Black Diamond’s legal issues continue to stack.
During the Oct. 19 City Council meeting, council members passed several measures, the most vital being the final plat for a portion of developer Oakpointe’s Ten Trails project.
Approving the final plat gives the developer the green light to start construction on Division 1 of Ten Trails (formerly known as the Villages) which contains 65 lots for residential homes, 14 for commercial businesses, two for the Enumclaw School District and two for future development.
“I would like to thank the City Council, Mayor and the Black Diamond city staff for the tremendous work and time devoted to the unanimous approval of the first final plat in Ten Trails,” said Oakpointe CEO Brian Ross in a press release. “We have worked alongside many residents in this community to reach this milestone and are truly thankful for the collaboration and input everyone has provided. I know many people join me in looking forward to the start of home construction in Ten Trails later this year.”
The council also approved of a $25,000 Stormwater Capacity Grant, which has been bouncing around council since February 2016, and a contract with DKS associates. The grant helps city staff implement and manage a stormwater program mandated by the state Department of Ecology, and the DKS contract allows the city to complete its Comprehensive Plan, which is now more than two years overdue to the state.
But the biggest announcement of the night was that the City Council has brought a legal suit against Mayor Carol Benson, and Oakpointe has filed a motion to intervene in this lawsuit.
As of Oct. 20, Benson had not filed a response to the council’s complaint.
COMPLAINT IN EQUITY
The complaint filed against Benson is a Complaint in Equity, filed with the King County Superior Court by Anne Bremner of Seattle-based Frey Buck P.S. on Oct. 11.
Bremner was hired by the City Council in a 3-2 vote by council members Pat Pepper, Brian Weber and Erika Morgan during the Aug. 30 meeting to investigate Benson’s actions as mayor over the past two years and potentially file a lawsuit.
A Complaint in Equity is commonly filed when there is no clear legal solution to an issue between parties.
In this case, the complaint alleges Benson has overreached her powers as mayor and asks the court to require Benson to comply with the council’s wishes.
The complaint alleges Benson doesn’t have the authority to appoint a city attorney, and that she’s skirted the Black Diamond Municipal Code — which requires all contracts more than $15,000 to be approved by council — by signing multiple contracts with David Linehan of the Kenyon Disend Firm that are $15,000 or less, despite that “on three occasions, the City Council adopted resolutions specifying that Linehan was not the city attorney and that the City Council would not pay for his services in that guise,” the complaint reads.
At the same time, Benson has not authorized any payment for the attorneys the council has hired, including Jane Koler of Land Use and Property Law and Dan Glenn of Glenn and Associates.
Koler and Glenn were hired by the council in a 3-2 vote by council members Pat Pepper, Brian Weber and Erika Morgan on May 18, but the motion was denied by Benson, claiming the council has no contracting powers.
Along the line of thought of contracting authority, the complaint alleges the council has the power to negotiate contracts with consulting firms that overlook the work being done at Oakpointe development sites.
When Black Diamond entered a development agreement with Oakpointe in 2011, the agreement stipulated the city would put together a Master Development Review Team (MDRT) to review Oakpointe’s development permits. The city would pick the consultants while Oakpointe provided the funds.
Pepper, Weber and Morgan have repeatedly expressed they want to use different consultants than the ones currently on the MDRT. However, Benson has continued to pay these consultants by approving multiple $15,000 contracts.
“The City Council is concerned that consultants employed by the city to assist in the Oakpointe development are not exercising independent judgement with regard to development requirements,” the complaint reads. “The Oakpointe agreement with the city provides no authority to Oakpointe to demand or approval particular consultants.”
Oakpointe has contended that a change in consultants requires mutual agreement.
Finally, the complaint alleges Benson refuses to provide council members the combination of the lock allowing them to access City Hall, directs staff not to post advance notice of council committee meetings, and refuses to place items on the council agenda “even when city council members have complied with the procedural requirements specified in the rules of procedure,” the complaint reads.
As relief, the complaint asks the court to declare the council has the sole authority to approve contracts worth more than $15,000 and that Benson cannot approve multiple contracts for any individual that would exceed $15,000 within a year.
The complaint also asks the court to force Benson to comply with the council’s contracting wishes to hire Koler and Glenn as city attorneys and other consulting firms for Oakpointe’s permitting work.
In regards to continuing to pay Linehan as city attorney, “since Linehan and his firm provide legal services solely to Mayor Benson and frequently attempt to legitimize illegal decisions made by Mayor Benson… the mayor was unjustly enriched or converted city funds for her own personal use,” and must reimburse the city for the cost of Linehan’s services, more than $200,000, the complaint reads.
Finally, the complaint asks the court to force Benson to follow the council’s rules of procedure when it comes to putting items on the agenda and properly notifying agendas.
MOTION TO INTERVENE
Oakpointe’s interest in the City Council’s complaint against Benson lies in the council’s allegations concerning the MDRT, claiming the council’s complaint directly effects Oakpointe’s interests in the city without allowing the developer adequate representation in the matter.
While the council’s complaint alleges the council has the power to negotiate MDRT contracts without Oakpointe approval, allowing the council to pick different MDRT consultants “would result in the MDRT being unstaffed and unable to process Oakpointe’s pending and future development applications,” the documents reads. This would “violate law and constitute the city’s breach of the development agreement,” which is a legally-enforceable binding contract.
Oakpointe points to a section of the funding agreement, approved by the developer and the Black Diamond City Council in December 2011, which states “the MDRT composition may be modified by mutual agreement of the parties.”
If the court allows Oakpointe to intervene in the council’s complaint against Benson, the developer stated it would file a motion to stay the lawsuit until at least April 1, 2018.
The council’s complaint “seeks relief related to enforcing certain ‘Council Rules of Procedure…. The validity of those ‘Council Rules and Procedure’ is the subject matter of separate litigation,” Oakpointe’s motion reads, referring to its Dec. 2016 lawsuit against the City Council for violating the state Open Public Meetings Act (OPMA) when creating and passing these council rules.
The logic behind this is, if the rules are found invalid because their creation and passage constituted an OPMA violation, then many of the council’s allegations in their complaint against Benson would have no merit.
The trial date for the OPMA lawsuit currently scheduled for Feb. 28, 2018.
Additionally, since Weber and Morgan are not seeking re-election for their council seats in the upcoming election, a newly-construed council may “decide whether it in the city’s best interest to continue,” the recently filed complaint against Benson, Oakpointe’s motion reads.