YarrowBay files suit against Black Diamond

Kirkland developer YarrowBay has filed a civil complaint against the city of Black Diamond over the city’s plan to build future government facilities. The court document claimed the plan contains “fundamental errors in analysis” and violates The Villages and Lawson Hills  development agreements between YarrowBay and the city.

Black Diamond Lawson Partners LP and Black Diamond Village Partners LP – known collectively as YarrowBay - filed a summons May 22 in King County Superior Court asking the court for a declaration judgment on the city’s $48 million government facilities mitigation plan, which was adopted in April. Though the city has accepted the plan, it has not yet taken a step to adopt the mitigation fee recommendations.

According to the documents, YarrowBay asked to “clarify rights and obligations” under the city’s government facilities plan ordinance. YarrowBay wants a declaration that the ordinance “have no force or effect,” meaning that YarrowBay can challenge the methodology for calculation of any ultimately adopted mitigation fee. If the court determines that the ordinance does impose binding obligations, YarrowBay asked the court to declare that the ordinance will not adopt any fees or fee schedules and have “no operative force or effect on any parties.” They are also asking that YarrowBay be awarded “costs pursuant to RCW 7.24.100.”

The city had 20 days to respond to the summons before a default judgment would be entered. City Attorney Carol Morris filed a response, which was dated June 6, that denies YarrowBay is entitled to any declaratory relief. Morris said a motion to dismiss has been drafted but not filed, as of Monday. The motion to dismiss stated YarrowBay filed 39 days after the council’s enactment of the ordinance, when it should have been filed within 30 days after enactment.

Besides the timing error, the city claimed YarrowBay admitted it has filed a declaratory judgment action that “does not present a justiciable controversy.”

“As a result, YarrowBay is not entitled to any declaratory relief and the lawsuit must be dismissed,” the response states.

The mitigation plan assesses what government facilities will be needed to support the expected population expansion that comes with The Villages and Lawson Hills master planned developments, which are projected to increase the city’s population from around 4,000 to approximately 19,200 during the next 20 years. A mitigation fee is a one-time payment assessed on each unit of new development; the city uses the money to ease the impact of the development on government facilities.

The city hired the consulting firm MAKERS in April 2013 to perform a study on the city’s government facilities needs and the findings were presented in February. The study addressed City Hall, the police department, municipal court and public works facilities.

YarrowBay claims that the city’s plan applies a methodology that calculates the size and costs of constructing government facilities that are purportedly needed to meet projected future demand given the city’s future population projections. The plan includes fees to be imposed on new development within the city, such as the development within YarrowBay’s master plan developments.

The complaint claims that the plan contains “fundamental errors in analysis,” including a “gap analysis” that proposes to impose fees on new development within YarrowBay’s developments that will be used to “correct existing deficiencies in the city’s facilities.”

“Requiring new development to pay mitigation fees to correct existing deficiencies is illegal because such mitigation is not tied to the specific impacts of new development,” the complaint stated.

YarrowBay also claims that the government facilities plan fails to adequately explain why the plan would provide for 700 square feet of space for each full-time equivalent employee, when the comprehensive plan recommended 330 square feet.

The city adopted the measure despite written and oral public testimony that explained YarrowBay’s position that the developer believed the plan to be “fundamentally flawed.”

The city’s response stated the ordinance “clearly states on its face that it was adopted for discussion purposes and imposes no fees on anyone” and that it was solely adopted to meet a deadline in the development agreements.

“But YarrowBay also asks this Court to view the GFC Plan as a final decision, to plug in the facts that YarrowBay will supply the Court, and invalidate the GFC Plan as contrary to law,” the response stated.

The city stated YarrowBay attorneys are not entitled to any costs or attorney’s fees, “or any other relief based on their ill-advised decision to file an unnecessary lawsuit in order to prevent the city from simply discussing a plan that the plaintiffs dislike.” Furthermore, the city asked that the complaint be dismissed with prejudice and that the city recover its own cost and attorneys’ fees.

“At this point in time, YarrowBay has suffered no harm because it doesn’t even know what fees the city will adopt in the future,” the city’s statement said. “…YarrowBay’s claims are purely speculative and require further factual development – a procedure this court cannot employ in a declaratory judgment action without entering the prohibited arena of advisory opinions.”

A trial date has been scheduled for July 13, 2015.






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