12/22 Correction: In the article, “Council OKs budget, opposes coal mine, recycling center,” published Dec. 20, 2017, it was incorrectly stated most of the money spent on legal fees went to paying Black Diamond City Attorney David Linehan of the Kenyon Disend firm. According to Financial Director May Miller, most of the legal fees paid last year went to Keating, Bucklin and McCormack, the firm that has represented the city in Oakpointe’s Open Public Meetings Act lawsuit. Miller said the city has paid the firm more than $153,500 this past year, and expects the December 2017 bill to be between $40,000 and $45,000, based on past monthly averages for the firm’s bills.

12/21 Original Story

The last Black Diamond City Council meeting of 2017 has come and gone, with the city wrapping up this year’s business quickly and efficiently.

The biggest item on the Dec. 7 agenda was passing the 2018 budget, which was approved unanimously by the council.

There were few things that stood out in the 2018 budget. Documents show the city expects an increase in revenue, especially from land use and permitting fees, with Financial Director May Miller estimating a $7.5 million budget for the coming year, roughly $1.2 million more than the 2017 budget estimation.

One item that did look unusually different was the amount of money the city will be setting aside for legal fees associated with lawsuits and public disclosure requests.

The city allotted $20,000 for those legal fees in the 2017 budget, but ended up spending more than $210,000 this year.

Miller said extra sales tax revenue to the tune of $175,000 helped mitigate the cost of legal fees — and the council voted unanimously to amend the 2017 budget to include that revenue — but that left the city with close to $68,000 of unbudgeted legal expenses.

The 2017 budget amendment used money in the city’s General Fund Unreserved Fund to balance out the budget, shrinking the Unreserved Fund to just over $818,000.

Due to the tenfold increase in legal fees last year and the expectation that more legal fees are on the way, the city decided to budget $90,000 for 2018.

Most of the money spent on legal fees last year went to paying Keating, Bucklin and McCormack, the firm that has represented the city in Oakpointe’s Open Public Meetings Act lawsuit, according to Black Diamond Financial Director May Miller.

Miller said the city has paid the firm more than $153,500 this past year, and expects the December 2017 bill to be between $40,000 and $45,000, based on past monthly averages for the firm’s bills.

Some money also went to City Attorney David Linehan.

The council majority — Pat Pepper, Brian Weber and Erika Morgan — have repeatedly attempted to vote for a new city attorney and not pay Linehan, but Mayor Carol Benson kept him employed by paying multiple contracts of $15,000 or less, a power granted to her by the Black Diamond’s city code.

Legal fees the city has not yet received are related to Pepper, Weber and Morgan’s legal actions, either in defense or as the plaintiffs in various legal battles.

These include the majority’s defense in the Open Public Meeting Act lawsuit brought against them by developer Oakpointe, where they are represented by Jeff Taraday of Lighthouse Law Group; their defense in an arbitration battle brought to them by Oakpointe where they were represented by Jane Koler of Land Use and Property Law; the legal services of Koler and attorney Dan Glenn of Glenn and Associates, who the majority have claimed to be the rightful city attorneys; and legal fees associated with a lawsuit the majority filed against Benson, where the majority have hired attorney Anne Bremner of Frey Buck.

That last lawsuit has had some recent updates. While Pepper, Weber and Morgan originally filed the suit against Benson on Oct. 11, Oakpointe moved to intervene in the suit on Oct. 16, asking the court to stay the lawsuit, and also filed a third party complaint against the council majority.

The Superior Court ruled Dec. 5 to grant Oakpointe’s motion to stay the lawsuit to give the newly elected council members — Erin Rose Stout and Melissa Oglesbee — and the rest of the remaining council “time to adopt a strategy surrounding this matter,” Judge Richard McDermott wrote in his decision.

The stay is for 90 days, and a new trial date was set for Jan. 7, 2019.

In response to Oakpointe’s filing of a complaint, the council voted 3-2 — with Pepper, Weber and Morgan with the yes votes — approving a resolution which says the city will pay for the council’s defense against the new Oakpointe complaint, as well as their defense in the original Oakpointe OPMA lawsuit.

Approving these resolutions was one of the few points of contention during the meeting, with Benson saying Pepper, Weber and Morgan can’t vote to approve the city paying for the defense due to a conflict of interest.

Glenn, who was in attendance, disagreed with Benson.

Although the resolutions passed and there was no challenge from Benson, the City Clerk’s webpage shows Benson labeled both resolutions as “invalid,” as she has with any other resolution the council majority has passed related to the payment of their legal defenses.

ENVIRONMENTAL CONCERNS WITH MINE, RECYCLING CENTER

Two other issues the council unanimously agrees on was their environmental concerns with the proposed re-opening of the John Henry Mine, just outside Black Diamond city limits, and the proposed Enumclaw Recycle Center, which would be located between Enumclaw and Black Diamond on Enumclaw-Franklin Road.

The council approved two resolutions opposing both projects, though the resolutions have no legal power to stop or delay them.

The Pacific Coast Coal Company, run by Dave Morris, applied to reopen the mine in 2011, promting the federal Office of Surface Mining and Reclamation Enforcement (OSMRE) to complete an environmental assessment report.

The report was finished Spetember and the public comment period ended late October, with OSMRE now reviewing all the comments submitted to them.

The environemntal report found the mine would extract 462,000 tons of coal and lead to producing more than 240 thousand metric tons of carbon dioxide (CO2) over six years, but reopneing the mine would have no significant impact on the environment.

Enumclaw Recycle Center, proposed by Ronald Shear, owner of the Buckley Recycle Center, is currently going through King County’s permit approval process.

Shear’s business history extends back around 1996, when he ran Shear Transport, a dumping and recycling business, outside Buckley.

The Pierce County Superior Court ruled in 2003 that Shear Transport must be shuttered because it was an illegal dump site. The court also ruled the site was a “public nuisance,” and the Tacoma-Pierce County Health Department ranked the site as a level 4 hazard, which is on the low end of the 1-5 scale.

Shear moved to Auburn to open the Buckley Recycle Center, but after an arduous court battle, had to move locations. Working with King County, Shear chose three parcels along Enumclaw-Franklin road.

Buckley Recycle Center had its own environmental issues, and was sued by the citizen group Waste Action Project for violating the federal Clean Water Act. The suit was settled when Shear agreed to pay Waste Action Project more than $190,000 in legal fees.

Shear has said he tried to work with Pierce County, but he was “forced out of business by them.”

He also said Waste Action Project, “goes around, basically sues companies, get money from them, and move on to the next guy. Nobody has taken them all the way to the end of the process, they just pay them to go away. And that’s what we did.”

The location Shear wants to open Enumclaw Recycle is directly south of the Bass Lake complex. According to president of the Green River Coalition Bernie McKinney, any wastewater craeted by the recycling business would drain into nearby water systems, and ultimately into the Green River Gorge.

“This is likely the only native habitat left on the Green/Duwamish. This operation doesn’t belong on the edge of a sensitive habitat feeding the Green River,” McKinney said.

Shear said the proposed recycle center would only process yard debris, land clearing debris and clean wood waste.

“These materials do not produce pollutions,” he said. “Enumclaw is our community too. We would not want to harm our community.”

A water drainage report prepared for Shear states it is “highly unlikely any runoff is generated from the site,” in both upstream and downstream basins.

Because of these environmental concerns, the Black Diamond City Council “finds it would not be in the best interest of the city” to support either the reopening of the John Henry Mine or the opening of Enumclaw Recycle, the apporved resolutions read.