Superior Court Judge Says Thornton Creek Exists Beneath Mall Parking Lot

By Jeff Boone

Janet Way of the Thornton Creek Legal Defense Fund.

"The court ruling was a win, a major victory, a major accomplishment," said Defense Fund member Janet Way.

The Defense Fund seeks to daylight the portion of the creek flowing beneath the south parking lot of the mall. The Simon Property Group, present owners of Northgate Mall, would like to build a multiplex cinema, hotel, housing and underground parking garage on the south parking lot.

The Defense Fund appealed city approval of Simon's General Development Plan (GDP), a fifteen-year redevelopment plan for Northgate Mall. The city approved the project last year. The Defense Fund said that the city erred in permitting the Mall to expand directly atop Thornton Creek and for failing to study the environmental impacts of the mall expansion plan. But the city argued that the creek did not exist when it flowed into the pipe and may not have ever existed, despite the city's own acknowledgment of this same portion of the creek in the final Environmental Impact Statement for the 1992 Northgate Area Comprehensive Plan--a finding confirmed in subsequent documents including the GDP and Department of Design, Land Use and Construction decisions regarding the GDP.

The Court rejected the city's argument. The court ruled that there is a creek; the court also ruled that building structures over Thornton Creek is a significant environmental impact, and therefore the City erred in not requiring a Supplement Environmental Impact Statement (SEIS). The court directed to city to require an SEIS for the GDP.

The Court also ruled that the portion of Thornton Creek beneath the south parking lot is protected by the City's Critical Areas Ordinance (CAO) and held that the city's decision to permit construction over the creek is "an apparent violation of the CAO."

City ordinance states that Simon is entitled to develop in accordance with an approved GDP; the court found that if the city failed to address CAO issues at the GDP stage, the city would "risk losing the ability to address them at all."

"The city needs to do an analysis of the Critical Areas Ordinance," said Knoll Lowney, the attorney for the Defense Fund. "They can't just defer it. They have to do it now."

If the city doesn't do the analysis now, said Lowney, they lose the ability to do any analysis at the project-level stage. That, said Lowney, is what GDP approval means.

Assistant city attorney Bob Tobin said it was only the judge's opinion than an SEIS should be required.

"In order to require an EIS," said Tobin, "the judge needs to find significant adverse impact. He didn't describe what the significant adverse impacts were."

Tobin said the city had no decision yet on whether the city will appeal the decision.

The court victory comes at a critical time for creek advocates and Northgate neighbors. The long running battle between the city and the Northgate neighborhood over Simon's proposed expansion became markedly less cordial last month when the Mayor, who has long supported the mall expansion, publicly excoriated Citizens for a Liveable Northgate and the Defense Fund in an email newsletter and KUOW interview. In addition to daylighting the creek, Northgate neighbors have lobbied for acquisition of the south parking lot for a town square.

"We're going to continue to pursue the legal challenge as well as look to see what the city and Simon does," said Way. "We'll continue to raise money and garner support.

"We want the city to daylight the creek and require proper detention of stormwater at Northgate. And we would like to do a feasibility study on how to accomplish daylighting the creek.

"We've extended a hand to the city and Simon: through the press, through email, through our friends in the environmental community, through our attorney. We'll also approach the city in the context of the Thornton Creek Watershed Action Plan, which should be final soon."

The city, said Way, can use condemnation to acquire the creek.

Simon spokeswoman Billie Scott said the mall owner was uncertain what effect the ruling would have on the timing of the mall's expansion. Simon, according to Scott, would look at what options were available in terms of moving forward on the project.

FOR MORE INFO

Contact the Thornton Creek Legal Defense Fund (206) 522-5919 or (206) 365-4477

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