Appearance of fairness dominates opening of YarrowBay development agreement hearings in Black Diamond | Read Documents
By DENNIS BOX
Covington Reporter Editor
September 26, 2011 · Updated 12:54 PM
The opening act of the Black Diamond City Council closed-record hearing Sept. 21 concerning the development agreements for YarrowBay's The Villages and Lawson Hills featured a couple of intriguing legal twists and turns.
A letter from YarrowBay's attorney Nancy Rogers and pages of supporting documents were presented to the council and city attorney. The letter requested four of the five council members recuse or voluntarily remove themselves from the quasi-judicial hearings.
The letter noted Leih Mulvihil and Kristine Hanson, should recuse themselves because they own property near the projects.
The letter stated two other council members, William Saas and Craig Goodwin, had ex-parte contact with opponents of the developments.
Ex-parte contact in this case refers to a council member, who is acting in a quasi-judicial role, participating in discussions outside of the hearing with opponents of the developments. The council members will be considering whether to accept the hearing examiners recommendation to approve the agreements and the conditions of approval.
If four of the five council members recuse themselves, a quorum is not available to consider the development agreements. Without a quorum, the members who recused themselves are then allowed to return to consider the agreements.
The letter stated, "If these issues are not addressed proactively, there is a strong likelihood of significant divisiveness being generated in the Development Agreements hearings as parties are required to state their specific concerns with each Councilmember."
The letter goes on to state the four can recuse themselves, "and in so doing, trigger the 'doctrine of necessity.' In this way, YarrowBay and community member against community member attacks can be avoided, the city's fiscal interests will be protected, and the full five-member City Council can sit together with the community, to review The Villages and Lawson Hills Development Agreements."
The hearing was continued to tonight, 6:30 p.m. Monday, Sept. 26 at the Black Diamond Elementary School gymnasium. It is expected the four members will each decide whether to recuse themselves at the hearing.
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