Update: Appeals court upholds lower court ruling in favor of YarrowBay developments in Black Diamond

The state Court of Appeals ruled unanimously in favor of YarrowBay in a Land Use Petition Act appeal filed against the two master planned developments in Black Diamond on Monday.

The three-judge panel of C. Kenneth Grosse, Ronald E. Cox and James Verellen found Phil Olbrechts, the city’s hearing examiner, properly applied the “rule of reason” in finding that the environmental impact statement adequately addressed the impacts from the developments.

The judges also found that Olbrechts was correct in allowing, “the use of phased review to defer further analysis of adverse environmental impacts until the time of construction…”

The appeal was filed by Toward Responsible Development.

(Editor's Note: David Bricklin, the attorney representing the appellants, wrote in an email Jan. 30, the others names listed in the head caption on the Court of Appeals opinion as appellants, "do not represent the parties who appealed. The names in the caption represent the original parties to the lawsuit when it was filed in superior court. Those names stay in the caption, even if parties are dismissed or drop out along the way. (You’ll note quite a few unfamiliar names listed as defendants; they were named in the original superior court pleading, but were long ago dismissed from the case.)"

The appellant names listed in the caption are Cynthia and William Wheeler, Robert Edelman, Peter Rimbos, Michael Irrgang, Judith Carrier, Eugene May, Vicki Harp, Cindy Proctor and the Estate of William C. Harp.

According to Bricklin, "The only appellant was TRD. It is a corporation, registered in the state of Washington. It is the only entity potentially liable for court costs."

The Court of Appeals document stated the prevailing parties, which would include YarrowBay and the city of Black Diamond, "are awarded their fees pursuant to RCW4.84.370.)

The appeal was first heard by King County Superior Court Judge Patrick Oishi on Aug. 3, 2012. Oishi dismissed the petition Aug. 27, 2012 and TRD decided to ask the Court of Appeals to review the decision.

David Bricklin, the attorney representing the appellants, wrote by email Monday evening, “We are disappointed, of course. We believe the former Council’s decisions were unlawful. We have the option of asking the state Supreme Court to review the case.”

Edelman, one of the founding members of TRD, wrote by email Monday, “I’m waiting for a detailed review by David Bricklin so we don’t have a decision to petition the Supreme Court at this time. As David wrote to you, that is a viable option.”

The 39-page opinion from the appeals judges cited the appellants’ challenges and stated in each case either the hearing examiner made the correct decision or TRD failed to show Olbrechts’ or the City Council’s decision was wrong.

In one section the judges wrote TRD challenged the development permits stating the City Council did not account for traffic and noise mitigation.

“TRD’s contention that traffic and noise impacts were not adequately mitigated is likewise without merit,” the judges wrote. The court document stated a LUPA petition must establish the government land use decision is in error according to state code and the burden of establishing this rests with the appellants.

The judges ruled the appellants did not meet this standard and deferred to the decisions rendered by the hearing examiner and the City Council when it approved the developments in September 2010.

Court of Appeals document



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