Two Black Diamond council members remove themselves from YarrowBay hearing and state they will not return | Statement and Documents
By DENNIS BOX
Covington Reporter Editor
September 28, 2011 · Updated 7:37 PM
The opening acts of the closed-record hearing for the YarrowBay master planned developments has featured one dramatic turn after another.
The Black Diamond City Council hearing convened Sept. 21 for the members to consider the development agreements for The Villages and Lawson Hills and the recommendation for approval with conditions from Phil Olbrechts, the city's hearing examiner.
The first hearing was continued to Monday and by the close of the session, four council members had recused themselves from the process, with two council members — Craig Goodwin and William Saas — vowing to not return.
At the Sept. 21 hearing YarrowBay's attorney Nancy Rogers submitted a letter and pages of supporting documents to the council and city attorney. The letter requested four of the five council members recuse or voluntarily remove themselves from the quasi-judicial hearings.
The letter goes on to state the four can recuse themselves, "and in so doing, trigger the 'doctrine of necessity.' In this way, YarrowBay and community member against community member attacks can be avoided, the city's fiscal interests will be protected, and the full five-member City Council can sit together with the community, to review The Villages and Lawson Hills Development Agreements."
The letter noted Leih Mulvihil and Kristine Hanson, should recuse themselves because they own property near the projects.
The letter stated two other council members, Saas and Goodwin, had ex-parte contact with opponents of the developments.
Ex-parte contact in this case refers to a council member, who is acting in a quasi-judicial role, participating in discussions outside of the hearing with opponents of the developments.
At the Monday hearing Goodwin made a statement recusing himself prior to the members adjourning into an executive session.
Goodwin noted the YarrowBay documents "point to a string of emails to Bob Edelman they claim represents inappropriate ex-parte communication."
The councillor said he believes the appearance of fairness doctrine does not prohibit his communications because they were not discussing the development agreements.
"The issue at hand with respect to Mr. Edelman's communication is clearly focused on the issue of MPD (master planned development) vesting."
Goodwin stated, "I regret not one action I have taken. I am fully prepared to defend any and all such actions. None of this serves as legitimate grounds leading to recusal."
He stated, "To defend myself from YarrowBay assertions I would need to hire my own attorney at my own personal expense."
The councillor said case law is not "definitive" and if he were to lose he could "potentially open myself to punitive damages."
Goodwin said he would, "be foolish to take that risk" and to recuse himself and return "would make a mockery of the total process."
The councilman was reached at home by phone shortly after the hearing Monday and he noted his “statement stands” and he will not be return to the hearing.
Saas also recused himself following the Monday executive session and made a statement that he would not be returning.
The councilman said he spent time looking over the material YarrowBay submitted and considered "my conscience and everything I've done – the matters and facts before me. Face value it doesn’t look good. So I had to sit back and say is this something I could stand against, is this something I could live with.”
Saas said through the whole process he had “Learned a lot…. Do I regret what I have done? Not one bit.... Would I do things differently in retrospect? I can say yes and no.”
The councilman said, "Personally I can't feel that I could defend what I've done as I stand on both sides of the line there."
Hanson and Mulvihilll also recused themselves. If they decide to return a quorum of three will be present along with Councilman Bill Boston.
Following the meeting Brian Ross, president of YarrowBay said, “I would hope council members Goodwin and Saas would return. Our concern was we didn’t want anyone to attack the process. The letter was an attempt to protect the process.”
According to Ross, once the members recuse themselves, all can come back and the legal liability for any previous issues is absolved.
“From now on anything that happened in the past is in the past and can’t be challenged,” Ross said. “We don’t question that anyone has anything but the best interests of Black Diamond at heart. But we can’t expose ourselves to risk."
Contact Covington Reporter Editor Dennis Box at firstname.lastname@example.org or 1-425-432-1209 (ext 5050).