1" 2 8B 14 18 16 7 18 19 20 24 22 23 24 25 26 a 28 29 20 31 32 BEFORE THE GROWTH MANAGEMENT HEARINGS BOARD CENTRAL PUGET SOUND REGION STATE OF WASHINGTON ‘TOWARD RESPONSIBLE DEVELOPMENT, ET AL, ” CASE NO. 10-3-0014 Petitioner, ORDER DENYING MOTION a FOR RECONSIDERATION CITY OF BLACK DIAMOND, Respondent, And BD LAWSON PARTNERS, LP and BD VILLAGE PARTNERS, LP,’ Intervenors. (On February 18, 2011, the Growth Management Hearings Board - Central Puget Sound Region (Board) issued an Order on Motions which addressed several dispositive and procedural motions filed by the parties In ruling on these motions, the Board first found that it had subject matter jurisdiction over the challenged ordinances, Ordinances 10-946 /and 10-947, and, then remanded the Ordinances to Black Diamond because of its failure to ‘comply with its own adopted public participation procedures.” However, in making this ruling, the Board declined to issue a Determination of Invalidity as requested by the Petitioners.“ Intervenors are collectively referred to as YarouBay. Toward Responsible Developmants Dspesve Motion; Black Diamond's Dispositve Motion to Dismiss for Lack of Jureaicton; YaronBay’s Maton to Dismiss; Toward Responsible Developments Motion to Supplement the Record, Toward Responsible Developments Motion to Strike Improper Sie and Declaration, reer on Motions, at 21 (Juredicon; Order on Moons, t 25 (Public Parcipation}, Order on Motons, a 27 senses See ar 28 oe ecco comer stg Se onntpicararteg mur sree Cynon 63Pursuant to WAC 242-02-832, on February 25, 2011, the Petitioners filed a timely motion ‘seeking reconsideration of the Board's denial of its request for invalidity, alleging a rmisinterpretation of fact and law. Filed in conjunction with this motion were the Declaration of Robert Edelman and four attachments.° Black Diamond and YatrowBay both assert this ‘motion should be denied and the declaration and attachments stricken.” [As provided in RCW 36.70A.302, invalidity is @ discretionary remedy available to the Board When a city or county has taken an action which not only fils to comply with the requirements of the Growth Management Act (GMA), RCW 36.70A, but substantially interferes with the goals of the GMA. The Board has reviewed its February 15, 2011 Order ‘on Motions and the recently filed briefing and finds no basis for reconsideration. Petitioners’ Motion for Reconsideration is denied and the Board's previous denial of invalidity is affirmed.® DATED. 47th day of March, 2011. "Earling, Board Member Mar gO ag tac ret Pageler, Board Member ont of Raymond L. Paolella In creating the Growth Management Hearings Board, the Legislature anticipated a situation during the compliance phase of a case where new information may require the Board to reconsider its previous decision not to impose invalidity. RCW 36.70A.330(4) provides: Pettioners' Matin for Reconsideration, February 25, 201, with Declaration of Robert Edelman, Within ts Maton, at 6, Fr. 2. Pelitoners move the Board t6 supplement the Record with this Declaration and the tached appendices "YarrowBay's Respanee to Maton for Reconslderation, March 4, 2011; Black Diamond's Response to TRD's Motion for Reconsideration, March 4, 2071 Black Diamond's Motion to Stike Edelman Deciaration, March 4, zon + Given the denial of the Patitoners’ Motion, the Board does not rule onthe supplementation ofthe Record withthe Edelman Declaration othe responding motions to stke that deciaration, onaan on amin Fon eeconsoeRaton men i a a as, time, 28 ‘He vPaveme Se 103 Pose aie ord Cyn. Wang 88Ina compliance hearing upon petition of a party, the board shall also reconsider its final order and decide, ifno determination of invalidity has been ‘made, whether one now should be made under RCW 36.70.02. [Although this statute provides no specific grounds or standards for reconsidering a previous decision not to impose invalidity, significant new information bearing on the futfilment of the |GMA's Planning Goals in RCW 38.70A.020 would seem to be highly relevant to reconsidering invalidity ‘This case is now in a compliance phase since the Board issued its February 15, 2011 Order ‘on Motions finding noncompliance with the GMA and remanding this matter to the City of Black Diamond, based upon the City’s enactment of Ordinance Nos. 10-946 and 10-947 without following the required public participation procedures and without providing reasonable public notice as required by RCW 36.70A.035. New information has been provided to the Board since the issuance of the February 15, 12011 Order on Motions, On February 25, 2011, the City issued a Notice of Application showing that BD Village Partners had filed an application to subdivide 129 acres of land into 470 lots for residential, commercial, school, and mixed use development. This Notice of Application indicates a “Complete Application Date" of February 11, 2011."° In addition, on March 4, 2011 the City of Black Diamond fled a Motion to Extend Time to |Complete Compliance Schedule from an original 76-day compliance period to an extended 1178-day compliance period. The City indicates that scheduling difficulties prevent the City from being able to comply with the Board's original 75-day compliance schedule."* This new information indicates that the GMA compliance process will take far longer than ‘expected and, in the meantime, there appears to be a “Race to the Courthouse” underway to obtain vested eubdivielon and project approvals. Absent seme mechanism to praserve the status quo ante, there appears to be a substantial risk that significant vesting will occur, S00 also WAC 242-02-883(1) ‘© Decaration of Robert Edelman in Support of Motion for Reconsideraton, AppendoxD (February 25,2011) " Deoaration of Steve Psshern Suppor of Black Diamonds Motion to Extend Compliance Schedule, page 3 (arch 2, 2011), noe ok Noi Fo ReconsmeRATCN mgt ea epon fia, 2 Mov hema SE Sine Poor ote or oman" R B 14 15 16 7 18 19 20 at 22. 23 24 25 26 27 28 29 34 32 rendering the GMA compliance/planning process futile and this case as essentially moot “This is so because significant subdivision and project permit vesting will make GMA planning efforts a mere academic exercise, without an opportunity for meaningful ‘comprehensive planning, guided by the GMA's Planning Goals in RCW 36.70A.020. Comprehensive Plan Amendments and Development Regulations that the City may adopt in {the coming months wil likely not extinguish project development rights vested under state or local law." The City of Black Diamond has net yet engaged in the required GMA planning processes for subarea planning and appropriate development regulations. The Board has already found non-compliance with the GMA-required public participation procedures. Petitioners have alleged that the City has not yet followed the procedural consistency requirements of ROW 36.70A.130 and ROW 36.70A.070. It has also been alleged that the City has not invoked the notice and comment process with state agencies as required by RCW 36.70A.106. |n.a proper GMA planning process with full public participation, the City should inter alia seek to: (1) ensure that those public facilities and services necessary to support development shall be adequate to serve the development at time the development is avaiiable for occupancy and use without decreasing current service levels below locally established minimum standards; (2) encourage efficient multimodal transportation systems that are based on regional priorties and coordinated with county and city comprehensive plans; (3) retain open space, enhance recreational opportunities, conserve fish and wildlife habitat, increase access to natural resource lands and water, and develop parks and recreation facilities; (4) protect the environment and enhance the state's high quality of life, including air and water quality, and the availabilty of water, and (6) protect private property Fights."® “These are just some of the planning goals that would need to be considered by the City during an appropriate and public GMA planning process, but which may not be able to be meaningfully considered if the status quo ante is not maintained in this case. Accordingly ' See ROW 36.7OA 3020) "= ROW 36.70A.020 eee occ cxarmzein Ss owe tracer cma ages meeevoasenes 10 2 13 “4 15 16 7 18 19 20 21 2 23. 24 25 26 ar 28 29 30 3t 2 ‘and in light of newly recelved information, the continued validity of Ordinance Nos, 10-46 and 10-947 would substantially interfere with the fulfilment of the RCW 36.70A.020 Planning Goals, including Goals 3, 9, 10, 11, and 12. In order to preserve the status quo ante, | would grant the Motion for Reconsideration regarding invalidity under the authority of ROW 36.70A.302 and RCW 36.70A.330(4). DATED ths 17th day of March, 2011, Regeonhe 2, Pll Raymond Paotta- Boor anbot Note: This order contites fal oder a6 specid by ROW 26-708 300. Pursuant WAC 242-02-832(3), an order on motion for reconsideration is not subject to any further ‘motion for reconsideration ORDER ON NOTION FOR RECONSIDERATION Cereal Puget ud glen tena tosane couleur Boe Poses 3. bocatass ma. wag 50853