Hearings continue in Black Diamond for The Villages and Lawson Hills developments
By DENNIS BOX
Covington Reporter Editor
March 13, 2010 · Updated 9:58 AM
After months of anticipation, anxiety and sometimes anger the appeals hearing on the final environmental impact statement or FEIS for The Villages and Lawson Hills master planned developments began Saturday and continued Monday and Tuesday.
Phil Olbrechts presided as the hearing examiner in a coutroom-like setting in the Black Diamond Elementary School and City Council chambers. The proceedings were punctuated with dueling lawyers, flying objections and plenty of drama for the spectators.
The FEIS hearing is expected to last into next week, with a decision due about three weeks after the close of the session.
The decision was delayed one week when both parties agreed to allow an extra week for closing statements to be filed, with the hearing examiner’s decision coming two weeks later.
Defending the FEIS for Black Diamond are attorneys Michael Kenyon and Bob Sterbank of Kenyon Disend, the firm contracted to provide city attorney services for the city.
Representing the developer of The Villages and Lawson Hills are attorney Nancy Rogers from the Seattle firm Cairncross and Hempelmann and Jami Kuzaro-Balint, director of legal affairs for YarrowBay Holdings.
David Bricklin from the Seattle firm Bricklin and Newman represented the appellants Cindy Proctor and William and Cynthia Wheeler.
Melanie Gauthier represented herself as an appellant.
A third appeal was filed by a group of residents living on the Green Valley Road and Gauthier also joined that appeal. Chris Clifford signed the appeal from Green Valley Road residents and acted as their spokesman during the hearing. Clifford is a teacher in the Orting school district and resident of Renton. He stated he leases property along Green Valley Road, which gives him standing to appeal the FEIS.
The first three days of the hearing were principally testimony from the appellants’ scientific and traffic experts and lay witnesses.
The scientific testimony included Bruce Richards on Saturday from the state Department of Fish and Wildlife and on Monday Sally Abella, an engineer from the King County Department of Natural Resources’ Freshwater Assessment Group.
The scientific testimony outlined the impact for the development on wildlife and Lake Sawyer.
Monday and Tuesday evening included the testimony of Ross Tilghman from the Seattle planning firm Tilghman Group. He stated the “peak hour” figures used in FEIS would show less traffic congestion than Tilghman believed was valid for the size of the development.
Bricklin spent considerable time walking Tilghman though the technical data concerning traffic mitigation in the FEIS. Tilghman stated he believed there were, “problems with disclosure” of the technical data.
Sterbank and Rogers grilled Tilghman during their cross-examination over the peak-hour congestion figures.
During the cross Tilghman affirmed the technical data was in the FEIS appendices, which is a common practice. However, Tilghman added the technical data was difficult to find and understand for a lay person reading the document.
Monday the lawyers got into a battle over a memo Tilghman referred to in part of his testimony. Bricklin refused to allow the memo to be entered as evidence and Kenyon said he would subpoena the memo.
Bricklin countered by threatening to subpoena all documents between the city, YarrowBay and their experts.
The hearing examiner finally diffused the fight by striking Tilghman’s testimony relating to the document.
Saturday afternoon featured some entertaining fireworks around Clifford, who called himself as an expert witness on birds and wildlife. He cited 25-30 college credit hours in biology, chemistry and geology. Clifford said he has taught biology and natural science to students.
One of Clifford’s main criticisms of the FEIS was the documentation of the wildlife in the area of the development.
Clifford’s contention was the consultants did not “go out and check the site for wildlife.”
During the cross Rogers had Clifford read multiple entries in the FEIS where the consultant noted field visits were conducted.
Kenyon asked Clifford during his cross if he agreed “field visits were taken?”
Clifford said, “No, I do not.”
During redirect Clifford said later in the document it is less clear if the consultants were at The Villages or Lawson Hills sites.
“They did an inventory somewhere, they just don’t say where,” Clifford said.
Clifford also tangled with Kenyon and Rogers over a discussion of elk. Kenyon questioned Clifford’s expertise on elk.
The hearing examiner finally ended the dispute by asking Clifford if he could be finished talking about elk.
Clifford again wrangled with Kenyon and Rogers Monday and Tuesday when he requested to call Enumclaw School District Superintendent Mike Nelson.
The city and YarrowBay attorneys said Clifford’s leased property was in the Auburn School District.
Clifford countered by saying he also had property interests in Enumclaw.
At the Tuesday afternoon session in City Council chambers the hearing examiner said he ruled Clifford did not have “standing” but others in his appeal could ask for Nelson to testify.
Kenyon noted, “Mr. Clifford is not an attorney.” He said Clifford may be “jeopardizing Fifth Amendment” rights and he may be engaged in the unauthorized practice of law.
Both Kenyon and Rogers finally agreed the issue of Clifford practicing law was his problem.
“I have no objection to Mr. Clifford walking out on that plank,” Rogers said.
Clifford arrived at the hearing about an hour later and said he never indicated to the appellant group he was an attorney or would act as one.
Bricklin also noted citizens often represent groups in hearing examiner proceedings.
Nelson did testify about the seven schools proposed for the development.
By Tuesday the city had called one witness and YarrowBay had yet to get to its witness list.
Susan Graham, the community building program manager with the planning and engineering firm Parametrix based in Sumner, was called to the witness chair.
Graham testified that she was the author along with technical experts of the draft EIS and FEIS.
She described the FEIS as a “planning level” document.
“We looked at alternatives and mitigation for alternatives,” Graham said. “This EIS does not authorize construction of anything.”
Graham went on to testify her firm believes the FEIS is “adequate and goes beyond the level of adequacy for a planned-level EIS.”
She said the FEIS looks at four alternatives for the development and a range of impacts.
Bricklin questioned Graham about how the FEIS relates and affects the master planned development land use permits.
Graham said the “EIS is prepared to inform the city on land-use decisions. The EIS looks at the broad level of impacts of the development.”
Tuesday afternoon appellants Proctor and Gauthier testified.
Both spoke about their long history of living in the area and their concerns about the development’s impact on the quality of life in the region, including the wildlife, lakes and traffic congestion.
Both the City Council chambers and the Black Diamond Elementary School were packed with large crowds. Many of the residents attended the hearings because of their concerns and anxiety about how this development will change Black Diamond and the community.
The FEIS hearing is a closed session, but the public can give testimony at the master planned development hearings.
Check the city of Black Diamond Web site for times and places.Contact Covington Reporter Editor Dennis Box at firstname.lastname@example.org or 1-425-432-1209 (ext 5050).