Foes vow court fight over land-use rules

Seattle Times staff reporter

August 2, 2004Marshall Brenden calls 65 percent rule "blackmail"

Marshall Brenden had to agree not to cut trees on 65 percent of his five acres near Renton as a condition of replacing his house; he calls it "blackmail."

Seattle, WA - If the Metropolitan King County Council adopts some of the most stringent rural land-use regulations in the nation, as proposed, lawsuits will almost certainly follow.

Supporters and opponents of the tough environmental policies proposed by County Executive Ron Sims said they have the law on their side, and it is hard to know how a court would rule.

The most controversial proposal and the one many rural property owners consider an illegal "taking" of their land would require that native vegetation be preserved on 65 percent of each parcel.

Since that rule was adopted for the watersheds of Bear, Issaquah and May creeks a decade ago, county officials say, no lawsuits have been filed by property owners.

Marshall Brenden, who lives east of Renton in the May Creek watershed, had to agree not to cut trees on 65 percent of his five-acre property as a condition of replacing his house in 2001. Brenden said he didn't sue the county for one reason: He couldn't afford the legal costs.

He's hopping mad that no one told him about the restriction before he tore down his old house.

"To me, it was blackmail, pure and simple a con job," he said.

When he had eight children at home, Brenden ran cows, horses, pigs, chickens and goats on the land and cut alder trees for firewood.

"Now I can't even do that, I guess," Brenden said of the woodcutting. "I don't guess; I know."

An attorney has agreed to file lawsuits pro bono if the county extends the 65 percent rule countywide, said Rick Spence, governmental-affairs director of the May Valley Environmental Council, which opposes the proposal. He would not identify the attorney.

"There are currently about 200 people lined up to file lawsuits," Spence said. He said suits would be filed in federal and state courts.

"The courts will rule in our favor," he said. "We've had some opinions, and it appears as though what the county's doing is a taking. It is a regulatory taking."

Landowners also are upset by provisions that would limit homebuilding and paving to 10 percent of the land and would increase setbacks on each side of fish-bearing streams to up to 165 feet and around wetlands to up to 300 feet.

Environmentalists and county scientists said the restrictions are needed to prevent changes in storm-water flows that would damage streams and wetlands. Stream protection has taken on a higher priority with the federal government's listing of Puget Sound chinook salmon as threatened under the Endangered Species Act.

Studies cited in the county's review of the "best available science" concluded that streams deteriorate rapidly when 10 percent of the land is covered by homes and roads or when the amount of forest cover falls below 65 percent.

Many property owners, calling Sims' proposals "a massive land grab" and "rural cleansing," scoff at the two-volume scientific survey. They also said it isn't fair that they are being asked to shoulder most of the burden of environmental protection while urban property owners are allowed to develop their land with few such restrictions.

County attorneys said Sims' environmental proposals don't violate the Fifth Amendment's prohibition against government taking private property for public use without "just compensation."

"There is a body of law that speaks to that," said Dow Constantine, chairman of the County Council's growth-management and unincorporated-areas committee. "We've been assured that none of the things that are proposed here constitute a taking."

Constantine, a Democrat from West Seattle, supports the Sims administration's goal of keeping 65 percent of the rural landscape in a natural state. But he is exploring possible amendments that either would lessen the regulatory burden or provide compensation to landowners.

Sims' proposal would allow owners to receive property-tax breaks of 50 to 90 percent under the county's existing "public benefit rating system" if they voluntarily provide more environmental protection than the new ordinance would require.

The county's Prosecuting Attorney's Office said state law doesn't allow an across-the-board tax break for all rural landowners because property must be assessed at market value, except when property owners opt into the incentive system.

Constantine said the science has stood up to vigorous attacks. "The question in my mind is not whether we need to respond to the scientific information. The question is: What are the best tools for responding to that, and what tools are available for us to share the burdens of that response with all the citizens of the county?"

Republican members of the County Council remain unconvinced of the scientific basis for stricter regulation. David Irons, R-Sammamish and co-chairman of the growth-management committee, has asked to see documents from the experts who reviewed the county's scientific analysis.

Former State Supreme Court Justice Phil Talmadge, who represents some rural landowners, recently met with Constantine in hopes of softening the regulatory proposals. Talmadge said he was hopeful a compromise would be reached that would avoid litigation.

If the proposal isn't substantially changed, Talmadge said, it has "some serious issues in terms of takings," in light of recent state court rulings.

In a 2002 case, Isla Verde vs. city of Camas, the Supreme Court threw out a city ordinance that required developers to set aside 30 percent of their land as open space in the 1980s. The court said Camas, in Clark County, violated state law because it failed to show the set-aside was needed as a direct result of a particular subdivision.

The court suggested Camas' open-space law might have been valid if the city had done a comprehensive assessment of park needs in the area of the subdivision, as King County did before it required developers to set aside open space. The county ordinance was upheld by the Supreme Court in a 1994 ruling, Trimen vs. King County.

Unlike Camas, which did "no analysis" to support its open-space rule, Sims' proposal to require 65 percent natural vegetation was based on extensive analysis, said Harry Reinert, a county attorney and an architect of the proposed regulation.

Keith Ervin: 206-464-2105 or



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