules in McFarland's favor and if residents in unincorporated areas vote to overturn them.

Both are big ifs.

McFarland faces an uphill battle in getting the high court to reverse or modify a decision it has already made. Perhaps the court will use this as an opportunity to clarify the Legislature's or its own intent on citizen referenda.

Not being an attorney, McFarland said he couldn't judge which way the nine justices were leaning. But he thought he heard some ``friendly voices.''

McFarland's supporters were urged not to turn the hearing into a protest rally.

Only one of the current justices, Barbara Madsen, sat on the bench when the Brisbane decision was issued. Significantly, she cast the lone dissenting vote.

McFarland said after the hearing that he likely would not have filed his appeal had Madsen not been on the court.

Darren Carnell, a senior deputy prosecuting attorney for King County who argued the case, said in an interview the county could face ``a mess'' if the regulations are stricken.

But McFarland said, don't blame him for the mess. He tried to get the matter resolved far short of going to the Supreme Court.

Dean Radford covers King County. He can be reached at or 253-872-6719.