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Problems and confusion at Black Diamond Planning Commission meeting
The feathers flew during the Dec. 6 Planning Commission meeting in Black Diamond and it looks like it will sometime before all is settled.
At the meeting and in the aftermath, several issues arose including a potential violation of the open public meetings act according to Tim Ford, assistant attorney general for government accountability, violations of Constitutional rights and the validity of the commission.
The scene was set when Colin Lund, director of land development from YarrowBay based in Kirkland and Megan Nelson, director of legal affairs, attempted to make a master planned development presentation during public comment.
YarrowBay is currently working on two master planned developments in Black Diamond, The Villages and Lawson Hills.
The projects have been approved by the City Council through the development agreement phase, but the MPD ordinances have been challenged by the Black Diamond group Toward Responsible Development, and the issue is currently in superior court and the state Court of Appeals.
YarrowBay has gone through the process of submitting a second MPD application, identical to the previous one in the court system.
This would give YarrowBay an application already in the system if the courts rule against it.
YarrowBay had three steps to fulfill to submit an application, which was meet with staff, conduct an information meeting and a presentation to the Planning Commission.
They had asked and been granted a place on the agenda for the commission meeting, but, it was taken off the agenda prior to the meeting.
Nelson stated at the meeting they were using the public comment portion of the meeting for the presentation since they were not on the agenda.
According to the recording of the meeting, the commission initially allowed Lund and Nelson five minutes each to speak. The commissioners did not appear to know this was to satisfy the presentation requirement.
As Lund began to speak Bob Edelman, a Black Diamond resident and member of Toward Responsible Development, approached the members and raised a question whether YarrowBay should be allowed to continue.
Nelson stated to the commission that YarrowBay was “arguing that it satisfies the requirement (for an MPD application) under your code. There is no requirement we be on the agenda in order to speak during public comment.”
A considerable amount of confusion happened at this point. Commissioner Ron Taylor, who was recently elected to the City Council, stated he disagreed with Nelson and noted the commission controls the agenda.
“We already discussed this and determined to take this off the agenda,” Taylor said.
Nelson said, “Right, and it says here (during) public comment you can talk about any item not on the agenda. Our applications are not on the agenda tonight. We are asking to use the five minutes that are allotted for the three people that are here to talk about our applications.”
Edelman then approached the commissioners again and was told to sit down by Bob Kaye, the chair. Edelman continued when he stated “this is an illegal meeting.” He went on to make his point that the members had not been properly confirmed by the City Council.
“The city created a situation whereby the very makeup of the Planning Commission is in question,” Edelman said. “ This may have compromised past action of the commission and will compromise future action.”
After Edelman made his point the commissioners then brought up going into executive session.
Steve Pilcher, director of community planning, stated they did not have legal counsel present.
After a short discussion about the reason for the executive session the commission decided to move into executive session to discuss potential litigation.
Following the executive session, according to Taylor, the commission adjourned.
Ford stated when reached by phone, “The law requires an attorney be present or present by phone to discuss potential litigation.”
Ford noted coming out of the executive session and adjourning may leave the perception of a violation with final action being agreed upon in the closed session.
“It just depends on what was agreed upon in the executive session,” Ford said.
Other issues the commission and city will be looking at following the meeting, according to legal sources, are a violation of free speech by now allowing the public comment to proceed and a violation of due process by not allowing a party to proceed with a legal application to the city.
Nelson stated by phone following the meeting, “We were both shocked and disappointed by the outcome of the Planning Commission meeting. We were attempting to follow the city’s process for filing an MPD application.”
Taylor said the point of the executive session was not to, “prevent YarrowBay from speaking. On the one hand we had an applicant ignoring an agenda we had rightfully set and on the other had we had members of the public questioning whether we are a legal body. We were between a rock and a hard place.