Appeals anticipated after ruling on Island Crossing
August 27, 2008 · Updated 3:59 PM
ARLINGTON Appeals seem likely in the wake of the latest legal decision regarding the 17-year land-use dispute over Island Crossing.
The Washington State Court of Appeals ruled March 26 in favor of allowing the development of 110 acres of largely unused farmland bordered by Interstate 5 and State Route 530, north of Arlington.
Steve Peiffle, attorney for the city of Arlington, believes that previous decisions had second-guessed evidence supplied by Dwayne Lanes auto centers, which are seeking to set up a car dealership on the contested site. Peiffle asserted that the state Court of Appeals ruling reflects this view.
Dwayne Lane had hired Higa-Burkholder Associates to conduct a land capacity study, but they were dismissed as hired guns, Peiffle said. The Court of Appeals determined that their findings still constituted evidence. You cant disregard someones testimony just because you dont like what they have to say.
Representatives for potential appellants such as Futurewise, the Stillaguamish Flood Control District and the Washington State Department of Community, Trade and Economic Development emphasized that their groups have yet to make their final decisions about whether to ask either the state Court of Appeals to reconsider the case, or the state Supreme Court to review the case.
Tim Trohimovich, planning director for Futurewise, nonetheless suspects that such a motion will be made. Futurewise advocates control of growth and has represented the Pilchuck Audubon Society and Agriculture for Tomorrow in previous litigation of this issue.
We believe the Growth Board and the Superior Court already got it right, said Trohimovich, referring to the Snohomish County Superior Courts 2005 ruling, that the movement by landowners and the city of Arlington to annex and urbanize Island Crossing violated the states Growth Management Act. Its not just about the long-term significance of this agricultural land, but also the importance of maintaining salmon habitat. Plus, by filling in that flood plain, we increase the risk of floods to its neighbors. It simply doesnt make sense.
Henry Lippek, attorney for the Stillaguamish Flood Control District, expects that the state Supreme Court will be petitioned to review the case. While the state Court of Appeals is required to hear from appellants, the state Supreme Court may review such cases at their own discretion. The deadlines to file with either court are both before the end of April.
Its poor public policy to allow such intense land use within even the fringes of the flood plain, said Lippek, echoing Trohimovichs assessment of the situation. Agricultural land is compatible with a flood plain, especially since limited flooding can benefit topsoil, but the more displacement you have in one area, the more damage youll incur in the remaining flood plain.
Lippek contended that such litigation should have concluded with the Superior Courts ruling nearly two years ago.
Its already been litigated thoroughly and, in the last round, it was decided, Lippek said. Once that happened, it should have been binding, unless there were materially changed circumstances, but there arent. Its still a rural area with no urban utilities and no reason to develop it. There ought to be an end to this litigation. We cant be coming in every two years to reapply.
Washington State Assistant Attorney General Alan Copsey, speaking on behalf of CTED, explained that CTEDs primary concerns are not with Island Crossing itself, but with the precedents it could set, regarding how agricultural lands are designated under the GMA. He argued that such designations must be area-wide, rather than parcel-by-parcel, to carry out the GMAs intent of preserving the needed amount of agricultural lands within Snohomish County.
If your primary criteria for other uses of land is money, then youll almost always find more valuable uses for that land than agriculture, Copsey said. But thats how millions of acres of vital agricultural lands have been lost already.
Copsey doesnt anticipate an end to the legal wrangling over Island Crossing anytime soon.
If the Court of Appeals had decided that nothing had changed, it would have been deemed res judicata, or a matter already judged, Copsey said. Its a common law that American courts abide by, so that were not litigating the same cases over and over again. One question here is whether legislative bodies, such as the Snohomish County Council, are bound by it in the same ways. If theyre not, this could go on forever.