good evening ladies gentlemen welcome
you to the Development Commission
special meeting and public hearings for
Issaquah Highlands retail site
development permit Issaquah highlands
medical office administrative site
development permit and Issaquah
Highlands Self Storage administrative
site development permit and appreciate
everybody being here this is a
continuation of a meeting that we
started on September 26th we have some
administrative things that we need to
talk about as a commission and not to
start off which probably is not real fun
for anybody else but we need to go into
an executive session for about 15
minutes to discuss some legal issues a
process and clarifications for the
Commission so if you'll indulge us we're
going to take 15 minutes we're going to
step into the council room and we'll be
right back
you
you
all right thank you for that indulgence
we appreciate it and so we have a
question the to the applicant in your
October 16th letter you request that you
withdrew your request to stay the
proceedings and I'm asking that you
would verify that make sure that that's
that we understand that's the direction
that you choose to go this day we
however are continuing to participate
under protest this body has no
jurisdiction over the vested rights
issue that the hearing is going to be
about we are in the position of having
to do whatever we can to mitigate the
damages as is stated in this Himes
declaration of a hundred thousand
dollars a month for delay and so unless
and until the department is willing to
acknowledge that it has made an
appealable decision or we persuade a
court or Hearing Examiner that it has
then getting through this hearing as
quickly as possible is the best we can
do to mitigate our damages but we do so
under protest I thank you thank you very
much I think we understand that and so
when couldn't we concluded our meeting
last I'm losing the date here at our
last meeting we can the 26th we left off
the city and so we'll turn the time over
to you Thank You mr. chairman the city
does have one preliminary procedural
issue that I would like to raise it
shows a red light is that better thank
you no thank you as the Commission is
aware the Commission has recently
entertained the request for stay and
objection to jurisdiction that the
appellant or applicant IHI FC has
submitted this development Commission is
also aware of the city's response to
that and the reply that was submitted on
October 16th by IHI FC
I understand that there was drawing
there the request for a stay however the
staff would respectfully move to strike
the declaration that was included with
IHI FCS October 16th reply brief or
letter because it exceeds the page
limitations that the Commission had
agreed to and had imposed during our
previous formulation of the rules that
would apply to that the reply was
supposed to be limited to three pages
they submitted a five page declaration
in response to that plus attachments and
we would respectfully ask that be
stricken from the record may I respond
please it's quite common to submit a
brief with accompanying attachments
including declarations I don't think we
did anything here that isn't commonplace
in court and in all the proceedings that
I'm familiar with hey thank you as a as
a practical matter the page limitations
on the briefing generally does refer to
the argument itself and when when
parties do put a graded page limits I
would offer as a practical matter
applicant or may be able to submit this
in their in their other presentation of
evidence in any regards so or your
consideration with respect to at least
how typically it's done in practice as
well as sort of the practical
consideration those were the would be
the be two things I'd suggest you think
about in making that decision and I I
apologize I couldn't hear everything
that was said so if I could just ask
that people speak up or get closer to
the microphone okay dude would you like
me to repeat that I think I got the gist
of it thank you so let me summarize what
you said was that in in content it was
consistent with the items being
discussed and so you felt like it was
appropriate
be able include that as part of the
record I understood the party is a page
limit to reference the the argument I
didn't necessarily understand it to
limit the number of exhibits that that
each side would be presenting however if
he were to decide to exclude those from
the record it's possible that the
applicant would be able to submit them
in there there case-in-chief
when they when they present their
evidence that probably should be the
course of action we take you probably
should deny the occlusion of it in the
record and ask the applicant to resubmit
it in their record all right that's
certainly one path and gets in I mean in
all honesty I think it gets in the
record whether we just accept it and
deny the request from the city's
attorney to strike it or just be fishing
about it accept it as part of its a
medal the arguments are within the
three-page limit or the moment that we
said I think it's a moot point it ends
up in the way that's my point I agree I
think we'll just accept it accept it and
the record as presented thank you thank
you in that event
the city would like to recall mr. Niven
for the continuation of his testimony on
direct examination thank you and could
we either have the witness acknowledge
he's still under oath or have the court
reporter swearing in again
mr. Nibin could you please react
knowledge that you were previously
placed under oath for purposes of your
testimony and that you are continuing
under oath for purposes of today's
proceeding I acknowledge and continue
yes thank you I'd like to start by
revisiting one of the answers that you
gave during your original testimony I
had asked you on direct examination
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 and I
believe you answered I'm not sure I'm
ready to answer that question our words
to that effect do you recall that
response I do okay now that you have
hopefully had an opportunity to review
the code or collect your thoughts are
you ready to answer that question today
yes so so the reason I didn't I wasn't
ready to answer that last time was you
know even though we used the code on a
daily basis I don't know the code
verbatim and and so I wanted to make
sure that what I was going to answer it
was going to be true so my answer is no
I do not
thank you approximately how many
meetings or and or telephone
communications did you have with IHI FC
or its representative since IHI FC
acquired its Issaquah Highlands property
I don't have a number off the top of my
head multiple correspondence both in
person so emails correspondence phone
calls meetings with TIA hi I'm Gary
young Patrick Mulaney could you
approximately estimate how many direct
meetings and/or phone communications you
may have had with IHI FC or its
representatives if I had to guess it I
would
50 out thank you and did you have
written communications with IH IFC or
its representative during that period
sure yes approximately how many written
communications do you estimate that you
would have had dozen two dozen okay if
you're including email yes no yes so
couple dozen okay thank you at least in
your dealings with IH IFC did you
consistently act honestly and in good
faith of course
did you ever deliberately discriminate
against IH IFC or otherwise
intentionally target IH IFC for negative
disparate treatment ethically I could
not do that as a certified planner did
you answer the question you no no I'm
sorry it's no thank you were you aware
of any such negative or otherwise
discriminatory treatment by other city
staff members no did you ever inform IH
IFC that it's a STP or SDP applications
were permanently vested such that they
will not be subject to the replacement
regulations when they were adopted by
the City Council No
are you aware of any other city staff
members that informed IH is see that
it's a STP or STP applications were
permanently vested such that they would
not be subject to the replacement
regulations no thank you based upon your
interpretation of the relevant
provisions of the city's code and/or the
1996 development agreement are IH IFC's
a STP and STP applications vested to the
1996 development agreement No
are you aware of statements from IH IFC
regarding the value of mitigation
payments or other mitigation measures
that were previously made or contributed
or installed regarding the IH IFC
property am I where am i aware that they
have raised that issue with the city yes
yes could you expound on the nature of
your awareness what was said what what
if what have you heard in relation to
that that the property owner IH IFC has
paid basically impact fees as part of
their acquisition of the property and
that their belief is that those paid
impact fees should be considered in any
future applications was the the
contention from IH I see as you're aware
of it limited to impact fees or other
was it also include other mitigation
measures that had been made by previous
landowners it would be both okay thank
you
did I H IFC to your knowledge ever
contend that the value of those
mitigation measures made or impact fees
previously paid equalled or exceeded 24
million dollars I believe they've
contended that yeah thank you
in your experience as the development
services director mr. Niven how does the
city typically treat previous mitigation
measures that were made with respect to
a particular project application or in
relation to a particular project
property excuse me I'll rephrase it is
our previously installed mitigation
improvements taken into account by the
city when the city evaluates a new
project permit application so it's okay
I'm gonna answer and I think I'm going
to answer one of your two questions and
I'm not sure which one it was so if if a
property owner pays for an improvement
to infrastructure the city
my understanding of impact fees is the
city cannot double count a property
owner so if there has been mitigation
performed in terms of whether its
infrastructure improvements water sewer
transportation the city needs to
consider that before it charges impact
fees to that property owner because they
may be the credits need to be given okay
so if I understood your testimony mr.
given there is a potential opportunity
for credit in some circumstances to IH
IFC or in general generally yes
did you ever inform ih IFC categorically
that their project applications their
SDP and si SDP application would receive
absolutely no credit for previous
mitigation measures no to the contrary I
actually tried to initiate a
conversation with foster pepper to the
contrary to actually try and have that
conversation about credits and what was
the response when
you try to initiate that conversation
the initially the response I interpreted
the response that they did not want to
have that conversation they later
clarified that they did and but we have
never had that conversation thank you
when the city determines what if any
credit or offset should be made for
previous mitigation measures or
mitigation payments when does that occur
in the project permit application
procedure at what stage of the process
it would come with permit issuance okay
have you performed that analysis with
respect to IH IFC's s DP and ASTP
applications
no have you informed IHI of C or its
representatives that you have already
completed that analysis we've now got to
their applications
no thank you under the city's
regulations would that determination by
the city regarding the amount of any of
credit or offset to be given or afforded
in regard to previous mitigation
measures would that be independently
with it would that be appealable as part
of a future project permit sort of
application I believe so
thank you I have no further questions
so applicant you have your chance to
talk to mr. Niven Thank You mr. Niven
you were asked by mr. lell whether you
ever told us that we were permanently
vested that's a new concept to me I've
never heard of permanent vesting as
opposed to a temporary or fleeting
vesting can you explain the difference
to me
I took his adjective for adverb
permanently to mean for till the end of
time
well it so what distinction are you
drawing if someone is vested they get to
develop according to the rules that
rested - right so if they're vested they
are vested per the terms of city code
and at some point they may no longer
have an active permit and they may lose
their vesting status well we're not
talking about a situation where someone
no longer has an active permit are we
we're talking about a situation where
our client says and believes it's vested
both pursuant to this the site
development permits and the subdivision
and you told them in fact they were
vested as to both correct so those
conversations happened in the fall of
2017 and at that time the draft
replacement regulations would have had
those permits vested at the end of the
day the City Council chose a different
vesting provision and that's where they
then lost their vesting so it's your
understanding and belief that the City
Council can enact an ordinance that
retroactively Lee takes away vested
rights that you have previously
acknowledged existed so my understanding
is that
they were vested to a contract that
expired and that the replacement
regulations provided a different vesting
provision and is that are you agreeing
or disagreeing with what I said my
question was is it your understanding
that the City Council can retroactively
Lee take away vested rights it's cross
examination and I am too entitled to get
an answer to my questions on
cross-examination and mr. Zell or mr. LL
excuse me asked him multiple times for
his legal conclusions as the person in
charge of these issues why don't you
answer the question why don't you
restate the question thank you mr. Hays
is it your understanding that the City
Council can retroactively Lee take away
vested rights by subsequently enacted
ordinance I think my my understanding is
it depends if they were vested to a
contract that expires then that is
different than if they were vested to
something that was in city code or state
statute well mr. Navin you repeatedly
told IHI FC that it was vested over and
you told them that over a period of time
long before the City Council was even
contemplating the replacement
regulations correct so I told them they
were vested to the development agreement
yes which was an expiring document so
again your opinion is that vested rights
now expire when the regulation that
creates the rights no longer is in place
my belief I'm not a lawyer is that what
they were vested to was a expiring
contract and when that contract expired
they were then subject to the
replacement regulations which what which
what was stated in the development
agreement well the development agreement
wasn't just a contract was it it was for
20 years the development regulations
that applied to the Issaquah Highlands
correct I considered a contract well it
doesn't state law RCW 3670 B that
creates the authority for development
agreements Express expressly say they're
an exercise of the police power as well
as the contract if you say so I don't
well let's assume for a moment that's
what the statute says okay so there the
development regulations you didn't you
didn't come in and decide whether
someone can proceed according to
anything other than development
regulations they were enacted after the
growth management act they were the GMA
development regulations for the
highlands were they not it was a
contract for how to build out the
property it gave certain rights to the
developer it gave certain rights to the
city so let's talk for a moment about
the plat mister Nevin you agree that my
client is vested to their subdivision
application I believe so I said I
believe so hey and you have any doubt
about that I would defer to my technical
staff who's working on that that's
Lucy's home and she will be I think
testifying later this evening okay when
one vests
there's one vest - thank you well let's
let's let me rephrase the question
so we have the development agreement you
refer to it as a contract state law
refers to it as a development exercise
of the police power so if one vests to
the development agreement including
exhibit L which is the process part of
the development agreement correct that's
my recollection yesterday then your
department in fact has treated people
who have vested to the development
agreement as vested to the process in
appendix L correct yes and you've done
that for multiple polygons projects for
example yes and appendix L requires a
subdivision application to be processed
and a final decision made in how many
days I don't know that number off the
top of my head it's a matter of a few
months is it not I don't believe it's
that short I'm looking for a document
that mrs. Lowman created that actually
calculated the number of days and we can
introduce this when she testifies but
her document says it's a hundred and
seventeen days to process a plat a
plunderer development agreement do you
disagree with that like I said I do not
remember what that number is in appendix
L okay and that is calculated from the
date the application is deemed complete
I'll ask you to accept my representation
to that effect so when was the
subdivision application submitted by IH
IFC deemed complete I don't know it was
in August of 2017 wasn't
I don't know
so mr. chairman we we have the issue of
exhibits that we need to offer too great
a record so I'm gonna propose that I
hand up at a copy to you all to be the
official record I'll hand a copy to the
witness I'll hand a copy to mr. lell and
then as we go forward we may also
project some of them up on the screen to
be capable at this point now I believe
that under the rules that the Commission
approved that evidence can be offered at
any time while the the hearing is still
ongoing and we have not yet apart from
the staff report and the attachments to
that
you recognize this document mr. Navin
yes is it the notice of application sent
out by your department for IH IFC's plat
for the entirety of its property yes and
what is the date of the application
first of August which year 2017 so that
was what about 14 months ago yes and
when was it deemed complete the 11th of
August fact it wasn't deemed complete
until October was it I'm I can't answer
that question I don't okay well let's
assume that it was deemed complete on
august 11 miss lumens mo calculates that
under the appendix L of the development
agreement the last day for making a
decision whether to approve or deny that
application would have been November
26th of 2017 you have any reason to
disagree with that well so those
timelines are subject to the submit all
of information by applicants so the
clock technically stops when it is out
for additional information so I think
there's always some flexibility in the
schedule because we can't determine how
quickly applicants will return requested
information on mr. Navin my question was
do you have any reason to disagree that
November 26 would have been the date
that a decision was required under the
procedures in the development agreement
that you've understand my client is
vested to my my statement was in
response to that is yes I don't think
there's a finite time line because
there's a there is a on
managed portion of time that an
applicant has to respond to questions by
staff during staff review okay there's a
rare that we don't ask for additional
information so what outstanding
information has prevented you from
making a decision for over four fourteen
months on our platen so I'm not the
staff reviewing that plat application I
would ask that you redirect that
question to miss Loman a you submitted a
declaration to the Hearing Examiner in
an hour appeal to it a while ago did you
not and here I'll show you a copy you
don't have to do this from memory this
could be exhibit two please
and we'll probably look at so many
attachments later mr. Nevin but right
now I'd like to direct your attention to
paragraph eight of your declaration on
page two yes and what do you say in that
about final decisions on both IH IFC's
SDP applications and its preliminary lat
what this says is although not certain I
anticipate that a final decision on IH
IFC's STP and a SDP applications will be
issued in June or July 2018 and that a
decision on IH I have seized preliminary
plat will be issued in August or
September of 18 and that hasn't happened
in either case has it it has not
happened so and you also say in that
pair at the beginning of that paragraph
that each of these applications is
currently under active administrative
review correct that's what it states
okay so what active in administrative
review was underway when you wrote this
declaration on May 3rd of this year
for or either the SGP applications or
the plat so we were in process of
reviewing all of those applications
requesting information and revisions by
the applicants is my understanding which
ultimately led to the staff reports this
evening for the SDP in a STPs
again you said under active
administrative review I am asking you
what is the factual foundation for your
statement in your declaration what
active administrative review were you
aware of when you wrote this so it was
it's as opposed to being inactive which
is in city code identified as something
that has sat for six months and these
applications were not that so they were
deemed active still well Mike was your
department doing anything you review any
of these applications my understanding
is that every active permit in the
system in the city is being worked by
that Review staff can you you have any
actual knowledge of any things that
would qualify as active administrative
review for any of these applications
when you wrote this declaration other
than my understanding of how my
department works no I mean I don't I did
not interview staff related to these
specific applications to understand what
daily activity they were doing in terms
of review you know how many months that
my client had to wait before it could
even be told what was going on with the
supplied application with no response
from your department I do not know so
what is my client vested to under its
plat applications that exhibit one was
issued for so so the plat is not part of
can I ask just a subject question the
plat is not part of the the staff
reports in front of the Commission I
don't know why we're spending so much
time on the plat so maybe I can ask that
I don't know if that's a clarification
to the applicant or I just I I want to
know the relevancy of the plat
conversation because the three staff
reports in front of the Commission are
not the plat a good question well it's
it's it would be a good objection for
the attorney to make they the whole
issue is vested rights that's what this
hearing is about the department has
acknowledged in writing that we are
vested pursuant to the plat application
the plat application includes all of the
property including the property that is
subject to the STPs under the case law
if we are vested to the plat application
then we are vested to applications that
implement the the plat vesting now mr. L
and I you know we'll both give you
differing opinions about what that case
law means but but I believe he talked
about it in his opening statement here
and the if we're vested pursuant to the
PLAs we believe we are then there is no
issue under these site development
permits and the city has sat on for 14
months on our platen and refused to tell
us whether we are vested or what we are
vested to and what we're not vested to
so it's very relevant to the core issue
of this hearing and the fact that the
department's issued decisions on the SDP
without resolving the plat application
vesting issue and what we're vesting to
is just part of our incredible
frustration here and what we believe is
the fundamental ill
galatea this entire proceeding we we
submitted an application in August of
2017 that we believe bested us to
everything that is in front of you
tonight to the development agreement and
it's certainly very relevant the fact
that the department has tried to ignore
it is part of the problem with this
whole vested rights issue and we are
creating a record on vested rights so
when this goes to the Hearing Examiner
or the Superior Court this issue belongs
as part of the record okay
proceed
oh so the question was is what is vested
by your preliminary plat application yes
so I would I have not had that
conversation with my staff I don't know
what has been communicated out to you so
I would want to confer with my staff so
if we need to if we need to do that now
I can do that now but I have not had
that conversation with my staff so even
though the application was deemed
complete more than fourteen months ago
you've not decided what were vested to I
have not had that conversation now
if in fact my interpretation of noble
manner is correct and mr. lel's is wrong
then we would be vested to the sgp
applications pursuant to the plat I'm
not I'm sorry I have to object this is a
completely legal line of questioning and
it calls for a legal conclusion I would
respectfully reiterate my objection to
that well and mr. loyalty a lot of the
to the witness this is this is not the
time or place for legal arguments if he
has factual questions to ask mr. Niven
that's appropriate but legal conclusion
oriented questions are simply
inappropriate in this context and I was
not asking for anything other than what
he has responsibility for is the head of
the department I didn't ask him to
decide whether you were right or I was
right I asked him to assume if I was
right wouldn't that mean that we were
vested pursuant to the plat application
that is his responsibility as an
administrator to decide what were vested
to and not vested to respectfully but
reiterate my objection all right he is
he's said that he hasn't spoken to his
staff so that seems to be the answer
that he doesn't know what is what his
staff agreed was he they were vested too
right no but I didn't asked a second
subsequent question which was if we were
vested and wouldn't all of this all of
the decisions about the SGB and their
vesting be irrelevant because the
decision would have the issue would have
been decided by the platen that's the
this follow-up question that I'm asking
and again mr. Sherman the question by
its terms is asking the witness to
assume hypotheticals regarding legal
conclusions and cited case law that's
simply inappropriate in this context I
agree I agree with that
so if I hadn't asked the question
tonight mr. Niven when were you going to
decide what were vested to pursuant to
the preliminary plat if if the applicant
has that question and has asked that
question of staff I would assume staff
would provide that answer to the
applicant so if that has been conveyed
to staff as a written question I would
assume we would have responded if not
then we should respond so if that is a
question of the applicant I and I and if
it has not been conveyed to staff yet I
would say send staff an email if let's
assume that staff and my client disagree
about the scope of the vested rights
under the plumeria plat does my client
have any opportunity to challenge that
decision until you make a decision on
the plenary plat allocation my hope
would be that your client and staff
including myself would have a chance to
have a conversation about that before a
decision was made that would need to be
challenged by your client mr. Nevin that
wasn't my question the question was let
me phrase it differently there is no
opportunity to resolve a disagreement
between your staff and my client about
the scope of vested rights until you
make a decision that can be appealed
correct well so there's an opportunity
to have a conversation ultimately if
your client does not agree with the
position of the city then you need to
your avenue for relief would be to
appeal that decision when that decision
gets made right and you've waited 14
months and haven't made a decision yet
correct I believe that we've asked for
information that has not been responded
to why do you believe that it's what I
think my staff has told me
do you know what information hasn't been
responded to I do not know the I do not
know the extent of that tonight so I
want to turn to one of the polygon
applications so how about the polygon
West Ridge townhomes North light
development for permit application are
you familiar with that generally and you
know when polygons submitted its
application for that SDP I do not know
excuse me just a moment
let's start with this one
we're gonna switch gears and I'm gonna
ask you first of all about the North
Ridge North the West region North single
family plaid okay that one you're
familiar with all right yes generally
this is exhibit three
so what was well first of all this is
the note of application for the plac
correct correct and according to this it
was applied for in July of 2017 and Dean
complete the same month yes
this was processed under procedures in
the development agreement including in
Excel correct yes and is that also the
case for the
okay
for
so what I've handed you is exhibit four
can you identify it for us yes this is
the this is the recommendation from the
urban village Development Commission
signed by mr. Jeff Walker chair okay and
the urban village Development Commission
is the entity that processes flats under
the development agreement they make a
recommendation to the City Council who
are the decision-maker
back then if this plaque was applied for
today under the replacement regulations
adopted in March you wouldn't go to
there you VDC correct it would not how
it would lose so my staff is saying it
would and the Commission recommends to
the Hearing Examiner
okay well we'll come back to that with
mrs. Lowman then but you would you would
agree this was processed pursuant to the
procedures in the development agreement
yes okay and this application was
actually submitted after the end of the
build-out period was it not
I don't know because you didn't give me
the notice of application for that okay
unless it says in here does it know all
right
okay we're we're gonna rather than have
everyone wait while I look through these
documents so I'm going to represent to
you and we'll find the document later
mr. Navin that polygons West Ridge
townhomes North SVP application was
submitted in October of 2017 actually
submitted October 20 2017 and deem
complete on October 30 oh I'd like you
to accept that representation as being
accurate and then it was approved by the
u VDC under the procedures and the
standards in the development agreement
on May 10th so can you explain to me do
you know why polygons application for a
site development permit that was
submitted during the same period of time
as my clients by that I mean after the
end of the build-out period but before
termination of the development agreement
why it was vested to both the substance
and the procedures in the development
agreement my understanding is that poly
so polygons executed a separate
development agreement with the City
Council for the inclusion of 100 TDRs
onto their property it also created an
affordable housing obligation that
polygon had to fulfill as part of
build-out of their properties so I'm
gonna hand you what I think
yes
so mr. human this is a what can you
identify the overall document for it
there are many exhibits and I included
with it but what is the overall document
the document is entitled developer sales
agreement for affordable units Westridge
and I'm going to represent to you that
what I believe is the separate
development
okay so it is there a solution it's hard
to identify the business Exhibit A maybe
elimination to the document it's an
attachment okay it's page five maybe of
of the ordinance okay I did I have as
creating vested rights for the polygon
application
[Applause]
[Applause]
I'm gonna say I'm gonna say no I do not
believe that this documen 2017 - 10
provides additional vesting provisions
for polygons I will need to look through
these documents a little bit further
before I may to say which document did
but I do not believe it's that
resolution the resolution that aid to
the resolution we were paid to a
development agreement not a resolution
this is the only development agreement
I'm aware of other than the one that
issue in this appeal so have you had a
chance to look through that development
agreement so I'm if the question is why
did polygons get to proceed under the
provisions of this equivalence
development agreement and not the
replacement regulations what I'm telling
you is I will need more time to give you
a specific answer for that question
okay well that's an important question
so when we take a break if you could
take the time I may not have those
documents with me so I do not think
we're gonna finish tonight if we are I
will definitely provide it by the end of
night if we continue to another evening
I believe we are planning for that I
will definitely have it by next meeting
okay well why don't we assume for the
moment isn't it fair to say there's
nothing in this particular development
agreement that addresses vested rights I
would agree with that so if in fact and
you're not agreeing that it is but if in
fact this is the development agreement
that allowed polygons
to vest there's nothing in it that
addresses that issue this particular
document no miss mr. Schneider it would
help in the future if you site some
specific things if you could read that
text for us that the specific text that
you want us to read as opposed to having
us look look for it that would help
well it I think the I appreciate that
and I will I do my best in this case the
problem is there isn't any text I don't
have anything for him to read because
he's acknowledged that there's nothing
in this document that addresses the
issue okay
so
mr. Navin my recollection is that when
we were here last month you testified
about some of the your understanding of
the purposes of the development
agreement I testified that I understood
the purposes of the development
agreement I'm sorry for example one of
them was to provide certainty to the
applicant right and the one of the one
of the ways that provides that certain
DEA's that not is in appendix L the
procedures that provide for expedited
review yes and one of the things that
Appendix L says for example is that
reapplication conferences are optional
direct correct but in fact you and your
Department refused to accept any
applications from IH IFC under the
development agreement while it was in
effect unless they spent months and
months preparing pre applications
correct my understanding is that my
staff was requiring the applicant to
work through a pre-application meeting
process before a formal permit
application could be submitted with the
intent that the hope that processing of
that permit could then happen more
expeditiously when that issue was
brought to my attention by the applicant
we clarified that a pre-application
meeting was not required and it was it
was listed as optional in the
development agreement but in fact you
continued to require the pre
applications did you not I do not
believe so you said that you told the
applicant they were optional how and
when did you do that
that was an email I believe to miss hime
I do not remember what the date is
is that an email from you it would be
when we go back for a moment to the
exhaustive application for IH IFC's
laughs which is Exhibit one sure I want
to direct your attention to page 2 of
that document you see that the back of
the first page yes yes and what what do
we see there what I see is IH IFC's
property
broken into five blocks Street
extensions and buildings building
footprints C building footprints really
not I see I see building footprints
[Applause]
when did the public comment period end
on this notice of application for the
clap I have no idea you know I direct
your attention to the top of the first
page it looks like it ended January 17th
of 2018 you describe anything that
you're anything that your department has
done to process this application since
that day I haven't that would be a
question for Miss Loman
though mr. lell asked you questions
about mitigation
and you inform my client that with the
enactment of the price replacement
regulations it was the city's position
that all of that mitigation that had
previously been provided would evaporate
I think to the contrary I actually think
we tried to have a conversation about
credits and conversation about credits
whether there would be any you didn't
use the word evaporate to describe what
would happen to the previous mitigation
I not that I'm aware and my client when
did
when's your understanding you testified
to this last time of when my client
acquired its property I believe it was
2013 maybe I don't remember if it was
2012 or 2013 it's been as IH IFC done
any other development in the assaut qua
highlands that would be subject to the
development agreement other than the SD
peas the ASD peas and the Platt that are
at issue here can you restate your
question now the question was have as as
my client developed any other projects
or the ones that are at issue in this
hearing the only ones that you're aware
of that they've developed in the
highlands so that's a tricky question I
don't know it's not intended to but it
is so one of your clients I used to be
part of a homebuilder that has built in
Issaquah Highlands not like the client
I'm referring to as simply I hoc not any
predecessor entities so I believe and
again I don't know if I'm right on this
I believe that I H IFC may have built
Highlands Terrace which is the apartment
complex kind of north of the YWCA okay
ask the question in a different way
sorry in heaven so and again I'm going
back to the way mr. lell asked the
questions of you yet basically asked you
as as my notes reflect that if applicant
has paid fees has paid fees then you
wouldn't make them pay again is that a
fair summary of what you were saying so
you know at that that's not that's not a
it's not a open-ended yes you got a pass
for life you know part of the
conversation what makes it complicated
potentially for your client is is there
has to be at least some consideration
over the aging of any of the
infrastructure that may have been
credited towards their properties so for
example you know let's assume that a
property owner put in a water line and
and that was 20 years ago and then sat
on the property that water line has been
in service for 20 years the city has
maintained that water line for 20 years
at some point the value of that
infrastructure improvement has
depreciated and so I think that is part
of the conversation why this is maybe a
more complicated conversation than just
they bought the property and the
previous property owner paid twenty five
million dollars in mitigation and impact
fees and therefore they should get
twenty five million dollars of credit I
think it's a little bit more complicated
than that
I'm not quite sure what question you are
answering mr. Navin with those comments
but I thought I was answering your
question if I missed it sorry so let me
approach it from yet a different angle
okay so
if let's assume that that for the moment
that you're correct that my client is
not vested they have to do their
applications under the replacement
regulations and let's assume for a
moment that there's is some economically
viable development under the replacement
regulations so we'll make we'll make two
assumptions they are going to have to
comply with what those regulations say
regardless of how much money they paid
for their property correct yes so if in
fact the value they paid for their
property reflected the value of the
mitigation that was already provided as
part of the development agreement how
how on earth could you give them credit
for that if they're subject to the new
regulations that don't take any of that
into account
if the witness doesn't understand it I'm
happy to ask re ask it but that's his
issue and I have many issues so so the
property owner needs to meet the
regulations the regulations to my
recollection don't talk about impact
fees and mitigations the mitigations and
impact fees that are in place citywide
would be interpreted to these
applications and part of any decision
process I think what your clients have
attested to is they believe that that
there have been mitigations paid and
therefore they are due accredit I think
the city has not dismissed that claim I
think we need to have that conversation
and hopefully it would be resolved in a
way that was acceptable to your client I
don't know that it would be but I would
hope that's the goal is it fair to say
mr. Nevin going back to what you were
saying about one of the purposes of the
development agreement was to provide
certainty and that exhibit L and the
expedited procedures were part of that
bargain correct betweens let me go back
let me tell you my understanding is you
can tell me if if I'm barely
characterizing what you said last time
that in exchange for the developer doing
an environmental impact statement
figuring everything out up front coming
in and providing the mitigation upfront
building the streets providing the open
space they got certain things in return
and one of those things in return was
certainty and an expedited approval
process is that fair No
so I'd say I wouldn't I wouldn't use the
word certainty I'd use the word
predictability and I think it's I think
it's a little different so what what the
development agreement did is for 20
years said here's the rules by which
properties can develop within this
geographic area
and that was the predictability that
they got well one of the if you want to
use the word predictability one of the
predict abilities they got was appendix
L delighted for an expedited process
right but the development agreement also
said that those timelines were subject
to staffing and it also provided
basically the damages that the city
would face if it did not meet those
timelines and that was it would refund
application fees okay and you you can
use itis for the parts of the
development agreement there you're
referring to
I can not right now so I don't have it
okay so I'm looking again in this
woman's memo and again these are her
calculations I haven't done the math
independently but for example she says
that the maximum number of days to
process an application under the
development agreement or an
administrative site development permit
was 50 days let's assume for the moment
that her math is correct and her reading
of the of the document was correct
that's 50 days from the application
being determined complete the
development agreement says that pre apps
are optional so isn't it fair to say
with the three administrative site
development permits that are at issue
this evening you required pre apps and
the 50 days expired last year so the 50
days is 50 staff days and again appendix
L which this is a separate argument
where they are they are contending a
breach of contract by the city so I
would like to defer that particular
piece to that other hearing that's going
to come but you know those days are
staff work days it's subject to
city staffing resources and I will
provide the applicant with those
sections of the development agreement if
that would be helpful and if you could
also provide we're in the development
agrees agreement it says those are 50
staff days sure but according to miss
Loman here the 50 days for processing
administrative site development permits
on behalf of my client expired on
January 15th of 2002 7 2017 she met 2008
mr. chairman I'm sorry the council keeps
referring to a memorandum can I ask has
that been submitted into evidence I've
heard multiple references to it but I
don't think I've actually seen the
document and it's a little difficult to
track the line of questioning and it
must be also for the witness I think a
very fair comment so 6
now again she has everyone can read the
document and she has qualifications in
there about some of the practical
difficulties with compliance but I don't
think there's anything in here about
snap days you'll correct me if I'm wrong
but in any event
bring to the bottom of that and her
calculations according to the
development agreement if we're vested to
it then the plat should have been
approved on November 26th of 2017 the
site development permit on March 14th
Jesus 17 with unity the administrative
ones On January 15 she said 17 events
you have any reason to disagree with any
of that I I have never seen this
document before I would ask you to ask
those questions to miss Loman I don't
have an understanding of why this was
provided so I don't have a reason to
agree or disagree with it because I have
no context sorry is it fair to say that
if my client is vested to the
development agreement that your
department is many months and in case
the plat more than a year late making a
decision
I'm sorry I couldn't hear the objection
you can't they can't hear you I believe
that the question has already been asked
and I believe that the Commission has
indicated that it's improper if that's
the case I don't recall that but nor do
I so than you it was the beginning of
the early part of mr. Keith or mr. Alan
Evans testimony and I would respectfully
object to it again here for the same
reason I think the question has already
been answered right no I meant just now
but
so mr. Nevin you you started out this
evening
response to him mr. well saying that you
were as I understood it that this is my
characterization of your answer so
correct me but I understood you
basically to say you were helpless to do
anything except put my client through
the process it's going through tonight
you couldn't you couldn't make a vesting
determination in the way that could have
gotten it resolved without having a
hearing that doesn't a body that doesn't
have jurisdiction have to sue this
hearing is that your opinion the the the
process allows for a singular appeal and
that appeal is of the decision that's
made which includes our interpretation
that these applications fall under the
auspices of the replacement regulations
Oh mr. Nevin directing your attention to
the declaration that you submitted on
May 31st which is you said that you or
rather your department was anticipating
a final decision and again referring to
paragraph 8 you entered July on the SGP
applications in August and September on
the plat right that's what we believed I
think was this in May dated this May
31st yeah
so back in May I think we thought we
were on a better pathway then ultimately
we have been on in May you clearly
thought you could have made vesting
decisions
look would have made them at the staff
level right I don't believe so what are
you thinking where are you getting that
I guess implication you're saying final
decisions will be made in June
August and September there's no mention
in here of sending any of this to a
commission like this it will have to
hold a public hearing before making a
decision you you wrote this in at the
end of May so I don't understand I guess
what you are implying I mean so that
section 8 isn't intended to be a
narrative of the entire process so so
what all it was saying was that we
believed we were going to have decisions
by a certain day not what process would
be followed to get to those decisions
well mr. Navin on the last day of May
you say under oath that you anticipate a
final decision June or July right so
there it's obviously not possible to
convince a process before this
commission and get it done in a month or
two right that's not correct I think he
pointed to a timeline for polygons that
was August to December so I mean I don't
it depends on the applicant is that that
was my comment earlier about the number
of days we can do our process in a
certain specific amount of time but a
lot of it depends on the applicant and
their willingness to respond to
questions raised by staff mr. Nevin I
don't understand what anything he just
said had to do with the question I asked
how is it possible
let me approach it a different way and
on the last day of May you anticipated
not just as a decision a final decision
on the applications on the applications
not just on the testing issue are you
saying that you were going to send these
applications to the development wrote
this declaration as what I believed when
I when this declaration was written is
that we believed we were almost
completed with our review of the
applications and you were going to make
final decisions you your Department
correct it does not say that well what
else could it possibly mean what other
process were you contemplating on May
31st so so STPs and AST peas had
different processes in the development
agreement agreed so that so there would
not be a singular process even under the
development agreement or am I missing
your question again well never is the
decision maker EDA can decide whether
that was a responsive answer or not
the point is mr. Navin you correct me if
I'm wrong
that when you wrote this you your
department was going to make a final
decision on all the applications by the
date stated right that's what we
believed in May that we would be done in
June or July and September okay so in
May under oath you believe that the
process was an administrative process at
least for the SDP and ASDP applications
and presumably you are going to send a
plumber a plat
to the City Council or what how are you
possibly going to make a final decision
on the preliminary plat within this time
frame so May to September is plenty of
months to get a plat through commission
and through the council
and so why hasn't that happened I can't
answer that question I'm not doing the
permit review and it's also plenty of
time to make final decisions on the SDP
and a SVP applications I believe it was
a reasonable expectation in May that we
would be done by these dates and when
did you first decide that these
applications had to go to this
development so that was realized when
the replacement regulations were adopted
that was in March right at the end of
May there's nothing in here about
sending in development like I said this
is not about process this is about an
expectation for decisions so mister
Niven were we're now in the second month
of a process that we were informed would
start in August now a lot later than
August and we're a long ways from the
decision are you saying that when you
wrote this in May you were you were
going to send these applications to the
Development Commission as you made that
decision back in March yes
you know that your attorney called me
and August and said that you had changed
your mind about how to process these
applications I do not know that
so with this pause it seems like we've
been going for a fairly long period of
time I think it would be appropriate if
councils agree that we take a five
minute break and I get everybody a
chance to stand up and get blood flowing
again is that acceptable yes thank you
and I would just request that if
possible mr. Nibin use some of the break
time to decide whether that is the
development agreement dealing with the
polygon application that I referred to
him that is part of I think exhibit 5
chairman the Commission's aware Council
for IHI FC has deposited several
documents and and some of them are
somewhat voluminous into the record
tonight I don't believe that the witness
certainly not the city team has had an
opportunity to digest those my
recommendation would be to continue
through mr. Schneider's
cross-examination was evening since we
are coming up on the the anticipated 9
p.m. break time and then resume with mr.
Nevins redirect examination at the the
next reconvening of the Commission is
proceeding would be my suggestion I
agree with that night and I know we were
talking about stopping at 9:00 but with
the five minute break I think we might
be able to go over maybe go as late as
9:30 but we don't want to go much past
9:30
well my process of mr. Nevin is not
going to take until 9:30 so if we're not
gonna do redirect I think we should can
I ask who's gonna come next or are you
resting we were going to call miss
Sloman and I anticipate at least 45
minutes give or take on direct
examination for her and at this point
the city anticipates arresting following
miss Loehmann's testimony thank you
so we've got five minutes thank you
you
all right I think it's we're back in
session mr. Inoue and I want to ask you
out
Westridge block for affordable housing
project no we've already got six
thank you
let's see this is titled Westridge block
for affordable housing application date
was April 27th 2018 application was
deemed complete May 16th of 2018 correct
this was still processed and approved
under the procedures and the development
agreement right right so we're gonna get
back to you on that
yeah that was the question you asked
earlier earlier question was about the
other Westwood project this one is about
the affordable housing project and I
showed you the development agreement
I've wore this specific affordable
housing project so my answer is that I
am going to get back to you on both of
those because I think they might be the
same thing so you're you're trying to
draw a distinction between the two and
I'm not conceding that there is a
distinction between the two on one on
why one vested and one didn't know I'm
not trying to draw a distinction I am
trying to get you to agree that the
development agreement that I showed you
is the development agreement for this
affordable housing project so there were
there was there was a ninth major
amendment there was a development
agreement there was a memorandum of
understanding there were a lot of
documents that the city processed with
polygons northwest and what I'm saying
is I want some time to look through
those - before I answer the questions
that you keep going back to related to
their property and is it fair to say
that as you sit here this afternoon
or this
they're not aware of any development
agreements other than the Swat Highlands
development agreement and the
development agreement for the affordable
housing project for polygons that have
anything to do with any of these
applications if you're specifically
asking about development agreements the
answer is no I'm sorry yes there's no
your I'm not aware of any others so if
in fact the cities records reflect that
polygon was vested to the development
agreement even though it applied after
the development agreement expired
and the basis for that was the
affordable housing development agreement
which you've already said doesn't have
anything in it about vesting music can
you explain that I'm not wanting to talk
about any of those documents this
evening we can keep you can keep asking
I'm gonna keep saying I'm not gonna talk
about it
yeah
I did my client IH IFC and its attorneys
light to you about the mitigation issue
and what would happen to the mitigation
once the development agreement expired
if we weren't vested I don't know maybe
you don't remember any written
communications on that issue
I don't know so as I mentioned earlier I
initiated a conversation about credits
there were correspondents back if those
are what you're referring to then yes I
do remember those if there were others
that you were alluding to I'm not sure I
recall them at this moment
so doesn't even begin back to what you
said at the outset I didn't response to
mr. ll is it your belief that you have
no authority to make an administrative
vesting determination under the city's
regulations I think we answered that
already - let me ask a different short
why isn't siding which code applies it
could interpret so
I don't know that it's not good
interpretations available isn't sure so
you have if it's I'd say it's not then
you do have the discretion to make a
vesting determination as a code
determination that could be appealed
directly to the Hearing Examiner correct
so right now nobody has asked for a code
interpretation on that issue to me
so no decision has been made separate
from the staff reports that are in front
of the Commission this evening are you
saying you don't interpret the code
unless someone on the outsides asks you
to so there's there's reasons to
interpret the code one is a written
request from a property owner or an
applicant the other is based on staff
needing clarification
well you interpreted the code to send
these applications to this Commission
did you not I did and you're saying you
did that back in March correct yes why
did you wait then until September to do
so we were working on trying to get
application decisions with the applicant
we moved it it happened in this time
frame because the applicant decided or
told us that they were not going to
amend their applications to be
consistent with the replacement
regulations because they did not believe
that they applied that let us no other
alternative but to write a staff report
for denial so that played itself out
maybe not in as expeditious way that the
applicant would have liked but the city
tried to move it along as best we could
and that's this the way it worked out so
again you're testifying tonight
that took you from March until September
to send this issue to the Development
Commission even though you had
interpreted the code in March that it
had to come here and you're saying
that's because the applicant wouldn't
agree to its amend its application and
thereby give up its the claim to vested
rights so any question about processing
of these permit applications should be
directed to miss Loman because I was not
doing that staff work she was so they're
the one who made the code interpretation
in March correct right and you decided
in an April letter that we weren't
vested correct there was a letter if it
was April that I will give you that
April fourth saying you're not vested
okay and now it's a it's what October
almost November and that issue is
finally in front of this Commission why
did it take you from April until
September you make a decision that could
be appealed to a body without
jurisdiction over the issue again you're
asking a question of why did it take
that long to draft the staff reports for
denial I would ask that you ask miss
Loman that question
have you ever made a vesting
determination for anyone else
I believe polygon asked if they were
vested and I think we told them yes and
if so you you do make vesting
determinations did with you yes in April
correct yes
[Applause]
[Applause]
[Applause]
[Applause]
mr. Devin did the mayor direct you to
change your position about vesting no
did that on your own yes did you
acknowledge to my clients that you were
following the directions of your new
boss when the Mayor was elected I do not
remember that conversation thank you
that's all if it please the Commission
as I indicated previously because of the
numerous documents that were submitted
into evidence this evening many of which
we haven't seen before I would
respectfully request that the hearing be
continued until a future date and we
continue with our redirect with mr.
Niven at that point okay I would just
point out that the documents see saying
he hasn't seen are the city's own
documents that we've obtained from the
city so I understand that mr. Niven
needs time to look at the documents for
the vesting issue but that's not a
reason to continue the hearing I assume
we're gonna proceed with miss Loman at
this point counsel said that they he
thought he needed 45 minutes and I think
that that probably would exceed the time
that we want to extend this well then
can I express our frustration that this
hearing is being scheduled for two hours
a month and my client is paying $100,000
a month in carrying costs and there's no
effort on anyone's part to expedite this
and allow us more than two hours a month
at this rate it's going to be well into
next year before we're done and there's
no reason for that as far as I can see
except unwillingness to get this
resolved in a timely and fair manner if
I could mr. Chairman I would repudiate
any suggestion that staff is
deliberately attempting to delay these
proceedings we have just as much
interest as as the applicant and in
trying to obtain an efficient end to
this process I would defer to the
Commission on whatever scheduling
constraints that you might have but the
staff is very much willing and able to
proceed in a more expeditious fashion if
the Commission can
time to do that but we're also very
conscious and sensitive to the fact that
you're all volunteer members and you're
doing this on off hours so with that
constraint we're very happy to have
multiple days longer sessions whatever
the Commission's preference is well we
had we had two dates proposed for the
next the continuation of this meeting
one was November 29th and the other was
December 5th we're available for either
the Commission is available for either
of those dates and we're willing to let
the council decide which would be most
appropriate for them all I would request
both the city has no objection to both
as well we were available for both so I
think that we're willing to do that
we're probably also willing to extend
the time it's just we can go longer if
we need to well but we're gonna be
transitioning now so why don't we
adjourn for tonight and and we start
again on the 29th and we'll have the
29th scheduled and the 5th of the 29th
of November and the 5th of December if
if the Commission is willing to extend
the hours would there be any willingness
or availability to start at 6:30 instead
of 7:00 to give us a little more time
staff has no objection again I would
have to defer to you the Commission yeah
I believe both of those meetings were
already scheduled for 7:00 to 10:00 is
that correct don't believe they've been
noticed yet so I understand we could
probably start at 6:30 as long as we can
no we're both at 6:30 to 10:00 if that's
the thank you that would see variable
okay may I ask a question of counsel
absolutely mr. Schneider how long do you
anticipate your case-in-chief lasting
just for scheduling purposes
well we're probably going to have three
witnesses I would expect even with an
extended evening it's probably going to
take two evenings to put on those three
witnesses plus you're across thank you
and will almost certainly bring in
rebuttal witnesses after that and I
would expect that to last at least one
and a half to two hours ok so it appears
we're in agreement we'll meet that 29th
and of November and the 5th of December
will start at 6:30 and go until 10:00
o'clock and so we should consider that
our meeting tonight adjourned until then
thank you thank you for your
participation
you