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Decision pending as hearing closes for YarrowBay's The Villages and Lawson Hills developments in Black Diamond

After more than two weeks, 50 hours and hundreds of pages of documents, the hearings

hearings for The Villages and Lawson Hills, YarrowBay’s master planned developments in Black Diamond, came to a close Monday night.

The hearings lasted more than two weeks with passionate testimony from residents, a subpoena duel between city attorneys and legal objections raised like battle flags.

Phil Olbrechts, the hearing examiner who presided over the proceedings, said at the close of the Monday hearing he had “been through more than 1,000 hearings” including several master planned developments, “but nothing like this.”

Olbrechts complimented all who attended, “You sat through all the hearings and that says a lot for Black Diamond.”

There were two parts of the hearing. One was the hearing on the final environmental impact statement or FEIS. The second involved the master planned development application hearing.

The decision facing Olbrechts for the FEIS is whether or not it provides adequate traffic and environmental mitigation. For the MPD application, Olbrechts will give a recommendation to the Black Diamond City Council on approval of the MPD. Olbrechts can add more mitigation conditions to the MPD recommendation or he can recommend to not approve.

Olbrechts said the FEIS decision was not whether it could be better, but if it was adequate and “the standard is – is it (the FEIS) good enough. Could it be better is not the rule.”

He said in the past at the close of a hearing he usually has an “idea how I will rule, but not this time. I have to go through all this information.”

Olbrechts said he has a science background and he will use it extensively going over both the scientific testimony concerning the impact on Lake Sawyer and other water bodies and traffic mitigation data.

According to Olbrechts, although his decision on the FEIS is up or down on adequacy, “if I find some data could be better, I can use that for additional mitigation in the MPD. So there is a little wiggle room.”

Olbrechts said at the Monday night hearing, he will rule by April 15. If he rules the FEIS is not adequate, Olbrechts said he will not make a recommendation on the MPD permit.

If he rules the FEIS is adequate, he will then give a recommendation on the MPD, which could include additional mitigation conditions.

The appellants of the FEIS, the city and YarrowBay have until Monday to submit written closing briefs, which can address legal arguments, but additional evidence cannot be entered.

The final week of the hearings included a long evening March 17 of public testimony on the MPD portion.

The week also included FEIS testimony including rebuttal testimony from the appellants’ side.

Ross Tilghman from the Seattle planning firm Tilghman Group testified on traffic impacts and the adequacy of the FEIS mitigation.

Robert Zisette, from the Seattle firm Herrera Environmental Consultants, testified about the levels of phosphorous going into the Lake Sawyer and surrounding streams and water bodies.

The final hearing at the Black Diamond Elementary School Monday involved MPD rebuttal and clarification testimony. First up was Bob Sterbank from Kenyon Disend, the Issaquah firm providing city attorney services for Black Diamond. Nancy Bainbridge Rogers from the Seattle firm Cairncross and Hempelmann representing YarrowBay closed the testimony presenting the position of the developer concerning the impacts of project and the plans to mitigate both traffic and environmental issues.

One of the most intriguing legal battles during the proceedings occurred in the last week between Maple Valley, Black Diamond and YarrowBay.

The attorneys for the two cities got into a subpoena scuffle when Sterbank subpoenaed the traffic model data March 16 prepared by Maple Valley’s traffic consultant Natarajan Janarthanan from the Bellevue firm, Fehr and Peers.

The night of March 17 at about 11:30, following hours of extensive public comment on the MPD application, Maple Valley City Attorney Christy Todd presented a subpoena for Olbrechts to sign requesting Black Diamond produce the traffic data created by John Perlic from the Bellevue-based Parametrix, which was used for the FEIS traffic mitigation.

The two attorneys squared off Thursday morning with Rogers and David Bricklin from the Seattle firm Bricklin and Newman representing the appellants including Cindy Proctor and Cynthia Wheeler on the sidelines.

The subpoena showdown was the culmination of a battle between Black Diamond and Maple Valley that had been brewing since Feb. 10 when Maple Valley filed a motion to intervene in the FEIS hearing as an appellant.

Maple Valley had not filed an appeal of FEIS by the deadline, which was the last week of December 2009. The motion stated Black Diamond’s code was unclear concerning the appeal process.

Maple Valley contends the FEIS traffic data does not accurately reflect the traffic impact on five intersections on state Route 169 within the city’s boundaries. City officials are looking for mitigation to reflect the traffic model produced by Janarthanan.

Sterbank and Todd traded legal jabs and jousts for nearly an hour. Sterbank at one point stated Olbrechts had the option of rejecting both subpoenas and striking Janarthanan’s MPD testimony.

Todd responded to the hearing examiner by stating, “This is an appearance of fairness issue.”

Olbrechts noted there was a significant difference in the traffic distribution numbers between the Maple Valley model and Puget Sound Regional Council traffic model used by Perlic.

“We have these black boxes with two experts both stating their (model) is the best,” Obrechts said.

Later in the hearing Olbrechts said, “If the Maple Valley model does prove to be different that is probative.”

In the end, through tenacious legal legwork and some quick midcourse maneuvers on the part of Todd with the help of land-use consulting attorney Jeff Taraday from the Seattle firm Morris Taraday, Maple Valley was able to get its traffic data and mitigation argument before the hearing examiner for the MPD recommendation and it can also be considered in the FEIS adequacy decision.

Monday the two cities and the traffic experts came to an agreement to exchange the traffic data.

Olbrechts gave Maple Valley until April 2 to file comments on the traffic mitigation in the FEIS. Black Diamond and YarrowBay have until April 12 to respond to the comments filed by Maple Valley.

Olbrechts closed the hearings Monday by stating. “I consider this a huge responsibility and I hope I live up to your expectations.”

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