King County Superior Court Judge Susan Amini dismissed a civil claim by developer YarrowBay over proposed mitigation fees for future government facilities in Black Diamond. The case was dismissed without prejudice, which means it can be refiled.

Despite how it looks on its face, Megan Nelson, director of legal affairs for YarrowBay, said the firm is pleased with the outcome.

“It was good for us because it confirmed our ability to file another appeal if and when the city adopts a government facilities fee,” she said. “The reason we appealed in the first place was the concern that if we didn’t appeal the plan adoption, we would be precluded from filing later.”

The Kirkland developer claimed that the city’s plan contains “fundamental errors in analysis” and violates The Villages and Lawson Hills development agreements between YarrowBay and the city.

Black Diamond Lawson Partners LP and Black Diamond Village Partners LP – known collectively as YarrowBay – filed a pleading in May in King County Superior Court asking the court for a declaratory judgment on the city’s $48 million government facilities mitigation plan, which was adopted in April, though the city has not yet taken a step to adopt the mitigation fee recommendations.

The Superior Court ruled Oct. 23, after reviewing the city’s motion to dismiss with prejudice and having heard oral arguments. Amini wrote in her decision that YarrowBay did not present a “justiciable controversy in their case, as their claims and arguments are ‘speculative, future possibility and hypothetical’ in nature and not yet ripe for review.” YarrowBay’s motion to establish jurisdiction was also dismissed by the Growth Management Hearing Board in August, with the board saying in its order the matter “will not be ripe for review until and unless the city enacts a development regulation or comprehensive plan.”

That petition asked whether the Growth Management Hearings Board has jurisdiction to create and/or amend a “comprehensive plan” or “developmental regulation.” Black Diamond filed a motion to dismiss because the petition for review was “frivolous” and lacked standing.

Although the Board found that there “is a legitimate question of law at issue and will not find petitioners challenge frivolous,” but that “adoption of the ordinance did not “de facto, amend the city’s comprehensive plan.”

The mitigation plan assesses what government facilities will be needed to support the expected population expansion that comes with The Villages and Lawson Hills master planned developments, which are projected to increase the city’s population from around 4,000 to approximately 19,200 during the next 20 years. A mitigation fee is a one-time payment assessed on each unit of new development; the city would use the money to ease the impact of the development on government facilities.

The city hired the consulting firm MAKERS in April 2013 to perform a study on the city’s government facilities needs and the findings were presented in February. The study addressed City Hall, the police department, municipal court and public works facilities.

Nelson said the dismissal order confirmed that YarrowBay could file an appeal if the fee is adopted later on, what they believe, to be illegal means.

More importantly, Nelson said, the city asked YarrowBay to agree to an 11-month extension for adopting the fee. Nelson said it was a positive step to extend the timeline.

“The city recognized that they could not perform by the date that was included in the development adoption,” Nelson said. “They asked us to agree to an 11-month extension so they could revisit their plan and method for a mitigation fee.”

Mayor Dave Gordon called the decision a “very minor issue” in an email, adding it  didn’t change anything the city is currently working on.

The Reporter did not receive a response from Gordon about the 11-month extension prior to press deadline.