By CLAYTON PARK

When Molly Burke spotted a bird making its nest in the leftover Christmas wreath on her front porch, she viewed it as a "sign" that something good was about to happen.

After all, Burke purchased that wreath last December to aid the Thornton Creek Legal Defense Fund's court battle to get the City to require the owners of Northgate Mall to daylight a portion of Thornton Creek that runs beneath the mall's south parking lot. TCLDF members believe daylighting the creek at Northgate is critical to efforts to restore the stream network as a fish habitat.

On May 18, Burke called her friend, Janet Way, one of TCLDF's leaders, to tell the community activist about her premonition.

Way thanked Burke for the encouragement and hung up the phone to check her answering machine for incoming calls.

One of the messages awaiting her was from TCLDF attorney Knoll Lowney, with news that would cause Way to break out in a big grin:

King County Superior Court Judge Steven Scott had just issued a ruling stating that Thornton Creek does, in fact, flow beneath the mall's south parking lot, as TCLDF had been arguing, even though it was culverted into an underground pipe in the early 1970s by Northgate Mall's then-owners.

The upshot: the City erred in approving plans submitted by the mall's current owners, Indianapolis-based Simon Property Group, to build a large mixed-use complex on the south parking lot site without requiring a study to determine the potential impacts of that project on the creek.

Scott's court decision overturned City Hearing Examiner Meredith Getches's now infamous June 28, 1999 ruling that sided with the developers' claim that the south parking lot contained nothing more than a "drainage ditch, not a creek."

In his May 18 ruling, Scott explained: "It is clear ... the construction of buildings and other structures over a creek is likely to result in a significant adverse environmental impact. This is so even if the creek exists underground in a storm drain pipe. ...

"The portion of Thornton Creek located in the storm drain below the mall site is ... considered a riparian corridor. As such, it is entitled to protection under the CAO (Environmentally Critical Areas Ordinance)."

Scott added: "Frankly, given the posture of the case before her (Getches) and the jurisdictional rulings that she made excluding from consideration any procedural SEPA (State Environmental Protection Act) or CAO issues, it is curious to the court that the Hearing Examiner made such extensive findings at all. In any case, the court concludes that the Hearing Examiner erred in making her findings regarding the nonexistence of the creek..."

"There is no substantial evidence in the record to support many of the Hearing Examiner's findings, and the rest ... were based on an improperly limited factual record. For all of these reasons, the findings of the Hearing Examiner regarding the nonexistence of Thornton Creek below the mall site are reversed."

Scott's decision requires the City to conduct a new environmental impact study regarding impacts to the creek. It's a move that is expected to delay Simon's plans to expand Northgate Mall on its south parking lot site for at least a year.

A spokeswoman for Northgate Mall told the Seattle Post-Intelligencer in an article published May 19 that the ruling could mean an appeal, or the end of the project.

A round of new legal motions filed since Scott's ruling by Simon's attorney, Eric Laschever of Preston Gates & Ellis, indicate the developer has no intentions of throwing in the towel, at least for now.

The motions seek to dismiss several of the claims made by TCLDF and two other citizens groups that are also fighting Simon's current mall expansion plans: Citizens for a Liveable Northgate (CFLN) and the Victory Heights Chapter of PONDERS (Protect Our Neighborhoods' Design, Environment, Rural feeling and Streams). The motions argue that several of the citizen activists' claims fail to "exhaust administrative remedies," "fail to establish injury" or are overly "vague, overbroad or redundant."

Jan Brucker, the attorney for CLFN and PONDERS, said the motions filed by Simon and the City are a typical court maneuver, designed to "take a bite out of us a little at a time."

Brucker said CFLN, PONDERS and TCLDF have been gearing up to battle Simon and the City in a separate legal case involving their appeal of a ruling Getches made in February, which approved Simon's revised general development plan for the south parking lot site.

That case, nicknamed "Northgate GDP II," is also scheduled to be heard by Judge Scott, but could be ruled moot because of his May 18 ruling, which has moved the entire matter back to square one.

Brucker voiced her hope that Simon rethink its plans to expand Northgate Mall. Why not build the new movie theater and hotel on the mall's main parcel, north of NE 103rd, and sell its south parking lot site, on the southside of NE 103rd to the City where a new Northgate branch library and community center could be built, along with affordable housing and a daylighted Thornton Creek?

Haller Lake community activist Sue Geving, who has been involved in the fight to block Simon's current mall expansion plans, said she isn't necessarily opposed to the developer proceeding with building a complex on the south parking lot site. She would just like to see Simon's plans reduced in scale.

Simon's current plans include building a 6,000-seat, 24-30-screen movie theater complex that would be one of the biggest in the nation. "It would be great to see a new theater, just not one that big," Geving said.

For Janet Way, Scott's decision indeed came as welcome news, after waging a battle that has lasted more than two years now and, following Getches' Feb. 28 ruling, was starting to look grim.

She expressed hope that the City "will see the wisdom of sitting down with us and get the daylighting of Thornton Creek accomplished to create the heart of Northgate like the citizens want."

Way added, however, that her group is prepared to battle on as long as necessary. They fully expect the City and Simon to appeal Scott's decision, which would drag the court battle out even longer. "It's just the beginning," she said.

Nevertheless, Way admitted that May 18 was a day for celebrating for TCLDF. "I was jumping up and down, shouting 'Oh, my god, oh my god!'" she recalls of her reaction to the call from her attorney. "The next call I made was to Molly (Burke). I screamed 'We won! We won!'"

TCLDF members gathered at attorney Knoll Lowney's house that night for a victory party. Way brought the champagne. Her only regret: that TCLDF co-leader Bob Vreeland was out of town and not there to join in merriment.

"He was very happy when he finally learned what had happened," Way said. The Thornton Creek Legal Defense Fund, Citizens for a Liveable Northgate, and the Victory Heights Chapter of PONDERS are seeking public support, particularly in the form of donations.

For more information, call Bob Vreeland of TCLDF at 522-5919, Jan Brucker of CFLN at 526-5342 and Dorothy Douglas (523-4251) or Molly Burke (365-5895) of PONDERS.