SRM Development files suit against the City of Kirkland
On August 26, 2008, RDMSRMK 101, LLC; SRMRDMK,LLC; and SRM DEVELOPMENT, INC. (collectively referred to as SRM Development) filed a petition with the Superior Court of Washington against the City of Kirkland and Citizens for a Vibrant Kirkland (CiViK) claiming a violation of constitutional rights in the appeal of SRM’s Bank of America / Merrill Gardens development project in downtown Kirkland.
The development project was originally approved by Kirkland’s Design Review Board (DRB) and later appealed by CiViK. A four month long quasi-judicial hearing before the Kirkland City Council ended on August 5th and resulted in the negation of the prior DRB approval recommendation as the Council sided with the appellant. The 4-3 City Council vote ruled that the planned development violated the City’s requirement for “superior retail” as it 
would have a bank [with a drive-through] located at the corner of Kirkland Ave. and Lake Street. Banks [or is it just the drive-through?], according to the City Council’s decision, do not meet the definition of “superior retail”.
When the Council overturned the decision of the DRB, four members resigned in protest and the board has only recently been reconstituted. The DRB consists of architecture and design professionals who volunteer their time to the City.
During the appeal before the Council, many events took place which have prompted concerns that the process violated the “appearance of fairness.” One such moment was when during the quasi-judicial hearing, Councilmember Tom Hodgson, handed from the dais, what were presumably his copies of privileged documents to the attorney for the appellant after protesting, “I think that this entire process has been unfair to the appellant… I believe I can waive my attorney-client privilege.”
A documents request to the City of Kirkland yielded this 44 page Land Use Petition and Complaint. The petition filed by SRM Development is titled:
“Land Use Petition (Ch. 36.70C RCW), and Complaint for Violation of Washington’s Appearance of Fairness Act (Ch. 42.36 RCW), Due Process and Equal Protection Violations, Request for Declaratory Judgement, and Damages Pursuant to RCW 64.40″
CiViK is a party only for the purposes of the LUPA Petition.
The petition is available in PDF format (4.5 MB) (same link as above).
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21 Responses to “SRM Development files suit against the City of Kirkland”
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This is strange behavior for a city. If you were a family I would say you are discunctional and lacking a common sense of shared values and goals. Build, don’t build. Appeal, recall. This sad to see such a lovely place be torn apart. Passions must run very high in Kirkland.
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Gee what a surprise! What took SRM so long? Clearly from every legal perspective at least 1 if not 4 of the Council Members violated the law. Appearance of fairness is a very serious accusation and in this case not hard to prove. A judge or jury will have a field day watching the tapes. The resignation of several members of the DRB and the Hodgson fiasco are just icing on the cake. The hard part for who ever decides this will be to avoid laughing.
Now the serious part. This is going to be very costly in terms of legal fees alone should the City foolishly decide not to settle. Usually Cities have some insurance coverage for errors and omissions that may help with the damages part
My guess is that the Council was advised by their attorney prior to the appeal that this outcome was a possibility. I would have advised the Council that messing with the process and creating definitions after the fact is not a wise thing. Further I would have advised the Council that negative vote on B of A and a positive vote on the McCleod project would be suicide.
I don’t know what these people were thinking. It has been said on this blog that they were clearly biased and in this case that bias will cost Kirkland.
So much for balancing the budget!
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Good! - For too long this City Council has run roughshod over proper development of our “our” city. This Mayor, and his two main supporters, have committed allowed, supported and defended volations of the law - all without any real penalty.
Tom, is the most guilty - he violated the law, and was fined (but was it his money that paid the fine - not clear). Jessica sees no problem with his actions, and our Mayor, seemed to express support for Tom’s action.
Once a Judge sees the tape from the July 1st Council hearing - the city is toast.
Our Mayor is a “nice guy”, but “drill down” to his past personal life including the two Bankrupties, and you see that he is carried out those same personal traits in the leadership of Kirkland, where we face a large and growing debt and now lawsuits - which are going to cost the city a lot of money. This simply has to end!
Have these people no shame? or honor? Their are hundreds of letters to the city with many on this blog asking for them to step down, along with our two local Newspapers who have asked for one of more to resign.
Now because of their actions, we the tax payers get to pay even more money to defend the city, and in the end by making a large settlement. In the future our insurance costs will go up, if we can find insurance at all under the current leadership of our City Council.
By the way, our Mayor, because of the Bankruptcy, owns no property in the city, theirfor he will not pay for any of these increased taxes that will be asked for.
We have lived in this community for over 35 years, I have never seen such an out of control City Coucil, exposing the city to law suits such as this.
What does it take to make these people realize they need to go? Be they right or wrong, the city simply cannot afford their actions and placement on the City Council.
Please, even at this late date - find some honor and resign!
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new2kland Reply:
August 27th, 2008 at 5:48 pm
35 year resident view,
I’m new here and don’t know the history of the mayor or the others. I do have a problem with a Mayor who has been bankrupt and doesn’t own any real property. Was this ever raised during his election campaign? If so what was the response? If not then why wasn’t it?
In the short time I have been here I am truly amazed at what I have witnessed.
The question is how do these people get elected and re-elected? In the other cities I have lived these people would have resigned or forceably removed from office. I agree that not only don’t these people have any shame they also don’t appear to realize the damage they are doing to the City they claim they love. Whether these people are nice or not is not the point. Competency is and the lack therof has and will cost every citizen. Wonder how we can find out how much this saga has cost the City so far?
I apologize for being a little sarcastic. I am still viewing this place as an outsider. I am not liking what I see.
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A 35 year resident view Reply:
August 27th, 2008 at 8:00 pm
You’r righ - being nice is not the important thing - his supporters, say “But he’s so nice” - and that accounts for the comment.
Being nice and being responsible, making good independent decisions are two different things.
As to him being the Mayor - the same gang of four (Council members) voted him in - and are the 4 to 3 decision makers that brought us to this law suit, and I’m sure more to follow.
As to the cost to date and future reserves placed at the disposal of a Law firm - I think you have to start by asking our City Manager and seek his assistance - The city had set aside $14,000 for the attorney that was brought in just to sort out the Tom H. mess and suggest that he pay the $500 fine. Now the city will have to go to court - that will be real money, and while I too want to know - it will be more than either of us can imagin.
Tom H. - against the advice of the City Attorney, and two other Council members - choise to violate the laws of the city and the state - his violation was not a mistake or misunderstanding - he choise to do so! Look at the last few minutes of the City Council meeting of July 1st 2008 - draw your own conclusion.
As such he should be held responsible for the legal costs incured by the city. Tom was not representing the city wishes, and in fact was acting in direct volation to the City Attorney comments and direction.
Yes, in other cities, he would be removed from office and a very stiff fine given, but this is Kirkland, and we are a “Nice” city, and the reason why the Mayors problems never came up in public - we old timers all knew it, just did not speak to enough people about it.
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It is unfortunate that it has come to this point.
Unsurprising and completely reasonable given what happened, but unfortunate for the taxpayers, the City of Kirkland’s reputation, and future development plans. The complaint is rational, well crafted and SRM should win easily, but then one does never know with the Courts. Hopefully the veil of silence about the members of the Council’s actual leadership abilities - above and beyond being nice people has been lifted and the next election should pave the way for some real leadership and vision in Kirkland.
Right now they have another chance to help development and the tax base – approve the re-zoning of Parkplace and allow that development to move forward.
On a related note - does anyone know when the McLeod project is going to start work?
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DCD, The rumor is that the McLeod people are working on getting financing and lining up tenants. There is no start date set at this time.
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EastOfMarketer Reply:
August 28th, 2008 at 9:36 pm
Not to make light of the serious situation the City has now landed in…but rumour has it, that Bank of America is in talks to lease most of the retail space that will be afforded by the McLeod Project…something about putting that space to “superior use!”…
EOM
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In the Kirkland Reporter of August 14th there was an article titled “CiVik victory halts BofA project.” Here’s a quote from that article –
“Immediately following the end of the council meeting, individual members gravitated to the sides they supported in the appeal. Mayor Jim Lauinger handed CiViK’s McIlwee the pen he had used to sign the resolution.”
If it walks like duck and quacks like a duck—it’s a duck!!!!!
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A 35 year resident view Reply:
August 28th, 2008 at 8:10 pm
In some communities this would be called “Bought and paid for”, I don’t know what you would call it in Kirkland - of course I have no idea if he is or not! Maybe the Mayor was just handing the pen to someone in need…..
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kirkland busy body Reply:
August 28th, 2008 at 9:58 pm
I am concerned that the 4 Council members who voted to uphold the appeal will now control the lawsuit. They have already shown a disregard for the process. What is to keep them from spending hundreds of thousands of dollars of our money to try and prove their point? Another 4-3 vote by the same people who want to raise home and business taxes so that they can do business as usual. Wake up people. Let the Mayor and his cronies know that this is not acceptable. I will encourage everyone I know to not vote for any tax increase until these people are removed from office and the balance on the council is evened. These people are bankrupting us. Obviously the Mayor knows how to do that well. Please don’t let him do it to Kirkland.
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The previous responses above have said it all. I agree with them all.
I am especially concerned with the last fact mentioned by kirkland busy body. The four people that got us ito this mess have the last say on any settlement or if we go to court, which will cost the city a ton of dough.
Does anyone know if council members can be recalled and if so what is the process?
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SRM’s right to develop the site within the bounds of the code have been violated. The council acted outside it’s authority in denying their application and upholding the appeal.
We have no leadership on the council. With the exception of one or two members, who shall remain nameless to protect them, the entire council is tossed by the latest (loudest) winds from the community.
I hope SRM wins their lawsuit, collects substantial damages from the City and the community wakes up that they cannot unilaterally deny the rights of others based on what they want.
The real tragedy is that the council has bowed to a bunch of selfish residents who are primarily trying to protect their views. As a wise environmentalist who was protecting trees once said, “You bought the window. You did not buy the view.” SRM has the right to build within the zoning code on their property. The council denied them this right.
Hopefully, this will act as a wakeup call to the council that they cannot act capriciously and that the law really does apply to them as well. We are not their private fiefdom where they have absolute rule.
Best of luck to Touchstone on Park Place!
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FYI: There is a recall petition in progress. Go to the site and sign the petition. There are currently 60 signatures. Some are duplicates. Once 500 valid signatures are gathered it can be presented to the city attorney.
http://www.ipetitions.com/petition/KirklandRecall/
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I think KBB has it right. What is wrong with our citizenry? Do they just not know or care or both? The lethargy in this community that masquerades as concerned and involved is scary. Truly where is the outrage? These people are screwing this place up and there are only 50 signatures out of a population of 48,000. This last year has been truly horrendous in terms of acts of misfeasance, malfeasance and outright dishonesty. These people actually think that they are leading. I have to agree with them on that. The problem is that they are leading us all to the poor house. They have gone from being Council Members to Design Review Experts to now what appears to be lawyers. At least so far they don’t want to be Fire or Policemen. Anyone want to take a guess at what they will be next?
Al
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Unlikely Reply:
August 30th, 2008 at 10:28 am
Al,
I agree with your saying that it seems there is no outrage and there is lethargy. How do we spread the word? How do you make peopel wake up. Maybe they just don’t know what is happening.
I think I understand where you are coming from but who used “outright dishonesty”? If council members are lying to me I want to know!
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al czervik Reply:
August 30th, 2008 at 10:31 pm
Unlikely,
Dishonestly: To lie,cheat,steal or deceive.
Let’s start with Council members who lied to and deceived us about their true connections to Civik. I don’t care how much they say they were impartial. Just listen to what they said, how they voted and compare to the Civik propaganda. What about Mr. Hodgson’s fiasco. Do you not feel you were lied to and deceived? I feel I was as we still don’t know what really happened. I am sure the lawsuit will ask and answer those questions. Have they stolen? Yes! Our money.
Firing up the masses in this town is a challenge. I am beginning to believe that the masses just don’t care. That is how these people stay in office.
Perhaps a group waving signs in downtown like Civik did would start something.
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I think that all of the council have been hurt by this. They will all pay the political price. Those who were not instigating the show are sometimes called the gang of 4. I don’t think the others have clean hands either. They sat in silence while this took place. Why not try and add some common sense to the debate? Nope. They wanted to stay clear of what they saw as a political train wreck and they wanted to stay clean. As a result, the extreme views on the council were not moderated through debate. Now we have the worst case before us as a result. Council people need to stand up and say what they think. Hiding their heads in the sand is not helpful to anyone. They might as well had stayed home if they were not going to be more forceful in opposing craziness. Either stand up and be counted or dont show up. I think they acted childish trying to stay quiet and hope no one would blame them for this.
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new2kland Reply:
August 30th, 2008 at 10:04 am
Benny,
I’m still getting my feet on the ground as to the politics here. I think I can be a little more objective due to that.
What I saw were some Council Members who tried to talk some sense into the majority. Therefore I don’t think your characterization of the actions of the 3 Council Members is accurate. Further to place the blame for the lawsuit on them is incorrect. The excellent record of the Design Review Board deliberations and the Council appeal hearings are both recorded and written. Specifically, they show clear evidence of the efforts of the 3 trying to bring common sense into the hearings and final decision and thus avoid the current lawsuit. can assure you that the Court that hears this will have more than enough proof to hold the City liable for most if not all of the allegations purported in the lawsuit. As I stated earlier I am not in tune with the politics here. I do know law and land use lawsuits. The outcome does not bode well for Kirkland. The costs of litigation and damages in this case will be staggering. That result is properly placed on the Gang of 4. Of course they don’t have to pay for it. We do as taxpayers!
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Benny T,
Great comments. Not sure what Counci Meetings you are referring to. I watched everyone of the B of A ones. Every meeting contained heated and passionate debate right up to the vote. The one meeting I think you are basing your opinion on I was at. I can only surmise from what I observed was that the silence of the other Council Members was because the debate was over. Common sense and process was argued and both had lost at the previous meeting. The majority of the Council had already voted to overturn the DRB approval. The Gang of 4 now had to explain the reasons for their disapproval. Those of us in attendance could cleary see that the Gang of 4 couldn’t agree amongst themselves on what was wrong with the DRB decision based on the existing code language Further, they appeared to be making up definitions of words, trying to craft set backs etc. as they proceeded. It was truly comical as evidenced by the audience reaction. The subseqeuent behavior of one of the Gang of 4 and the lack of appearance of fairness has led to a lawsuit. The other 3 in my opinion have been logical, passionate and compromising as much as they are allowed by the majority. They appear to be independent thinkers and not aligned with anyone. They appear to be paid lip service and then their opinions are summarily dismissed. I disagree with you that they are silent and have put their heads in the sand. I can see the frustration that they and many of those on this blog have with what we have seen out of their cohorts. I appreciate the opportunity we have to discuss these issues and hopefully educate each other.
Al
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I have stayed away from this blog for awhile. Actually we were on vacation with no internet! Before I left I found myself reading about as many or more depressing things here than positives. My reading of the latest news and posts doesn’t seem to indicate that anything has changed. I had hoped for better news.
The anger expressed by so many in this blog as to the goings at City Hall concerns me. I wonder if the electeds read this or in any way understand the deeply held feelings of the public?
This lawsuit is troubling because it is uncertain as to the outcome. This expense at a time when all resources should be used for a positive and productive outcome is unknown. Even if the City prevails what has been won and at what price? If the City loses as is speculated by many on this blog what is the result in terms of monetary cost and now a proven level of incompetentcy of someo of our Mayor and some Council Members?
The Budget woes don’t seem to offer much hope either. In light of the above is the Council really up to the task of making the hard decisions? Unfortunately I don’t know what the alternative is.
Thanks for reading my musings. I will go back to doing laundry!
Robin
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