An appeal by the city of Bothell challenging a state agency’s ruling, which overturned an easing of environmental restrictions, has been shelved. Some Bothell City Council members raised concerns about the ability of the city to legislate in the embattled Fitzgerald subarea.

During the Jan. 19 meeting, the city council voted 4-3 to drop their challenge to a Growth Management Hearings Board decision reversing the city’s Ordinance 2163, which allowed for greater development in around 220 acres of environmentally protected land in northeast Bothell.

In previous meetings, City Attorney Joe Beck and outside legal council urged the city council to continue with the appeal, arguing that dropping it would greatly restrict the city’s ability to legislate in the Fitzgerald subarea, which is within a critical habitat protection area.

The city had also spent around $90,000 on the appeal, with only $10,000 needed to finish it, Beck said.

Councilmember Del Spivey, who voted to continue the appeal, said these issues concerned him.

“I think that by not appealing it, that it will limit our ability to legislate in that area,” he said. “In where Mayor [Andy] Rheaume stated he wants to find a compromise, I think that by not appealing, we will not be able to find a compromise.”

The city created Ordinance 19.88 in 2007, and revised it in 2008, implementing environmental regulations which Spivey said were stronger than what was required by state law.

It created restrictions on the how much vegetation and water impervious surfaces, like pavement and rooftops, were allowed in the subarea, among other regulations, which Ordinance 2163 loosened to levels Spivey said still met state environmental regulations.

A local environmental group called Save A Valuable Environment (SAVE), led by long-time activist Ann Aagaard, appealed Ordinance 2163 to the Hearings Board, claiming 2163 was not in line with the city’s comprehensive growth management plan, and commitments therein to protect the environment.

The Hearings Board agreed, and overturned Ordinance 2163 last July. In response, the city filed an appeal of the board’s decision, which was dropped in the Jan. 19 vote.

Spivey said not appealing the Growth Management Hearings Board decision sets a precedent where once environmental regulations are implemented, the city no longer has the ability to downgrade them to adjust for future growth, even if they still meet state guidelines.

“We should always be able to go back to the base of the critical areas ordinance,” he said. “Essentially, what’s happened is our deference has been taken away, our ability to legislate.”

Councilmember Tris Samberg, who proposed the amendment to drop the appeal, said she thinks litigation was never the right course of action.

Instead, she said if the city had begun a dialogue between Fitzgerald subarea homeowners, the city and SAVE, an equitable compromise could have been reached by now, and that by dropping the appeal now, it allows for a quicker, more equitable resolution.

“Had we (begun negotiations) in July of last year, we wouldn’t be rehashing the same argument that we’ve had in the Fitzgerald subarea for years,” she said. “I don’t think every solution has to be a legal solution.”

With the motion to drop the appeal, council directed city staff to develop a mediation process to present on Feb. 9 in which homeowners in the area, who have seen their property value suffer from strict development regulations, SAVE and the city can reach an agreement on an equitable update to Ordinance 19.88.

During a previous city council meeting discussing the area, councilmember Joshua Freed accused Samberg, Deputy Mayor Davina Duerr, Rheaume and councilmember James McNeal of a conflict of interest for receiving campaign money from members of SAVE. The Public Disclosure Commission confirmed all four members received at least $100 in their most recent campaigns, however councilmembers during the Jan. 19 council meeting said they were not influenced by outside pressures when voting to drop the appeal.

Tom Berry, who owns a property in the Fitzgerald subarea and has been fighting to have his five-acre property, along with 12 other neighbors properties, removed from the critical habitat protection area, said he’s unsure if SAVE will negotiate, though he said he’s open to compromise.

“That would be lovely,” he said. “I know that Ann Aagaard is pretty much strictly no growth, that’s pretty much her stance.”

The protection area was implemented around two decades ago to protect North Creek and its tributaries, which provides a salmon spawning habitat.

Berry’s neighborhood sits on a 40-acre section of the subarea known as Zone One, which he said is farthest away from the creek, and whose water drains south instead of into a tributary.

The Fitzgerald subarea has a low-impact design overlay, which limits development and has scared away many possible developers from Zone One properties, Berry said.

“I would like to see the fact established that we do not influence the Three Creek Fishery which is the North Creek critical species habitat,” he said.

The city commissioned a new environmental study at the beginning of January, which Berry hopes will confirm Zone One should be removed from the critical habitat area.

Berry and his neighbors have been trying to get their property taken out of the critical habitat protection area for nearly two decades with no luck. He said neighborhood property values are around half of what they would be if not for strict building regulations.

He and his neighbors have also become the target of character attacks on social media, Berry said.

“It’s mud slinging on the worst level,” he said. “We really have been dragged on the wrong side of public opinion.”

Deputy Mayor Duerr, who also voted to kill the appeal, said she talked with residents and SAVE, and shares Samberg’s views on finding a compromise based on the newly commissioned study.

“Everyone said they were willing to compromise and sit down and work it out,” she said. “I’m optimistic. If I wasn’t optimistic, I would have voted for a different solution.”

But for homeowners in the Fitzgerald area, two decades of inaction and conflicting signals from the city is taking its toll.

“We’ve been doing this so long that most of us are just worn out,” he said. “I don’t like politics, and I don’t want to be a politician, and in 1997 I just wanted to have a rezone hearing and just wanted to sell my property and to go away, and I’m still here.”