Black Diamond land use appeal case in hands of the judge
By DENNIS BOX
Covington Reporter Editor
August 9, 2012 · Updated 10:17 AM
King County Superior Court 3B was packed the morning of Aug. 3, as attorneys argued the fate of the YarrowBay master planned developments targeted for Black Diamond.
Judge Patrick Oishi heard the Land Use Petition Act appeal. For nearly three hours the parties presented their cases for and against the two developments, The Villages and Lawson Hills, which would add about 6,250 residences along with commercial, retail, schools, open space and parks.
At the close of the hearing, Oishi said he would render a decision later. He did not give a specific date.
Attorney Bob Sterbank of the Issaquah-firm Kenyon Disend represented Black Diamond. Nancy Rogers of Cairncross & Hempelmann in Seattle represented the Kirkland developer YarrowBay and David Bricklin of Seattle-based Bricklin & Newman presented the case for Toward Responsible Development, the group of community members who filed the LUPA appeal in October 2010.
MAKING AN APPEAL
Bricklin opened by stating the YarrowBay development is the largest ever proposed in King County.
“It is proposed to occur in a tiny town, Black Diamond,” he said.
The ordinances approving the two developments were unanimously passed by the Black Diamond City Council in September 2010, which prompted the appeal by Toward Responsible Development.
“The basic outlines of the project are in place, and, this is a critical point… the city doesn’t get a second chance on any of those decisions,” Bricklin said. “The code provides that YarrowBay locks in the development rights associated with these ordinances.”
According to Bricklin, the environmental impact statements for the projects did not provide the necessary details for the city.
“The result we saw...was very unsettling in a couple of ways,” Bricklin said. “The environmental impact statement simply didn’t dig into the meaty issues. Didn’t provide the decision makers with the important information they needed.”
Bricklin said, concerning the city code, “time and again the City Council looked for and found a way to circumvent the requirements of their code.”
Phil Olbrechts, the city’s hearing examiner, ruled the environmental impact statements for the projects were adequate. Following his ruling, the City Council considered the projects and approved the ordinances.
Bricklin described the decision as “very perplexing.”
Black Diamond's Point of View
Sterbank spoke second, asking the judge to affirm the “unanimous decision of the Black Diamond City Council” approving the ordinances for the two master planned developments.
Sterbank said there were three overarching principles concerning the case.
First, he said, “collateral attacks on underlying, fundamental land-use planning choices are impermitable. No. 2, the court’s review here is fundamentally deferential, both to the City Council’s decision and to the hearing examiner’s decision…. And third, application of the correct standards of review to the actual language of the City Council’s MPD permit decision and the actual language of the hearing examiner’s decisions and consideration of the actual testimony in evidence in the record, not counsel’s (Brinklin) characterization of it, requires the court to affirm the City Council’s and hearing examiner’s decision.”
Sterbank said of the YarrowBay development, “Those fundamental planning choices were not challenged and they cannot be collaterally attacked here, and yet TRD’s position… are shot through with collateral attacks on the size of the project and starts with the mantra these are massive projects and deserve some special treatment.”
A humorous moment came when Sterbank described the allegations in TRD’s brief as “rhetorical Whack-A-Mole…. The bottom line is we ask the court to be skeptical with the claims and look at the actual language in the decision and actual language in evidence.”
YarrowBay’s attorney asked the judge to affirm the City Council’s and hearing examiner’s decisions.
In her opening statement, Rogers stated TRD’s brief went “beyond advocacy…. If we are going to take the examiner’s word, and I think we should, we need to take him at all of his words.”
Regarding the TRD contention vital information was missing from the EIS, Rogers said, “The examiner’s decision was clear. That the only information omitted from the EIS was relatively minor.”
Rogers pointed out there has been considerable development around Black Diamond, with projects in Covington, Kent and Maple Valley.
“The state Supreme Court recognized these lands are destined for development,” she said.
She said the allegations there is nothing the city can do later was not accurate.
“YarrowBay can just go out and keep building houses until the cows come home. Doesn’t matter,” Rogers said. “It’s just not accurate.”
Rogers said there were more than 150 conditions to be met, many requiring retesting before building can continue.
“At the beginning of each phase there has to be a fiscal analysis,” Rogers said. “If that shows a deficiency there are provisions by which the city can halt the development. This is not an à la carte YarrowBay gets to do whatever it wants kind of approval.”
Regarding complaints of clear-cutting of the land, Rogers said, “Unless you live in a tent or a natural cave, or you work in a tent or a natural cave, the building in which you live or work was necessarily sitting on land that was cleared of something and graded in some way in order to pour a foundation. It is fundamental to development.”
Concerning the hearing examiner’s ruling on the EIS, “The rule of reason cuts to whether the EIS provides a reasonably thorough discussion of the probable environmental impacts of a proposal,” she said.
The YarrowBay attorney brought up the issue of legal standing or the ability to continue the appeal. Rogers said the one of the original appellants, Joe May, withdrew from the appeal after he was elected to the City Council. May filed an appeal of the final EIS regarding The Villages concerning phosphorus levels from stormwater runoff into Lake Sawyer.
Rogers also addressed a complaint raised about possible construction noise in the form of an appeal filed by Vickie Harp, William Harp and Cindy Proctor.
“Unfortunately Mr. Harp has passed away. Mrs. Harp and her daughter, Ms. Proctor, have moved away. There’s no one left with prejudice as to those issues raised in the appeal,” Rogers said. “It is a legal issue and I know the community doesn’t understand it. But I think standing is really important.”
Bricklin returned for a 20-minute rebuttal, stating TRD was not challenging the density of the development.
“We are not collaterally attacking the comprehensive plan,” Bricklin said. “We are invoking the comprehensive plan.”
The judge said — concerning the EIS and the hearing examiner’s ruling — “I am not going to pick and choose the different things that the hearing examiner might have said. I’m going to look at everything the hearing examiner said. I am also going to look at the context and really take a big picture view of everything. Whether it is going to benefit one party or another has no bearing.”
The judge complimented the attorneys at the close of the hearing and said, “This is a case that is important to a lot of folks. It’s important to the city of Black Diamond, it’s important to the citizens that live there, it’s important to the developer. I want everyone here to rest assured I don’t take any of these issues lightly…. What I want you to feel at the end of the process is you’ve been heard, that I’ve looked at things critically, I looked at all the appropriate information and I was fair. And if I can make one assurance, I am going to be absolutely fair and thorough during the process.”
Following the hearing, Bricklin said he was happy to see how well prepared the judge was for the hearing.
Bricklin said a basic issue in the TRD case is, the “hearing examiner’s decision is wrong.” He also said Oishi could rule the EIS is adequate, “but still rule for us on other issues.”
Sterbank also noted how well prepared the judge was for the case.
“His questions were well placed particularly on the adequacy claim….” Sterbank said. “The hearing examiner correctly applied the rule of reason standard…. The choice under the statute is to affirm.”
Contact Covington Reporter Editor Dennis Box at firstname.lastname@example.org or 1-425-432-1209 (ext 5050).