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ARBITRATOR STEVE SCOTT (RETIRED)

7
IN RE ARBITRATION OF
8

9 CCD BLACK DIAMOND PARTNERS, OBJECTION OF CITY COUNCIL TO


LLC ("OAKPOINTE"), ARBITRATION
IO
Claimant,
II
v.
12
CITY OF BLACK DIAMOND,
13
Respondent.
I4

I5 Summary of Objection

16 This office represents the Black Diamond City Council. It strenuously objects to the

I7 arbitration going forward because the City Council neither agreed to arbitration nor approved

18 the arbitration contract.

I9 The issues the Mayor and Oakpointe want to arbitrate go to the heart of the Mayor and

20 City Council's authority, as is defined by BDMC 2.08.040 and RCW 35A.11.010, 35A.11 .020

2I and 35A.1 2. 100. It would , accordingly, be improper to alter the authority of such entities

22 behind closed doors in a manner that deviates from the City Code. Making such changes in

23 the City Code would require notice to the public, and a public process to amend the City Code.

24 The arbitration contract the Mayor's attorney signed is illegal -the City Council neither

25 approved an arbitration much less approved the arbitration contract in an open , public meeting.

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 1 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
Attorney David Linehan signed the contract with Judge Scott and Oakpointe agreeing to

2 arbitrate this dispute and called himself the "City Attorney." But, the City Council has never

3 appointed him as "City Attorney" nor approved his contract; neither the City Code nor RCW

4 35A.12.100 delegates authority to the Mayor to appoint a "City Attorney."

5 Although Oakpointe and the Mayor claim that they are having a dispute, reviewing their

6 mediation memoranda discloses that they agree that only the Mayor has the authority to

7 review long-term contracts with consultants. The Mayor's mediation memorandum discloses

8 that she embraces an expansive theory of "executive power" that neither RCW 35A.12.100 nor

9 Chapter 35A.11 RCW support. Under the Mayor's theory, after the City Council signed initial

10 consultant contracts in 2009, the Mayor's executive authority" allowed her to renew such long-

11 term consultant contracts until Oakpointe's build-out is complete in 2026. Oakpointe argues,

12 relying on an erroneous reading of the Funding Agreement, that the City can only change long-

13 term consultants with its approval. But, that theory is inconsistent with the Funding Agreement

14 and municipal law.

15 Because Oakpointe and the Mayor agree that only the Mayor possesses the authority to

16 renew consultant contracts, the apparent purpose of the arbitration is to obtain a decision

17 appropriating the City Council's authority and legitimizing Oakpointe and the Mayor's claim that

18 the Mayor can approve long-term consultant contracts exceeding $15,000. But, RCW

19 35A.11.020 and BDMC 2.08.040, and RCW 35A.11 .01 0 entrust that task to the City Council.

20 We hope that you will recuse yourself and refuse to participate in this unauthorized

21 arbitration. Further, we hope that Oakpointe and the Mayor will abandon the plan to arbitrate.

22 Because this is an unauthorized proceeding, it will be a futile gesture and a waste of City

23 funds. And, the arbitration decision will not be accepted by the City Council; any arbitration

24 decision reached will violate State law and City Code. It will, thus, be an unauthorized ultra

25 vires decision that is unenforceable.

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 2 6659 Kimball Drive, Suite B-20 1
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
Background Information

2 It is important to disclose that after I agreed to represent the City Council, before seeing

3 the arbitration contract or having analyzed the City Council position, I contacted JDR and

4 informed Judge Scott's assistant that we would be requesting appointment of a new arbitrator

5 because extensive ex parte contacts at the mediation between the designated arbitrator, the

6 Mayor, and Oakpoint, deprived the City Council of the opportunity to participate in a

7 proceeding that appears fair and is fair. I also requested that Nancy Bainbridge Rogers agree

8 to designate a new arbitrator, and I put calls in to David Linehan to make a similar request.

9 Because he was ill, I was not able to talk to Mr. Linehan.

IO Oakpointe's attorney refused to agree to designate a new arbitrator because the Mayor

II and Oakpointe had signed a contract agreeing to arbitrate two issues with you. At the time I

12 made such contacts, I had not seen the arbitration agreement. After reviewing the issues to be

13 arbitrated, the City Code, Chapter 35A.11 RCW, RCW 35A.12.1 00, and the Open Public

I4 Meetings Act, I reviewed a copy of the arbitration contract and concluded that it would be

I5 illegal to participate in the arbitration.

I6 RCW 35A.11.020 and BDMC 2.08.040 Prohibit the Mayor from Appropriating the City
Council's Authority and Giving it to the Arbitrator
I7
The proposed arbitration is to address two questions:
I8
1. Under the Development and Funding Agreement, does the Mayor have the authority to
I9 execute long-term consultant contracts to assure payment of consultants so as to
maintain a functioning Master Development Review T earn ("MORT")?
20
2. Under the Development Agreement and Funding Agreement, does the City Council
2I
have a role in reviewing and selecting the MORT consultants or to participate in the
22 MORT process?

23 I have reviewed the Development Agreement and Funding Agreement and neither

24 alters the authority of the Mayor and City Council as it is described in the City Code, RCW

25 35A.11.010, 35A.11.020, and 35A.12.100. And , it would be a void and unenforceable

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Objection to Arbitration - Page 3 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
agreement if that were the case.

2 Resolving the issues which the Mayor and Oakpointe want arbitrated simply requires

3 reviewing the City Code, RCW 35A.11.010, RCW 35A.12.100, and RCW 35A.11 .020.

4 BDMC 2.08.040 clearly confers on the City Council exclusive, mandatory authority to

5 "determine disputes or questions relating to the respective powers or duties of officers." It is

6 only the Council that has authority to determine the question that Oakpointe and the Mayor

7 want arbitrated.

8 Changing the authority of the City Council and Mayor, which is the apparent purpose of

9 the arbitration, is not a matter that can be done, concealed from public scrutiny. Giving the

IO Mayor authority that the City Code delegates to the City Council would require amending the

II City Code in an open public meeting, after appropriate notice to members of the public.

12 League of Res. Neigh. Adv. V. City of Los Angeles, 498 F.3d 1052 (9th Cir., 2007) is

13 helpful to consider. The neighbors filed a lawsuit alleging that the settlement agreement was

14 void because it effectively granted the congregation a conditional use permit without providing

15 notice and a hearing to the affected community. The Ninth Circuit agreed . Here, by analogy,

I6 the authority of the City Council cannot be altered without properly amending the City Code.

17 The Arbitration Agreement Impermissibly Bargains-Away Authority that RCW


35A.11.020 Delegates Exclusively to the City Council
I8
A municipality's settlement of a land use dispute cannot involve the unlawful surrender
I9
of police power. King County v. Taxpayers of King County, 133 Wn.2d 584, 949 P.2d 1260
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(1997) holds that "a local government may not alter or restrict a legislative grant of power to
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local government or its officers." Neils v. City of Seattle, 185 Wash . 269, 276, 53 P.2d 848
22
(1936) (ordinance concerning electronic railways in the city is not subject to referendum
23
because State law granted exclusive power to the city's legislative authority to control
24
railways.)
25

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 4 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler- Mark Adams of Counsel
Here, it would constitute an impermissible bargaining-away of police power that RCW

2 35A.11 .020 delegates to the City Council to allow arbitration of the present dispute. RCW

3 35A.11 .020 gives the City Council exclusive authority "to define the functions, powers and

4 duties of its officers and employees." RCW 35A.11.01 0 delegates to the City Council

5 municipal contracting authority. The Black Diamond Municipal Code delegates very little

6 authority to the Mayor to make independent decisions. It allows the Mayor to appoint various

7 officials with the approval of a majority of Council.

8 Here, the City Council, in adopting ordinances to implement authority granted under

9 RCW 35A.11 .020 and defining the authority of City officials, did not elect to give the Mayor

10 authority to enter into arbitration contracts. Nor did it give the Mayor the authority to approve

11 long-term contracts with consultants that exceed $15,000. Significantly, RCW 35A.12.1 00

12 does not delegate municipal contracting authority to the Mayor. BDMC 2.08.040 authorizes

13 only the City Council "to determine disputes or questions relating to the powers or duties of

14 officials."

15 The Mayor and her attorney were without authority to engage an arbitrator to resolve

16 this dispute. The Mayor illegally attempts to seize this authority from the City Council and give

17 it to the arbitrator without the slightest legislative authorization. By agreeing to arbitration , the

18 Mayor has illegally bargained-away power delegated to the City Council by RCW 35A.11.01 0

19 and RCW 35A.11.020. The City Council is the only body with the authority to resolve disputes

20 between officials. See BDMC 2.08.040.

21 The Arbitration Contract, Which No Law Authorizes, is a Void, Ultra Vires Contract that
is Not Enforceable
22
Acts done without statutory authorization or in direct violation of existing statutes are
23
ultra vires . See Millerv. City of Bainbridge Island, 111 Wash.App. 152,43 P.3d 1250 (2002).
24
The general rule is "that a contract which is contrary to the terms and policy of an express
25
legislative enactment is illegal and unenforceable." State v. Northwest Magnesite Co., 28

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 5 6659 Kimba ll Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
Wn.2d 1, 26, 182 P.2d 643 (1947). See Failor's Pharmacy v. Department of Social and Health

2 Services, 125 Wn.2d 488, 499, 886 P.2d 147 (1994). ("A contract in conflict with statutory

3 requirements is illegal and unenforceable as a matter of law.")

4 Here, the arbitration contract is a void, ultra vires agreement that is unenforceable. No

5 statute authorizes the Mayor, or any City official for that matter, to delegate to an arbitrator

6 authority to resolve a dispute about the authority of the Mayor to authorize long-term contracts

7 with consultants who perform the functions of City staff members. The contract violates RCW

8 35A.11 .020 which delegates exclusive authority to the City Council to define the functions,

9 powers, and duties of its officers and employees, RCW 35A.11 .01 0 that makes the City

10 Council the municipal contracting authority, and BDMC 2.08.040 which gives the City Council,

11 consistent with its delegated legislative authority "to determine disputes or questions relating to

12 the respective powers and duties of officials."

13 The arbitrator should refuse to arbitrate this dispute; the City Code and State Statutes

14 render this proceeding illegal. Any arbitration decision would be void and ultra vires, and

15 consequently unenforceable.

16 The Mayor and Her Attorney Fail to Identify Any Authority Supporting their Claim that
the Mayor's "Executive Power" Authorizes this Arbitration
17
David Linehan, the Mayor's attorney, claims that the Mayor's "executive authority"
18
allowed her to enter into an arbitration agreement. He claims that RCW 35A.12.1 00, Block v.
19
Gold Bar, WL 1210601, an unpublished Court of Appeals' decision with no precedential value,
20
and WPTA v. City of Spokane, 120 Wn.App. 892, 86 P.3d 835 (2004), legitimizes the Mayor's
21
authority to resolve disputes between elected officials and to give it to the arbitrator. 1 See
22
Exhibit A.
23

24
1
Pursuant to Gold Bar's Mayo r's authority to administer litigation, he agreed to mediation. This case is entirely
25 distinguishable from Gold Bar. In that case the Mayor agreed to mediation in an ongoing lawsuit, already
approved by the council as required by RCW 35A.12.100. Gold Bar cites no authority supporting its dicta that the
Mayor can commit a city to mediation pursuant to the Mayor's authority to manage litigation. Unlike Gold Bar, no
LAND USE & PROPERTY LAW, PLLC
Objection to Arbitration - Page 6 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
Although the Mayor apparently claims she has authority to commit the City to binding

2 arbitration, RCW 35A.12.1 00 contradicts that theory; it states in relevant part that the mayor

3 "may cause any legal proceeding to be instituted and prosecuted in the name of the city,

4 subject to the majority vote of all members of the council. Here, there has been no

5 Council vote to engage in any litigation action.

6 His theory of "executive authority" fails to take into account that RCW 35A.11 .020

7 confers broad, sweeping power on the Council -- including "all powers possible for a city or

8 town to have under the constitution of this state, and not specifically denied to code cities by

9 law." Significantly, BDMC gives no authority to the Mayor to hire arbitrators or to resolve

10 disputes about the respective authority of officials such as the Mayor and City

11 Councilmembers. BDMC 2.08.040 exclusively confers on the Council the exclusive and

12 mandatory duty to "determine disputes or questions relating to the powers and duties of

13 officers."

14 Washington Public Trust Advocates v. City of Spokane , 120 Wn.App. 892, 86 P.3d 835

15 (2004) does not support the Mayor's theory that she has the authority to resolve disputes

16 between officials and give it to an arbitrator. Washington Public Trust Advocates addressed

17 the authority of a mayor whose authority is defined by a city charter. Black Diamond has no

18 City Charter. In contract to Black Diamond, Spokane replaced its council/mayor form of

19 government "with an elected strong mayor system" defined by the city charter. That decision

20 focuses on the expansive authority the Spokane City Charter gives to its mayor; thus,

21 Washington Public Trust Advocates has no application to the present situation. Unlike

22 Spokane, Black Diamond has a strong City Council. RCW 35A.11 .020 gives the City Council

23 "all powers possible for a town to have under the Constitution of this state and not specifically

24

25 Council decision has been made to either file or defend a lawsuit against Oakpointe. And, Gold Bar certainly did
not hold that the Mayor can seize the City Council's authority to resolve disputes between officials and give it to
the Mayor. Gold Bar has no bearing on this case.
LAND USE & PROPERTY LAW, PLLC
Objection to Arbitration - Page 7 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
{253) 853-1806
Jane Koler - Mark Adams of Counsel
denied to code cities by law." Further, 35A. 11 .010 specifically provides that the power to

2 contract is a legislative function . Neither RCW 35A. 12.100 nor the Black Diamond Municipal

3 Code confer on the Mayor "executive powers" allowing her to take from the City Council its

4 authority to resolve disputes between officials and the power to contract.

5 The Mayor apparently claims that she and her attorney committed the City to arbitrate

6 this dispute pursuant to her authority to "manage" litigation. But, there is no lawsuit to manage

7 addressing these issues. And, although Oakpointe threatens litigation against the City if it

8 does not continue to use the same consultants, apparently until the build-out occurs in 2026,

9 Oakpointe's mediation memorandum fails to identify viable claims against the City.

10 The Funding Agreement Fails to Support Oakpointe's Theory that Only the Mayor has
the Authority to Sign Long-Term Consultant Contracts
11
Contrary to its claim in its mediation memorandum, the Funding Agreement gives
12
Oakpointe no authority to dictate the identity of the specific staff members and consultants
13
serving on the MORT. The Funding Agreement gives the City full discretion to hire
14
consultants; it states in Paragraph 2 that "The parties acknowledge that the City will solely
15
determine the method and manner of hiring and retaining the City Staff positions identified on
16
Exhibit C or through the Annual Review, and will be solely responsible for all development
17
permit and/or personnel decisions, ... "
18
Although the Funding Agreement specifies that the City will consult with the developer
19
about necessary consultants, it reserves the ultimate decision about such necessary
20
consultants "to the City's sole reasonable discretion."
21
Oakpointe relies on the disingenuous premise that changing consultants requires
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Oakpointe's consent. It argues erroneously that the Funding Agreement's language: "The
23
MORT composition may be modified by mutual agreement of the parties" means that Black
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Diamond must get Oakpointe's permission to change consultants hired to perform City staff
25
functions. MORT composition refers to the City staff positions and necessary consultants

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 8 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
designated in Paragraph 3(a) constituting the Master Development Review Team . Paragraph

2 3 states:

3 a. MORT Composition. The MORT shall initially be comprised of the


following current positions, or their functional equivalent: (i) City's
4 Economic Development Director; (ii) the City's Community Development
Director; (iii) The City's MPD planner; (iv) a new City administrative
5
support position; (v) necessary consultants as determined in the City's
6
sole, reasonable discretion after consultation with the Developer. ..

7
The above-quoted language addresses current positions comprising the MORT. It does

8
not specify the identities of the individuals or consultants who will fill such positions. And, the

9 definition of the word "composition" fails to support Oakpointe's claim; Merriam Webster

10
Dictionary defines composition as "the combination of parts or elements that make-up

11
something," "the "nature of something's ingredients or constituents. " Here, the constituent

12
elements of the MORT are the City's Economic Development Director, Community

13
Development Director, MPD Planner, a new administrative support position and necessary

14
consultants. The Funding Agreement does not identify the individuals who will fill such

15
positions, it simply specifies the City officials who will serve on the MORT. Were Oakpointe's

16
argument correct, the Funding Agreement or a supplemental agreement would have specified

17
the names of the staff members and consultants who were to perform City staff review

18 functions for the duration of the development.

19
The Open Public Meeting Act Demands that City Contracts be Approved at an Open
Public Meeting
20
Washington law demands that contracts binding a city must be approved in an open
21
public meeting. The Mayor's attorney signed the arbitration contract without the slightest
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authorization from the City Council, or without the approval of the City Council to engage in
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arbitration. Mr. Linehan signed a contract agreeing to arbitrate a dispute between public
24
officials- the Mayor and the City Council, and failed to obtain the City Council approval of it in
25
an open public meeting. BDMC 2.08.040 mandates that it be resolved by the City Council.

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 9 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082 (9th Cir., 2003) invalidated a

2 settlement contract between the City of Spokane and a developer that had been made several

3 years before. At a city council meeting, the council had considered the contract in executive

4 session. But, significantly, the council did not approve the settlement contract in an open

5 public meeting. Thereafter, the city attorney represented to the court that he had the

6 necessary authority to enter into the settlement agreement which apparently had been signed

7 by the parties' attorneys. In a subsequent proceeding, some years after the settlement

8 agreement had been signed by the city attorney, the city claimed that the settlement

9 agreement was invalid because it violated the Open Public Meeting Act codified at Chapter

10 42.30 RCW, and the Ninth Circuit agreed:

11 ... the fact remains it [the city council] settled claims made against the city
and the individual members of the council personally, using hundreds of
12 thousands of dollars out of the public fisc to do so, as well as agreeing to
abandon certain publicly-owned lands to the developers. Its decision took
13
place behind closed doors, with no opportunity for public comment. The
14
statutory procedures at issue here are essential to protect the interests of
the public. They were ignored, and the settlement agreement is therefore
15 null and void.
331 F.3d at 1091
16
Just at the contract in Feature Realty was invalid because it was not approved at an
17
open public meeting, that is the case with the arbitration contract; it was not approved by the
18
City Council at an open public meeting and is invalid.
19
Oakpointe Improperly Accuses City Councilmembers Of Arbitrary Conduct
20 and Fails to Identify a Viable Damage Action Against the City

21 Although Oakpointe and the Mayor, apparently to justify arbitrating claims about which

22 the developer and the Mayor agree, allege that arbitration is necessary to avoid a lawsuit

23 based on arbitrary, dilatory municipal conduct in the context of permitting and a substantive

24 due process claim, Oakpointe fails to provide evidence of viable claims against the City in its

25 mediation brief. Oakpointe perhaps alleges that only arbitration will prevent it from suing the

City to pressure the City Council into acceding to its demands.


LAND USE & PROPERTY LAW, PLLC
Objection to Arbitration - Page 10 6659 Kimball Drive, Suite 8 -201
Gig Harbor, WA 98335
(253} 853-1806
Jane Kaler - Mark Adams of Counsel
Although Oakpointe accuses the City Council of misconduct, it fails to identify an

2 ordinance, state statute, municipal code section, or provision of the Development Agreement

3 or Funding Agreement that the City Council has violated . The Funding Agreement clearly

4 gives the City Council total discretion to hire consultants and dictate the terms of their services.

5 Oakpointe does not have viable claims for arbitrary delay in context of permitting

6 against the City Council under Chapter 36.708 RCW and RCW 64.40.01 0. Some delays are

7 built into the Funding Agreement. Under the Funding Agreement, Oakpointe got the right to

8 demand additional consultants in a "Wind-Up" process and to require a reduction of

9 consultants in a "Wind-Down" process. A Wind-Up process necessarily involves the delay of

10 hiring additional consultants. The fact that Oakpointe cannot dictate to the City Council which

11 consultants it hires does not mean that the City Council is behaving in an arbitrary manner; it is

12 exercising its authority to safeguard the interests of citizens and to conduct its business in

13 accord with RCW 35A.11.010, 35A.11.020, and the Black Diamond Municipal Code. There is

14 neither a provision in the Funding Agreement nor the Development Agreement that gives

15 Oakpointe the right to dictate the duration of consultant contracts nor to demand that the City

16 renew contracts with specific consultants.

17 Oakpointe threatens individual City Councilmembers with an action based on 42 USC

18 1983 for allegedly violating Oakpointe's right to substantive due process. This is an

19 improbable claim. If such a federal claim were asserted, City Councilmembers would remove

20 claims to the United States Federal District Court. Federal Courts, including the Ninth Circuit,

21 do not recognize substantive due process claims in the context of land use. See J . Peter Byrn ,

22 34 Georgetown , Ecology L.Q. 471-492 (2007). The Supreme Court in County of Sacramento

23 v. Lewis, 118 S.Ct. 1708, 523 U.S. 833, 846,140 L.Ed.2d 1043 (1998) concurred with the Ninth

24 Circuit that only the most egregious official conduct can be said to be arbitrary in the

25 constitutional sense, and that such conduct must shock the conscience. Cuyahoga Falls v.

LAND USE & PROPERTY LAW, PLLC


Objection to Arbitration - Page 11 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler - Mark Adams of Counsel
Buckeye Community Hope Foundation, 538 U.S. 188, 198 (2003) suggests that the United

2 States Supreme Court is sympathetic to lower federal courts' aversion to substantive due

3 process. In that case, the Supreme Court rejected the developer's claim that the City's delay

4 in issuing permits for low income housing constituted a substantive due process violation.

5 Additionally, Oakpointe, in an apparent attempt to intimidate City Councilmembers, argues that

6 they have lost their immunity. This is an erroneous claim; City Councilmembers have lawfully

7 exercised their authority and have not knowingly violated Oakpointe's constitutional rights.

8 The Western Washington Federal District Court, applying Washington law, rejects

9 substantive due process claims in context of land use. See Macri v. King County, 126 F.3d

IO 1125 (C.A.9 (Wash.), 1997); Buckles v. King County, 191 F.3d 1127 (9th Cir., 1999).

11 Oakpointe elected to do a Master Planned Development in a small, rural community

12 with a skeletal staff, thus assuming the risk of delays associated with Winding-Up and

13 Winding-Down staff in response to the developer's projected development activities in a

14 particular year. It assumed the risk that the City could "amend or revoke" any or all approval

15 conditions of the MPD after notice and a public hearing . See BDMC 18.98.200. It gives the

16 City Council the right to revoke permission to proceed with the development upon violation of

17 approval conditions. See Chapter 18.98 BDMC. Oakpointe made a decision to develop a

18 Master Planned Development with 6,050 residences in a small, rural community that had never

19 been involved with a master planned development. Oakpointe did not undertake a simple

20 development process. In the Puget Sound area, a master planned development is quite

21 unusual?

22

23
2
But, despite its complexities - delays necessarily associated with increasing staff and decreasing staff, and
24
dealing with a small city with a limited number of full-time employees -- Oakpointe derives significant benefits from
doing a master planned development. Its Development Agreement identifies City requirements that will apply and
25 mitigation requirements that will be imposed to compensate for adverse development impacts. Although the
approval process and build-out will go on until 2026, the Development Agreement gives Oakpointe the vested
right to use the City's development regulations in effect on December 12, 2011 . Thus, the Development
LAND USE & PROPERTY LAW, PLLC
Objection to Arbitration - Page 12 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253} 853-1806
Jane Koler - Mark Adams of Counsel
The Mayor's claim that she is "managing litigation" neither has factual nor legal support.

2 Nor does Oakpointe have viable claims against the City.

3 CONCLUSION

4 The arbitrator should refuse to arbitrate this dispute. Neither a state statute nor a

5 municipal ordinance authorize it. The contract authorizing arbitration is a void, ultra vires

6 document. The arbitrator should refuse to participate in this unauthorized arbitration.

7 DATED this 24th day of April , 2017.

8 Respectfully submitted

9 LAND USE & PROPERTY LAW, PLLC


10

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18

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24

25
Agreement shields the master planned development from the need to comply with any new development
regulations adopted by the City between September 12, 201 1 and Decem ber 12, 2026.
LAND USE & PROPERTY LAW , PLLC
Objection to Arbitration - Page 13 6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Kaler - Mark Adams of Counsel
Jane Ryan Koler

From : David Linehan <david@kenyondisend.com>


Sent: Monday, April 17, 2017 4:32 PM
To: Jane Ryan Koler
Cc: Sheryl Loewen
Subject: RE: Black Diamond

Hi Jane,

Thanks, I am finally starting to feel "normal" again after two weeks of mostly bed rest.

While certainly not an exhaustive list of legal citations describing the Mayor's executive authority, I would recommend
the following to you:

RCW 35A.12.100 - "The mayor shall be the chief executive and administrative officer of the city.... He or she
shall see that all laws and ordinances are faithfully enforced and that law and order is maintained in the city, and
shall have general supervision of the administration of city government and all city interests . ... He or she shall
see that all contracts and agreements made with the city or for its use and benefit are faithfully kept and
performed . . . ."

11
Block v. City of Gold Bar, 180 Wn. App. 1008, 2014 WL 1210601, *6-8 (2014) (city council had no authority to
decide if the city should mediate the Forbes lawsuit"; affirming trial court's ruling that mayor is the one with the
authority to make decisions about mediation or proceeding with litigation).

BDMC 2.10.030 - "During periods of vacancy all duties generally performed by the city administrator shall be
performed by the mayor."

Washington Public Trust Advocates v. City of Spokane, 120 Wn. App. 892 {2004) ("initiating and prosecuting
litigation to determine specific rights, liabilities, and responsibilities concerning a particular project or city
ordinance, such as the case here, are administrative decisions").

5 McQuillan The Law of Municipal Corporations s.16.53 ("legislative" actions are of permanent and general
character, whereas "administrative" actions are of temporary and special character).

MPD Funding Agreement (The Villages Development Agreement, Exhibit NL section 3.a.

BDMC 2.90.010.B.

David

-----Original Message-----
From : Jane Ryan Koler [mailto:jane@jkolerlaw.com ]
Sent: Monday, April17, 20171:52 PM
To: David Linehan <david@kenyondisend.com>
Subject: Black Diamond

David-- I would appreciate it if you could identify any state statute and city code sections describing the executive
authority of the Mayor; I am rushing to meet the April 24 deadline and want to fully understand the Mayor's
position. Hope that you are feeling better and that you had an enjoyable easter.

1
Exrr\\3\\ A-
Jane

Jane Ryan Kaler


LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
jane@jkolerlaw.com
(253) 853-1806

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