BLACK DIAMOND: Court reverses ruling on developments

The State Court of Appeals has reversed a ruling from the Central Puget Sound Growth Management Hearings Board concerning the two master planned developments intended for Black Diamond.

The Kirkland-based YarrowBay company hopes to develop The Villages and Lawson Hills, a plan that could eventually add thousands of homes to the small town.

The Court of Appeals ruled Dec. 27 the Hearings Board did not have jurisdiction in the case involving the two ordinances used to approve the master planned developments. The board had ruled Feb. 15 the city used an incorrect process when approving the master planned development ordinances. The board sent the ordinances back to the city for compliance with Growth Management Act.

The citizen group Toward Responsible Development had challenged the city-approved ordinances in Superior Court and to the Hearings Board. The board ruling was appealed by YarrowBay and sent to Superior Court, but the parties agreed to a direct review by the state Court of Appeals, bypassing the lower court. The appeals court agreed to hear the case and the attorneys for the parties presented their arguments Nov. 1.

The opening paragraph of the Dec. 27 Court of Appeals ruling stated, “The Central Puget Sound Growth Management Hearings Board lacked jurisdiction to review the 2010 ordinances enacted by the City of Black Diamond approving the master plan development permits for YarrowBay. We reverse.”

The issue addressed by the appeals court centers on whether the ordinances were project permits or amendments to the city’s comprehensive plan or development regulations, which is under the jurisdiction of the board. The court ruled the ordinances were project permits, stating, “We hold the 2010 MPD ordinances adopted by  Black Diamond were project permit approvals. The Board lacked jurisdiction to review these permits.”

The two ordinances supporting YarrowBay were unanimously approved by members of the Black Diamond City Council in September 2010. Toward Responsible Development then filed its challenges.

“It was good to see the court of appeals pronounce our process as legal,” Black Diamond Mayor Rebecca Olness said by phone Dec 27. “I always believed we had done this right and followed our code. I have the utmost confidence in our staff and city attorney and I am thrilled the court of appeals recognizes this.”

David Bricklin, the Seattle attorney representing Toward Responsible Development, said the group will soon decide whether to ask for a review by the appeals court or petition the state Supreme Court. A motion for review by the appeals court must be filed in 20 days and a petition for review must be filed in 30 days to the Supreme Court.

Bricklin said the ruling was “not the end of the line. This is like a game of Chutes and Ladders and we are going to start back up.”

Mike Kenyon, from the Issaquah firm Kenyon Disend that provides city attorney services for Black Diamond, wrote in an e-mail, “From the City Attorney’s perspective, it’s gratifying to see that the Court of Appeals agrees with the public policy set forth by the Black Diamond City Council that the MPD permits are, in fact, permits. The Growth Board’s erroneous ruling here was just another example of the Growth  Board’s impermissible intrusion into an area that is properly the role and function of elected city officials. The Growth Board is not some form of ‘super city council’ and it does not set public policy within the Black Diamond city limits (or any other city limits). The City Council is charged with that responsibility, and did so here by unanimous vote after a lengthy and comprehensive process. The Court of Appeals recognized that, and understandably reversed the Growth Board’s decision.”

Brian Ross, CEO of YarrowBay wrote in an e-mail, “This Court of Appeals decision confirms what we’ve been saying all along – we’re doing it right, we’re following code and most of all, we’re excited to continue moving forward to work with the city and the citizens to implement our MPDs.”

By Dennis Box


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