so that he's that phone call Dean said
we have started televised minutes before
seven o'clock but formally start the
special meeting right now all your
business cell phone Richard so I'm the
chairman of development creation honest
commissioners to introduce themselves
that's my name is Mel Morgan and the
Vice Chair Mike Brennan
Richard Sanford Kevin price and I'd like
to introduce raiding the out this
development commission legal
representative are turning in dramatic
I've heard you summarize maybe in the
context of a letter that we just
received earlier today and give us some
alternative or some course of action
that we might pursue sure so as the
Development Commission received this
morning they are in a receipt of a
letter from applicant mr. foster pepper
and applicants objection to jurisdiction
and motion to stay so this is a special
meeting under the open public meetings
act this is not one of your regularly
scheduled meetings and as a result the
topics that can be addressed in the
course of a special meeting need to stay
true to the agenda that has been
published and noticed for this meeting
change 24 hours before the meeting but
because it's a special meeting you can't
actually eat from this agenda
it would allow you to if you so choose
to have whole discussion on issues that
aren't on the agenda that you would not
be able to take final action on that
there is an exception to be open public
meetings act that concerns portions of
meetings of a quasi-judicial body which
relates to a quasi-judicial matter
between named parties as distinguished
from a matter having general effect on
the public or another class or group of
people but unless all of the parties
stipulate that this indeed is a outside
of the open public meetings act because
of that context my recommendation to you
would be to to presume that this is a
special meeting of the open public
meetings active we're not able to take
final action on something agenda so if
you proceed with assuming this is
subject to feel fun public meetings act
you have some choices short of taking
final action you can you can't make a
final decision but you can you can
deliberate and hear information or if
you can hold discussion on this motion
if you so choose I would recommend that
you allow the parties procedurally to
address how they might address this in
the in the proceeding this evening and
you probably should do that a thing at
the outside or you can decide to
continue the discussion to a feature
proceeding particularly because I
understand this public hearing is not
anticipated to conclude this evening and
you can
you can hold the public hearing and
decide not to discuss this issue or you
can also decide that you're gonna put
off the decision and you're also going
to put up the public hearing so you
actually have a lot of choices but you
just can't take an action on that so now
this letter item unless we're outside
the context that the open public means
out so lots of lots of choices but I
guess with a threshold whether or not
you can take actions beginning that's
the first point order they we need to
decide and then from there you can
decide to what extent you want to hear
deliberations on that tonight so how do
we decide our right to take care of you
you have the option to decide as a
commission that this is a special
meeting you also have this decision you
could you could ask all parties to
stipulate in writing I would recommend
that this is outside the context I've
been up for public meeting per student
RCW forty two point thirty point one
four zero sucker - so that wouldn't it
mitigate your risk of being found
subsequently to be um in violation of
local public
miss tabulate so that we could in terms
of the action before we know just to
take afternoon on decision to make a
decision on this short of mitigating
your risk in terms of taking taking
action in violation of yoga public
meetings act i would i would recommend
that to you that out all the praise
would would need to agree that this is
not subject to any open public meetings
at this this issue of the meeting
because it hasn't been noticed on your
agenda but short of that i would i which
at this meeting in general there's
overall meeting since it's a special
meeting is that this topic not being on
the agenda
oh right as well unless our ability to
take action on it's not on the agenda
the only way that you can take action on
this tonight is by making a termination
that it's not that we are we are outside
the context that the open public
meetings at because there's a PTAs are
because you are a quasi-judicial in that
matter and it's relating to a to me you
are a quasi-judicial body and this is
related to a quasi-judicial matter so
just trying to get more clarity on
exactly the step two options so if we
didn't get the stipulation that we were
operating outside the from the parties
can we hear the discussion presentation
from the parties on responding to the
letter president present to the letter
responding to the letter but not act on
time Frank okay the other is have the
stipulation take the testimony and then
make a decision if there's agreement to
operate outside the
the Kratt framework ran with the stench
right and then the other option is let's
just go home we'll deal with it at a
regular meeting when we put it on the
agenda right okay yeah all right or you
can say we're gonna put this issue on
the side and proceed with the public
hearing scheduled but take no action and
no deliberation on this we will continue
this issue to a later date when it can
be noticed or as part of their regular
meeting it's not your recommendation was
to continue with agenda my
recommendation is but for a stipulation
is that to deviate from the agenda and
take final action on this motion would
be outside the bounds of the philosophy
exact that recommendation would be to
certainly not take action on this as to
whether or not you decide to take
testimony from your argument from either
side so deliberate and ask questions
that is completely within your purview
as to whether or not you want to address
that this evening before the public
hearing or address it at a later date
and allow the public right
so what we need to get in writing and
permission to discuss the letter and
have presentations of the letter to help
us understand better both sides of an
issue here's what I would recommend at
this point I think that you might be
able to ask the parties to speak to this
they haven't they haven't spoken to this
issue at all this is sort of my out the
gate framework for you all but if you
want to invite each side to make
comments on that at the start of
meetings that we can you get that you
can figure out whether or not how you're
going to proceed with your each other
even seeing that hearing hearing the
discussion from both parties on validity
of the claims or their positions would
really help us understand whether this
letter a proposal is a question
firestation not necessarily if you do
not plan to take action we won't take
it's here some discussion for both
parties on the claims made in the letter
the proposal the constant guess isn't
the most effective that makes sense and
if they're prepared to kill it
[Music]
we'd like to hear from you if you're
willing to speak to it absolutely that's
why we're here
so if I may I'll just introduce the side
of the room and next to me is Jackie air
a my colleague next to her is Tia high
and is representative of what I would
call shelter because it's easier to say
than IH IFC and Gary Young who's a
principal in shelter is idea we have
brought this motion for both technical
legal reasons and temporary practical
reasons I think the code is clear that
only the development services director
to decide the best conditions whether
someone in this case is vested to the
regulations and the development
agreement that governed the Highlands
for more than 20 years or whether the
applicant shelter new subject to the new
regulations of the council adopted
earlier this year the code clearly says
that the development director and
consultation with the city attorney
makes that determination mr. nevan's
told us in a letter a tape called of d1
fest we tried to appeal that the City
opposed it so we weren't able to
challenge that decision at that point in
time but in the staff report he makes
the vesting determination he uses that
word determination he says were not
vested and he asks you all to deny the
applications because they don't conform
to the replacement regulations there's
no dispute that the applications do not
comply with the replacement regulations
they were prepared and submitted before
the newer replacement regulations were
adopted and we believe firmly and
completely that we are vested to the
development regulations so by bringing
this issue to you in the staff report
and asking you to make a decision
the only issue in dispute whether
vested or not as an issue over which you
did not have jurisdiction given the
clarity in the code that the development
director makes that decision the law is
clear there are many cases you could
have cited we cited a couple of letters
that say a body that lacks jurisdiction
can't do anything except decide that it
doesn't have jurisdiction so what
happens if we go ahead and hold this
hearing well first of all it's going to
be a lengthy hearing take up many my
many evenings because it's not just
simply an issue of what the law says we
also have an extensive factual record we
need to make because we have evidence
testimony many exhibits witness
testimony that shows the determination
the department made in this case is
inconsistent with fire representations
that is inconsistent with how the
department is treating other applicants
so we have to be able to make that
factual record testimony and many
exhibits as if you all you're not set up
for that kind of adversarial plays a
judicial decision as far as I've been
able to determine you don't have rules
that would guide you in this situation
as far as I know you know you just you
don't operate in that way because it's
not part of what stage you're supposed
to do which is to make decisions about
design and so forth so you're not set up
to do it in terms of your rules in terms
of your experience I'm assuming in terms
of your background and you don't have
jurisdiction so what happens let's say
we spend the next two months and special
meetings in front of you presenting all
of this evidence presenting all of these
exhibits what are you going to do with
that you can't make a decision because
you don't have jurisdiction so at the
end of that if you can't make a decision
how do we how do we move on to the next
level there's nothing for either side to
appeal even if the Hearing Examiner but
the court because you can't make a
decision it's it's a complete waste of
your time our energy our resources to
conduct a hearing on this issue in front
of a body that does
at jurisdiction and I think the law is
absolutely clear that you don't because
you don't get to second guessing over
all the decisions that the Development
Director made so for both the technical
legal reason if you don't have
jurisdiction and for the practical
reality of presenting all this evidence
when you can't do anything with it we
respectfully and sincerely asks you to
decide that because you don't have
jurisdiction you shouldn't take action
of any sort up or down one way or
another until the vesting issue is
resolved by a body that does have
jurisdiction that's what we're asking
just don't waste everyone's time and
energy
sit tight on this issue until we can get
it resolved and then and then something
will come back in front of me in terms
of both sides presenting and then we
have chance asking questions
yes sir mr. chairman Zach Lowe on behalf
of the supply department of development
services I'm with the City Attorney's
Office with me as my lab partner Jeff
Dunbar to my right and development
services director Keith Niven to my left
manager Lucie Sloman is loved thank you
the city just received as the Commission
did IH IFC's objection letter and motion
for a stay this morning and in light of
the extremely compressed timeframe we
haven't obviously had an opportunity to
prepare a formal written response
however there are a few points that I
would like to make before the Commission
considers the applicants request first
what the applicant is requesting here is
extraordinary in staff view this request
for a stay as well as the underlying
attempt to appeal the city's staff
report has no basis in the city's
procedural regulations under the city's
code the Development Commission has the
exclusive jurisdiction to review and to
issue final decisions on site
development permits for projects that
are located within the Isola islands and
that meet the project size and location
thresholds specified I am see 1819 B 270
it is equally clear from the same code
provision that the city's level 3
procedural process inclusive of a
pre-decisional public hearing before the
development commission is required in
this context which IMC is attempting to
do is to file what's known as an
interlocutory appeal of the city staff
report rather than waiting for the
Commission to actually issue its final
decision in the manner contemplated by
the city's code the staff report is not
and does not purport to be in any manner
an independently appealable final
decision in its own right while the
city's code does empower the development
services director to make determinations
regarding the vested status of land use
applications this determination is
way to facilitate the city's ultimate
review of each proposal by clarifying
which body of regulations will be used
to evaluate it nothing in the code
remotely suggests that this procedural
determination is appealable by itself if
it party ultimately feels that the city
applied the wrong body of regulations to
its project application its recourse is
to wait until a final decision has been
made on the application itself and then
to appeal it in the ordinary course
that's the first point the second point
is that this precise issue has already
been considered and formally addressed
by the city's Hearing Examiner and in
that regard I'd like to respectfully
direct the Commission's attention to the
development services directors April 4th
2018 letter to the applicants Council
this is an exhibit 10 to your staff
report this letter explained the city's
position regarding the vested status of
IH IFC's pending project applications
and just like IH IFC is attempting to do
now with respect to the staff report for
tonight's hearing ih IFC previously
attempted to appeal the city's April 4th
letter to the city's Hearing Examiner
the examiner ultimately granted the
city's motion to dismiss that appeal
concluding correctly that the letter was
not a final decision that could be
independently appealed ih IFC is now
attempting to relitigate that precise
point and if it please the Commission I
would like to distribute copies of the
hearing examiner's decision in IH IFC's
previous administrative appeal the
decision was issued
June 28 2018 and it's under number 88
2018 - to
cite a PN two seven two four zero six
nine two zero eight and the relevant
analysis and conclusion is on pages 5 &
6 of the decision finally in the end the
city recognizes that it can't prevent
the applicant from filing an appeal of
the staff report to the Hearing Examiner
just like it couldn't physically prevent
the applicant from filing an appeal of
the city's previous April 4th letter
instead city can only wait and like it
did before file a motion to dismiss the
appeal if the Commission wishes to take
this issue under advisement or
ultimately decides to grant IHI fc's
motion for a stay of this proceeding
while it's Hearing Examiner appeal goes
forward then that is the Commission's
prerogative but I would like to be very
clear for the record that staff is fully
prepared tonight to go forward with this
hearing as scheduled and if these
proceedings are paused and delayed while
IH IFC pursues what the city strongly
believes is a baseless administrative
appeal of the staff report I would like
to the record to reflect that the
resulting delay is due to IH IFC's own
actions and not those of the city thank
you I would like an opportunity to
respond if I may so mr. Ellis is correct
that we tried
let her and mr. LL argue but it a
decision had not been made and therefore
there was nothing true and he succeeded
with that right now what he is saying is
well staff you know where the early
April to mid September what has happened
during that time nothing the applicant
has been sitting here unable to do
anything with his property waiting for
this staff report the staff report does
contain of nesting determinations it
says it does so now the city's position
is and I'm sure mister well will correct
me if I'm wrong but this city's position
tonight is you go ahead and conduct the
meaningless hearing that I just
described and take all this evidence and
all of this testimony and you can't make
a decision on the vesting determination
apparently it either hasn't been made or
you don't have I didn't hear any dispute
that you don't have jurisdiction over so
again the city is asking for months of
delay and meaningless expense of
resources in your time and energy over
an issue you have no jurisdiction over
and what are you going to do at the end
you're going to deny the the
applications because they don't comply
with the replacement regulations that's
not in dispute we concede that tonight
so this hearing is entirely meaningless
the city can get this resolved at any
point and it could have at any point
since April if the city is going to say
that the staff report is not a final
determination on this issue it can make
an appealable decision it can make a
level zero or level one decision it can
issue a code interpretation and we can
get the vesting issue resolved and cut
in front of a body with jurisdiction the
city is refusing to do that and it is
said creating this meaningless wasteful
damaging process that is the choice in
front of you or you're going to go ahead
and endure a couple of months where
their testimony on an issue that you can
make
the staff is in control of this if they
want to decide that no you have to do
that apparently they can do it and we
may not succeed in front of the hearings
amber we may have to wait but if we have
to wait it will be at your expense as
well as ours because we will have done
this meaningless hearing that you can't
even make findings and decisions on
because you don't have jurisdiction I
fully understand counsels frustration
about the length of time that any quasi
judicial proceeding it takes it's
inherently a time-consuming process
because it's supposed to be conducted in
a careful thorough manner with due
regard to the parties respective rights
that's part and parcel of the quasi
judicial land use decision on process
but at the end of the day what we're all
left with both parties and the
Commission is what the city's procedural
regulations is codified in the IMC
prescribed for proceedings like this and
the features that the IMC imc contains
could not be clearer a site development
permit within the Asuka Highlands
meeting the structural and locational
criteria of IH IFC's proposals requires
a level three review by the Development
Commission you are the only body in the
city capable of making a final decision
on that proposal and while the staff
through the director has indicated what
body of regulations should guide their
analysis what body of regulations you
should use to evaluate the proposal at
the end of the day mr. Niven if the
director doesn't have jurisdiction to
issue a final decision on the underlying
permit so this process as meaningless as
mr. Schneider contends that it might be
is ultimately one that the code requires
you to take and that's why we're here
today I don't have any particular
interest in delaying this any more than
anyone else does and I certainly
empathize with the
the desire people to have an expeditious
ending to this process but at the end of
the day we need to follow the procedure
that the code indicates and that's what
staff has attempted to do here and I
could not more profoundly disagree and I
know you need to put an end to this back
and forth at some point but I think that
it's fundamentally profoundly wrong and
I've been be happy to address it if you
if you will give me the opportunity so
to say that you have to go through an
entire quasi judicial process to reject
an application because it's not
consistent with the code is its
conditions there is no jurisdiction in
the state that has that practice and
there is nothing in this code that
requires it if someone comes in and
submits an application for a
multi-family building in a single-family
zone they don't put you through an
entire quasi judicial process to reject
your application if something doesn't
comply with the regulations it's not
even accepted for processing so if the
department has made a decision that with
that we are subject to the replacement
regulations and the application clearly
doesn't comply with those regulations it
can simply say no and as I pointed out
the department can say no in multiple
ways a level zero a level one a code
interpretation decision it can do that
it's choosing not to do that nothing in
the code compels it so there's
absolutely no reason except the exercise
of discretion on the part of the
department that has put us in this
situation there is one person a lost
truck is there currently an issue inside
the Hearing Examiner regarding the
decision of the director so the letter
of April 4th was you present you
provided hearing examiner's decisions on
that I thought I've heard you say that
that there's another appeal in front of
Hearing Examiner related to this matters
there is not and if I said that I
apologize I missed you in two
characterize that the appeal decision
from the Hearing Examiner that was
issued in June of this year was a
separate appeal an appeal filed by IH
IFC I believe in April of 2018
ultimately resolved in the city's favor
through a motion for dismissal
it was granted June of 2018 that case
was not further appealed to the Superior
Court and is essentially resolved at
this point I only provided copies of it
for context and to demonstrate hopefully
to the commissioners that this is the
precisely the same issue regarding
jurisdiction regarding the intent and
effect of the directors construction of
the the vesting framework that applies
in this context so you could understand
that what IH IFC is attempting to do
tonight through its motion for stay and
its attempt to appeal the staff report
is almost identical to their previous
attempt their unsuccessful attempt to
appeal mr. dibbens
April 4th letter and the city's position
that again it's not right for appeal
because a decision has not been made
that is correct and if the Commission
pleases the city's first witness that it
intends to call when when and if the
hearing actually proceeds is mr. Niven
and he will testify to his official
interpretation of the various I am I am
see provisions that bear on this
procedural issue and if the Commission
would prefer I would be happy to call
mr. Nibin right now and lead him through
a series of questions so you you have
the benefit of his official
interpretation of those code sessions I
take one step backwards so the the
applicants attorney maintains it's not
our jurisdiction
city says it is
who decides if it is or isn't how do we
move forward on any action is that our
decision to decide whether it's in our
jurisdiction
a commissioner I appreciate the question
I think that might be more appropriately
directed to your legal counsel and I'm
going to advocate here on behalf of
staff I can't advise you on that point
can I ask a question I guess if you
don't mind you're saying that the
directors decision on vesting is their
decision and we have no say over that's
correct yes in the letter we quote the
code provision that says only the
directors make that decision so you're
saying that we have no right to question
their decision yes because the code also
does not give you appellate jurisdiction
over the decisions made by the director
and would you agree with that too
I concur that the the code delegates the
authority to the director to determine
which body of regulations particularly
should be evaluated against a valid
caveat that heavily by noting that that
must inherently occur in the context of
the broader project review procedure
which in this case is a level three
process requiring a development
Commission final decision that is then
appealable to the hearings okay so if I
guess the question is if the director
has the right to make the decision on
best deemed and we can't question that
if the director comes to us and says
this is the status of vesting we can't
question that so if we can't question
that what would stop us from moving
forward on a project that they put in
front of us with a level three review
because we have to pursue that they have
the right to make that decision and we
can't question it right again if I would
I will answer your question but I would
suggest
that because you can't question it why
are we here but the problem that is
presented to us procedurally is that an
appeal from you to the Hearing Examiner
is a closed record appeal
we can't present the digital evidence as
part of the Hearing Examiner all the
evidence has to be taken here so they
are putting us in the impossible
situation of trying to make a record on
the vesting issue they've got no
jurisdiction over the disaster record
that the voters that does have
jurisdiction over the directors
decisions but if we make the record in
front of you and you don't have
jurisdiction as I say the case law is
clear you can't even make findings and
conclusions you can't make a decision so
how how how is that leading to a
resolution of this issue I guess from
our perspective we wouldn't be making a
decision on jurisdiction undusted I'm
sorry because we don't have that right -
we would just be making a decision on
the proposal right which is we wouldn't
care all the evidence you want to put up
for our final decision will only be on
the proposal itself the three
applications you've decided and proceed
in that manner it means that you will be
making a final decision of something
that isn't in dispute we did begin we do
not disagree that we I mean we agree
that we did not comply with the
replacement regulations that's not in
dispute
you can decide that issues is easy but
the problem is we have to make the
record so you're going to have to sit
here to take evidence make evidentiary
rulings decide when mr. Lowell and I
disagree with one another you know who's
right you're going to have to take all
that evidence on an issue that you can't
make any decision
captain's question you should want me to
address my question um well I will tell
you that at least the outset that I
similarly had been able to review this
for less than 12 hours so to the best
answer at the moment that I can give you
is they you know there are provisions of
the code multiple provisions of the code
that define what the scope and authority
that the Development Commission has here
and that like basically from for the
purposes of this evening is my best
response to you most all of the
provisions speak to the process and the
standards for making a decision on a
level three site development permit the
ones that I'll just rattle off the
provisions for the benefit of the
Commission that I I know summarize them
for the purposes of quickly illuminating
you section 18 o 3o 4'o subpart B
provides that you shall review and make
the decision on all elements including
design and technical of a series of
land-use actions including site
development permits the the code
provision cited by the applicant
eighteen oh three point oh eight Oh
speaks to the objective of the
Development Commission which is to
determine compliance with the design
criteria checklist 18 point oh three
point one hundred okay me vibrate my
hundred anything's up so pretty
adopt rules and regulations as necessary
for the conduct of business eighteen
point oh four point four three zero
process and decision sub per be can make
decisions to approve condition to not
your this is this is about the process
of site development permit review the
decision to approve conditioner deny
she'll be based on staff report applica
Legrand applicable criteria public
comment and discussion of the issues and
then the approval criteria is listed in
next subsection point 4.0 level three
permits decided in accordance with 1804
using approval criteria and eighteen
point oh seven including an applicable
development regulations assign criteria
checklist and other applicable approval
criteria so in terms of the code that's
the scope Authority you've been given as
effectively to implement consistent with
the scope that's been identified
glutamine coke I think I don't think
anyone is disagreement here that that
jurisdiction and that's out like there
speaks to vesting at all no I did not
all he talks about reviewing the permit
in compliance with the standards at
South fork's that in the Colo question
so if we are reviewing the applications
under the jurisdiction as defined in the
C's code for the development condition
and it doesn't include the question of
vesting but it would include designs to
meeting design standards etc of
standards that have been defined as
applicable by those directors the
placement regulations then would we
limit the amount of could we limit the
amount of testimony and discussion to
just that and not even include
conversation testimony etc about that
question of nested you could so to my
stance for this the one and let me see
this might need clarification are you
asking whether or not you can preclude
any evidence on that question of vesting
or are you asking whether or not you can
preclude your decision as addressing
that it's just yeah the discussion of
testing goes
we do things they have jurisdiction over
vacancy correct that's correct so we
would be hearing evidence considering
the application materials for the permit
the three site development permits and
reforming the Commission thinking
determination on compliance or not
standard from I can make a make our
decision based on that the technical
question about vesting if we conclude
our jurisdiction when the document stand
as it is part of the record but our
determination we did consider that yeah
so so if I'm in to repeat back to make
sure I'm clear and answering a question
you could allow they each party to put
information on to the record and I would
advise you to to not limit their ability
to do that but at the end of the day you
decide to make a decision that does not
address the question at that stage I do
it guys absolutely within your right
because that is consistent with decision
on the type of element permanent
standards are set forth in the code that
you can effectively let that evidence it
on the record and not make a district
determination or the other on that State
Council so I'm just trying to figure out
how to navigate through this what our
options are so because we have a special
meeting tonight agenda did not include
discussion deliberation decision-making
on the question and we're discussing has
a question of asking that the from the
dress by the letter we received today if
we were tonight to say take discussion
on that additional discussion on that
hear from the director of there etc and
then our next scheduled meeting whenever
that turns out to be
include as part of the agenda the
potential for a an executive session
with the
with the mission of our council and
include as part of the agenda that topic
I'm just trying to figure out how do we
get clear for the Commission what our
legal option and performance risks are
for the path that we choose to follow
here it's hard to do that on the fly um
I would say just to take this one step
at a time
it sounds like you're the first decision
to make is whether or not you're going
to to take and actually you've taken the
deliberation and I think you trying to
make sure that you guys are clear with
what you our next step is tonight each
other procedural essentially and then
thereafter in terms of putting us on the
agenda for decision at a future meeting
you have the ability to do that the
question of expected session I would
recommend that we do that and I deal
with that issue once you you know
potentially the end of the proceeding
tonight or in the future
public in that next session we can make
that determination about whether or not
that the executive session
it's a question of the city sent general
if an applicant came in and said want to
do this project and city spreading a
brain to the Development Commission and
the applicant said hold on we want to
hold off on that don't take it to the
Development Commission yet but the city
typically say okay well we'll delay that
if the applicants request so the city
code talks about inactive permits and
there's provisions in it for a certain
period of time where if something sits
on the books we can call it we can
basically call it inactive and then not
a permit so you know there there is the
opportunity to agree to a delay that is
not the case here can I ask a question
about the staff report I'm not sure do
they present three alternatives that we
may consider today and and you know
these all seem to present an alternative
that we haven't discussed one is to
remand you know this is specifically for
the retail and it back to tab to review
as is this recommendations and we
approve an alternate to approve as is
and 3-plays the application on hold
can we speak to that a little bit to the
alternative yeah so the staff report was
written with alternatives based on us
knowing that there was going to be some
differences of opinion here at this
meeting
this evening you know ultimately the
Commission you know I think the city
code is clear
whose decision vesting is the
responsibility of if the Commission
however wanted to heard the arguments
from the applicant and decided the city
erred the commission could remand this
back to the city to review under the
provisions of the now terminated
development agreement we would then have
the opportunity then to appeal that
decision to the Hearing Examiner so what
we try to do is create I think a
balanced playing field for you all so
that you could think about this
objectively and ultimately if if you
think we made an error in our decision
great we may have made an error I'm not
saying we did but that's something that
we're open to hearing that conversation
if ultimately that is a decision that
the Commission wanted to make we would
take that under consideration and then
we would have choices on what we did
with that if that's ultimately the
outcomes that the Commission made so so
we wanted to present that as an
alternative it's not our recommended
alternative obviously but it is an
alternative and so I think what we were
trying to do is provide you with all the
alternatives so that you could think
about this reasonably at the time we
wrote the staff reports we did not at
that point have counsel lined up for you
and I think what we wanted to make sure
is that you guys have all the tools you
needed to make a good decision through
this process so that was the intent and
why the staff report was written the way
it was thank you if I could mr. ed
sheeran I think the critical point from
staffs perspective is that there needs
to be a record made on these issues I
think we have a fundamental difference
of agreement
with the applicant regarding the extent
to which the director can make a vesting
determination that is independently
appealable that is divorced from the
larger project review process I guess
we'll have to agree to disagree on that
point for purposes of tonight's
proceeding but fundamentally what needs
to occur procedurally is that a record
must be created if this matter and
presumably will be is ultimately
appealed upward through the Hearing
Examiner and then potentially the court
after that there must be a record made
that establishes the factual basis for
why particular determinations were made
and and how the Commission reached its
decision this is really the opportunity
to do that so even though the director
has indicated what his position on
vesting is I don't think that that's the
end of the story what needs to occur
throughout this proceeding is the the
evidentiary gathering process the
elicitation of testimony the
presentation of written documents for
your review because all of that will
form the bundle of materials that will
form the closed record through which the
Hearing Examiner and then the Superior
Court will sit in judgment on that thank
you may I speak apologize I know things
are coming at you from many directions
here but I feel obliged to point out
that mr. Newton said is not only
inconsistent was like I said about your
authority I believe it's inconsistent
with mr. Lowell said you do not have the
authority to second-guess the domestic
issue the code is clear he has that
authority in his decision is not
appealable to you and it just muddies
the waters hopelessly and makes it much
more difficult to suggest you figure of
authority that I think mr. Lowell and I
both agree that you don't have so you
know that is a fundamental problem with
this
is all the confusion that is being
generated by this process yes a record
has to be made but the department has a
very simple way of making the record mr.
Niven can make his vesting determination
if he says he hasn't done it yet and
I've heard I've heard to completing
things from that side of the room either
it has been made or it hasn't been made
but there is a vesting determination in
the staff report if their position is
that's not appealable to you all and I
think it has to be because that's what
the code says they can make it
appealable to the Hearing Examiner by
simply calling it the levels there are a
level one decision or by calling it a co
determination that sends it to the
Hearing Examiner and not to you and so
this idea has just popped into my head
as I listen to this but I think one of
the alternatives you all want to
consider is making a recommendation to
the Hearing Examiner that he make a
decision that is appealable to hearing
his MO this issue so the record is made
in front of a body that can actually
decide the issue you can do that as a
recommendation without actually
exercising jurisdiction which you don't
have but that would get us out of this
hopeless situation okay if I hear
something tonight
so what's confusing to me as you've
already conceded that regulations
language so it really it really seems to
teach or to move ahead listening to the
our news when we hear don't
so how do you plead to that it doesn't
this ting really becomes a significant
I'm still confused but it doesn't sound
like we have jurisdiction so I just
asked for clarification has the Hearing
Examiner already made a decision on the
applicability of the vesting is that
what this does letter I haven't had time
to read this entire letter no that's a
fair question I'm sure to answer mr.
commissioners no the Hearing Examiner
made a jurisdictional determination and
concluded as part of the appeal decision
that I handed out that the directors
vesting determination as expressed in
the April 4th 2018 letter was not a
final appealable decision over which the
Hearing Examiner himself would have
appellate jurisdiction and it's tabs
position that in the same manner the
staff report before you tonight is
likewise not an independently appealable
determination over which the Hearing
Examiner has review Authority the
Hearing Examiner has review authority
over your decision so when you make a
final decision on a project permit
application that decision is properly
appealable to the Hearing Examiner and
the record of the hearing examiner will
review in conducting his or her
appellate review it's based on the
record that's created before you as the
Commission it's a and I think you agree
with mr. Schneider at least I think I
empathize with his point and that it's
somewhat of a procedural procedurally
unique situation where you have to make
a record on something for the purposes
of ultimately reaching a final decision
where either the code indicates that
that decision is supposed to have been
made as part of this review for you by
the director the missing link though is
that there's nothing in the code that
allows mr. nevan's staff report to be
independently appealed upward it's a
it's a recommendation on its on its face
the staff report is a recommendation to
you it doesn't do any anything more than
recommend to you how staff feels these
project permits should ultimately be
ruled upon and again in order to bring
this up to the examiner and allow the
examiner to review it in context we need
to make an evidentiary record here in
this proceeding that will form the basis
for future hire review so if I may of
our council then regarding the extent of
that record it was it your
recommendation to us that we not
constrain testimony only to our usual
purview of making our decision based on
detail and technical constraints the the
essentially what you read from the code
to us is it your advice to us that we do
not attempt to constrain any carrying of
this simply to those matters and exclude
the substantive testimony that may take
place over multiple weeks that may have
to do with a vesting issue should we try
to constrain it or not my recommendation
would you need to allow each side to put
information on the record that they
would like to make the decision that you
make though can be based on portions of
the record to the extent that you think
it's within your jurisdiction to review
and make a decision moving forward but
to limit or to control what people put
into the record I wouldn't open
recommend that add that at this time
just a follow-up question to instance
back to justice mr. well on the the
carrying exam the last page of the
hearing examiner's decision on summary
analysis he also also states it's the
last sentence if nothing in the
development agreement grants to hearing
hearing examiner authority to settle
disputes over interpretations of the
development agreement itself
the case here so even then which seems
to help complicate the matter even more
there's a question about the hearing
examiner's Authority now to even hear an
appeal of determination on vesting under
the unity so I think that in art isn't
it that's an excellent point and I think
that if reading that statement in
context what the examiner was doing was
construing not only the the the vesting
component of mr. nubbins April for 2018
letter but also the balance of that
document and if you look at that and
again I believe this exhibit ten of the
staff report a significant portion of
the April fourth letter didn't address
issues of vesting vesting was one issue
that was addressed at the front of the
letter but then the letter went on to
substantively address a series of I
believe almost 20 alleged breaches of
contract that IH IFC had notified the
city of and that was that was truly the
thrust of that letter and I believe that
the the Hearing Examiner statement that
he referring to mr. Commissioner was in
reference to those aspects of the April
4th letter that really were were issues
of a contract dispute and the examiner
felt that he didn't have authority ton
to do they had to leave that was
incorrect as a line measurement since I
imagine the question that brought up the
idea that we would to run tell the city
what we think this should be just a
level zero review instead of a level
three but as the question is what I
don't understand what right we would
have as a commission to say that a
project does not at our level and
remanded back to lower levels that I
appreciate you asking for question
because I want to follow up on this when
I made that suggestion mr. lentil spoke
but he didn't respond to he just kept
saying we have to make a record and this
is how we do it but I didn't hear any
responses as to why the
- couldn't make a level zero or a level
one decision of our code interpretation
that would be a few I'm not suggesting
you have the authority to tell the
director to do that but I think you
certainly have the authority to make the
recommendation and as a practical matter
I agree this has all come up quickly
even though the directors snack reports
are needed last Monday they weren't
distributed until the end of the day on
wind speed we've had very little time to
prepare for this I think it would be
appropriate if you take things under
advisement my practical recommendation
would be to make a recommendation to the
staff they explain why they're not
willing to make the vesting decision as
a level zero or a level one or a code
interpretation and get it resolved
attorney examiner why they're not
willing to do that and give that
explanation to you in writing before the
next hearing and then we can take it up
the banned me again this whole process
was created out of whole cloth and
August we were told that the city would
issue the vesting determinations in July
or August it didn't happen we were
suddenly told that we're not going to do
that anymore we're going to do this
level three process that is a recent
invention it's a deliberate
discretionary decision that the city is
making and they have the discretion to
do it differently so why not have to
explain in writing why they're not doing
it differently and then you can decide
at the next meeting you can go into
executive session if you want to because
it is quasi judicial and then you can
they might have their written response
and an opportunity to us to briefly
respond to it then make a decision how
do you want to receive
um but I think that what's in front of
us right now at this point is the
question of what we do with the
recommendation letter that came out
today right so the this letter says stay
the hearing until the best in issue was
decided what I haven't or anything about
if that was the case how else would it
be decided what else would be happening
if I could mr. commissioner mr.
Schneider can correct me if I'm wrong
but my mic interpretation of the letter
that you received from the applicants
counsel today it was essentially a
request to stay these proceedings while
the applicant attempts to appeal the
staff report up to the Hearing Examiner
and that's that's not so much as I
understand it a determination investing
in and of itself it's really an issue of
whether or not the examiner is dick ssin
to consider an appeal of a staff report
is that is that consistent with your
understanding or did I state that yeah
well I don't know what do you be doing
and it's well I guess what I was
wondering is what would be happening to
resolve the issue and what I my recent
suggestion was a variation of what's in
the letter
because mr. L has made it clear he's
going to say that we can't appeal to the
Hearing Examiner fine let's assume he is
correct in that again that begs the
question of why the Department won't
make an appeal the decision when they
have the authority to do that and what
I'm asking you to do is to ask them to
explain in writing why they won't make
it viewable decision to the hearings
ever
so the Hearing Examiner will they can
she make a determination of Avesta
doesn't exactly the decision that they
will make so I can't prospectively
guesstimate what the Hearing Examiner
will do I haven't even seen the
applicants intended appeal of the staff
report my assumption is that mr.
Snyder's referring to a more
intermediate step which would if this
proceeding were to be stayed and staff
is not recommending that but if that
were to happen and I hoc were to attempt
to appeal the staff report to the
Hearing Examiner and the city would then
presumably bring a motion to dismiss
that appeal for jurisdictional reasons
in the same manner that had brought a
motion successfully to dismiss the April
4th 2018 letter that at that point there
would be some more formal resolution of
the issue of whether or not at least the
staff report is in fact and
independently at the killable
determination staff doesn't believe that
it is the applicant fills otherwise I
believe that's the core of it so it
seems like we have an agenda it doesn't
have anything on it that taught us about
vesting
you have to see if it proposals within
[Music]
it doesn't seem reasonable to maybe seem
to start the process of listening to the
specific permanence requests without
talking about the best to put that on
the agenda for the next we would be
discussing the best you know my
understanding is that decision can only
be made in response to our decision
based on our ordinary purview our
ability is to decide the merits of
applications on all the standards that
we were never to use I don't since we
can't make a decision on testing my
understanding events we go through that
process in order for affordable
information I wish to make deficit so it
makes the most ultimate leave business
to go through the proposals I've
listened to the areas that we have
jurisdiction over that make it to make a
decision on that's my understanding and
yet we can't
it seems or it is not advisable for us
to try to limit discussions for those
matters but we must make a recordable
decision of some sort
it seems to me before any decision can
be made on testing if it's to be
channeled into the question in terms of
the question we're looking at right now
the proposal to
stay the hearing if we decide to do that
you think that both parties would have
to stipulate that can be done at this
meeting since it wasn't advertised yeah
I would recommend we treat this as a
special meeting meaning that you can't
make a final action on something that's
off the event if this was not listed on
the agenda unless both parties were
essentially to to stipulate that you
would not evaluating the open public
meeting at he chose to take action in
response to this this evening as opposed
to pushing that out to a future meeting
where it is you to properly know those
terms parts of your regular it's a
regular and you can also just you can
you can ask the parties to essentially
insulate you from making them serve
essentially stipulate that that this is
the quasi judicial proceeding and this
is a quasi judicial matter they here
taking up or you can also just decide
that you're going to not even answer the
question that just continue on with with
putting the decision that's on or the
motionless on the table putting that
aside and making that decision in a
future meeting and then so that would be
step one then step two what you want to
do with the rest of this meeting
continue have the hearing as as as
listed in the agenda or continue the
hearing if you decide that you'd like to
wrap up for this evening and continue
the hearing to another evening
so if we were going to continually hear
him and put the question questions
raised let me receive today for mr.
Schneider on the agenda I'm not clear
about what our authority to decide that
would be a future meeting I mean what
what's the question we're responding to
at the future meeting 22 yeah I mean you
you you've been asked the emotions been
raised as to whether you will status
hearing so you can make it so we're
talking about a future just future
meaning you can decide to rule on that
motion you can also decide there's up
there's proceedings we're in this type
of a context where some bodies will go
through the whole hearing and wait to
decide well you wouldn't be able to wait
to sight on the motion to stay that you
could also sort of put this
jurisdictional question to the end at
the hearing and make a decision on that
essentially procedural question about
whether I had jurisdiction period or the
end and your decision to wrap that all
together so you've got some flexibility
there
I do actually I guess need to make a
decision at some point as to whether
you're going to cram the session Tuesday
do something with the stay but the
jurisdictional question you could decide
to continue through the end of the here
going through the motion of a public
hearing to take all the evidence and
making your decision about jurisdiction
at the end of all that is part of your
decision so what the chair was
suggesting is that we begin the process
of just taking evidence tonight or some
period of time to begin the process put
on the agenda the question about
jurisdictional authority for deciding
this at a future today and that
jurisdictional authority that just the
decision to stay our hearing right yeah
that not at a minimum you probably ought
to do otherwise your continuing with the
hearing and you're not
babe I know slogans don't long day so if
we don't have jurisdictional authority
to decide on the question of vesting
what's in front of us then what happens
what I'm sorry if we stay them if we the
question of vesting is what's raised so
you know dude for now it's just a
question can we stay here right if we
stay the hearing for what purpose that's
what I was asking about what would be
the long name are the the motion on the
table is to stay to proceeding because
you don't have jurisdiction to hear this
to go forward with this proceeding
you could you could decide to you can
actually respond to this in multiple
ways when you get to that point to say
we're not going to stay in the
proceeding but we're also not going to
make a jurisdictional determination of
whether or not we can make a decision
here until we've gone through the public
hearing which is effectively your
jurisdiction to hear or to make a
decision even not to hear but to make a
decision on the applications that it can
put for you because there's a question
by vesting so that there are multiple
ways to review this and that's that's
something that you're entitled to
continue to discuss and make a decision
on at a future meeting we continue with
the hearing putting this off until it's
fully noticed and everything for the
next meeting
because by staying please become just a
little bit sorry I would agree so we
need to do that parliamentary life well
you can say your agenda at this point
which we're technically so on fun and
remembering that you can't make any
final actions off of this agenda you as
the chair could decide and as part of
that we would have to say yeah yeah
however normally it's your agenda is
developed by I posited um no functional
yeah you put it on the record that
there's a new one for us yes a there yes
that you'll that you'll that you'll put
this motion first day on the agenda for
the next meeting yes you could you
couldn't you could decide that is a
group if that's what you want to do
right now is this a procedural issue is
it please please be complete argument I
if you decide to proceed with the other
items resolution and I believe you are
acting outside your jurisdiction because
the the only issue is invested issue
nothing else's will disabuse me and they
may be proceeding to take evidence in
effect on the issue over which I don't
believe you have jurisdiction so I again
all I can do is make some suggestions to
you which are free to reject but again
my suggestion is that you don't proceed
with the agenda items until you make a
decision on this motion or in the
alternative that you can consider my
recommendation that you ask the
department to explain in writing why
they won't make an appealable decision
on the best issue
and takes this entire issue away from
you so you don't have to wrestle with it
and I also would just say you know I
again recognize you've given you a lot
and very little time to consider my
suggestion would be wait and make any
decision until the next schedule isn't
this as soon as you can but not make a
decision tonight because you decide to
go ahead and we have to say we're
proceeding under protest because we
don't get you have jurisdiction and if
you want additional briefing from me or
from mr. ll a sport but be fully
informed before you decide to go ahead
[Music]
go ahead
listening to the discussion of each one
of these building proposals you did if
you want to limit the hearings so that
that's all you're going to take evidence
on you don't allow us to make evidence
on the best inertia and you can go ahead
and do that we can be done tonight
because we don't dispute that we don't
comply with replacement regulations that
have gone hearing over and done with
tonight but you need to tell us you're
not going to make let us make a record
well that issue otherwise we have to
make the record and this is going to go
on now again I can't you need to listen
to your counsel not to me on that issue
that again isent in you to suggest that
this entire dilemma is unnecessary it
can be avoided by the department
exercising the discretion that has
by refusing to do that they are
basically continuing the problem that
has been in place since last people so
may I just ask the question in the view
of the city then why is this appropriate
as a level three review I think we know
what the position is but I would like to
do absolutely in the short answer mr.
Commissioner with all respect that the
city doesn't make that determination the
code which is a policy document that has
been adopted formally by the is
simplicity Council has made the decision
for us as much as I would prefer to
probably spend my Wednesday nights
elsewhere instead of going through a
lengthy quasi judicial proceedings and
runs the ASIC robust city code
designates this proceeding these types
of land use permits within the Issaquah
Highlands as being a level three process
that require a level three Development
Commission review with the
pre-decisional hearing you're the only
body that has jurisdiction to do that
and while again the vesting
determination is supposed to be made in
concert or in conjunction with your
larger permit review proceeding are they
for the development services director
this is our one opportunity to make a
record on everything I'm sorry if I keep
repeating myself again you can cut bears
emphasis in the staff report that's on
page 7 of 307 and three a and listen Lee
and clarifications of why this is level
three for any code yes sir
it was 24 I think a lot of in terms of
precedence of what we do feather
projects and thinking about if somebody
came to us with a project that would
qualify to the level 3 we turned around
that's the body that's supposed to hold
the public hearing and we said no work
these infections must be pushed down to
a level zero and the city should decide
that I don't think we could do that
because then that doesn't allow the
public to happy keeping our duties as a
development condition I would say that
based on the good provisions that I
listed there you're here as a your role
in receiving a site development permit
application is to decide whether or not
that meets the criteria applicable to
that application or not not to decide
what a process or level of government is
applicable to that that provision per se
yeah I mean of course we haven't an
interesting situation here because
what's essentially being presented is
that the analogous of this is supposed
to be levels or a level 3 moment at
different you know these standards of my
verses we don't have the right to say it
should be 0 not 3 that's in terms of
what the authority is that you've been
given under the code you know specific
determining which process is applicable
as opposed to what cry team the Krait
really speaks to the criteria you need
to decide if the applications replacing
some of the criteria that are that US
has specified in the code
that's it up to the so you guys on the
record the jurisdiction on his suppose
he makes a decision I recall there was a
time when we we said we didn't think it
was hard to say anything we were told it
was I'm still stuck with that I guess
overall it sounds like we're kind of in
a conundrum of having to make a decision
on whether we want to go ahead with the
public hearings or not without going
ahead with the public hearings that
decision is not going to be made that's
appealable developer wants wants a
decision made so that they can file an
appropriate to be an appeal to the
Hearing Examiner so I I feel compelled
and stuck with the notion of having to
sit here and listen to the public to
have full public hearings in his
building again that stuff entered into
the record get get the information
materials are counsel is saying we're
not going to try to constrain what is
discussed
so we don't know we don't have tonight
so what I think we need to do is move
him on the public hearing I think we
need to table the discussion on make a
decision on the proposal or bursters
stand the motion to stay get that on the
agenda for our next special meeting can
have some dialogue over that I need to
good I think we need to move forward on
listening to the recommendations of the
three buildings those three proposals
okay proceeding just proceed so you can
see where we get tonight and then that
little warmth in this room nobody else
would like to stand up for five minutes
I wouldn't mind standing up for five
minutes just Claire getting my head
clear a little bit so if you're all okay
with well I'm going to give you a five
minute break and you don't sit if you
want stand up don't talk in tax our
let's resume back
[Music]
you
you
you
[Music]
we are motion what I would like in
advance is for the parties to if they
are willing you know after they're
willing to help us better understand
what what the issue is in life decisions
are taken that are being taken if they
could give us a written explanation of
that and give it to us a couple of days
before the meeting so we'd have a chance
to be able to really understand it
because with I'll just be honest at
getting it the day of the meeting is
just really difficult I don't I didn't
even look at my email until like five
o'clock tonight so little behind time so
yeah
mr. chairman if I may since what has
been presented to you as of this morning
from mr. Schneider is essentially in the
nature of emotion my request and
proposal would be that the city have an
opportunity to respond to that that's
that's really what's on the table and if
I H I've C doesn't object to that my
request would be to have the opportunity
to respond in writing in the same
essential manner as the applicant has
done within some reasonable opportunity
for the applicant for to have a brief
reply and write and to have some
parameters established for that in terms
of page length limits and timing of
submittals so we're all clear about the
ground rules yes I agree completely and
my suggestion would be that we determine
when the next meeting will be and that
didn't work back from that and give us
the deadlines in the next meeting is
October 24th so the medium third is for
another topic the other time so October
24 is the next week this topic this time
in the 1717 didn't it's a where the 17th
was not available
he's so sold it be reasonable to get the
written comments 517 cities the cities
before this 24 SHINee for the 24th
meeting
yes sir mr. chairman close of business
summit 17th so the packets get put
together before then you wouldn't have
time to respond so maybe we heard you
know the 24th so so 17 gets funding the
materials be forward to the
commissioners outside the packet just
analyst of and then made a violation is
whether they're made available to the
parties public all at the same time
question who does that need to be by for
24th so we like to give you a week for
the packet and then I'd like to give
support services of data get that out so
the packet would be a week before 17 the
17th what Lucy's saying is we would need
to have any documents for that packet on
the 16th 16th 16th so if we so what the
question that I think we're answering is
we would be able to provide that
information to the Commission as part of
the packet distribution which would
happen one week prior to the next
Commission meeting related to this topic
which would be the 17th right so they
have it by the 16th right so the
question our internal mechanics are
relevant to us and we're talking about
talking about the response to motion and
an opportunity for a brief response to
the response so we've got two documents
that we're trying to coordinate here and
adequate time to actually produce those
so given
the city till the end of the week
October 5th that be next week I think
that's right end of next week
to respond and then actually take it
think that back into like the 10th so
the 10th of October and then there would
be until the 15th would be the response
to make sure there's adequate time for
processing the documents with the city
to get them in the packet by the 16th
don't agree to that yet cuz we're in
budget I'm not like the budget so
council member Commission remember what
were you suggesting the city's response
would be the 10th use so that would be
two weeks from today and then applicants
response to the city by the signal by
the 15th or 16th whatever is needed for
publication okay
mr. Snyder's end I would request if they
needed by the 16th that we be given a
deadline of 16th 16th young so the 16th
would need to be if we're gonna get that
information out to the Commission in the
morning
[Music]
mr. chairman yes I'm if I could also
make yoga requests that the Commission
and posts and reasonable page limits on
these submittals just so the process
does not get too out of a sermon we do
have the staff level one additional
procedural during the past couple of
weeks we've been attempting to reach his
stipulation with the applicant in their
legal counsel regarding the format for
tonight's procedure and jointly or
independently reviewing the code it was
determined that the IMC doesn't really
contain particularly clear procedural
strictures for a out of his time and I
had prepared with in consultation with
the applicant a proposed stipulation
regarding the order of presentation the
time and extent for producing evidence
etc mr. Snyder can speak as a point but
I believe that the applicant declined at
the end to to ultimately execute that
stipulation while their motion for the
stay was pending so we haven't been able
to count
formal agreement and in lieu of that
what I have done is prepared unilateral
proposal based on the exact same
substance of our original proposed
stipulation regarding the procedural
format and I've already provided a copy
of this to mr. Schneider at the
commencement of tonight's hearing and
with your leave I would like to pass it
out for the Commission's consideration
thank you it's very basic as you can see
it just provides general parameters
regarding the order of presentation and
the extent to which the parties can
produce evidence
[Music]
yes one question would be the item for
public testimony and typically I
understand this right we closed public
testimony and after that there's no more
public testimony they can come but then
there would be rebuttal witnesses and
applicant with witnesses that would come
after that someone green is that an
issue of witnesses come after in the
public testimony and public doesn't have
a chance for me and I appreciate the
question I think it's a valid point I
believe that that was a point of at
least conceptual agreement with the
applicants legal counsel and the reason
for proposing the format and the
presentation order in that way was to
ensure that the rights of the applicant
are actually protected that the public
will get its bite at the Apple I have an
opportunity to comment based on the
primary witnesses that have provided
testimony with them at the very end of
the proceeding there will be at least a
brief opportunity for both the applicant
and the city to comment on the comments
that the public itself had had provided
keeping in mind that the purpose of this
proceeding is to essentially review and
sit in judgment on the applicants
projects of the applicant should I think
in fairness get an opportunity to
respond an end to the proceedings based
on all the other comments that has been
received during the course of the
hearing respond to that the fundamental
problem we have is that public testimony
is not appropriate for quasi judicial
proceeding it's entirely appropriate for
what you normally do which is deal with
design issues and that sort of thing but
the issue on which you're going to be
taking testimony of depending I suppose
on the outcome of what you decide at the
next meeting but on the issue of vested
rights that is a quasi judicial
proceeding you need to make a place a
judicial record and public testimony is
not appropriate in that God
so we object to the public testimony on
the vested rights issue if you are going
to allow it then I agree that mr. Loans
put it in the right place in the agenda
but I don't think it should be part of
the vested rights issue at all
it's one questions I don't know that
we've ever had the ability to tell
somebody from the public what they can
or can to say customer to limited them
to a time period but so just maybe it
can I ask a follow-up clarifying
question as far as after the public
testimony the additional evidence that
will be presented will be there won't be
new evidence it will be rebuttal
evidence two witnesses or statements or
information that has already been
submitted
yes that's the nature of rebuttal
evidence it's supposed to respond to
something that has previously been
presented the question is I'm just
thinking about our typical public
hearings and public employees where we
take public testimony they raise issues
we raised as questions etc sometimes on
behalf of the public after we tell the
public hearings or and then we make a
decision so I don't know if that this is
too far astray from that and I think the
question before us if it is revealing
what the question was about testing its
harmful procedural Elisabeth Community
Impact question
[Music]
yes Thank You mr. chairman
so staff presentation thank you again
exactly all on behalf of the development
services department I will be fairly
brief in my opening comments because I
think much of issues before you have
been addressed during the preliminary
discussions - yes sir presiding right -
well you know to me parents of fairness
disclosures which at our meetings is
typically brought up by staff we want to
go through that to make sure that you
have that covered we know what it is but
Lucy you typically at these hearings
well remind us of that and you ask an
important question right so he's told
that now she has to find
so I will skip the introduction and just
to say that this please review the first
set of questions and once you believe
those questions I will ask for your
responses
inners would indicate no to all
questions yes there have been any ex
parte contents very challenged from
applicant just like to clarify that
given the nature the proceeding ex parte
context would include contacts with
staff regarding this issue as long as
that's the question when responding to
[Music]
do you need to amend your answers
regarding any context milestones that I
wasn't what your mind said they can't
have any communication with us on this
and so I slipped in here have been more
than quick to remind us that they can't
speak to this with us
[Music]
stab presentation thank you sir please
pass the Commission is aware of the
purpose of this hearing as to review and
evaluate three project permit
applications that have been submitted by
the applicant ih IFC for various Gildan
proposals located within the usable
Highlands area context of this hearing
as has been discussed is somewhat
unusual and that the typical land use
hearing involves potentially a dispute
over how particulars owning regulations
are applied in which conditions of
approval are appropriate but here the
dispute is primarily over which set of
regulations should govern the proceeding
and which set of standards should be
used to evaluate the regulatory
compliance of the permit applications
that have been submitted and there are
three permit applications before you
tonight to administrative site
development permits or a SDPs and one
site development permit or SDP these
applications were submitted under the
auspices of development agreement that
formerly covered the ahsoka Highlands
that was originally executed and
recorded against the Issaquah Highlands
area in 1996 refer to it throughout the
proceeding as the 1996 development
agreement or simply the development
agreement that agreement had a build out
period that ended in September of 2017
subsequently the Issaquah City Council
as was always intended under the
development agreement adopted an
ordinance in March of 2008 in ordinance
number 28 30 which enacted a series of
replacement regulations to govern future
development in the Issaquah Islands as
replacement regulations were now
codified at chapter 18 19 B of the
Issaquah municipal code
and the fundamental dispute between the
parties in this proceeding is which body
of standards which regulations should be
used to evaluate the three ASDP s and s
TVs that are before you and and for
several reasons as explained in the
staff report and we further enunciated
during the public hearing testimony that
is staff strong belief and position that
the development agreement standards are
inapplicable into these three permit
applications and instead these permit
applications should be reviewed under
the recently enacted replacement
regulations that are now codified in the
Issaquah Municipal Code I think to set
the table for the staff testimony that
will be shortly received by the
Commission elected to note for the
Commission's edification that there are
generally three ways by which a project
permit application or over vesting can
occur at the local land use level the
first and most basic type of vesting
occurs when a project applicant submits
a fully complete subdivision application
on preliminary plat application or a
building permit application and both of
those types of vesting are established
by state statute RCW 5870 no 33 for
Platts and RCW
1927 o 95 for building permits and there
are different vesting rules that apply
for each of those statutes but neither
one of those vesting mechanisms is
applicable here because what's before
you tonight is not a plat and it's not a
building permit is instead a series of
site development permits and Washington
case law could not be clearer that site
development permits do not trigger
vested rights there are at least two
expressed decisions by the Washington
appellate courts that of established
binding precedent on that point and in
recent investing
slaw in Washington has clarified
unequivocally but unless the particular
type of vesting at issue is specifically
codified and the Revised Code of
Washington that it does not exist
anymore and therefore site development
permits do not vest under state law
that's the first category of vesting the
second category of vesting is a more
nuanced approach and that occurs if
there was for example in preliminary
plat that was fully complete a plaid
application was fully complete and
submitted to the city and that plat
application went into such significant
detail regarding the applicants future
development plans that it essentially
defines precisely what the applicant
wants to do in the future on that piece
of property that property for which a
preliminary plan has been submitted and
this type of vesting is based on a
relatively famous or seminal Washington
Supreme Court case called noble Manor
versus Pierce County and the role that
came out of noble Manor versus Pierce
County is that what is vested is what is
shown on the plat so for example if a
plat applicant goes beyond the usual
approach of simply drawing a few lines
on a map and indicating how a particular
piece of property is going to be divided
into future Lots and goes one step
further than that and actually shows
building footprints on that plateau
application well if those building
footprints indicate a particular setback
between the edge of the building and a
lot line what the city cannot do after
that point is adopt a new setback
requirement that's different than that
that would that would be violated by
that plat and then apply those new
setback regulations against the
applicant because the applicant is
affected to what he or she showed on the
face of his or her plat but that didn't
occur here either
I enjoy FC did submit a plat application
to the city in August of 2017
during the build-out period of the
in agreement but that plat did not show
building footprints that platen gave a
very general description about what the
applicant intended to do on the subject
property and therefore the noble manner
versus Pierce County type of vesting
that I've just described doesn't apply
in this situation different type of
vesting under Washington law is vesting
through a development agreement and this
is a fundamentally different type of
vesting because it doesn't really rely
on state law standards or case law and
precedent or anything it is basically
determined by what the parties
themselves have contractually agreed to
through their development agreement and
instead of looking to some different
body of case law or statute how you
determine vesting under development
agreement is to look at what the
language of the development agreement
says about that site and that I think is
really the source of the primary dispute
between the staff and the applicant in
this case it is how the 1996 development
agreements vesting provision should be
construed in relation to the three ASTP
and ask if the applications that are
before you and the evidence will show I
think it's fairly clear I don't know
that they can reasonably be disputed
that IH IFC's site development permit
applications were submitted after the
build-out period of the development
agreement they were submitted in the
fall of 2017 after the 1996 development
agreements build-out period had already
expired if you read the vesting clause
the one provision of the development
agreement that purports to address
vesting it's in Section three point two
three of the agreement strongly
encouraged the commissioners to look at
that very carefully because that I think
is the linchpin of this proceeding the
only reference to anything vesting
related in that section says by its
terms that the city is prohibited from
imposing
different regulations and new
regulations are modifying its
regulations during the build-out period
and the obvious corollary to that
statement is that once the build-out
period is ended the city isn't
constrained at all from adopting new
regulations and it isn't constrainted
often applying and enforcing those new
regulations and that's precisely what
the city of Issaquah did through its
adoption of ordinance number 28 30 on
March 19th of this year the ordinance
that adopted the replacement regulations
those are the new regulations that were
by their terms intended to replace the
standards that are contained in the 1996
development agreement all of the
applicants all the landowners had 20
years plus to file applications and
develop their property under the
auspices of that agreement and the
20-year build-out period that was
established underneath 15 and IHI FC
didn't do that with respect to its STP
and ASTP applications they submitted a
preliminary plan that didn't show
building footprints but they didn't
submit their STP and ast Keys until
after the build-out period ended so in
staff's view they are fully subject to
the replacement regulations and if there
was any doubt about that if there was
any reasonable doubt and that really
shouldn't be after reviewing that
provision of the development agreement I
would respectfully direct your attention
to the clause that immediately follows
though that a section 3 point 2 point 3
point 2 and that provision expressly
governs situations like this one where
an applicant submits project permit
applications after the build-out period
of the development agreement has expired
but before the new replacement
regulations have come into being while
the agreement is technically in effect
and what that provision says by its
terms is
that the development standards of the
agreement continue to govern that
situation but any party can then provide
notice under the agreement of
termination and then when that happens
that section refers you to a different
section of the development agreement
section 5.1 3 and if you read that all
the way through the linchpin there the
absolutely dispositive provision that
should govern this proceeding it says at
the very end that once the City Council
adopts the replacement regulations they
govern they govern immediately it
doesn't purport to reach back in time
and rescue or save or or grant vested
rights to previously submitted permit
applications it doesn't say that at all
it simply says the new regulations shall
govern period and that's what I think
despite all of the lengthy dispute and
then mounds of paper that have been
generated throughout the course of the
city's dealings with the applicant on
this point that the vesting issue here
is actually very simple it's a basic
question of contract interpretation
regarding a clause in the agreement that
in staff's view is clear on its face and
its intent and in its effect so moving
forward with the permission of the
Commission I would like to proceed by
calling a few City witnesses I don't
believe that we'll be able to get
through too much testimony tonight but
the city's first witness is development
services director Keith Nevin
I'm gonna come up here commissioner so I
can actually see you all thank you could
you please state your full name for the
record
sure my name is Keith Wayne Yemen
what is your official title and position
for the city of Issaquah I'm the
director of the city's Economic
Development Department as well you also
the city's official yeah how long have
you held the positions that you just
referenced so economic development
director since 2012 own services
director since 2015 in your position do
you have ultimate supervisory authority
over the city of Vista cause Development
Services Department and you does your
supervisor III include the city's permit
center the long have you work for the
city
yes I mean sorry to interrupt but if
we're doing this as a place like
judicial proceeding I think the
witnesses of the city has an objection
to the hearing the witnesses should be
put under oath they had tested their
great to tell the truth under penalty of
perjury okay you we would stipulate to
that and I typically it's the city clerk
I I don't believe that I'm available to
to administer oaths court reporter man
mr. Nibin are you the city's highest
official with interpretive authority
with respect to the city's development
regulations as codified in the Issaquah
Municipal Code yes do you have personal
knowledge of the subject matter of
tonight's hearing specifically the 1996
Issaquah violence development agreement
the city's promulgation and adoption of
their replacement regulations for the
SFO Highlands area they were nakid under
ordinance number 28 30 the development
of the Issaquah Highlands area under the
1996 development agreement and the
submittals processing and evaluation of
IH IFC's various land use applications
yes and I'd like to ask you a series of
questions now concerning procedural
issues that have been implicated in
tonight's hearing were you present for
mr. Schneider's statements throughout
tonight's proceedings yes I was did you
personally read the motion for stay that
mr. Schneider submitted on behalf of the
applicant IHI FC dated today's date I
briefly read it this morning yes like
you call your attention first to section
1801 o 500 of the Issaquah Municipal
Code are you familiar with this
provision which subsection yes did you
please read aloud subsection a of 1801
o5o
sure thority unless otherwise noted in
this code development services
department director or his or her
designee shall be responsible for
administering this code the development
services director or his or her designee
shall have the authority to interpret
this code anyone may request an
interpretation of this code by filing a
written request with the permit center
the development services director or
or her designee shall respond in writing
to all requests for a code
interpretation clarifying language of
one interpretation of this code may be
used for another interpretation of this
code Thank You mr. given to your
knowledge has IH IFC ever submitted a
request for an interpretation of the
code to the permit center under the
authority of this provision in your
official interpretation of the Amissah
qualm municipal code is a request to
confirm or otherwise determine the
vested status of a project application a
request for an interpretation of the
code within the meaning of IMC 1801 o5o
you say that again do you believe that
it requests to confirm or determine the
vested status of a particular project
application is that the same thing as a
request for interpretation of the code
you please read aloud subsection C of
1801 o5o the whole thing just the
preface I'm unclear
it's as vested rights nothing in this
chapter shall be interpreted to require
an applicant to obtain approval of any
other permit or approval from the city
prior to applying for a building permit
all city determinations regarding
vesting shall be made only by the
development services director in
consultation with city attorneys
in your official interpretation of the
code section is the directors quote
determination regarding vested rights
end quote
intended to be formatted as a standalone
independently and separately appealable
administrative decision I do not believe
so as written is that a determination of
that type simply the directors direction
as to which set of local regulations
will be applied to the city's processing
in review or evaluation of a particular
project proposal with the ultimate
decision then being made by the final
decision-maker on the permit
I am objecting that these are leading
questions which are inappropriate for
someone asking questions of his own
witness the question should be
open-ended not directing the witness to
a specific response with respect to two
responses first of all as I believe the
Commission is aware strict rules of
evidence don't apply and local land use
proceedings of this type second a
leading question basically answers its
own question and that's not what the
questions that have been posed to mr.
Nigam attempt to do and I believe that
this is a clearly relevant topic in fact
it's the the basis of the dispute
between the parties and I would
respectfully request the opportunity to
continue questioning mr. mr. Nimmo I'm
not suggesting it's not relevant but I'm
suggesting that in effect we're having
mr. lile testify and not the witness so
I
again you don't have rules of procedure
but I think the questions are
necessarily leading and that the witness
should be asked to get his opinion not
confirm whether he agrees with mr. lel's
opinion when this decision for use
decision making quite excited even like
to ask the city attorney to advise how
he's asking any questions or not so
typically in our hearings we don't have
a question answer it's now to judicial
proceeding we get a presentation made to
us to consider evidence don't limit what
applicants say during wanting to hear
mr. dibbens
answers so if there's a way to ask
questions that don't appear as as
leading thank you I will try to keep
that in mind so I'll try to rephrase
that mr. Miller
you might have the Newton's direction
when you as a director make a
determination regarding the vesting
status of a particular project
application under subsection C of 1801
o5o of the Issaquah Municipal Code in
your experience or intent or belief is
that an independently appealable
determination or does any appeal of your
determination have to wait until the
underlying project permit has reached a
final decision so I think again as I
responded earlier I you know that
decision doesn't happen typically what
happens is
I mean if you think if you think about
the staff reports that come before you
from staff and you think about you pull
the last 50 that we've given you you're
not gonna see a section on vested rights
it's just not there and part of that is
we determine what regulations apply to
applications and we provide our staff
reports in response to that in this
particular case the applicant doesn't
agree with the regulations we believe
are applicable to their permits and so a
vested decision again as part of the
length normal land use process is not
evident in part of the land use process
it's there if you look at what
regulations staff would apply his word
adopting new regulations all the time
related to different things within the
city right and so part of it is we then
apply those regulations to applications
and there's a decision that's been made
about what applies to each application
typically that's not pulled out as a
separate decision as part of the process
in your experience as the director
working with the city are you aware of
any situation in which you're vesting
determination regarding a particular
project application was independently
appealed to the Hearing Examiner some
other Authority before a final decision
on the project application was made then
thank you please turn to IMC eighteen oh
three oh seven oh a one let's scroll
down could you please read aloud
actually just to save time can you just
review that place that a
subsection a okay and can you scroll
down on the screen to reach the end of
it okay okay so in the enumerated list
of administrative actions for which you
as the director are granted by this
section of the code the authority to
make final decisions which I believe is
the the wording of the of the ordinance
are any of those that are options that
are listed any of them encompass a
vesting determination in your view under
1801 o5o C so the lists one through
seven that's part of that section does
not indicate vesting as a separate item
thank you are you aware of him that he's
cutting off his own witnesses testimony
I think the witness should be allowed to
complete an answer I sorry I thought you
were done to you but you know as I
mentioned earlier I mean that's did the
decision about vested rights is somewhat
in every discipline use permit decision
that's made I mean you look at things
like all of these things have
regulations tied to them and those
regulations can change based on city
council action our decision would have
to have an understanding of what
regulations apply to each one of those I
understand that I just want to have you
clarify that of the list of items that
are designated under this section of the
code as being matters for which you have
ultimate final decision authority
starting with number one
an administrative site development
permit wait generally do you have
authority over that for this section of
code yes but for example under a site
development permit submitted under the
auspices of the Issaquah Islands
replacement regulations would you have
authority over that you not because
that's a different section of city code
applies to that geography thank you
and for an administrative adjustment of
standards is that the same thing as a
vesting determination you know is a
shoreline substantial development permit
under subsection 3 would a vesting
termination for the auspices of that as
as I described earlier codes codes
represent a certain point in time and
there's static until they change you
know the the idea of vested rights you
know would apply to every application
potentially right
and so shoreline and shoreline
exemptions are about request to do
something within the shoreline and it's
reviewed against a code that's in place
right it has it is it is not
specifically a vested rights
application but does it potentially
apply sure it does everything can you
please go now to IMC 1819 bo4 oh this is
the interpretive provision of the
replacement regulations are you familiar
with this section and drawing your
attention to the provision of this code
that specifically authorizes the party
to file a request for an interpretation
of this code by filing a written request
the permit center do you see that
in the middle of the paragraph beginning
with the word e anyone yes as IH IFC to
your knowledge ever submitted a request
for an interpretation of the code as
referenced in this provision to the
permit section or the musubi of the
permit center under the authority of
this IMC provision in your capacity as
director have you ever issued a stand
alone separately appealable
determination regarding the vested
status of a project application thank
you are you aware of any of your
predecessors or designee z' ever having
issued a stand alone separately
appealable determination to that effect
in your official interpretation of the
Issaquah municipal code does the code
contain any provision that would
authorize you as the director to issue a
stand alone separately appealable
determination regarding the vested
status of a project application I'm not
sure I'm ready to answer that question I
think you can come back to them okay in
your official interpretation of the
Issaquah Municipal Code does the
Development Commission have the
exclusive authority under the code to
issue final decisions on IH IFC's a STP
and STP applications okay why would you
say that it's so because it's identified
as a level three review because they are
and that was my last question which is
just to confirm that in your
interpretation of the code our HRC is a
STP and STP applications subject to
level three thank you like to asking out
questions regarding the 1996 development
agreement could you please describe the
history and purpose of that contract
Jim general Trumps sure so the
development agreement was executed
between the city and crankily sure
partnership more than 20 years ago and
it was to guide the development on
property that was at the time outside of
jurisdiction so it was actually a
development agreement and annexation
agreement there was a three-party
agreement with the city and King County
and and I'm going to use port Blakely it
was legally they were grand glaciar
partnership to to guide that development
so brought it into the urban area
annexed into the city and the
development agreement and provided a
contract by which the developer could
then build out the
project okay did you describe or define
the build-out period under the agreement
what was an effective that was sure so
the purpose so the build-out period was
you know part of a development agreement
is to provide predictability for a
property owner typically there's
significant either infrastructure
improvements or other costs associated
with doing those and so the the purpose
of the 20-year build-out period for his
Collins was to give the property owner a
reasonable expectation to then recoup
investments on the property and with
Issaquah Highlands it wasn't just major
infrastructure but it was also the
provision of a significant amount of
open space and so it gave them time to
then recoup their investment costs
through the sale of property builders
when did the go got period expire so
build-up Curt expired in September of
seventeen you read section three point
two three of the development of ground I
did you read aloud the third sentence of
that provision of three twenty three
Lucy would probably need to scroll up
just a little bit
[Music]
third sentence you said or third line
with what did you ask for the third
sentence of section three point two
three beginning with the words during
that build-out plated during the
build-out period the city shall not
modify or in pull or impose new or
additional development standards beyond
those set forth in this agreement do you
construe this reference as meaning that
the city is prohibited from applying
action it's a leading question the
question should be how do you construe
this not do you construe it in the way
that he's suggesting it sorry how do you
construe this for this provision mr.
Navin in relation to the concept of
vested rights under the agreement so
what this sentence says to me is during
the build-out period we cannot
unilaterally modify or impose new
development standards beyond those set
forth in this agreement there was a
provision in the development agreement
that said if there was a situation that
was a compromise of public health and
safety we did have the authority to
amend the standards but what this says
is during that build-out period we could
propose but we couldn't unilaterally
adopt changes to the development
standards
based on what you just read or anything
else that you're aware of in the
development agreement is there anything
that would prohibit the city from
applying new or different regulations
after the expiration of the build-out
period thank you
you scroll down please Lucy to section
3.2 3.2 that section allowed mr. Devon
please it's a short section we need to
be point to please
so titled after build-out the
development standards shall continue to
apply to all applications for
implementing approvals submitted after
expiration of the build-out period
except either party may terminate this
agreement and the zoning and development
regulations may be modified as provided
in Section five point thirteen scroll to
5.30
can you please read the last two
sentences of five point thirteen this is
the section that was cross-referenced in
section 3.2 3.2 yes this section is
called term giving with no sooner than
oh oh there it is
sorry I guess missing the beginning of
the sentence no sooner than six months
after the notice of termination the city
shall hold public hearings and shall
adopt zoning and related development
standards for the urban growth area
portion of the property or portions
thereof as determined appropriate by the
city upon such adoption this agreement
shall terminate and thereafter the uga
portion of the property shall be
governed by the adopted city zoning and
related development regulations thank
you how do you construe that provision
in conjunction with the previous
provision that you just read section
three point two point so 3.2 3.2 with
respect to project applications that are
submitted after the build-out period so
the way I understand the language in
these sections of the development
agreement is during the term of the
build-out period applications that were
submitted the city could not change
standards and therefore they could reach
their term which would be a permit under
the provisions of the development
agreement as they were crafted once the
replacement regulations are adopted then
those regulations shall apply to
everything that is not vested thank you
so just to clarify is it your position
that a project permit application
submitted
during the effective term of the
development agreement but after the
build-out period expired would be fully
subject to the new replacement
regulations that the city adopted a LAN
site development permit or
administrative site development permit
would be the preliminary plat because
it's its festival is a different thing
right thank you
are you aware of any a provision of a
development agreement that expressly
states that applications submitted after
the expiration of the build-out period
would remain vested to the development
standards in the agreement despite the
city's adoption of replacement
regulations I'm not aware of any
provisions like that in the are you
aware of any addendum or amendment or
attachment or appendix to the
development agreement that would support
that interpretation
did the development agreement contain
timeframes governing the city's
processing of permit applications that
were submitted under the auspices of the
agreement yes there's a an appendix
within the development agreement its
appendix L I believe without opening my
development agreement that had timelines
associated with different permit reviews
so that was a piece were these
timeframes mandatory or binding or were
they aspirational well there was a
caveat within those timelines that
identified that they were subject to
adequate staffing over the approximately
two decades in which the development
agreement was in effect was most of the
property that was subject to the
agreement ultimately developed oh yes
there's you know the the four to one
left approximately 460 developable acres
and what's left to be developed is if I
was going to guess I'd say somewhere
around 30 or 40 acres was IH IFC's
property developed at all during this
period no could you please a turn to
section five of ordinance number 28 30
you familiar with this provision yes do
you interpret this provision as
categorically terminating the 1996
development agreement yes do please turn
to IMC 1819 B to 80
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you familiar with this program yes in
your official interpretation of the
Issaquah Municipal Code does this
provision afford any how in terms about
whether he agrees with mr. Lowe I'll
rephrase the question for councils
benefit how do you interpret this
provision in relation to IH IFC's a STP
and STP applications what this says to
me is the only thing that that's under
the replacement regulations our building
permits longer short plats
and development agreements AAS DPS and
SDPs do not thank you so to clarify is
it your position that under this
provision the vesting protection
afforded by IMC 1819 B 280 does not
cover IH IFC's a STP and STP
applications thank you was IHI have C
the original land owner and signatory of
the 1996 development agreement you know
when approximately IH IFC acquired its
property I don't know I don't know
exactly I believe it was somewhere
around 2013 do you know from whom it was
acquired the property was previously
owned by the Microsoft Corporation after
IH IFC acquired its property
approximately how much time was left
before the build-out period of the
agreement was scheduled to expire well
it was the fall of 2013 and the build up
period ended in the fall of 2017
for years in light of this looming
deadline did i hif see proceed to file
and use applications to develop its
property under the development agreement
after acquiring its property they did
eventually but not in those first three
years give or take
what did IH IFC do instead of seeking to
submit project permit applications they
were pursuing support for a rezone what
would be analogous to a rezone which
would allow residential on the property
that they did not have entitlement for
so to clarify ih IFC instead of
submitting permit applications to
develop its property expeditiously after
it acquired the property sought instead
some type of movie zone or amendment to
the agreement right you be analogous to
okay and what was the process for that
amendment well the process to amend that
to allow residential which was already
excused up within the entitlement
allowance within the development
agreement would require the city council
to convert some of the commercial or
retail entitlement to residential design
selection did IHI of C submit a formal
application or request to that effect to
the City Council what did they do in
lieu of that so the process began with
them trying to get the administration to
support that request the administration
after multiple meetings with the
applicant told them we would not support
that request unless they had community
support so they then tried they had a
number of meetings with the community to
try and garner support for
residential mixed use project so that is
the pathway they went down and how long
did that process take approximately so
conversations and public outreach I
don't know two plus years and were there
efforts to obtain public support
necessary to proceed with the proposal
ultimately successful did IH IFC then
abandoned its efforts to seek some type
of a reclassification or de facto rezone
under the agreement so IH IFC then
submitted their land use permits and
those are the land use permits that were
submitted in 2017 so if I understood
your testimony correctly from
approximately 2013 when IH IFC acquired
the property until 2017 when they
actually submitted permit applications
they owned the property and were not
actively attempting to seek development
approval through the submission of
permit applications objection it is
testimony and it mischaracterizes the
evidence that I heard who would the test
acquit missus testimony speaks for
itself it doesn't need
recharacterization I'm asking
clarification of the witness's testimony
I think that with all respect I think
that's appropriate answer the question
mr. Nevins show so again all I know is
is what was evident from city staff
perspective and what I can tell you is
when they purchased the property they
sought a land use that was not within
their ability to get permits for they
initially went through a phase where
they tried to
that out administratively with staff to
get staff support for that when it
became when the staff made it clear that
we were not going to support that
without strong community support they
then turned to get the community support
and that was the next chapter of their
process trying to get something to
happen when that didn't succeed then
they moved on to submitting the permits
therefore the Commission this evening in
that process took approximately three
and a half or four years if I heard you
correctly I that would yes Thank You mr.
chairman
I have several more questions about
mindful of the Commission's intents who
I believe break at 9:30 and I'm about to
shift into a different area of question
and I think that this might be an
appropriate breaking point before the
Commission would be happy to continue
with mr. dibbens testimony if that's the
preference of the Commission I would
assume at least 30 probably fortunately
31 minutes with mr. Newman
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I appreciate it I appreciate the
dialogue of the information we look
forward to our meeting Chairman real
quick for the 2014 there's a question
for our council can we we don't know
what we're going to get in response to
the letter from today we put a
placeholder on the agenda for an
executive session in case we need so
recap the the response from the city is
due the 10th is that correct yes
response from the applicant it was due
the 16th the 10th by close of business
the 16th by noon and will start at 7
o'clock the 24th I appreciate your time
appreciate your attendance and return
thank you thank you