Thursday, August 6, 2020
Aug. 6, 2020

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Judge hears arguments on light rail; decision likely this week


Clark County Superior Court Judge John Nichols didn’t issue a decision Tuesday after hearing oral arguments about an anti-light rail measure, but made an observation that even if the measure made the ballot and was approved by voters it wouldn’t stop light rail.

If the state wants light rail as part of an interstate project, Nichols told plaintiffs’ attorney Stephen Pidgeon, the city doesn’t have the right to say no.

Pidgeon conceded that point, but said the measure, if approved by voters, would still send a message the city wasn’t going to be a “willing” partner in extending TriMet’s MAX line from Portland to Vancouver.

The initiative would also prohibit the city council from using any resources to “promote” light rail, Pidgeon stressed.

Nichols said he’s aware of the deadline for the initiative to make the November ballot and would issue an opinion with that in mind.

Auditor Greg Kimsey said the initiative would have to be submitted to the elections office no later than 5 p.m. Tuesday, the day of the primary election.

Light rail was part of the proposed Columbia River Crossing, which began shutting down July 1 after a financing effort failed in the Washington state Legislature.

Pidgeon, of Everett, wants Nichols to rule that the proposed initiative “is within the scope of the initiative power as defined and declared in the Vancouver City Charter” and order the city council to place the measure on the ballot.

The initiative would create a city ordinance that would prohibit any city resources from being used to extend TriMet’s MAX line from Portland to Vancouver. It would also prohibit, Pidgeon stressed, the city from using any resources to “promote” light rail.

Assistant City Attorney Linda Marousek argued that the proposed initiative goes beyond the scope of local initiative power.

Placing an enlarged copy of the initiative on an easel, she used a red pen and crossed out sections she believes are unlawful.

When she finished, there wasn’t much left.

Marousek emphasized that light rail, if it ever gets extended to Vancouver, would be a federal and state project. The city would play a supporting role by, for example, granting street vacations or exercising the power of eminent domain.

The lawsuit was filed May 23.

On May 6, the Vancouver City Council declined to place the initiative on the November ballot on advice of city attorneys, who said there were several problems with the proposed ordinance.

Mayor Tim Leavitt and Councilors Jack Burkman, Bart Hansen, Jeanne Harris and Larry Smith took the legal advice. Councilors Bill Turlay and Jeanne Stewart expressed frustration with the fact that voters couldn’t be heard.

In a March 12 memo to the council, Vancouver City Attorney Ted Gathe wrote, “Overall, the initiative as drafted is ambiguous and susceptible to multiple interpretations. The ambiguity itself means that the initiative fails to comply with the basic requirement of the charter: ‘The proposed ordinance shall be expressed in clear and unambiguous language and so that its entire effect is apparent on its face.’ “

Also, Gathe wrote in the memo, the initiative proposes to limit “light-rail-related City Council legislative authority, city staff administrative work, City Council budgeting authority and past expenditure of city resources.” All those limitations, he said, “are beyond the permissible scope of the local initiative power.”

The plaintiffs are Larry Patella, Debbie Peterson, Ralph Peabody, Charlie Stemper, Steve Herman and Don Yingling. Patella has been soliciting donations in an effort to raise $20,000 for Pidgeon’s fee.

Previously, Patella unsuccessfully led a group trying to get a public vote on the city’s plans for a downtown hotel-conference center. At the time, that effort was dismissed as ambiguous, confusing and poorly written. That case went on to Clark County Superior Court in 2003, and Patella acted as his own attorney. Judge Barbara Johnson sided with the city on every issue, ruling Patella’s initiative violated the city charter’s requirement for “clear and unambiguous language.”