Appeals court upholds $10 million judgment against city of Burien

Burien council members are pondering their next move in the wake of a recent state Court of Appeals decision that upheld a $10.71 million judgment against the city.

This is the latest chapter in an ongoing land-use dispute that began before Burien was incorporated. "We're considering [an] appeal. I think it's likely we will," Burien City Manager Mike Martin said last week.

"There's a lot at stake. It's a considerable judgment" against the city.

The appellate court upheld a 2005 King County jury award to Westmark Development Corp., which in 1990 had filed an application with King County for a permit to construct a 216-unit apartment building in what is now northwest Burien.

"It's just very unfortunate that so many years after something has taken place that we have to confront a ruling like this and deal with it," Martin continued. "We're disappointed."

He said the city probably will ask the Court of Appeals to reconsider its ruling, or will go directly to the state Supreme Court for a review.

Calling the case "fairly complex," Martin said, "It's fair to say we don't fully understand the implications, but we should have a better handle on it in the near future."

The judgment is "is a significant penalty and we're concerned about it," although insurance likely would cover most of the penalty if the city loses the next round, he added.

King County determined in 1990 that the planned development-Emerald Pointe on the Sound-would require an environmental impact statement [EIS] before work could begin.

Westmark scaled back the scope of its project to 176 apartments to reduce possible environmental impacts, and submitted revised site and building plans to King County.

After Burien incorporated in early 1993, the city assumed responsibility for the Emerald Pointe development but did not act on Westmark's revised land-use application until 1996.

"Testimony at trial established that Westmark believed King County was close to issuing a decision on its revised application around the time the project was transferred to Burien," Judge Joseph Coleman wrote for the three-judge panel, which ruled unanimously against the city.

But instead of a timely decision, Westmark waited three years for Burien to act on its revised application. When Burien finally issued a decision on that application in August 1996, the city required an EIS for the project.

Two months before that action, however, Westmark sued the city "alleging negligence and intentional interference with a business expectancy."

Shortly before a 1998 trial date, both "parties believed they had reached a settlement," the opinion noted.

"The settlement fell apart, however, and Westmark sued Burien, arguing that it had breached the settlement agreement."

When the case finally went to trial, the parties didn't agree on "why Burien took over three years to issue a decision on the revised application.

"Westmark argued that Burien intentionally delayed making a decision because it was opposed to the development of apartments," the opinion stated.

"Burien argued that the delay was due to Westmark's failure to pay fees and submit requested documents."

The trial court found that a settlement had existed and that Burien had breached that agreement, but that decision was reversed in part by an appellate court ruling.

When the case was heard again, the jury found that Burien was negligent in its delay of a determination regarding Westmark's revised application for the project.

The jury also found that Burien intentionally interfered with Westmark's business expectations, and made negligent misrepresentations to Westmark about the 1998 settlement.

The city appealed this verdict, which was upheld by the appellate court on Sept. 4.