like coming on what I see off there we
are all right good evening ladies
gentlemen I'd like to welcome into the
continuation of the Development
Commission special meeting concerning
this acquire lands retail is qua
Highlands medical office administration
administrative site development in
Issaquah Highlands self storage
administrative site development permit a
continuation from our November 29th 2018
meeting and so with no further delay
I'll turn the time over to mr. Lowe who
will continue his on thank you very much
mr. chairman
I believe that the next order in the
proceedings is for mr. Schneider to
begin his cross-examination of miss
Loman
of the city's witness but before that
there is one procedural or a preliminary
point that I would like to address
during the most recent hearing it was
requested that the city provide copies
of the polygon agreement that was
referenced in mr. nevan's testimony and
the city has eight copies of these two
documents which we'd like to introduce
as C 33 and C 34 and we would be happy
to introduce or to recall mr. Niven to
provide context for these materials or
we'll be happy to do that at a later
time during a rebuttal opportunity why
don't we wait why don't we wait until
the rebuttal thank you for me happy to
do that time thank you yes mrs. Lowman
if you could please take the stand
thank you thank you
as a preliminary matter could you please
confirm and acknowledge that you
continue to be under oath from your
original testimony I continue to be
under oath thank you Sloman why don't we
start with the documents that mr. L is
just introduced I would note that z33 is
the same document as s5 that's already
in the record and that C 34 is a signed
version of the development agreement
that is part of C 33 and is also in the
record in the unsigned as part of RS 5
so both documents are in the record the
change is that we now have a signed
version of this second development
agreement miss Loman these are the
documents that mr. Nevin identified as
explaining why the city processed
polygons applications submitted after
the termination of the development
agreement under the procedures and
standards in the development agreement
do you agree that's a care fair
characterization of his testimony that
these are the documents that were the
basis for processing those land use
permits yes I believe so yes and you
identify forests in either document
where it says anything about vesting
polygons to the expired regulations and
procedures in the earlier development
agreement
I was not party to developing these mr.
Niven answered those questions I think
if you have additional questions you
need to ask mr. Newman well--that's am i
correct and understanding then that you
are not aware of any basis in either
document for
treating polygons is as vested to the
expired development agreement I'm not
saying that I'm just I'm not I'm not the
expert on these documents and I am NOT
going to try and explain them to you
well I'm asking whether you're aware of
anything in them it seems to me either
you are or you are not are you aware of
anything in either document that would
justify how you treated polygon under
the expired development agreement I
understand them to be a development
agreement related to certain properties
and as that that I believe understood to
be the basis for how they were handled
if you're asking for specific provisions
I think someone who is familiar with
these documents would have to answer
that question mr. Niven I believe said
you would be the person because he
wasn't familiar with them but he
identified them so I don't I don't
believe he said that I did go back
through the record I mr. Niven was the
primary author and took these documents
through counsel he is the one that has
the familiarity and I think would be
best able to answer those questions
which is why I believe mr. well offered
to make mr. Niven available if there
were follow-up questions why don't we
turn to and compare if you would please
your two charts that you did talking
about the timelines for processing
shelters application the first one is
the one you prepared for the City
Council which is f6 in the record and
the second chart is the one you prepared
for this hearing which is C 27
so we have up on the screen see 27 why
don't we start with it so like to walk
through and have you explain for us
where these numbers of days come from
let's start with the column you've
identified pre plat and you say 117 days
how do we get to 117 days so back in the
late 90s as we were beginning to develop
or implement the development agreement
port Blakely communities the master
developer and the city found the exhibit
which was from appendix L I don't
remember what exhibit number it is that
was introduced last time C 28 okay was
this one okay thank you
C 28 that chart found it difficult not
only for city staff and the master
developer but for applicants and so city
staff undertook to develop individual
charts that were trying to explain four
different land use types how how the
steps and timeframes rolled out from
that appendix L chart those were
developed as I said about two decades
ago we the master developer and city
have used those since then as a way of
explaining both the timeframes and steps
where are these documents that you're
now referring to I have them in my
office
they were never formally adopted they
were used as tools by as I said the
master developer in the city well I
would request that you provide those to
mr. ll and ask
that he provide them to me before the
next hearing certainly is it fair to say
based on what you just testified to that
the numbers of days that are in c-27 are
not the number of days that are in
Appendix L to the development agreement
no they we considered those that the for
instance the 117 days was our
understanding of the Appendix L chart
and how that would the steps and dates
in that appendix l chart worked for in
implementing Appendix L there was no
intent to change why don't you turn the
page then to the next Exhibit C 28 and
explain to us how you come up with a
hundred and seventeen days or getting
from the middle to approval of a
preliminary flat
I haven't studied this in a long time I
believe that it is looking through the
combining both the Grand Ridge
Commission which has to make a
recommendation on a preliminary plat as
well as City Council I think the best
way to explain it rather than trying to
work through this document and explain
is to provide that chart for you to look
at the basis on which we calculated that
hundred and seventeen days and I would
like to see that chart rather than have
you walked through this document is it
fair to say just so that we understand
how to interpret it that each step for
example if we look under the column for
the grand Ridge Commission in the middle
it has between submit preliminary
application and project feasibility
meeting it has in days and if you go
down further submit application or
request including SEPA documentation you
have another ten days to complete
application decision so if we go in my
correct and understanding that if you go
through this development and add up the
number of days that are between those
boxes we'll end up with 117 that's my
understanding and that's that was how we
took the chart and tried to pull apart
the various permits to calculate what
that number of days was and the same
thing would apply if one was we're
trying to calculate the time periods for
the columns called administrative and
City Council one would add up the days
that are in parentheses between the
boxes yes although with a preliminary
plat for instance then you have to
continue to the council column in order
to get the final plat yes
so okay so let's go back for a moment
then to your C 27 the prior page why is
there anything on here about there's the
third column about final plat what is
the final plat decision have to do with
the processing of the shelter's
administrative site development permit
or its other site development permit so
there is a preliminary plat followed by
a site work permit which is your
infrastructure improvements followed by
a final plat and the parcels that the
land use permits are being placed on
would not exist until that final plan
recorded and why does and what effect
does that have on the processing of the
applications for SGP ASDP if you look at
your fourth column you you have
processing times there that begin the
day after final plat approval correct
I do but those that date 3:18 is also
the date on which the complete letter
APLA a complete letter agreement was
approved coincidentally I'm and I'm not
asking about the letter agreement the
point is that you have the processing of
the SPP applications beginning the day
after final plat approval correct that
is one way to read this chart it is also
the day on which they were deemed
complete which would be the day on which
you would begin the processing if you
were going straight into land use
permits no what I'm trying to find out
is it your position that these SDP ASTD
applications could not you cannot begin
processing them until final plat
approval is a
well I couldn't begin processing them
until they were deemed complete I'm
sorry can you say that again I could not
begin processing them until they were
deemed complete I'm not asking about
them I'm asking you whether it is your
position and whether this vivid c-27 is
intended to state that they could not be
processed until the final plan was
approved well they couldn't be processed
unless they were deemed complete you're
not answering my question miss Loman
let's leave aside for a moment the
question of completeness is it your
position that the applications could not
be processed until final platypus was
obtained from the City Council
in the letter agreement on that was
approved on March 18th there was the
potential of processing them after the
final plat was approved using the
timeframes in that letter agreement
woman I'm sorry I didn't mean to
interrupt go ahead
based on the information I had there
were two scenarios that were laid out
one was through the completeness letter
processing them after the preliminary
plat using the time frames in the letter
that Patrick knew Lanie from foster
Pepper drafted or if we were processing
based on when they were deemed to
complete it coincidentally happened
after the final plat was approved this
woman is it not in fact true that the
letter agreement was required because
you were refusing to process the SGP
applications until there was Blatter
move oh I was the sufficiency checklist
had elements that included legal
descriptions lot lines right of way and
easements those materials were not
available and because the plat had not
been completed my concern was that there
were elements that were shown in the
preliminary plat which if they were not
approved would negate certain aspects of
the land use permits for instance
require I believe required I'm doing
this from memory I haven't looked at
these in a while but my memory was there
was something like an easement or other
provisions that existed when the plat
was submitted which would have if they
had not been lifted through the planning
process would have precluded locating
required parking where it was shown in
the land use permit and so there was a
concern that we were being asked to
process land use permits in ways that
were not consistent with our some middle
requirements and which seemed to leave a
lot of variables on the table when we
were being asked to render a decision
this woman does that mean
the answer is yes you were refusing to
process the STP ASTP applications unless
absent disagreement unless there was
final plat approval
I was not refusing I was Patrick Mulaney
from your office and I had quite a few
conversations because I was concerned
that I was being asked to agree that
certain things existed and were fixed
which at the time because the
preliminary plat and final plat had not
been approved were concepts they were
not real right-of-way locations were not
approved property lines and easements
had not been lifted again miss Loman
does that mean you were refusing to
process the application or the SDP ASDP
applications unless there was plat
approval I'm not comfortable with the
word refusing we were trying to have a
conversation about the discrepancy
between the semental requirements and
the materials that were being submitted
well you've just referred to a
discrepancy what was the discrepancy the
semental requirements asked for
right-of-way location of right-of-way
lines legal descriptions lot lines
easements the things that were being
shown in the land use permits were
proposed right-of-way proposed lot line
proposed legal descriptions proposed
easements or removal of easements and my
concern was that we were being asked to
render a decision which we would be held
to with a lot of variables that we did
not know if those would actually be
proved in the form in which they were
shown in Islam and according to the
timelines in the development agreement
for example if we turn back to the
cities exhibit excuse me shelters
exhibit
six timeline that you prepared for the
City Council on March 19th
deployment a plat that have been
approved Winn
so I'm I'm I'm not comfortable with the
word should if we used the number of
days that were that we had calculated
that appendix L showed and if we did
that as if everything was perfect we
needed no additional information there
were no Corrections it would have been
approved on November 26th however as
we've seen we asked for additional
information in Corrections with the
preliminary plat and so that date is a
concept so miss lovin the the notice of
application that your department gave
for the preliminary a plat is entirely
consistent with sdp applications that
we're talking about correct could you
ask that question again please yeah I'm
asking you to take a look at exhibit s1
which is the notice of application that
your department gave for my clients
preliminary plat application and if you
turn to the second page of that that's
the page that shows the site plan shows
the rights away it shows the parking it
shows the building footprints as we've
already heard testimony about is there
anything about shelters SGP applications
that is inconsistent with age two of the
notice of application you gave for their
short plat or for their subdivision
I don't know that whether it's
consistent or not is the relevant
question because someone I'm not asking
you your opinion about what's relevant
I'm asking you is there anything in
there that isn't consistent this is not
an approved preliminary plat it may
match the SDP
but that doesn't mean that it would be
approved in this form as it or does it
not match the SDP applications I don't
know I haven't done that comparison I
would not be able to answer that without
comparing it so you've had this
application for almost a year and you
haven't compared it to the SDP
applications to see whether there's any
consistency or not we're still waiting
for information on the preliminary plat
we have asked for Corrections and for
additional information some of that may
change what is depicted here
[Applause]
[Applause]
this one is single sided attention
this is Castro yes chief
we recognize this
yes parts of it read between your staff
and you and miss I'm yes okay so why
don't we start at the back which is
where the earliest emails are on the
thread and and work towards the
beginning so what's the first email
dated April 13
did you ask what's the date of the April
13 mmm I asked you what the email was
that has that date oh it's from kinship
Liat core design to city staff and
others asking to follow up on a few
items discussed at the meeting and once
you read the first sentence to us I want
to follow up on a few items discussed at
the meeting and for which were awaiting
answers information or action from city
staff and do you remember the date of
the meeting to which he's referring no
okay so what is your department's
response and from whom in the next email
thanks for your patience we've been
working on a comprehensive response to
the follow-up items from our meeting and
your answers below and we'll be getting
back to you tomorrow
and who's that email from sorry Jeanne
Lynn who works for the city to kinship
Lea at all and you referred to Jeanne
LAN last time in your testimony as a
Senior Planner is that correct that's
correct and how many years experienced
so she have I don't know exactly
I don't remember as close to 20 isn't it
I unless I looked at her resume I don't
remember okay and she's been assigned to
IH IFC's applications from the outset
correct yes
she didn't come or go she wasn't one of
the staff people you had to hire yes she
was she's been part of IH IFC's
applications from the beginning correct
yes
started in June 2017 and the application
came in in August 2017 okay and then why
don't we though when does she respond
then more substantively to the request
April 18 okay and then if we can turn
over to the next email which is from TIA
hime on behalf of IGF C would you read
the first paragraph of her email so this
is from TIA to Jean and others Jean we
are puzzled and concerned that the city
has again changed direction that is
giving us with respect to rights of way
and trail connections that will be
required within our platter SPECT to the
scope of the transportation analysis and
information that will be required are
you asking me to read the full paragraph
yes we are even more concerned that many
of the comments that you provided are
not consistent with the development
standards set forth in the development
agreement to which this application is
vested the city has acknowledged that
our subdivision application is vested to
the development agreement but the city
appears to be ignoring the standards in
that agreement in the requirements it is
imposing on us we request that you
provide response to the following
questions and comments hey and then what
is the next email TIA on June 6 so he
made that request on April 26th and
she's following up on June 6 what does
she say then please advise us to win we
can expect a response to my email below
as we are unable to revise and submit
our preliminary plat application without
clarity regarding the city's additional
comments and corrections in your email
below and then what's the response from
Miss Lin on June 8th Jean Lin says we
are still working on those items and
will we be getting back to you with our
responses next weeks thanks for your
patience and then what's the next email
June 29th
from Tia Haim to Jean Lin just checking
in again to see how you're coming on the
response to my email from April below if
you could let me know when we can expect
a response that would be helpful and
miss Lin's response to that is dated win
July 18th and what does it say we are in
the process of finalizing our responses
and aim to get those to you at the end
of this month and what's the next email
then August 16th from TIA hi I'm - Jean
Lin and what does it say following up
again to check on timing of your
response the questions in my email from
April your last email indicated that we
should expect a response by the end of
July and is now mid August please advise
as to when you anticipate being able to
provide a response so that we continue
to move our platform okay and then
what's the next email it's it appears to
be from you it is if it's from me - Tia
hi I'm on August 16th and I said I
apologize this is taken longer than
anticipated we had some coordination
with other departments and some research
to answer your questions I commit that
you will have it next week before I go
on vacation the last week of the month
okay and then what's the next email
August 24th from me to TIA attached our
are attached are the following okay so I
understand from this that on August 24th
your Department responded to the
questions that were initially asked in
April correct no I believe that there
was an initial response and on April
18th from Jeanne Lynn and - that Tia
Haim responded asking a lot or not I'm
sorry not June 6 April 26 asking a
number of additional questions and it
was that email that generated a lot of
research and coordination on our
are to respond to the depth of questions
that were asked okay so on April 26 miss
hime asked questions that your
department responded to in substance on
August 24th correct yes oh we have
slightly over four months in which my
client couldn't do anything because you
hadn't responded to their requests is
that fair to say we were trying to do
the research and answer the depth of
questions that were being asked and that
took more time than we anticipated okay
well we've heard both we've heard
comments about how the delay is my
clients own fault
are you attributing this four months
delay to IH IFC we were simply trying to
respond to the complexity of comments
and research that was requested in a
thorough way and what what was complex
that require a four month research time
to respond to well there were four one
thing I wanted to ensure that the
comments were thorough
which meant that I had to understand the
basis that the staff had given because
clearly the April 18th response was not
sufficient for your client there were
requests to provide all the
modifications that had taken place to
certain Road standards which meant going
through twenty years of Records
to determine which standards which
decisions had modified those standards
there were questions about whether other
projects had I believe there were
questions about whether other projects
had utilized or how they had been
treated we had to go and look at those
records we were trying to provide a
thorough response so you testified last
time that balls in my Clark clients
court today and you can't process the
Platt application because you're waiting
for a response from them does that
correct yes what are you waiting for
well following the August 24th letter we
received another email response from Ms
hime which is the one on the cover
October 10th
I have been working on the responses to
those and expect to have them out in the
next week or two
well I think what you just said is that
my client is waiting to hear from you
and not the other way around
isn't that what you just said in
response to this email yes but we cannot
we do not have any drawings resubmitted
so we are attempting to answer the
questions and provide the information
that your client is asking so that they
are ready to resubmit their drawings so
what so what request to my client have
you submitted for additional drawings in
I believe it was January and March
comments were sent on the drawings we
use a electronic plan review and on
those drawings were questions
suggestions clarifications I don't have
the list of comments in front of me so I
am assuming those are the kinds of
things that were included in that letter
to your client well what I'm asking you
to identify if you can is what
communication has been given to my
client to tell my client what it needs
to do - for you to continue processing
the application that they submitted 15
months ago so as I said in January and
March I believe I'm doing this from
memory
were there was a correction letter sent
to your client okay well is it fair to
say that the October email from Miss
hime is explaining to you that they need
more information in order to understand
what you're asking for I that yes they
are asking for questions and they are
providing us with additional questions
and clarifications well they're asking
you to clarify what you want so they can
respond correct no I'm not sure they're
asking what we want I think they are
challenging some of materials that we
provided or requests that we made trying
to understand the basis as well as the
standards and are you is what you just
said is that a characterization of the
the email and exhibit s11 that we've
just been talking about could you answer
that again please
I'm asking if the testimony you just
gave is your characterization of Miss
Himes email her last response and email
chain we've been talking about well I
think there it's over the course of this
series of communications there have been
both requests for clarification and
questioning the basis for some of the
things that we have asked for and I'm
but I'm trying to understand is if your
testimony is based on Ms Himes
email which is the last one in the chain
we've been talking about or whether
there's another document that you are
talking about
so as I have responded to his times
questions and requests I have created a
separate document that assembles her
requests and our responses into a single
document for easier understanding and
referencing so some of it is some of the
response is in this email and some is in
that document because I think it's
important to understand be able to see
both the questions and the responses as
they're unfolding is the document you
were just referred to and described
something that's been given to my client
yes it's how I respond to her it's been
it was for instance in my August 24th
with response I say attached are the
following are responses the
administrative minor modifications and
[Music]
and then a link to a SharePoint site
okay and again all I'm trying to do now
is make sure we have the universe of
documents so you're saying if we pull up
the attachments to that email that will
be the universe of communications to my
client about the city's expectations I'm
not sure there are expectations I think
there are responses to your clients
questions and requests miss Sullivan I'm
trying to determine whether we have all
the documents identified i'm simply if
you want to challenge my
characterization of the document that's
fine but please answer the question are
there any other documents other than the
email in the attachment to it the email
and the attachments to it are together
that is that is the things i am
referring to
okay thank you so let's go back for a
moment to the chart you prepared for
this hearing see 27
you have
I know Platt approval March 17th they
have the to do the medical office
building the center column medical
office building processed over a 50 day
time period and approved on May 7th
correct this is as I said straight
processing time that does not take any
requests for information for
clarification or Corrections into
account and the the time periods on here
are obviously all three of those time
periods for the retail the mo B and the
storage are shorter than the April to
August time period in which my client
was sitting waiting for you to respond
to their questions about the plat
application correct I don't understand
the relationship between those two well
you've shown a relationship on this
chart between plat and SCP and in part
I'm trying to understand what you think
the relationship is is there a
relationship or is there not the plat we
sent out for Corrections and we are
waiting Risa middle we recognize that
there is a conversation going back and
forth for clarification prior to your
client resubmitting the land use permits
that are shown here have been on a
separate timeline based on responses
from you and your client is it and I
apologize if you've answered this
question but the agreement that you
referred to on March 18th that again was
necessary because of the explanation
you've already given us that you were
concerned that the
of information shown on the plat didn't
yet exist correct yes yes and you in
fact approved a sharp light application
for polygons months after you approved
the SDP application for the same project
didn't you I'm sorry which same project
are we referring to
I'm referring to the West Ridge
townhomes one south polygon application
at you your Department approved John
July 19th of 2016 even though you didn't
approve the short plat that created the
lot on which that project was located
until the January of the following year
I don't have that material in front of
me and I am unable to answer without
looking at those materials and reviewing
the timelines you don't have any
recollection of doing I remembered that
there were permits processed at that
time I don't know exactly which Lots
were created in which way and at what
time and how all those pieces fit
together is it your belief that you have
treated IH IFC's applications in the
same way that you have treated polygons
applications yes so how is it then that
polygons
polygons Westridge north single-family
plat application excuse me
polygons Westridge townhomes north
application of the the names are very
confusing and I apologize the extent I'm
adding to them but West Ridge townhomes
north application was submitted on
October 20th the two south thousand
seventeen I'm not expecting you to
remember the exact date but you recall
that application being submitted after
the end of the build-out period correct
yes and at application was processed
under the procedures in the development
agreement correct yes and in fact the
application was approved in May of this
year under the procedures and the
standards in the development agreement
correct yes you your testimony is that
you're treating ih IFC and polygons in
the same error and reasonable manner if
the question it seems to imply that we
should not be using this COIs Highlands
development agreement and I think that
speaks to your original set of questions
regarding the affordable housing and TDR
agreements that Westridge undertook and
were in which were approved by council
which was the basis for which set of
regulations applied to them well so
you're you're saying that the West Ridge
townhomes North application the one I
just described is also processed under
the development agreement because of
exhibits C 33 and C 34
I yes I assume so but again I defer to
mr. Niven who has far greater expertise
in those documents than I do
I asked the question because I thought
it was only the West Ridge block for
affordable housing application that was
assessed under the already expired
development agreement because of these
exhibits c33 and c34 but it's your
understanding that that is also the
justification for West Ridge townhomes
north yes because there's affordable
housing in that project ok so ok
and you explained any other reason why
polygons application other than whatever
mr. Niven identifies in Exhibit C 33 and
34 other than that is there any other
explanation you're aware of for the
disparate treatment of polygon and IH
IFC that's your characterization I'm not
saying that it was disparate but you
processed one under the development
agreement and you're processing my
client under the replacement regulations
so why don't we assume that that's
disparate treatment and I'm asking if
there's any other explanation or
justification other than whatever mr.
Niven can identify and exhibits 30 C 33
and C 34 I think this speaks to vesting
and which set of regulations apply to
each set of permits based on the vesting
provisions that the Council adopted in
Solem and I I don't understand how that
was responsive to my question I'm simply
asking are you aware of any other
Authority explanation justification for
processing polygons under the
development and an IHI of C under the
replacement regulations other than
exhibits C 33 and C 34 if I think you
can answer that yes or no and if the
answer is yes then you can tell us what
the other Authority is so if I'm
understanding your question your
questions I believe your that we're
saying that C 33 and C 34 applied to
Westridge North town homes and linked
them to or place them under the
Highlands development agreement while
the replacement regulations that the
council adopted applied to your clients
site development
miss lemon I'm asking you whether
there's any other explanation Authority
justification or processing polygon
under the development agreement and IHI
of C under replacement regulations
besides exhibit C 33 and C 34 is there
or is there not I thought I just
answered that question by saying that
the replacement regulations applied to
your clients SDP okay so why that with
all due respect begs the question why do
the replacement regulations apply to my
client and not the polygon is there any
explanation other than C 33 and C 34
that you can identify so it is the
documents that were adopted in
association with transfer of development
rights and the affordable housing
agreement I am NOT an expert on those
and I'm feeling very uncomfortable
saying that these are the absolute only
documents that's why I've asked for mr.
Niven to answer these questions well and
I deferring questions about the content
of these documents too until mr. Nibin
returns I'm asking you whether you're
aware of anything other than these two
documents that you're asking mr. Niven
to explain well as as you saw at the
last meeting there was some confusion
about the full universe of documents
that applied and there was a map that
mr. Niven provided via mr. lile there
are these documents I do not feel
comfortable that I know the full
universe of documents to say that C 33
and C 34 are the only documents all I'm
asking for is what you as the land
manager are aware of are you aware of
any other documents I would have to do
research to feel comfortable answering
that question under these circumstances
as you stand here to
night miss Loman are you aware of any
other documents that explained why your
department processed polygons
application for the West Ridge townhomes
north project under the development
agreement process and regulations and is
refusing to do so for my client refusing
is not the word I would use and I and
let me finish there are also major
amendments to the wash TDR agreement and
it's Kuo Highlands development agreement
that I am not familiar with and I don't
know if there are any provisions in
there so that's why I'm uncomfortable
making the declaration that you're
asking me to make all I'm asking you to
tell us is what you know miss Loman
answer Snyder I think I think that
you've adequately asked the question and
and miss Loman has done her best to
respond a probe as appropriately as she
feels comfortable doing it I think
continuing on that same question with
now about the fifth time would not be
very profitable
are you familiar with the vesting
provisions of the development agreement
miss lumen of the replacement
regulations or of the Issaquah Highlands
development agreement or of another
development agreement well the only
development agreement I'm aware of that
says anything about vesting is yosakoi
Highlands development agreement are you
aware of another no it's just you said
development agreement there's been some
confusion around the agreements that
polygon the development agreements that
polygon executed and I want to make sure
that I'm answering the question you're
asking me okay well let's assume that if
I don't say otherwise any time I refer
to a development agreement I'm referring
to the Issaquah Highlands development
agreement and my question is are you
familiar with the vesting provisions in
it I think you'd have to tell me which
provisions you're referring to
well I'm referring to Section C 23 we
could bring that up please that is
called vesting in the development
agreement
referring to the section of the
development agreement is three
[Music]
so let's start yeah section 323 as a
whole are you familiar with it I have
read it Hey and when did you first read
it around the time that the consulting
firm that I worked for was hired to
provide staff services to the city of is
qua didn't you approximately what year
that was probably 1996 1996 so you've
been aware of this language for what 22
years it's something like that
hey could we scroll down to read 23 I
think it's to the section called after
build-out can you read that for us
please
3.23 - after build-out the development
standard shall continued to apply to all
applications for implementing approval
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 5 . 13
okay then we're gonna offer a new
exhibit
I think you may have it's quite thick
I'm sorry mr. Stanner could you clarify
again what the number of this exhibit
was thank you you recognize those twelve
yes
is this a PowerPoint that you prepared
yes and who did you show this PowerPoint
to well it doesn't say on the front page
I believe February 7th was the land and
short committee but I am guessing okay
my understanding is that the seventh was
a community meeting and the land and
short committee was the next night no
yes you're correct okay so you showed it
to both the city council committee unto
a community group no this is the one
that was prepared for the is kryolan's
community community and I believe I had
a separate presentation for the land in
short committee okay well let's turn to
if you would please towards the back
it's the it's the fourth page from the
back called vesting you see that
there and what's why don't you read the
first bullet point to us the first
bullet point well whatever you want to
call that the first signaled statement
there the development agreement does not
provide regulations or guidance on
vesting of projects you knew for over 20
years that the vesting agreement did
provide regulations on vesting of
projects did you not yes I imagined that
this was shorthand to indicate what
happened following the build-out period
miss is that what it says miss Loman I
believe the words are here and it says
guidance on vesting of projects within
the context though of ending the
development agreement as the title slide
indicates miss Loman you told the City
Council in the community that the
development agreement that you had been
familiar with for over 20 years and that
expressly provides regulations for
vesting did not provide those
regulations correct not related to
ending the development agreement I'm
sorry what not related to ending the
development agreement you presented this
slide on multiple occasions did you not
do the City Council before it ended the
development agreement telling them that
the development agreement did not
provide regulations that it does provide
mr. chairman I'm going to respectfully
object that said an argumentative
question and miss Loman has already
essentially answered the question unless
you're directing the quit witness not to
answer then I think I'm entitled to an
answer I don't think she needs to I
think she's answered it why did you put
this language in the PowerPoint that you
showed to the community in the City
Council I think that we were trying to
explain a relatively complex and
variable concept of vesting to a lay
audience you consider the City Council a
lay audience well they are not acting as
attorneys we have a range very smart
professional people however this is
clearly a complex legal argument since
we are here well there may be other
explanations for why we're here then the
complexity of the legal argument but
okay so do you want to provide any other
explanation than you've already given
for why you told the City Council the
development agreement does not provide
regulations on vesting
mr. well asked you twice whether you had
ever told my client or anyone else that
they were permanently vested correct do
you remember I know he asked me that I
don't remember how many times okay and
what was your answer that no I hadn't
hey so what is permanent vesting
so I made an assumption that permanent
vesting would be vesting that was
established in such a manner that it was
not open for the council to make a
determination to termination on well
explained to me permanent vesting as
opposed to some other kind of vesting I
thought that's what I just did well is
it your understanding that if you're
permanently vested the City Council
can't take it away but if you're not
permanently vested they can that what
you're telling us I'm not saying that
they can take it away there are things
like if you've submitted a building
permit it is established through state
law that you are vested and language
that that council could choose would not
be able to impact that vesting so state
law also says you can best pursuant to a
development agreement does it not yes
so again will you agree that you and mr.
Niven both repeatedly told my client
that they could vest to the development
agreement and that the termination of
the development agreement would not
affect their vested rights I don't
remember making those statements you
remember mr. Nevin making those
statements I that it would not terminate
with the development agreement I do not
recall him saying that
[Applause]
take a look at that while we bring it up
on the screen please
are you familiar with s13 no I mean I
may have seen it I this is a letter from
Keith Niven to Nick Abdel Noir I'm not
cc'd on it I don't know if I have
received it previously
okay well I'll ask mr. Niven about this
if he returns to the stand but what it's
once you turn to the top of the second
page and read what mr. Libin wrote
requirements for a complete application
necessary to vest are set forth by
Municipal Code I am C 1801 oh five Oh
seat subsection C subsection sub
subsection one sets forth the
requirements for a complete application
when an application is submitted meeting
those requirements the application is
vested and would be unaffected by any
future changes in zoning or development
regulations so long as the application
remains active imc 18.04 - to OD - this
would include any changes the result of
termination of the Issaquah Hyland's
development agreement okay so we have
mr. Nevin telling polygons that vesting
would not end as a result of
determination of the assuage Islands
development agreement does that a fair
characterization I think it's best to
ask mr. Niven what he is intending by
the statement I didn't that was my
question I asked you if I had fairly
characterized that paragraph
so I'm ok ask me the question again err
to say that mr. Niven expressly wrote
that vesting would survive termination
of the development agreement under the
circumstances he's identified
is it fair to say this is an email from
you to mr. Apple an hour who who wrote
to who mr. Nibin wrote exhibit s13 yes
this is the same person
and what is the date of this
communication December 1st 2016 okay and
what do you say there at the conclusion
of your first paragraph about a separate
vesting summary from mr. Niven can you
explain that to us please I'm sorry say
that again I'm trying to look at the
language and listen take your time I
want you to familiarize yourself with
the first paragraph and then explain the
reference to a summary by mr. Niven
well this although not marked as such is
a draft letter that was sent with the
intent of trying to clarify entitlements
and infrastructure allotments associated
with their property this was not
finalized and so I I don't know that and
I don't know that the vesting
requirements the last phrase using
vesting requirements summarized by the
DSD director Keith Niven in a separate
interpretation I don't know whether that
was issued I don't have that document
well first of all why don't you turn to
the last page of Exhibit C 14 there's an
approved stamp right is that your stamp
yes so you approve the content of this
correct initially yes then there was a
determination around this time we
recognize that shelter Holdings had some
property nick abdel nor had some
property as a representative of polygons
in response to this we received many
questions and clarifications and at the
time determined not to follow through
with it are you saying this document
wasn't communicated to mr. young or mr.
Allen our it was sent to them but we
never received I don't believe that we
received signatures back from them and
so it was never fully executed oh that
you know I'm not asking about that that
you sent this you approved it and you
sent it to mr. Allen our and mr. Yong
correct it would seem so I assumed that
okay and he exhibit s13 the one I handed
out before this where mr. Nevin says
that vesting Will Survive Turman
Viswa Highlands agreement that's the
only vesting summary by mr. Niven that
we have seen in response to exhibit s 14
or you are you aware of another one I
did not that was the director and the
city attorney's purview and I am
uncertain of which documents were
produced around vesting so I I couldn't
attest to that okay all I'm asking for
is your personal knowledge you're not
aware of it any other correct I I don't
know that there were other applicants
who were asking about vesting as we came
to the conclusion of the development
agreement and I directed them to keep
Niven and I don't know what the outcome
of those conversations were what is the
West's main problem I'm going to
respectfully object that's calls for a
legal conclusion I believe that we
addressed that during our previous
testimony and our previous objection
which I believe the the Commission
sustained his sloman has testified to
the City Council at the landed shore
committee about the West's main problem
so she she has historically spoken about
it in public and I think I'm entitled to
ask her about it she made
representations about it to the City
Council and we can play the tape if we
need to I do not remember providing any
level of detail that was predominantly
the city attorney and mr. Niven I may
have referenced it in a slide but I am
NOT a lawyer and uncomfortable in this
setting being responsible to
characterize legal decisions okay well
my suggestion if it's okay with the
Commission is we do have a video excerpt
from the councilmember from the council
meeting we're missile manned talked
about this issue we can take a short
5-minute break we can set that up and
and we can
are they still going to be asking her to
make a legal decision is that I think
I'm not asking is to make a legal
conclusion I'm asking her to testify
about issues she's already testified
about in public and again mr. chairman
to the extent that that counsels a
question is what what is the West's main
problem that is inherently a request for
a legal conclusion and this lay witness
should not be expected to answer that or
be able to answer that well the city has
repeatedly stated that it was allowing
applicants to vest when they applied for
land use permits because that was
compelled by the West Maine case miss
Loman made that representation to the
City Council and Miss Kerry has informed
me that we can play the videotape right
now I think it would be helpful to
refresh her recollection with what she
said and then we can ask questions based
on testimony she has already given in
public yeah I think I think we should
see the video I think we should
constrain the questioning so that it
doesn't ask mrs. Lowman to reach any
legal legal conclusion about that
particular case but without seeing what
okay we'll watch thank you and we will
use the same caveat that mr. Brennan
offered that Erika mr. Brennan offered
that what we aren't going to be asking
her to come up with legal conclusion
well and I understand the ruling but I
have to respectfully object because miss
Loman in her capacity of as the land use
manager has repeatedly had to make
decisions about vested rights in the law
and I'm simply asking her about the
scope of her own activities in her
position with the city everyone
recognizes she's not a lawyer and her
opinions are those of someone in her
position as a Senior Planner but I think
I'm entitled to ask questions about how
she interprets and applies the city code
and why she does so okay we'll see
so just for the record before I play
this this is a video YouTube video from
the Issaquah City Council in in short
committee it's dated November 21st 2017
and we're starting at the hour oh nine
eleven mark we are specific that we only
are vesting the ones that are vested by
state law now there was some concern or
discussion around West Main versus
Bellevue which is a land use law case
that if you have linked permits that
those permits become vested so in our
case to submit for a building permit you
have to have an approved land use permit
so there was a concern I think that was
part of the thinking about with the
moratorium why certain permits were
included as part of the vesting miss
Loman could return to the stand in place
and before I represented the questions
let me out for one more exhibit please
which is another PowerPoint
fifteen
his s 15 another PowerPoint that you
presented to the land in Germany yes has
that on the same date as the video we
just saw I guess so I wasn't really
paying attention to the date of the
video and I would like you to turn when
you're ready to it once again it's the
fourth page from the back called vesting
topic for yes
okay so I'm not sure what I should call
them but one of a better word I'm going
to call them bullets the first the
fourth bullet down says West main versus
Bellevue land use required for building
permit so is this the topic you were
just speaking on yes so can you explain
what this means in the city of Issaquah
or what it did mean I think that what
this was speaking to is the point the
land use case we were not speaking as
much about the city I believe there was
a separate I don't have my materials
here but I believe there was a separate
City Attorney memo related to that and I
was simply setting that up for the
council committee it's fair to say is it
not that in the city of Issaquah one has
to have your department requires let me
phrase it that way that one have a land
use decision before one can apply for a
building permit that isn't consisted
with consistent with the IMC provision
that's not my question is Slom and my
question is that your department does it
not requires applicants to have a land
use decision before they can apply for a
building permit if the city code says
that you can submit a building permit at
any time then you can submit a building
permit at any time miss Loman we're in
another pattern where you're refusing to
answer my question my question is about
the practice of your department your
department refuses to accept a building
permit without a land use decision
preceding it correct I am unaware of a
circumstance in which we have refused to
accept
a building permit because of a land use
permit would you turn to exhibit s9
please it was introduced last time and
the second page of that the first page
that dot this document says commercial
and multi-family building permits the
middle requirements correct I'm sorry
you said the first page says that I went
back to the title of the document on the
first page is the title of the document
okay and then the second page which is
what on this is on the screen now what
is the first item required under
presubmit 'el land use permit notice of
decision has been issued okay so this is
the document that you provide to
applicants fine to a submitter project
in the city of Issaquah correct these
are the middle requirements available on
our website ok can I speak to that you
can answer any questions your attorney
wants to have right now I would like to
earn to Appendix L again of the
development agreement which is city's
Exhibit C 28 okay
so what kind of pre-application before I
ask you about this document what kind of
pre application process did you require
of IH IFC before you would accept any
application for a subdivision or a site
development permit so I initially we
told your client that they needed to
have a pre-application meeting and we I
believe that with the preliminary plat I
believe that I'm not entirely certain
then with the land use permits your
client questioned that requirement and
initially we identified that we thought
it was necessary then we conceded that
it was not which is there are
indications that we did not require
those and yet your client proceeded with
them okay when and how did you tell my
client that they weren't required to go
through a pre application process before
they could convince the procedure in
Appendix L I'm sorry was that positive
or negative that we required or did not
require I'll rephrase the question when
and how I'm trying to get specific about
what you just said when and how did you
communicate to my client that they
weren't required to go through this
city's typical pre application process
and by that I mean a collaborative
meeting and a pre application process I
don't have that email I believe mr.
Niven spoke to that in his testimony
last time
each of us seem to remember an email we
have not attempted to locate that email
I would add though that with the retail
land use permit the your client
submitted that permit for review in on
November 22nd our letter identifying the
ways in which it was insufficient was
issued on December 1st it did not
include the fact that a pre app had not
had not taken place because that pre app
did not take place until December 5th so
as we went through this middle
requirements we were not calling out
that particular item
okay so miss lemon the narrative you
just gave was not responsive to any
question that I asked so please answer
my question and you can testify about
other matters when mr. well is asking
you questions
is it not accurate to say that you
required IHI of C you go through your
department's typical pre application
procedures before you would allow them
to even submit an application initially
yes sorry
initially yes and you're saying at some
point in the document that you haven't
or at least here tonight can't identify
you told my client they were free to go
ahead and submit without going through
that process my memory is that there was
a form of communication I believe mr.
Nevin testified that it was an email in
which we agreed that they didn't have to
do it
it might have been a verbal ID I have
not gone back through my records
I'm just identifying there was another
method in which we did not hold
your clients permits based on the need
to complete a pre-op so when during the
pre-op process did you send this email
or give this oral communication that
they didn't have to go through the
process they were already in I don't
know I would have to go back to my notes
or emails to determine that it's fair to
say is it not that the timelines that
you prepared both when you prepared for
the City Council and the timeline that
you prepared for this hearing which is
the city's exhibit 27 those both
commence with the date of complete
application and say nothing about the
months of pre application procedures
that preceded that correct that the
timelines that I showed did not indicate
a pre-op is that was that your question
it did not indicate a pre-op or any
other free application process such as a
collaborative meeting the time frames
that are shown in on them either C 27 or
the document that we prepared for
counsel were from the date it was
submitted until in a straight sort of
time application of time when it could
be approved we did not show any of the
steps associated with that particular
process it is it also fair to say that
either an appendix L or anywhere else in
the development agreement is there any
kind of requirement for a pre
application process in looking at the
appendix L chart C 28 that is shown as
optional I'm going to
interject reinsert insert myself herons
and we've been going for a long time it
seems like not a bad appropriate point
to take a five-minute break so if you'll
indulge me with that I would appreciate
it no objection thank you thank you
you
all right I appreciate that short break
and I think we're ready to resume it
miss Loman could you turn back for a
moment please to exhibit s1 the first
exhibit in the smaller of the two
packages you have to the copy again of
the notice the city gave of IHI fc's lat
application and again turn you the
second page which is the plat map that
you gave notice of to the community okay
so my understanding from your testimony
and that of mr. Niven is that this is
not the application that you're going to
process because the building footprints
and parking areas and so forth were not
shown on the original application is
that correct
yes and are not part of a typical
preliminary plat it's for subdividing
land not establishing building placement
well if this is not the application
you're going to process did you ever
provide corrected public notice that you
were going to process a different
application no not at this time because
we are waiting to continue until the
plat is resubmitted so when did you
decide that you weren't going to process
the application that you gave public
notice of in December of last year
so the notice used I assumed that the
planner grabbed the more recent plan and
included that in the notice of
application that was not the original
sim it'll it was a sim it'll that your
client made of their own volition not
responsive to any comments that that had
been received and so I think that once
we realized that was the nature of the
materials that have been received we
determined that that was inconsistent
with a preliminary plat I don't know
specifically the date of that
so when are you going to give revised
public notice that this is not the
polite application that you're
processing I would assume that when we
send notice for the public hearing
associated with the Platt that we would
revise that and make that notice so
we're in the city regulation does it say
that in the city code or anywhere else
does it say that you're not going to
process the Platt that the applicant
submits to you before you give public
notice I think our intention is to
process the Platt that was deemed
complete oh the city code expressly
allows all applicants to supplement
their original applications after
they're deemed complete does it not I
don't know that off the top of my head
you're unaware that an applicant by
express provision of the city code can
supplement its materials at any time I
don't know that that's overtly stated in
the IMC that that's the way I understood
your question isn't that in fact your
department's practice that you allow an
applicant to supplement their
application with additional materials I
would say that is an unusual
circumstance most applicants when they
are submitting materials are submitting
them as a response to comments that they
have received
so how and when did your department
decide that I client this is a different
question in the last time that my client
was not vested to the plat application
that you gave public notice of how and
when did we decide that your client was
not vested to the application they gave
as that was that your question
mm-hmm well they had a complete some
middle in August and in December changed
their proposal that was the description
that was selected when these new
materials were submitted well the that
description they selected was one that
your website required them to select was
it not I don't it is it may be an option
that is provided I am NOT an expert on
submitting plans through my building
permit com but it is I don't review lots
of plans but the more typical one is
response to request for recent middle or
something to that effect which was shown
on one of our previous exhibits that is
I think a much more common reason for
recent middle that is selected what your
client or their consultants selected was
a change in the original proposal and my
question is or my point is that the
website that you require applicants to
use requires an applicant to choose
among a set of reasons that are on the
website the applicant can't write their
own description of the reason correct
that may very well be true I don't
submit applications so I'm not familiar
with how that part
the process works okay so what are the
changes that my client made to its
application lien August and December
that made you decide they weren't vested
what do you mean by they weren't vested
weren't vested to the SDP application
buildings that are depicted on you're
going to hear testimony I assume you're
aware of it already miss Loman that
these buildings are consistent with the
SDP applications so and you've obviously
decided you the city has decided that
were not vested to the development
agreement because you're putting us
through a process that doesn't exist
under the development agreement when did
you decide who process this application
submitted in August of last year under
regulations that were adopted in March
of this year I'm not entirely
understanding your question we are
processing the plat application that was
submitted in August which subdivides
properties shows rights-of-way lot lines
legal descriptions which is consistent
with a plat it appears that the December
sim it'll was combining the purposes of
a site development permit with a plat
application wasn't in fact the
application that we see here that you
gave public notice of updated in
response to comments from your
department that wanted to see the
relationship between the STD EP
applications in the plat if that request
was made I don't know about
I'm not saying it didn't happen I just
don't know
hey and again if you don't know the
answer you can just say that but my
question is when did your department
decide process this application
submitted 15 months ago under
regulations that were adopted in March
of this year I that question is
confusing to me the plat is being
processed under consistent with the
April 4th letter which talked about
vesting related to the plat the extent
to which the plat is vested and I I I'm
so I'm just confused by your question
my recollection is that mr. Niven
testified that he decided in March when
the replacement regulations were enacted
at our applications IHI of C's
applications would be processed under
the replacement regulations at your
understanding if you have a table that
was related only to the site development
permit and the administrative site
development permits the plat would use
the development agreement to the extent
that the plat is vested to particular
regulations okay so if in fact the LAT
that the city gave public notice of is
entirely consistent with the SDP
applications and why isn't my client
vested by virtue of the plat to the
development regulations I'm sorry I
don't understand your question
well are you saying because we used this
drawing in error that I I'm sorry I
don't understand your question
okay we'll move on why don't we turn on
to I would have the last two more
you meet his mother
okay back to the platen exhibit
s1 for a moment so if you're treating
you and your department or treating the
December 15 2017 application as a
separate or new application what have
you done the process process it as a
separate or new application I don't
believe that we are trying treating it
as a separate or new application I
believe we are processing the one that
was submitted in August but what have
you done to reject or comment on or in
any way communicate with my client about
the December 15 some it'll tell them
you're not processing it again I am NOT
the planner I know that there was one
comment that we included as one of our
exhibits last time C 10 and that said
that there were
[Applause]
that the information in note 7 was
needed to be revised or something to
that effect I can't really read the
words up there and I believe that in
other communications it may be through
the various venues that we are seeing
each other that we are have communicated
that the footprints are not part of the
preliminary class this little that I my
understanding is Exhibit C 10 is the
original August 1 plat application we
disagree well I believe last time one of
the things that we discovered that that
that is my supposition however I don't
believe there's a date on here
when we were looking last time I could
not find preparation date so I could not
confirm that well if you can't confirm
whether this was part of the original
application or a response to the
December 15th sim it'll is it fair to
say that you can't confirm that this was
a response to the December 15th Camille
no
as I'm not the planner and I on this
permit I primarily been focused on
responding to the comments and I have
not studied the responses that were sent
out on the plat to be able to adequately
respond alright we have two more
exhibits and I think we'll be done
what is exhibit s16 I believe it was one
of a series of letters that we sent to
miss hime and the applicant for each of
the land use permits asking them to be
updated for to be compliant with the
replacement regulations and I agree you
sent similar letters regarding all the
applications and you signed or approved
or initial letter on the last page yes
and would you read for us the paragraph
at the bottom of the first page please
if your position is that the replacement
regulations are not applicable to your
permit application and you do q and make
the modifications referenced above
please confirm your intent to this
effect in writing at your earliest
convenience in that event the city will
proceed expeditiously to issue a final
decision on your permit based upon the
applications compliance or
non-compliance with the replacement
regulations
[Applause]
it says 17 times response to f/16
yes I believe it is what's the date of
the two letters May 25th and May 31st Oh
he responded six calendar days later yes
and what did she say in her a 31st
response about whether they were going
to revise the application to comply with
the replacement regulations I JFC
declines to revise its applications to
comply with the replacement regulations
okay then going back to exhibit s 16 for
a moment and the paragraph you read at
the bottom of the first page about the
city expedition issuing expeditiously
issuing a final decision if my client
wouldn't revise explain what the city
has done to expeditiously issue a final
decision between May 31st and today
[Applause]
following the receipt of your letter
your clients letter of May 31st I my
understanding is that negotiations began
on how to process what would be what was
understood to be a denial and the venue
the nature of that what the rules of the
[Music]
proceedings would be that staff report
was issued in September and we have
proceeded to process those staff reports
you said negotiations commenced who was
negotiating with whom about what
I don't know exactly as I understood it
I thought the city attorney and you were
speaking about those matters well I'm
asking you what you have knowledge of
and what was there to be negotiated I
have never been in this circumstance
before where an applicant declines to
comply with adopted standards and we are
asked to process those permits where it
is essentially a court proceeding within
infront of a development Commission I
was not clear the best way to proceed or
how that would happen so I as I
understood there was discussions taking
place when was the decision made by your
department to send these applications to
the Development Commission I don't know
exactly when there was a discussion that
I had at some point with Keith Niven who
is our director and he pointed out that
under the development regulations these
would go to the I mean none of the
develop replacement regulations it would
go to the development Commission and I
don't remember when that conversation
took place but that was the point at
which I realized that this was going in
a different way than I had initially
expected you approximate the month when
that conversation took place I believe
someone is said to me that that took
place in July or August but again I have
not looked at email to see if there is a
way to identify exactly when that
happened okay so
can you identify anything other than
what you've assumed about conversations
between the city attorney and me you
identify anything else your department
did to expeditiously expeditiously
process the applications after May 31st
I think we were awaiting direction
because as I said this is not a familiar
process to me as soon as the decision
was made we began to compile the staff
reports
when did you start work on the staff
reports to send this to the Development
Commission again I don't remember that
exactly I think it may have been
sometime in August in anticipation of
September hearing did anything at all
happened in June or July just them
matters that I'm talking about that I
previously described you your
assumptions about communications you
weren't a part of I'm asking you whether
there's anything you know as opposed to
assumed about anything the city did to
get us from May 31st until staff reports
in September so I I know that there were
some conversations that took place
between I and I may have been in some of
those conversations I don't remember
them with enough detail to describe them
you recall who the conversations were
with the ear were calling they may have
been with the city attorney and they may
have been with Keith Niven or they may
have been between Keith Niven in the
city attorney I really I I just don't
remember with sufficient detail to feel
confident in describing a sequence okay
thank you that's all I have so
right so it's your opportunity now for
indirect Thank You mr. chairman I would
respectfully request a 10-minute break
to discuss our redirect examination
which way you anticipate to be probably
half hour to a 45 minutes long okay is
that acceptable that's acceptable I hope
we can also have mr. Niven come back and
testify about the exhibits the city
introduced tonight so we can get that
out of the way before we start our case
which were prepared to do immediately
tonight I'm happy to call mr. Niven
again with the understanding that his
additional testimony tonight would not
be considered our opportunity for
rebuttal testimony which we intend to
present following the case in chief of
the applicant okay so you're you're
agreeable that mr. Niven could come and
respond to mr. Schneider's comments on
33 and 34 I haven't discussed that with
mr. Niven but I believe that would be
permissible yes thank you okay so let's
let's proceed with that ten-minute break
but let's take a 10-minute break first
thank you
sorry Thank You mr. chair
you
okay well we're back in session thank
you so as I recall before the break we
decided that mr. Niven would come and be
responsive to see 33 and 34 whose
understanding was he gonna be after mr.
sloman is redirect all right sorry I had
it the other way around
so I'm flexible miss Loman I'd like to
ask you a few questions as a follow-up
to your testimony on direct examination
and also with respect to the questions
that mr. Schneider asked you first of
all in your experience is there a
practical difference between processing
a land use permit independently versus a
land use permit that is dependent on a a
pending or unapproved plat a planarian
on the table that you don't know exactly
what may come out of the plat process
that could eventually impact something
like a site development permit okay
thank you
and draw your attention to the city
exhibits C 16 through C 22 those were
the sufficiency determinations do you
recall those documents yes thank you
can you please describe the impact if
any that those issues identified in
those letters had on the the timeframe
for the city's processing of a the ASTP
that s DPS that IH IFC had filed
well they the as I mentioned in my
testimony last time the retail s DP was
submitted in November the medical office
building was submitted in November and
we went through I think four submittals
prior to reaching the agreement that was
signed in March so there was review and
writing of those letters to identify if
they were sufficient or not in this case
they were not with the storage building
I believe that there were two submittals
and therefore two letters prior to the
agreement in March and my understanding
from your testimony is that ultimately
the the determination of completeness
regarding IH IFC's STP and ASD fee
applications was made through the the
letter agreement executed by mr. maleeni
and the city on March 15th is that
correct the letter was dated March 15th
but I think the last signature was
placed on March 18th could you describe
the process of how that letter was
ultimately negotiated and executed so I
believe my memory is that you know there
was a point at which understandably the
applicant was frustrated they were
making submittals and were unable to be
deemed sufficient mr. maleeni from also
from Foster pepper had
spoken with mr. Niven then he spoke to
me he and I discussed at some length
some of the challenges that we were
facing in trying in not having certain
pieces of information decided but they
were more concepts as I mentioned and so
we agreed that we would try and write up
an agreement that would resolve this in
a way that preserved both parties needs
so that we can move forward if you the
city work cooperatively with mr. maleeni
in coming up with that agreement
absolutely I mean we thought that was a
good solution to try and get out of the
submit write a letter submit write a
letter would you characterize that
negotiation and execution process that
culminated with the March 15th letter as
being amicable it seemed that way to me
thank you
did you ever or did the city ever quote
refuse end quote to process ih IFC's STP
or ASTP applications I would not use
that word we were trying to get
applications that were complete so that
we could continue our review and and
then we hit the road block of not having
them updated to the replacement
regulations I'd like to call your
attention now to applicants exhibit s11
this is the lengthy email exchange
between your office and Tia hime which
in the exhibit terminates with the
October 10th 2018 email from MS hime to
yourself
yes he's seeing mr. schlep and MS Lin
yes is this email thread currently
ongoing yes we're in the process of
preparing our response and what's the
current status of that again
as I said I think we're quite close to
being able to issue it please call your
attention to the very last page of that
email exchange this is an email from mr.
Ken Shipley
- mr. schlep and mr. and Miss Lin as
primary recipients on April 13th of this
year uh-huh
as of that date had the replacement
regulations already taken effect yes
thank you
I believe mr. Schneider asked you
several questions regarding the IHI FC
preliminary plat that is pending and the
extent to which the city had asked
questions or raised correction issues
for that submittal in your experience ms
Sloman is it normal for plat applicants
to ask as many questions as IH ifc has
throughout this process no we usually
it's just been a lot a lot of questions
and they have continued to expand I mean
we're trying to help provide the
information they need but they have
continuing to become broader has that
back and forth that you've just
described impacted the city's timeframe
for reaching a final decision on the
final of the preliminary plat
application yes we can't proceed till we
get a recent middle thank you if you
attempted to address the questions that
have been raised by IH IFC in good faith
yes
like to now call your attention to some
of the questions that were asked
concerning the polygon applications and
you recall that testimony and mr.
Schneider's questions I believe so okay
first of all did did polygon what was
polygon issued any sufficiency
determination letters from the city not
that I'm aware of but I wasn't the only
planner on these permits okay I'd like
to introduce into evidence the exhibit C
35
thank you
mr. Ouma can you please identify this
document and specifically that the top
communication the most recent
communication it's an email from myself
to Keith Nibin okay could you please
read aloud the first four line or five
lines of that of that email likely
nothing you haven't already thought of
this is in response to Keith's question
of thoughts my first bullet is why we
can say that we do or don't agree with
vesting in the end only the counsel can
do that hard to say what their reaction
will be to accepting the draft language
what was the context of their
communication well I think that we were
I I think mostly we were trying to
respond to ms hynes proposal around
minimum fa are having a variable fa are
on various Lots
perhaps we could get some indication of
how this is responsive to the direct
it's not clear how this is housing to do
with the direct or both my
cross-examination can you tell me where
we're going with this I will conclude on
this document fairly quickly mr.
chairman that an answer district just
mr. Snyder's question this deals with
the issue of how the city construed
vesting under the development agreement
and the timeframe for its determination
and making that decision and I think
that was a a very consistent theme
throughout both the direct testimony and
the cross-examination sounds appropriate
to me so if you look on the second page
of the email I don't I mean I haven't
looked at this email in a long time but
the top fall paragraph above the chart
is missed I'm asking about vesting and
[Music]
what was going to happen to proposals
and I'm just talking about the the
uncertainty that existed around vesting
what the final vesting provisions that
the council would adopt would be thank
you I'd now like to introduce Exhibit C
36
this is a Monday November 27th 2017
email from yourself to the entire
development services department if I'm
yes understanding that correctly could
you please describe the purpose and
context of this document mr. Wolman well
I think we wanted I wanted to update the
department on what was happening we had
originally thought that at December 18th
meeting of the council that the
replacement regulations would be adopted
and at the last the previous meeting of
the Landon Shore committee we they had
communicated to us that they would not
be prepared to make a recommendation to
do that at December 18th and that I
wanted staff to be aware that that one
of the up shots of this was it would
give applicants more time to vest by
submitting a building permit and then
characterizing what as we understood it
were the elements that could vest thank
you can you please read the the last
full paragraph beginning with this means
this means that applicants who are
trying to vest have more time to submit
vlds which means building permits to
definitively be vested or land use
permits to try to be vested paren only
preliminary plats short plats building
permits and development agreements best
for state law staff proposed additional
vesting language which the council is
considering thank you and just to
clarify since this was sent by you to
the entire development services
department as recipients did this
reflect the department's official
position at that time yes I mean it was
our understanding I I don't know that it
was a position it was our perspective on
the state of the development regs
replacement regs process thank you now
like to introduce Exhibit C 37
could you please identify this document
miss Loman the top email is from Craig
Ramey who is I don't know exactly
exactly his title he's with Regency
centers in Oregon and is the person
directly overseeing Grand Ridge Plaza at
his clients to me and Keith Nevin and
could you please identify the purpose in
context of your December 1st 2017
message near the top of that page right
I'm trying to describe how vesting works
because that was Craig Rama's question
December 1st about whether shelter
Holdings was whether their application
was vested or not and I was trying to
describe our understanding of this
current state of vesting to him thank
you in your second paragraph beginning
with right now can you please read the
first two sentences right now other than
the land use permits which the state has
identified as being vested per in
preliminary Platts short plots building
permits development agreements close
paren there's a lot of uncertainty about
which permit pre app a SDP SDP close
paren would vest them if the vesting
language is removed only the land use
permits which state law identifies for
vesting would be vested any applicant
without one of those would have to start
over again using the new replacement
regulations which include a minimum at
they are of one and structured parking
thank you
and did that again reflect a
understanding of your department at the
time yes thank you I'd like to now
introduce City Exhibit C 38
can you identify this document this
woman this is an email from Keith Nibin
- tissue geyser a geezer who is the
assistant city clerk or deputy city
clerk for the city and acc2 me and what
was the purpose of this communication
strength
well tisha had originally John Haase who
was a property well he wasn't even a
property owner he was helping to develop
purchase and develop a piece of property
at Issaquah Highlands had received one
of my interested party emails of
February 2nd and he had contacted tisha
asking - wanting to facility a ski if
she would facilitate a meeting tisha had
sent it to me and I had responded that
this was not really up to me to
facilitate the meeting and then Keith
had responded trying to clarify to tisha
how a meeting mr. Haas or any other
parties that were interested in talking
about the changes that had taken place
to the proposed replacement regs how
they could facilitate a meeting with the
mayor and at the time that email was
written what was the administration's
then current proposal regarding the
vesting provision of the replacement
regulations to restrict it to those
items that were vested per state law
thank you
I'm now like to introduce exhibit number
C 39 please
mr. omec you please identify this
document this is an email from me to
Nick Abdel noir who has a high position
in polygon Northwest and Keith Nibin and
what was the purpose of this
communication well mister I believe mr.
Abdul noir had read our white paper that
had been sent to the land and Shore
Committee for the November 21st meeting
I'm guessing from looking at this and
had wanted clarification on what that
meant about his projects and can you
explain the basis for your response to
him beginning with the word yes so Nick
says on November 21st am I reading too
much into this on page 2 of the white
paper our projects were not included on
the short list because the city believes
and it's confirming our project spur in
single-family north multi-family north
track D and blocked for close paren are
vested and I said yes and I'll say it
again tonight when we look at unbuilt
properties and what was the basis for
your conclusion or determination in that
response that there that the properties
that he referenced had either a building
permit a preliminary plat or related to
the development agreements that we have
talked about before related to
affordable housing and all that all
those documents thank you
I'd like to introduce exhibit number C
40
you please identify this document it's
an email from me to Richard Rawlings who
is also at polygon I don't know his
title as well as CC to nick abdel nor at
polygon and david Avenel at polygon and
Jennifer are woods who is a city staff
person if you could you please quote the
second paragraph of your November 3rd
2017 response to mr. Rawlings
beginning with as for as for your
Westridge properties they are all vested
under the I HD a due to the development
agreement while I appreciate your
insights into the proposed standards
most won't apply ok what was the basis
excuse me could you please repeat the
last few words that so that the court
reporter once again so while I
appreciate your insights into the
proposed standards most won't apply most
won't apply thank you
and again what was the basis for this
response by development agreement
I meant the documents that had been
recorded in association with the TDRs
and affordable housing with the polygon
properties thank you I'd like to call
your attention to the applicants exhibit
s9
yes mr. Snyder's questions to you
regarding this document yes
okay I believe you indicated that you've
been employed by the city of Issaquah
for several years and you have been a
consultant for the city for even a
longer period of a defer to your actual
response but I believe it was at least
since 1996 or there abouts yes okay in
that period miss lemon has it had been
your experience and observation that the
city of Issaquah rigidly enforces the
priests of midal requirement listed on
page 2 of this document for a land use
permit notice of decision to be issued
before a DC I'm referring to yes the
middle requirements are not code they
are based on code they are based on the
things that we have to review but they
are more like a guide we have the
ability to ask for the things here but
we go through this list and review it
with applicants not every applicant but
often applicants will ask us to go
through and say do we need this thing do
we need that thing I don't think this
thing is relevant to our project why are
you asking for this and tailor it to the
project that's actually in front of us
do you consider that submitted checklist
to have independent binding regulatory
effect in the city no if there was a
conflict between adopted city code and
this document adopted city code would
take precedence do you consider the
vesting provision codified at IMC 1801
Oh 5oc to be in conflict with that
provision of the checklist submittal
requirements
it potentially could be yes and in the
event of such a conflict which of those
provisions would would prevail in
control they adopted I would note that
mr. L is asking for a legal opinion and
he's repeatedly objected to me doing
that he's also resorted again to asking
leading questions fair enough I will
rephrase the question
thank you miss Loman does the city
enforce I am IMC 1801 oh five OC over an
inconsistent provision of the
application checklist yes thank you
I'd like to then turn your attention
miss Loman to the applicants exhibit s12
this is a February 7 2018 powerpoint
presentation entitled ending the
development agreement in Issaquah
highlands yes could you please turn to
item number 7 entitled vesting the
provision that I believe mr. Snyder
referred to to during his
cross-examination yes in the first
bullet point mr. Snyder was correct
I refer to it as a bullet point when the
document states the development
agreement does not provide regulations
or guide guidance on vesting of projects
did you draft this provision this
reference to the PowerPoint probably
there did you at least participate in
the drafting yes okay what did you mean
by this reference well I think given
that the as the first page of s 12 shows
that this was in the context of ending
the development agreement that this was
to because we had been for months
talking about what provisions for
vesting or not vesting would apply as
the development agreement and
the point was to say that the
development agreement was did not
provide guidance on what vesting for
those permits that were in process what
that would be do you stand by that
statement today sure thank you could I
direct your attention to exhibit 4
attachment 9 to the staff report the
preface as these proceedings yes this is
the excerpts or select excerpts from the
Issaquah Highlands annexation and
development agreement yes I believe that
mr. Schneider had asked you some
questions
specifically related to section 3.23 of
that agreement and 3.2 3.2 do you recall
those questions and your testimony yes
okay are you aware of anything in those
provisions miss Loman that expressly
states that an applicant is vested
permanently to the standards in the
development agreement I don't think that
permanently vested is used in this
document they call your attention to
section five point one three also
contained in the excerpts in attachment
nine yes have you read this section yes
okay how do you construe or how does
this how do you construe this section in
relation to IH IFC's ASDP and SDP
permits well the very last sentence of
5.1 three-term says upon such adoption
well I guess I should note that above
this it talks about replacement
regulations and so upon such adoption
this agreement shall terminate and
thereafter the UGA which is the urban
growth area portion of the property
shall be governed by the adopted city
zoning and related development
regulations
and again how do you construe that
provision as applying if at all - IH
IFC's a STP and SDP applications that
are issue in this proceeding that if you
don't have a permit that is vested to
the it Highlands development
agreement based on the replacement
regulations that whatever zoning and
development regulations are adopted
become the upon adoption of that
replacement zoning and development
regulations those are then in effect
thank you
elected returned your attention to
section 3.2 3 of the agreement also
excerpted at exhibit 9 yes in the title
of that section vesting of development
standards and mitigation do you think
you see that yes are you aware of any
other provision in the Issaquah
Highlands development agreement that
uses the words vest or vesting without
doing a word search I can't say but I
know that when in the time period in
which we implemented the development
agreement since I started working on it
in 1996 if someone asked me about
development standards and their vesting
this would be the likely place I would
start thank you
but just to clarify are are you aware of
any other place in the document where
that term occurs or exists not at the
top of my head thank you and just to
clarify you've had familiarity with this
document since 1996 according to your
earlier testimony is that correct yes
thank you
I'd like to now call your attention to
applicants exhibit s 15 yes this is the
PowerPoint presentation I believe from
your department for the November 21st
2017 council land and Shore committee
yes meeting okay can you please turn
your attention to topic 4 entitled
vesting yes at the end of that document
okay in the second bullet point
reference what does it mean to say at
risk permits and then followed by pre
apps ASTP s and s DPS well looking under
the title topic for vesting it sort of
begins with an introductory question of
what happens to permits in review or
with active land use permits and the
first bullet identifies those that state
law ves and then the second bullet
identifies permits that are at risk
because they are not covered by state
law
thank you so this was a PowerPoint
presentation on November 21st 2017 and
was the council land and shore committee
meeting that that date opened to the
public yes was the agenda and related
materials for that meeting sent out to
the interested parties I my in I would
send a link to the PAC the land and
short packet where I hoc representatives
including MS Heim included as email
recipients of those materials yes would
this document have been included in that
no this document was prepared as a
summary of the materials that were in
the packet do you recall if Miss Heim or
any other IHI FC representatives
attended that meeting I would assume so
they were very interested in the
proceedings and had regularly attended
all the meetings
beginning with the land and Shore in the
fall of 2016 thank you the final bullet
point under the the topic for vesting
heading in your PowerPoint could you
please read that to me it's already
closed it
the last bullet please recommendation
recommendation ad vesting language and
what did you what what did that
reference mean what was the the purpose
and context of that well I think staffs
recommendation was that there that I
mean one of the options that had been
put forward over the month or two before
this meeting probably two months before
this meeting one of the options was to
be silent in the replacement regulations
with regards to vesting and staff did
not recommend that why not
we thought that it created uncertainty
and we wanted more clarity for
applicants staff the public thank you
we'd like to call your attention now to
applicants exhibit s13 this is a March
27th 2017 letter sent by mr. Niven of
your department to mr. Nick Abdel nor
Abdul nor of polygon wlh LLC uh-huh okay
did you participate in the drafting of
this letter I don't think so thank you
like to call your attention to
applicants exhibit what is now termed s1
this is the notice of application for
the IH IFC preliminary plat that was
issued I believe in in December of I
believe in either December or January of
last year yes to your knowledge and
understanding miss Loma is a notice of
application independently appealable
under the city's regulations no it and
my understanding is that it begins a
process that culminates in a decision
that can be appealed but it didn't it in
and of itself would not be thank you
have no further questions actually I'm
sorry pardon me did you have anything
else that you wanted to clarify miss
Loman from your original testimony or
your cross-examination testimony from
mr. Snyder well I I guess mr. Snyder did
not you know it wasn't he didn't find it
responsive to his question but I know
that one of the questions that we have
focused on is the pre application
process I think that the city had
started by saying that they were
necessary and then conceded that they
weren't when you look at the processing
of the various land use permits when the
pre apse took place and when the
applications were submitted as I
mentioned the retail site development
permit was submitted on November 22nd
2017 and our sufficiency letter went out
on December 1st 2017 and while we
identified a number of items that we
felt were insufficient not holding a
preliminary pre-op meeting was one of
them and and their pre-op meeting did
not take place until
were fifth so if we were going to
require that of them that would have
been something that we would have
identified and just for purposes of
clarification the city originally told
IH IFC that a pre-op was required but
then clarified that it was not was that
right after Ms hime pointed out that
they should be treated as optional
meetings so in the end the city did not
require a pre-application no and we
assumed that they were proceeding with
them because they thought there would be
beneficial we certainly found them to be
helpful in terms of improving the
quality of the land jusa middle and I
believe mr. Schneider touched on this in
his questioning but I don't recall the
response how was that communicated to
the applicant that you were not going to
require a pre-application I thought that
it was through an email but I don't
actually I have not done any research to
determine how whether who or how we
conveyed that thank you very much no
further questions mr. Haines so mr.
Schneider I think you have a chance now
to address specifics to the new material
you've just received well much of the
new material we just received I think
goes way beyond the scope of any
questions I asked and it's remarkable
that all these exhibits can be put
together in ten minute a ten minute
break this is I think clearly in an
introduction of new evidence and new
issues and it's going to take me a while
to go through these documents they're
there beyond the scope of anything I
went into so again I suggest in terms of
efficiency we break here I've got like
10 new documents to look at and figure
out how they're relevant to do this I
can go ahead and get started but I don't
see any hope of being done by 10 with
all of this new information in the
record in the city does not have any
objection to breaking at this point with
the understanding that mr. Niven would
come
at the next meeting to discuss the
polygon materials okay well we can
certainly do the politician Evans
testimony tonight but I think it would
be more efficient for everyone if I have
a chance to look at these new materials
no objection
okay so let's proceed with mr. Newman's
discussion of attack of attachments 32
and 33 33 and 34 that correct 33 and 34
okay Jack are you gonna have questions
or very briefly if I could mr. chairman
okay thank you
mr. Niven could you please acknowledge
for the record that you continue to be
under oath from your earlier testimony I
do thank you as you're aware the city
introduced into evidence tonight two
documents labeled exhibit 33 and 34 are
you familiar with these materials I am
okay I think you could you briefly
describe exhibit 33 see 33 so exhibit 33
is a development agreement with polygon
northwest and it relates to the
provision of affordable housing units
that was associated with the transfer of
development right agreement that the
city approved for Issaquah islands and
when was this document executed it was
recorded in January can we see the 27th
of December 2017 okay thank you
what was the purpose and context of this
document the purpose of this document
was to obligate the terms by which
polygons would provide affordable
housing as part of its development of
two different neighborhoods
in Issaquah Highlands that was part of a
development agreement amendment for
Issaquah Islands because they had
purchased a hundred TDRs transfer of
development rights sorry for the
acronyms and what is a TDR our tribes
for development right just for the
record so transfer development rights so
the city has code which allows which
creates both sending sites and receiving
sites for transfer of development rights
one of the sending sites was development
on tiger called Park point
and all of those development rights
except for 100 were used up previously
by port Blakely the remaining hundred
were purchased by polygon Northwest and
they sought to move those to actuate
those hundred transfer of development
rights in property they owned in
Issaquah Islands thank you so the city
started a conversation with them about
that and about amending the existing
Issaquah Islands development agreement
to allow an additional 100 residential
units could I please turn your attention
to page 7 section 4 of this document yes
could you please read that aloud yes so
section 4 is titled covenant running
with the land semicolon enforcement and
it reads this agreement shall constitute
a covenant running with the land and
shall inure to the benefit of and be
binding upon the parties and their
respective heirs successors and assigns
until terminated as provided in section
5 of this Agreement the covenants and
restrictions contained herein shall
benefit the city and the city is hereby
granted full authority to enforce this
agreement by any means available under
the law thank you
what's the purpose of that section as
you understand it the purpose of this
section is to identify that this
document was executed to the benefit of
the city between the parties that
executed it and did you read aloud
section 5 yes section 5 was the section
I clipped in the exhibit that we I
provided last meeting to try and explain
why polygon was treated differently
section 5 is titled termination and it
reads upon the final sale and closing of
the affordable units as provided
in in this agreement then the city shall
at the owner's request execute a
document in recordable form in
substantially the form of exhibit F
paren termination agreement that so
states and recites that this agreement
and its covenants are therefore
terminated the owner shall pay all fees
and charges incurred in connection with
any such recording and I believe that
this section 5 was excerpted and
included in a previous exhibit that was
submitted do you recall that I did what
was the purpose of that the purpose of
that was to provide an explanation to
the applicant why polygons Northwest was
allowed to continue to develop its
parcels under the Issaquah Highlands the
velum agreement and so I'm clear are you
saying that the part of the reason was
because the city had undertaken this
contractual obligation was that what you
mean yes okay thank you could I please
turn your attention to Exhibit C 34 yes
this is a development agreement I think
that you answered some questions about
this previously but could you please
describe this document yes so this
document is was was basically the
document that we took through the City
Council and identified the parcels you
can see the exhibit which is labeled
attachment 2 on page 6 those are the two
parcels that we've been discussing that
our own by polygon it also then if you
move on to attachment 3 we provided
a valuation because ultimately what was
being requested was that a city-owned
parcel which is track D I think there's
an exhibit that shows where that is here
maybe not would be basically traded to
polygon in exchange for the affordable
housing units that were identified and
that the the city needed to demonstrate
that there was a benefit to the public
so that there wouldn't be gifting of
land to polygon through this transaction
mr. Nevin to your understanding do
either one of these documents either the
the agreement identified as Exhibit C 33
or the exhibit identified as C 35
contain a defined build-out period
similar to the Issaquah Highlands
development agreement by C 35 did you
mean before excuse me okay so so what
these documents did was they created a
construct by which polygons could
actualize those hundred TDRs transferred
development rights as part of their
build-out of their property and the city
would in return get a certain number of
affordable housing units constructed as
part of the build out of those two
divisions and so the termination that
the build-out period was basically set
up so that those two neighborhoods could
get built out we would get our
affordable housing and then these
documents would sunset okay I have no
further questions thank you would if I
could I like to introduce one additional
document for context into the
I think the appropriate time to do that
would be now because it's a relates at
least peripherally to the the agreements
that were previously entered as see 33
and see 34 okay thank you this will be C
41
[Applause]
no further question mr. Charlie thank
you
[Applause]
a mr. Navin I'm trying to digest the new
exhibit c41
did you write this letter I did was it
written by mr. Abdel our instead of you
I don't believe so but it's been a year
so I don't I can't say conclusively it
was or was not I don't believe he wrote
this but I don't remember it mr. advil
now or write any letter for you
regarding the vesting of those projects
and asked you to put it on your
letterhead and sign it I don't recall
you don't recall one way or the other
I don't recall one way or the other
so this is dated November 22nd of 2017
but it says it's supplementary to the
correspondence of March 2017
I guess those were statements rather
than questions
though it refers to a new development
agreement that the City and polygon
entered into and says based on the terms
of the new agreement that these projects
are vested to the Issaquah Highlands
development agreement correct yes I
submit to you mr. Nevin that mr. Allen
our wrote this letter and asked you to
put it on let your letterhead and sign
it and that's what happened is that not
correct I think I already answered that
question okay so we're in the
so let's turn to Exhibit C 33 for a
minute you referred to this as a
development agreement that's not what it
is is it I believe it's an affordable
housing development agreement where does
it say it's a development agreement yeah
it's an agreement for development
development agreement is a creature
created by state statute that requires
certain procedures to to create is that
not correct that is a defined
development agreement by state statute
right okay and are you asserting this
document which is called a developer
sales agreement is in fact a development
agreement executed pursuant to state law
you're gonna need to say that one more
time are you saying that this is a
development agreement executed pursuant
to state law in the same way the
Issaquah Highlands development agreement
was
so I think so I'm going to answer the
question the way I want to and then you
can tell me if you want me to Rianne sir
it c34 is a development agreement which
I consider equivalent to the development
agreement for Zeke watt Highlands c33
is called out for as a requirement of
the development agreement c34 and
whether that legally has a standing of
equivalents I'm not a lawyer and I can't
answer that question
okay so let's turn to c34 then and where
does it call out
c33 in subsections 1 e as in elephant
you're gonna have to forgive me for a
minute
our copy of that agreement has walked
off here
okay so I'm sorry which section again
mr. Navin section one elephant it's on
page three top of page three we must be
looking at a different document to the
top of its I have section e at the top
of page three its
section one and in the letter is e under
section one
okay one subsection yes okay
okay I'm having trouble seeing why we're
not in a circle here terms of the dates
and the documents is it not correct that
the c30 for the document that is called
a development agreement is an attachment
to Exhibit C 33 so C 33 is a requirement
of C 34 and C 34 is an attachment to C
33
c34 is part of C 33 so C 33 has attached
to it the development agreement a so
what are the dates then the C 33 is
recorded on January 28 2018 d 33 is
executed 918 of 17 the copy that's
attached to the recorded C 33 is not
signed
okay well and I apologize it's late and
I am having a hard time making sense of
them but let me let me ask you where in
either agreement does it say anything
about testing to the regulations in the
Issaquah Highlands development agreement
it says anything about vesting to the
development regulations in the Issaquah
Highlands development agreement so it's
the it's the opinion of the city as
stated previously that section 7 r5 I
mean termination section 5 of exhibit 33
yes you have to explain that one to me
mister Niven I don't see any reference
in termination to either the Issaquah
Highlands development agreement or to
vesting so the construct of these
agreements was that polygons could build
out their properties under the existing
terms of the development agreement until
they finished as it's described in
section 5 termination well again I don't
see that anywhere in either agreement
though
how does the termination of this
agreement do any have anything to do
with vesting it I'm genuinely I simply
do not begin to understand so what is
the city's rationale for interpreting
section 5 as creating vested rights in a
development agreement that the city
terminated what was the city's I'm sorry
but the what was the city's intent
no what how does the city interpret
sorry it's late I'm trying to hear your
question and I apologize I have to me
like I'm shouting and apparently it's
not caring but can you explain one more
time how we get from termination to do
vesting so these these agreements which
were put together to obligate polygons
Northwest to provide a public benefit as
part of the build-out of their property
was put together in a way that ran with
the land until that benefit was provided
and so the termination piece is
addressing when basically they're their
rules would expire so the intent here
when we put this together and there can
be maybe a separate conversation about
whether it reads that way to everybody
or not but the way that this read to the
city and polygon was that this would
keep would allow them to fulfill their
obligation to provide those affordable
housing units under the terms of the
development agreement which was still in
effect when this dot these documents
were executed but Mr divin isn't it
correct that the replacement regulations
allowed polygons to go ahead and build
the affordable housing
I don't think that we ever evaluated
what polygons and the city agreed to
under the replacement regulations so I
can't I don't know the answer to that
question are you
you are aware their property is zoned
for residential correct I do okay so I
don't think I have any more questions
about the exhibit 33 in 34 but I in
lighted this testimony I do have a
couple of documents I want to submit
next time in rebuttal so that I would
suggest we terminate for tonight talk
about upcoming dates I just would like
to reserve the opportunity to submit
some additional evidence in response to
this no objection from the city mr.
chairman you may recall that the rules
of procedure for this proceeding
contemplated that the parties free to
submit documents and other evidence up
to the close of the hearings the city
does not object to mr. Snyder's proposal
excellent
so in light of the hour
I guess this meeting is now adjourned to
Tuesday January 15 2019 at 6:30 and the
meeting will be held in the council
chambers here and are we also confirmed
for the 16th and what it makes sense to
try about to talk about future dates as
well since we're not going to get done
those two nights sure
so I think it's a question of when the
commissioners willing to enable it me I
think the the way that has been most
effective is staff sends out dates that
are available to the Commission to check
on our availability and they'll work
back with with you mr. Schneider and
your team as well as the city's team to
make sure we can find some dates that
line up but recognizing we're trying to
accomplish the set that really is
convenience that we can accomplish we
would for all the reasons we've
discussed to be grateful as for as many
dates as soon as possible excellent so
with that I guess we are adjourned I
would like to wish everybody a wonderful
holiday and a prosperous exciting new
year thank you thank you thank you
[Applause]
you