Discussion continues over Toward Responsible Development's LUPA appeal in Black Diamond
By DENNIS BOX
Covington Reporter Editor
September 27, 2012 · Updated 2:05 PM
The state Court of Appeals is the next exit on the legal highway for Toward Responsible Development’s Land Use Petition Act appeal of the YarrowBay master planned developments that was denied by Superior Court Judge Patrick H. Oishi Aug. 27.
Toward Responsible Development (TRD) filed the appeal in October 2010 following the approval of the permits for the The Villages and Lawson Hills in September 2010 and the finding by city hearing examiner, Phil Olbrechts, the Final Environmental Impact Statements were legally adequate.
The appeal petitioners listed in the court document were Toward Responsible Development, Cynthia and William Wheeler, Robert Edelman, Peter Rimbos, Michael Irrgang, Judith Carrier, Vicki Harp and the estate of William Harp and Cindy Proctor.
The attorney representing TRD, David Bricklin for the Seattle firms Bricklin & Newman, stated in a Sept. 10 email there will be an appeal filed of Oishi’s decision.
“Our briefs demonstrated numerous problems with the MPDs,” Bricklin wrote in the Sept. 10 email. “The city’s own study showed that the project would have a negative impact on the city’s budget, contrary to city code requiring these mega projects to keep the city in the black.”
The argument before the three-judge appeal court could be set for early 2013.
BACK AND FORTH
Bricklin and Bob Sterbank, from Kenyon Disend representing the city, sent responses via email concerning some thoughts on the next step in the appeal process.
Bricklin wrote, “Judge Oishi was not required to explain his decision, but the absence of any explanation or analysis leaves the decision with little intellectual or persuasive force. It doesn’t serve to persuade the citizens that they were wrong to challenge the city’s decision. It doesn’t serve to persuade the citizens that a further appeal would be in vain. It assures that his decision will have no persuasive impact on the Court of Appeals.”
Sterbank wrote, “This comment is ironic, and seems to blame Judge Oishi for a decision petitioners had already made. Mr. Bricklin’s own proposed order stated that, ‘Because appellate review, if any, is of the city’s decisions, not the Superior Court’s decisions, entries of findings of fact and conclusions of law are not necessary.’ Given the petitioners’ awareness that detailed or narrative findings and conclusions were not necessary, it seems unlikely that the level of detail in Judge Oishi’s order played any real role in petitioners’ decision to continue fighting against the City Council’s decisions. Judge’s Oishi’s order included all of the findings and conclusions required, and certainly all those necessary to withstand appellate review.”
Bricklin wrote, “We demonstrated that the Environmental Impact Statement (EIS) was inadequate for implementing projects and that vital information had not been provide.
“You may recall that the city and YarrowBay defended the EIS in part on grounds that more analysis would be provided later. We doubted that was the case. Our concerns have been validated now that the City has approved proceeding with the first project subdivision without a supplemental EIS, contrary to Yarrow Bay’s and the City’s arguments that the EIS was “programmatic” and that further detailed analyses would be done for implementing projects.
Sterbank wrote concerning Bricklin’s comment about the programmatic environmental review.
“This is a misdirection, of course, because any appeal is limited to the record, which does not include the Phase 1A plat,” Sterbank wrote. “More to the point, programmatic environmental review is not limited to an SEIS, (supplemental environmental impact statement) but includes multiple options for subsequent phases of environmental review. These include issuance of an addendum, which contains additional environmental information or analysis, but which is not appealable, and review of a new environmental checklist, analysis, and issuance of a mitigated determination of nonsignificance (MDNS). Mr. Pilcher testified about these options during the MPD appeal hearings, and petitioners never disputed it. For the Phase 1A plat, the city chose the MDNS route, a perfectly legitimate option.”
Appeal costs and fees
According to Sterbank the petitioners “will have to pay both the city and YarrowBay’s attorneys’ fees on appeal.”
Sterbank stated the fees for the appeal before Oishi fell under RCW 4.84.370 that calls for “reasonable fees and cost.”
Total bill for that proceeding came to $1,148.53.
Sterbank said if the petitioners lose at the court of appeals the fees could be considerably higher.
“If the city wins on appeal, the petitioners must pay the city’s attorneys fees and costs, as well as YarrowBay’s, because the city and YarrowBay prevailed in the prior judicial proceeding before Judge Oishi,” Sterbank wrote. “On the other hand, if the petitioners were to somehow win, the city would not have to pay petitioners’ attorneys’ fees, because petitioners did not prevail in all prior judicial proceedings (e.g., before Judge Oishi).”
Development Agreement appeal
TRD, the city and YarrowBay were back in Superior Court before Oishi Monday concerning a LUPA appeal of the development agreements for The Villages and Lawson Hills.
The development agreements were approved in December 2011 by the City Council.
In the court proceedings Monday, Oishi issued an order denying a motion by TRD for a stay of the proceedings, granted a motion to dismiss certain claims and limit issues by YarrowBay and schedule for the case was set.
A review hearing-trial date was set for Feb. 1, 2013.
Contact Covington Reporter Editor Dennis Box at firstname.lastname@example.org or 1-425-432-1209 (ext 5050).