A Court of Appeals commissioner awarded more than $160,000 in attorney fees and costs to YarrowBay and the city of Black Diamond, which raises the curtain on the final act of a legal saga that has spanned the past four years.
The Kirkland-based developer YarrowBay plans to build two master planned developments in Black Diamond – The Villages and Lawson Hills.
Toward Responsible Development filed an appeal against the master planned developments, which was dismissed by the King County Superior Court. The Court of Appeals upheld the lower court and the state Supreme Court declined to review the decision.
Appeals Court Commissioner Masako Kanazawa ordered Toward Responsible Development to pay a total of $162,798 to YarrowBay and the city of Black Diamond. The court document was filed Monday.
The breakdown for the city was $30,275.50 for attorney fees and $174.68 in costs for a total of $30,450.18. The Issaquah-firm Kenyon Disend provided city attorney services for Black Diamond and represented the city during the appeal.
The court order for YarrowBay’s attorney fees was $131,322.46 and $425.93 in cost for a total of $132,348.39.
Nancy Rogers with the Seattle-firm Cairncross & Hempelmann represented YarrowBay.
David Bricklin with Bricklin & Newman based in Seattle represented the appellants.
Toward Responsible Development has 30 days to file an appeal of the cost bill.
YarrowBay’s plan calls for the construction of about 6,000 residential dwellings in the two master planned developments with light industrial, commercial, retail space, parks, trails and schools.
The first phase of construction is underway in The Villages development along Roberts Drive north of City Hall.
Brian Ross, managing partner of YarrowBay said in December 2013 the Phase 1A site is 93 acres with plans for 378 single family homes – 395 multi-family units, nine townhouses, 190,000 square feet of commercial space, parks and a site where an elementary school could be built in the future.
While the clearing and grading work is underway the engineers will work on the infrastructure design according to Ross.
The Land Use Petition Act or LUPA appeal of the developments was filed by Bricklin in King County Superior Court in October 2010. The appellants listed on the head caption of the court document were Toward Responsible Development, a Washington not-for-profit corporation; Cynthia and William B. Wheeler; Robert M. Edelman; Peter Rimbos; Michael E. Irrgang; Judith Carrier; Vicki Harp; Cindy Proctor; Estate of William C. Harp.
King County Superior Court Judge Patrick Oishi dismissed the appellants’ petition Aug. 27 2012.
Oishi’s ruling was appealed only by Toward Responsible Development. According to Bricklin, Toward Responsible Development is the only entity liable for court cost and no individuals appealed the Superior Court decision.
The Court of Appeals upheld Oishi’s decision Jan. 27 and the state Supreme Court denied a review requested by Toward Responsible Development.
In the cost bill order the court commissioner wrote TRD, “argues that it was not properly served with the cost bills and the declarations of fees, complaining that the documents were sent by email.”
Kanazawa noted, “TRD itself used email in serving many of its pleadings in this appeal.”
The commission said TRD also argue the fees are excessive. Kanazawa wrote the fees were high and courts must take an “active role in assessing the reasonableness of fee awards.”
The commissioner wrote, “Yarrow Bay states its development rights were at stake, where it had invested $127 million in its land alone.”
Kanazawa rejected Toward Responsible Development’s arguments except to lower YarrowBay’s $32,000 request to $16,000 on its unsuccessful motion to dismiss for lack of standing and for an accelerated review. The commissioner stated the motions were reasonable but the fees should be reduced by half.
YarrowBay had requested $147,922.46 in attorney fees and was awarded $131,922.39 by the commissioner.
The city received the amount requested.
Toward Responsible Development is listed as a nonprofit corporation that filed with the state Sept. 30, 2010. Robert Edelman is listed as president/director and treasurer. Mary Edelman is listed as secretary and vice president/director.
Robert Edelman is married to Black Diamond City Councilwoman Janie Edelman.
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