The second shoe dropped at 11:45 p.m. Tuesday, May 10, when Phil Olbrechts, the hearing examiner for the city of Black Diamond, e-mailed his decision recommending approval of The Villages master planned development with conditions.
In the e-mail Olbrechts noted he will also be recommending approval of the Lawson Hills project. The document for Lawson Hills will be sent by May 17 according to Olbrechts.
The recommendations for approval comes with conditions to the project added by the hearing examiner.
The Villages and Lawson Hills are both master planned developments owned by YarrowBay Holdings, a Kirkland-based developer.
“Overall the proposed Villages MPD does a fairly good job of satisfying MPD criteria,” Olbrechts wrote. “The one and notable exception is that the MPD does not meet job creation objectives.”
According to Olbrechts, The Villages project meets 57 percent of required employment by the city code and 28 percent under the comprehensive plan standard.
“There is nothing in the record to suggest that the MPD will meet employment projections with ‘reasonable certainty,'” Olbrects wrote.
The hearing examiner went on to write, “The situation is exacerbated by the fact that the job creation requirement is of dubious legal validity. The courts are likely to find it an unconstitutionally unreasonable requirement to make a developer responsible for job creation. However, if the MPD is not an entitlement, as discussed in Conclusion of Law No. 2, the Council would be on solid legal ground to deny the MPD solely because of the job creation requirement. The Council is encouraged to consult with the City Attorney to resolve this issue.”
Another condition addressed by the document is traffic. Olbrechts wrote, “Probably the most significant condition added by the Examiner is a requirement to reassess traffic impacts through more detailed traffic modeling.”
The hearing examiner noted YarrowBay used a Puget Sound Regional Council traffic model in the final environmental impact statement (FEIS), also known as the SEPA (state environmental policy act) document. Olbrechts stated the PSRC traffic model was attacked by the city of Maple Valley, SEPA appellants and officials from other agencies around the region.
Maple Valley mounted an aggressive and detailed offensive against the PSRC model, providing expert written testimony from Natarajan Janarthanan with the Bellevue firm, Fehr and Peers.
YarrowBay and Black Diamond countered with their expert written testimony from John Perlic with Parametrix, based in Bellevue.
After wading through both sides of the argument, Olbrechts wrote, “The result was a fairly compelling case that neither model is appropriate. The conditions of approval require the Applicant (YarrowBay) to put together a local model that extends to all jurisdictions within the vicinity, but without the flaws in the Maple Valley model. The new modeling may prove to be costly, but it may also stave off litigation from Maple Valley and other interested parties, which would result in a significant savings to all involved. Most importantly, the new modeling will more accurately predict traffic impacts, which will be of a profound benefit to the quality of life of Black Diamond residents.”
The hearing examiner also recommends mitigation of the long-term impacts of construction noise.
Olbrechts added conditions for schools, “The Examiner agrees with the (Enumclaw School) District position that schools must meet the site requirements of the District’s capital facilities plan and meet the population projections of the plan. Schools must also be located within a half mile of residential areas.”
One of the more interesting legal points in the document came in section five, “Conclusion of Law” when Olbrechts addressed the entitlement argument.
“Dave Bricklin, attorney for the SEPA appellants, argues that master plan approval is not an entitlement,” Olbrechts wrote. “In other words, even if the MPDs satisfy all the permitting criteria, the Council is not mandated to approve the application. The Examiner leaves it up to the City Attorney to advise the Council as to whether the MPD process creates an entitlement. The Hearing Examiner’s recommendation for approval is solely based upon the determination that the MPD applications meet applicable review criteria. Any recommendation beyond that would just be based upon personal values and philosophy, which is solely within the province of the elected representatives of Black Diamond.”
The projects now moves to the City Council where the members will consider the evidence and testimony from the 50 hours and more than two weeks of public hearings conducted by Olbrechts on the FEIS and the MPD application. The hearings began March 6 and ended March 22.
The council members will take further public testimony in a closed record hearing, meaning no new evidence can be introduced.
If the MPD applications are approved by the council the projects moves to the development agreement phase.
The Villages plan calls for 4,800 residences, 775,000 square feet of retail, office and light industrial on 1,196 acres.
Lawson Hills plans for about 1200 homes on 371 acres with retail and office space.
