Update| Superior Court Judge Patrick Oishi rules in favor of YarrowBay, denies LUPA appeal

King County Superior Court Judge Patrick Oishi ruled Monday in favor of YarrowBay and the city of Black Diamond concerning the Land Use Petition Act appeal filed by Toward Responsible Development.

The judge dismissed the petition “with prejudice” meaning the petition cannot be refiled in that court. The ruling can be appealed to state Court of Appeals.

TRD filed the appeal against YarrowBay’s two master planned developments, The Villages and Lawson Hills, in October 2010.


The judge wrote in the order, “TRD’s Land Use Petition fails to meet the standards set forth in RCW 36.70C.130(1) for granting relief.”

Black Diamond Mayor Rebecca Olness wrote in a message Monday, “Once again the court confirms that the city followed the law and did the right thing.”

The judge affirmed the approval of the permit ordinances for both projects and the adequacy of the environmental impact statements.

The ordinances approving the two developments were passed unanimously by the Black Diamond City Council in September 2010.

The judge also directed TRD to pay the “cost and statutory attorneys’ fee” for the city and YarrowBay.

Listed as petitioners in the document are Cynthia and William Wheeler, Robert Edelman, Peter Rimbos, Michael Irrgang, Judith Carrier, Vicki Harp and the estate of William Harp and Cindy Proctor.

Oishi’s document noted TRD claimed violation of the petitioner’s Constitutional rights. That issue was moved to U.S. District Court. The claim was dismissed July 8 by District Court Judge James L. Robart.

In April the state Supreme Court denied a petition for review requested by TRD of a Court of Appeals decision.

The appeals court reversed the Central Puget Sound Growth Management Hearings Board decision stating the city should have used a legislative rather than quasi-judical process to approve the MPD ordinances


The LUPA appeal was argued before Oishi Aug. 3.

Concerning the MPD permit ordinances, Oishi wrote, “The Court has not been left with a definite and firm conviction that a mistake has been committed, which is required in order to grant relief under this standard of review.”

The judge noted there was “reasonably thorough discussion of the significant aspects of the probable environmental consequences” concerning the final environmental impact statements or FEIS for The Villages and Lawson Hills.

“The Villages FEIS and Lawson Hills FEIS are therefore legally adequate,” Oishi wrote.

The judge stated TRD “failed to overcome the substantial weight that SEPA (State Environmental Protection Act) requires this court to accord The Villages EIS Adequacy Decision and the Lawson Hills EIS Adequacy Decision, and meet their burden to establish that the EISs are inadequate for The Villages and Lawson Hills projects.”

The city’s hearing examiner, Phil Olbrechts, wrote a decision stating the projects environmental impact statements were adequate in April 2010. More than two weeks of public hearings were conducted by Olbrechts in March 2010.

In his decision, which was upheld by Oishi, Olbrects wrote, “An EIS is adequate if it contains a reasonably thorough discussion of probable significant adverse environmental impacts.

Olbrechts stated in 2010, “(The) adequacy standard does not require perfection. It requires reasonableness.”

Oishi referred to applying the “rule of reason” in his decision and it was discussed several times during the Aug. 3 Superior Court proceeding.

Read ruling: Finds of fact, conclusions of law and order denying land use petition

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