Black Diamond hearing examiner recommends approval with revisions for YarrowBay's master plan developments
By DENNIS BOX
Covington Reporter Editor
September 15, 2011 · Updated 11:26 AM
The city of Black Diamond's hearing examiner, Phil Olbrechts, released his recommendation of approval late Tuesday for YarrowBay's The Villages and Lawson Hills development agreements with many pages outlining revisions, potential conditions and legal strategies for the City Council to consider.
The 113-page document begins with the statement, "For those who want to go straight to the point, the Examiner recommends approval of the development agreements if the revisions recommended in Section IX of this recommendation are incorporated into the development agreement."
Section IX outlines 24 revisions or "implementing conditions" to the development agreement for the two projects.
The recommendations include the staff providing more explanation concerning the fish and wildlife buffers, language concerning mine hazard areas, parks, police and fire level of service and storm water monitoring.
The opening pages of the document sketches in considerable detail many of the contentious legal and legislative dilemmas facing the City Council when it convenes the closed record hearing Sept. 21 to consider the hearing examiner's recommendations.
The two master planned developments would add more than 6,000 residences with retail, office, light industrial, open space and recreational space. The projects have a planned 15 year build out with a five year extension.
The current population of Black Diamond is about 4,100 and if the two projects go forward the population could increase to more than 20,000.
The size of the developments with the traffic, impact on the school system, environment and challenges presented with the scope of the legal process has created considerable fear, hostility and splits within the community.
Many residents have spent a great deal of time preparing for the master plan development hearings and development agreement hearings, and have voiced their objections to the perceived problems and potential impacts the projects would have on Black Diamond and the surrounding region.
Olbrechts noted the testimony in the document writing, "the citizens of Black Diamond have undergone tremendous effort to ensure that the development agreements protect their community. The public provided over 3,500 pages of written testimony and over 20 hours of verbal testimony. Their input and suggestions will result in the substantial improvements of those agreements."
The hearing examiner also noted YarrowBay was, "very cooperative in addressing concerns expressed by the Hearing Examiner during the hearings on issues such as mine hazards and ambiguous development agreement terms, and in providing detailed responses to all of the concerns raised by the public."
Olbrechts described the document as, "a unique hearing examiner recommendation because most of the issues brought up by the public and addressed in the DAs (development agreements) are subject to discretionary contractual and policy authority of the Council."
He noted the council has "wide discretion as to what to include in the development agreements."
He stated the examiner "has little business in making recommendations on policy choices to the Council."
Olbrechts wrote the development agreements were a "powerful opportunity for the Council to look at the impacts of the master plan developments as a whole and to ensure that they will develop as intended and that all impacts are adequately mitigated."
He wrote that the recommendation was written on the premise the council must approve the agreements if YarrowBay meets the conditions outlined when the City Council approved the master planned development ordinances in September of 2010.
Olbrechts then stated that although he wrote the recommendation using that premise, "The law on whether the Council actually has that responsibility is far from clear. If the Council would like to include a term in the development agreement that is not necessary to implement the condtions and that YB (YarrowBay) is not willing to accept, exploring the option of withholding approval is worth investigating with the City Attorney."
Olbrechts spent considerable time describing implementing and supplementary conditions. The implementing conditions are those necessary to meet the conditions of approval from the MPD ordinances. Supplemental conditions are those not necessary to meet the conditions of approval.
Olbrechts noted he advised the public that implementing conditions were far more likely to be "incorporated into the DAs than supplementary conditions. A large portion of the public testimony is still devoted to supplementary conditions."
He goes on to describe a very foggy legal landscape for the council to navigate concerning its ability to withhold approval if supplementary conditions are the desire of the members, but are not met.
He also stated the "relevancy of supplementary conditions has been a major point of disagreement between the Examiner and the City and YB."
Olbrechts wrote that the city and YarrowBay "strenuously" objected to any testimony related to supplementary conditions.
He noted YarrowBay's objections was a "valid consideration in assessing relevancy. However, another important consideration is that this is a closed record review process. If the Examiner excludes testimony on a supplemental condition, the Council is prevented from re-opening the hearing to consider that testimony."
Olbrechts wrote the council may negotiate with YarrowBay over a supplemental condition, "or require the condition either under the State Environmental Policy Act (SEPA) or by taking the position that it can withhold approval of the development agreements for any reason it chooses."
The hearing examiner said he allowed the testimony on supplemental conditions to give the council all options.
Olbrechts went into considerable detail outlining the perils and possibilities of the council using SEPA authority to get supplemental conditions or simply refusing to approve the agreements without the conditions being met.
"Although the Council arguably doesn’t have the leverage to compel the inclusion of supplementary conditions into the DAs, in many instances it can still impose them as a permitting requirement pursuant to its authority under the Washington State Environmental Policy Act (“SEPA”)," he wrote. "As with the authority to withhold approval of the development agreements, the authority of the City to use
SEPA is also far from clear."
He pointed out mutual agreement is always a better plan of action.
In the closing paragraph of the four-page opening Olbrechts pointed out the problem with requiring "the examiner to put together a recommendation within 10 working days of the closed record. Given the huge record of the development agreement hearings it was a monumental challenge to review, organize, evaluate and prepare a written recommendation for all of this information at the rate of hundreds of pages of written testimony per day."
He stated with more time he could have done a better job of organizing and writing "more detailed findings of fact and conclusions of law."
In a footnote Olbrechts stated he thought the courts would not uphold the 10-day rule for recommendations.
Issues of Concern
For nearly 100 pages Olbrechts documented the many "Issues of Concerns" raised by those who testified. The hearing examiner summarized each point, YarrowBay's response and the city's if provided and his assessment and recommendation to the council.
The issues included traffic models, density, financial impacts, schools, sensitive areas and open spaces.
The development hearings before Olbrechts began July 11 and lasted until July 16.
The closed record hearing before the City Council begins at 6:30 p.m. Sept. 21 at the Black Diamond Elementary School gymnasium. The rules of procedure and appearance of fairness inquiries are on the agenda.
In The Courts
The projects were challenged by the Black Diamond group Toward Responsible Development in October 2010 after the City Council approved the ordinances. The group asked the Puget Sound Growth Management Hearings Board to review the process and they filed a LUPA or Land Use Petition Act appeal in the state superior court.
In a Feb. 15 ruling, the board sent the ordinances back to the city for compliance with the Growth Management Act. The board ruled the City Council should have used a legislative process to approve the ordinances rather that quasi judicial.
While remanding the process back to the city, the board did not invalidate the ordinances.
David Bricklin, the attorney representing Toward Responsible Development, requested the board reconsider invalidating the ordinances. The board denied the motion March 17.
Bricklin then asked the board to approve a direct review by the state Court of Appeals
The board denied that motion May 18.
Bricklin appealed the board first decision to not invalidate the ordinances to the superior court.
The board's ruling to remand the ordinances back to the city has jumped to the Court of Appeals for a direct review.
State superior court Judge Cheryl Carey granted a stay April 8 on the Central Puget Sound Growth Management Hearings Board’s compliance schedule set down for the city. The stay was requested by YarrowBay.
Contact Covington Reporter Editor Dennis Box at firstname.lastname@example.org or 1-425-432-1209 (ext 5050).