January 13, 2011

Rural town’s takeover by big-box developments highlights vexing vesting question

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By Robert McClure

InvestigateWest

On Oct. 11, 2010, citizens living in and around the small rural town of Black Diamond petitioned King County Superior Court to halt a developer that is trying to lock in rights to nearly quadruple the town’s population and build 1 million square feet of big-box stores and other retailers.

The Yarrow Bay developments would bring more than 6,000 new homes to a town that now has about 1,500, and another 15,000 residents where 4,000 now live. This is being done through a “master planned development” on lands annexed into the city from the county.

The new development, if it stays locked in and is built, will pollute Lake Sawyer, opponents say, pointing to ordinances passed that grant the developer vested status when it comes to new regulations to control stormwater pollution.

“The city cannot preempt changes in federal law and cannot vest the projects against federal or state regulatory changes,” opponents argued in their lawsuit in King County Superior Court, which was later transferred to federal court. “The portions of the ordinances that purport to do so are unconstitutional and illegal.”

Yarrow Bay responded through a spokeswoman that the developer and the city do not expect additional pollution of Lake Sawyer. One condition of the development is that if additional pollution-control technologies are discovered while the projects are under construction, they must be employed and so, “This assures that if some silver bullet is discovered that further reduces phosphorus (pollution), it will be implemented,” the spokeswoman said.

Yarrow Bay also plans to use low-impact development techniques where soils allow it, the company’s spokeswoman said in an e-mail. The developer’s spokeswoman pointed out that the company has agreed to adopt pollution-control measures to clean up stormwater should new control technologies be invented. She also disagreed that Yarrow Bay is trying to freeze stormwater regulations in time.

And she noted that a hearing officer, after considering the residents’ objections, ruled against them, saying in part: “It comes as little surprise that rural character stands out as the largest concern of Black Diamond residents. The (developments) will more quadruple the population of the city and residents are validly concerned that the project could transform the character of the community from a pastoral rural setting to a suburban community. For the most part, however, the die has already been cast on this issue. The state legislature and the Black Diamond City Council have adopted legislation that authorizes projects the size and density of the (development) if specified criteria are met.”

Mayor Rebecca Olness declined to comment, citing the pending litigation. The city’s lead attorney in the case, Mike Kenyon, also declined to comment.

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