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Thursday, July 31, 2003 - Page updated at 12:00 AM

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Initiative up a creek after ruling by judge

Seattle Times staff reporter

Initiative 80


"City of Seattle Initiative Measure Number 80 concerns restoring Seattle's creeks through permitting conditions, mandates and other measures. This measure would require developers of 'major creekside development' to daylight waterways, remove fish barriers and take other restoration measures. It provides exemptions and incentives. Development is prohibited over creeks, creek 'buffers' and 'historic corridors' if piped creeks cannot be restored at their location. The measure ... is retroactive in some circumstances."

A King County Superior Court judge yesterday threw the "Save Seattle Creeks Initiative" off the Sept. 16 ballot, agreeing with City Attorney Tom Carr and developers that the initiative conflicts with state law.

Judge James Doerty rejected arguments by Initiative 80's lawyer, former state Supreme Court Justice Phil Talmadge, and said the measure would go far beyond restoring Seattle's creeks and would have a sweeping effect on jobs and development in Seattle. Doerty also concluded the measure would not help salmon, as proponents said.

Initiative backers said they would appeal the decision but acknowledged it was highly unlikely the state Supreme Court would hear an appeal in time to put I-80 back on the ballot — which is where it was headed before Carr filed a lawsuit last month.

The deadline for determining what will be on the Sept. 16 ballot is Aug. 8, according to Julie Moore, King County's acting elections superintendent.

I-80 seeks to make Seattle's creeks better habitat for salmon by "daylighting" those that have been buried in drainage pipes, removing fish-passage barriers, banning pesticide use near creeks and not allowing development within a certain distance of creeks.

"To say this is disappointing would be an understatement," said Bob Vreeland, co-chairman of the Thornton Creek Legal Defense Fund, one of many environmental groups that supported I-80.

City lawyers contended that I-80 exceeded the scope of initiative power and conflicted with the state's Growth Management Act because it would set land-use policy, a power they said should belong only to city government.

Doerty said the goals of I-80 were "laudable," but he noted that the Growth Management Act requires "meaningful public participation" that I-80 would preclude.

"These responsibilities cannot be performed by the exercise of a 'yes' or 'no' vote," Doerty said.

Because of his interest in I-80's goals, Doerty said he tried to draft a version of it that would comply with the Growth Management Act. "I certainly couldn't get it to harmonize," he said.

The judge also faulted I-80 for not relying on the "best available science" to improve salmon habitat. "I cannot conclude it would do anything for salmon," he said.

Carr said his lawsuit was not intended to anger environmentalists or hinder the protection of salmon.

"What the (judge's) decision did was vindicate the Growth Management Act, and that's important to protecting the environment," he said.

"We applaud the city for following through on the lawsuit," said Tim Attebery, spokesman for the Master Builders Association of King and Snohomish Counties, which joined Carr's lawsuit along with the Port of Seattle.

Talmadge argued that I-80 was within a city's "police powers" — and therefore not in conflict with the growth act — because it would regulate non-land-use matters such as pesticide use.

Talmadge said he thought Doerty made a policy judgment on the merits of I-80 more than deciding whether it was within the scope of initiative power.

Doerty's decision to stop I-80 from going to voters sets a troubling precedent, Talmadge added, because it encourages critics to file pre-election lawsuits against initiatives.

Talmadge was involved in defending another initiative — which seeks to reduce the size of the Metropolitan King County Council — that was kept from the ballot by a pre-election lawsuit and a Superior Court judge's ruling.

The Seattle City Council asked the Municipal League of King County, a nonprofit group that promotes accountable government, to review I-80 last fall, along with a more business-friendly alternative proposed by Mayor Greg Nickels.

The Municipal League concluded that I-80 "would place an unfair and potentially enormous burden" on owners of properties located "on or near historic creeks."

The league urged the council to craft a hybrid that contained the best elements of I-80 and the mayor's proposal.

Council members Richard Conlin and Heidi Wills drafted such a hybrid, but they couldn't get their colleagues to support it.

Bob Young: 206-464-2174 or byoung@seattletimes.com

Copyright © 2003 The Seattle Times Company

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