Development Commission - Special Meeting - 26 S · Wednesday, September 26, 2018 · City Council Digest

2883 segments .txt ↗

0:02 ↗ so that he's that phone call Dean said

0:06 ↗ we have started televised minutes before

0:11 ↗ seven o'clock but formally start the

0:14 ↗ special meeting right now all your

0:16 ↗ business cell phone Richard so I'm the

0:18 ↗ chairman of development creation honest

0:19 ↗ commissioners to introduce themselves

0:21 ↗ that's my name is Mel Morgan and the

0:25 ↗ Vice Chair Mike Brennan

0:27 ↗ Richard Sanford Kevin price and I'd like

0:31 ↗ to introduce raiding the out this

0:34 ↗ development commission legal

0:36 ↗ representative are turning in dramatic

0:37 ↗ I've heard you summarize maybe in the

0:40 ↗ context of a letter that we just

0:41 ↗ received earlier today and give us some

0:44 ↗ alternative or some course of action

0:46 ↗ that we might pursue sure so as the

0:52 ↗ Development Commission received this

0:53 ↗ morning they are in a receipt of a

0:57 ↗ letter from applicant mr. foster pepper

1:04 ↗ and applicants objection to jurisdiction

1:08 ↗ and motion to stay so this is a special

1:13 ↗ meeting under the open public meetings

1:15 ↗ act this is not one of your regularly

1:17 ↗ scheduled meetings and as a result the

1:21 ↗ topics that can be addressed in the

1:24 ↗ course of a special meeting need to stay

1:27 ↗ true to the agenda that has been

1:29 ↗ published and noticed for this meeting

1:32 ↗ change 24 hours before the meeting but

1:35 ↗ because it's a special meeting you can't

1:37 ↗ actually eat from this agenda

1:43 ↗ it would allow you to if you so choose

1:48 ↗ to have whole discussion on issues that

1:51 ↗ aren't on the agenda that you would not

1:53 ↗ be able to take final action on that

2:00 ↗ there is an exception to be open public

2:04 ↗ meetings act that concerns portions of

2:07 ↗ meetings of a quasi-judicial body which

2:10 ↗ relates to a quasi-judicial matter

2:11 ↗ between named parties as distinguished

2:14 ↗ from a matter having general effect on

2:16 ↗ the public or another class or group of

2:17 ↗ people but unless all of the parties

2:21 ↗ stipulate that this indeed is a outside

2:26 ↗ of the open public meetings act because

2:28 ↗ of that context my recommendation to you

2:30 ↗ would be to to presume that this is a

2:33 ↗ special meeting of the open public

2:34 ↗ meetings active we're not able to take

2:36 ↗ final action on something agenda so if

2:43 ↗ you proceed with assuming this is

2:47 ↗ subject to feel fun public meetings act

2:49 ↗ you have some choices short of taking

2:52 ↗ final action you can you can't make a

2:56 ↗ final decision but you can you can

2:58 ↗ deliberate and hear information or if

3:03 ↗ you can hold discussion on this motion

3:05 ↗ if you so choose I would recommend that

3:08 ↗ you allow the parties procedurally to

3:11 ↗ address how they might address this in

3:14 ↗ the in the proceeding this evening and

3:16 ↗ you probably should do that a thing at

3:17 ↗ the outside or you can decide to

3:21 ↗ continue the discussion to a feature

3:24 ↗ proceeding particularly because I

3:26 ↗ understand this public hearing is not

3:28 ↗ anticipated to conclude this evening and

3:31 ↗ you can

3:33 ↗ you can hold the public hearing and

3:35 ↗ decide not to discuss this issue or you

3:39 ↗ can also decide that you're gonna put

3:41 ↗ off the decision and you're also going

3:43 ↗ to put up the public hearing so you

3:44 ↗ actually have a lot of choices but you

3:46 ↗ just can't take an action on that so now

3:49 ↗ this letter item unless we're outside

3:53 ↗ the context that the open public means

3:55 ↗ out so lots of lots of choices but I

3:58 ↗ guess with a threshold whether or not

4:00 ↗ you can take actions beginning that's

4:02 ↗ the first point order they we need to

4:04 ↗ decide and then from there you can

4:05 ↗ decide to what extent you want to hear

4:07 ↗ deliberations on that tonight so how do

4:11 ↗ we decide our right to take care of you

4:17 ↗ you have the option to decide as a

4:20 ↗ commission that this is a special

4:22 ↗ meeting you also have this decision you

4:26 ↗ could you could ask all parties to

4:28 ↗ stipulate in writing I would recommend

4:31 ↗ that this is outside the context I've

4:34 ↗ been up for public meeting per student

4:36 ↗ RCW forty two point thirty point one

4:39 ↗ four zero sucker - so that wouldn't it

4:43 ↗ mitigate your risk of being found

4:46 ↗ subsequently to be um in violation of

4:48 ↗ local public

4:57 ↗ miss tabulate so that we could in terms

5:00 ↗ of the action before we know just to

5:07 ↗ take afternoon on decision to make a

5:11 ↗ decision on this short of mitigating

5:14 ↗ your risk in terms of taking taking

5:17 ↗ action in violation of yoga public

5:20 ↗ meetings act i would i would recommend

5:23 ↗ that to you that out all the praise

5:25 ↗ would would need to agree that this is

5:27 ↗ not subject to any open public meetings

5:28 ↗ at this this issue of the meeting

5:30 ↗ because it hasn't been noticed on your

5:33 ↗ agenda but short of that i would i which

5:36 ↗ at this meeting in general there's

5:38 ↗ overall meeting since it's a special

5:40 ↗ meeting is that this topic not being on

5:45 ↗ the agenda

5:46 ↗ oh right as well unless our ability to

5:51 ↗ take action on it's not on the agenda

5:55 ↗ the only way that you can take action on

5:59 ↗ this tonight is by making a termination

6:02 ↗ that it's not that we are we are outside

6:04 ↗ the context that the open public

6:06 ↗ meetings at because there's a PTAs are

6:09 ↗ because you are a quasi-judicial in that

6:10 ↗ matter and it's relating to a to me you

6:13 ↗ are a quasi-judicial body and this is

6:15 ↗ related to a quasi-judicial matter so

6:19 ↗ just trying to get more clarity on

6:21 ↗ exactly the step two options so if we

6:27 ↗ didn't get the stipulation that we were

6:30 ↗ operating outside the from the parties

6:33 ↗ can we hear the discussion presentation

6:37 ↗ from the parties on responding to the

6:40 ↗ letter president present to the letter

6:42 ↗ responding to the letter but not act on

6:44 ↗ time Frank okay the other is have the

6:47 ↗ stipulation take the testimony and then

6:51 ↗ make a decision if there's agreement to

6:52 ↗ operate outside the

6:54 ↗ the Kratt framework ran with the stench

6:56 ↗ right and then the other option is let's

7:00 ↗ just go home we'll deal with it at a

7:01 ↗ regular meeting when we put it on the

7:03 ↗ agenda right okay yeah all right or you

7:06 ↗ can say we're gonna put this issue on

7:09 ↗ the side and proceed with the public

7:13 ↗ hearing scheduled but take no action and

7:16 ↗ no deliberation on this we will continue

7:18 ↗ this issue to a later date when it can

7:21 ↗ be noticed or as part of their regular

7:25 ↗ meeting it's not your recommendation was

7:39 ↗ to continue with agenda my

7:41 ↗ recommendation is but for a stipulation

7:43 ↗ is that to deviate from the agenda and

7:46 ↗ take final action on this motion would

7:48 ↗ be outside the bounds of the philosophy

7:50 ↗ exact that recommendation would be to

7:53 ↗ certainly not take action on this as to

7:57 ↗ whether or not you decide to take

7:59 ↗ testimony from your argument from either

8:03 ↗ side so deliberate and ask questions

8:05 ↗ that is completely within your purview

8:08 ↗ as to whether or not you want to address

8:10 ↗ that this evening before the public

8:12 ↗ hearing or address it at a later date

8:16 ↗ and allow the public right

8:21 ↗ so what we need to get in writing and

8:24 ↗ permission to discuss the letter and

8:26 ↗ have presentations of the letter to help

8:29 ↗ us understand better both sides of an

8:31 ↗ issue here's what I would recommend at

8:33 ↗ this point I think that you might be

8:35 ↗ able to ask the parties to speak to this

8:38 ↗ they haven't they haven't spoken to this

8:41 ↗ issue at all this is sort of my out the

8:44 ↗ gate framework for you all but if you

8:46 ↗ want to invite each side to make

8:48 ↗ comments on that at the start of

8:50 ↗ meetings that we can you get that you

8:51 ↗ can figure out whether or not how you're

8:53 ↗ going to proceed with your each other

8:59 ↗ even seeing that hearing hearing the

9:03 ↗ discussion from both parties on validity

9:07 ↗ of the claims or their positions would

9:09 ↗ really help us understand whether this

9:12 ↗ letter a proposal is a question

9:15 ↗ firestation not necessarily if you do

9:24 ↗ not plan to take action we won't take

9:27 ↗ it's here some discussion for both

9:30 ↗ parties on the claims made in the letter

9:33 ↗ the proposal the constant guess isn't

9:35 ↗ the most effective that makes sense and

9:39 ↗ if they're prepared to kill it

9:43 ↗ [Music]

9:48 ↗ we'd like to hear from you if you're

9:50 ↗ willing to speak to it absolutely that's

9:54 ↗ why we're here

9:55 ↗ so if I may I'll just introduce the side

9:58 ↗ of the room and next to me is Jackie air

10:02 ↗ a my colleague next to her is Tia high

10:06 ↗ and is representative of what I would

10:08 ↗ call shelter because it's easier to say

10:10 ↗ than IH IFC and Gary Young who's a

10:14 ↗ principal in shelter is idea we have

10:19 ↗ brought this motion for both technical

10:24 ↗ legal reasons and temporary practical

10:26 ↗ reasons I think the code is clear that

10:31 ↗ only the development services director

10:34 ↗ to decide the best conditions whether

10:37 ↗ someone in this case is vested to the

10:40 ↗ regulations and the development

10:42 ↗ agreement that governed the Highlands

10:44 ↗ for more than 20 years or whether the

10:48 ↗ applicant shelter new subject to the new

10:51 ↗ regulations of the council adopted

10:53 ↗ earlier this year the code clearly says

10:56 ↗ that the development director and

10:58 ↗ consultation with the city attorney

10:59 ↗ makes that determination mr. nevan's

11:03 ↗ told us in a letter a tape called of d1

11:05 ↗ fest we tried to appeal that the City

11:08 ↗ opposed it so we weren't able to

11:11 ↗ challenge that decision at that point in

11:13 ↗ time but in the staff report he makes

11:17 ↗ the vesting determination he uses that

11:19 ↗ word determination he says were not

11:22 ↗ vested and he asks you all to deny the

11:25 ↗ applications because they don't conform

11:27 ↗ to the replacement regulations there's

11:30 ↗ no dispute that the applications do not

11:33 ↗ comply with the replacement regulations

11:36 ↗ they were prepared and submitted before

11:40 ↗ the newer replacement regulations were

11:42 ↗ adopted and we believe firmly and

11:46 ↗ completely that we are vested to the

11:48 ↗ development regulations so by bringing

11:51 ↗ this issue to you in the staff report

11:53 ↗ and asking you to make a decision

11:55 ↗ the only issue in dispute whether

11:58 ↗ vested or not as an issue over which you

12:00 ↗ did not have jurisdiction given the

12:02 ↗ clarity in the code that the development

12:05 ↗ director makes that decision the law is

12:07 ↗ clear there are many cases you could

12:09 ↗ have cited we cited a couple of letters

12:12 ↗ that say a body that lacks jurisdiction

12:13 ↗ can't do anything except decide that it

12:17 ↗ doesn't have jurisdiction so what

12:19 ↗ happens if we go ahead and hold this

12:21 ↗ hearing well first of all it's going to

12:23 ↗ be a lengthy hearing take up many my

12:25 ↗ many evenings because it's not just

12:28 ↗ simply an issue of what the law says we

12:32 ↗ also have an extensive factual record we

12:35 ↗ need to make because we have evidence

12:38 ↗ testimony many exhibits witness

12:40 ↗ testimony that shows the determination

12:42 ↗ the department made in this case is

12:45 ↗ inconsistent with fire representations

12:48 ↗ that is inconsistent with how the

12:50 ↗ department is treating other applicants

12:52 ↗ so we have to be able to make that

12:54 ↗ factual record testimony and many

12:56 ↗ exhibits as if you all you're not set up

13:00 ↗ for that kind of adversarial plays a

13:02 ↗ judicial decision as far as I've been

13:04 ↗ able to determine you don't have rules

13:05 ↗ that would guide you in this situation

13:08 ↗ as far as I know you know you just you

13:11 ↗ don't operate in that way because it's

13:13 ↗ not part of what stage you're supposed

13:16 ↗ to do which is to make decisions about

13:18 ↗ design and so forth so you're not set up

13:21 ↗ to do it in terms of your rules in terms

13:24 ↗ of your experience I'm assuming in terms

13:26 ↗ of your background and you don't have

13:28 ↗ jurisdiction so what happens let's say

13:30 ↗ we spend the next two months and special

13:32 ↗ meetings in front of you presenting all

13:33 ↗ of this evidence presenting all of these

13:36 ↗ exhibits what are you going to do with

13:38 ↗ that you can't make a decision because

13:40 ↗ you don't have jurisdiction so at the

13:42 ↗ end of that if you can't make a decision

13:43 ↗ how do we how do we move on to the next

13:46 ↗ level there's nothing for either side to

13:49 ↗ appeal even if the Hearing Examiner but

13:51 ↗ the court because you can't make a

13:52 ↗ decision it's it's a complete waste of

13:56 ↗ your time our energy our resources to

13:59 ↗ conduct a hearing on this issue in front

14:02 ↗ of a body that does

14:03 ↗ at jurisdiction and I think the law is

14:05 ↗ absolutely clear that you don't because

14:07 ↗ you don't get to second guessing over

14:09 ↗ all the decisions that the Development

14:11 ↗ Director made so for both the technical

14:14 ↗ legal reason if you don't have

14:15 ↗ jurisdiction and for the practical

14:17 ↗ reality of presenting all this evidence

14:20 ↗ when you can't do anything with it we

14:22 ↗ respectfully and sincerely asks you to

14:25 ↗ decide that because you don't have

14:27 ↗ jurisdiction you shouldn't take action

14:29 ↗ of any sort up or down one way or

14:32 ↗ another until the vesting issue is

14:34 ↗ resolved by a body that does have

14:36 ↗ jurisdiction that's what we're asking

14:38 ↗ just don't waste everyone's time and

14:40 ↗ energy

14:41 ↗ sit tight on this issue until we can get

14:44 ↗ it resolved and then and then something

14:47 ↗ will come back in front of me in terms

14:57 ↗ of both sides presenting and then we

14:59 ↗ have chance asking questions

15:10 ↗ yes sir mr. chairman Zach Lowe on behalf

15:13 ↗ of the supply department of development

15:15 ↗ services I'm with the City Attorney's

15:17 ↗ Office with me as my lab partner Jeff

15:19 ↗ Dunbar to my right and development

15:22 ↗ services director Keith Niven to my left

15:25 ↗ manager Lucie Sloman is loved thank you

15:31 ↗ the city just received as the Commission

15:34 ↗ did IH IFC's objection letter and motion

15:37 ↗ for a stay this morning and in light of

15:39 ↗ the extremely compressed timeframe we

15:42 ↗ haven't obviously had an opportunity to

15:43 ↗ prepare a formal written response

15:45 ↗ however there are a few points that I

15:47 ↗ would like to make before the Commission

15:49 ↗ considers the applicants request first

15:53 ↗ what the applicant is requesting here is

15:55 ↗ extraordinary in staff view this request

15:59 ↗ for a stay as well as the underlying

16:02 ↗ attempt to appeal the city's staff

16:04 ↗ report has no basis in the city's

16:07 ↗ procedural regulations under the city's

16:10 ↗ code the Development Commission has the

16:11 ↗ exclusive jurisdiction to review and to

16:15 ↗ issue final decisions on site

16:16 ↗ development permits for projects that

16:19 ↗ are located within the Isola islands and

16:21 ↗ that meet the project size and location

16:23 ↗ thresholds specified I am see 1819 B 270

16:28 ↗ it is equally clear from the same code

16:31 ↗ provision that the city's level 3

16:33 ↗ procedural process inclusive of a

16:36 ↗ pre-decisional public hearing before the

16:38 ↗ development commission is required in

16:41 ↗ this context which IMC is attempting to

16:45 ↗ do is to file what's known as an

16:47 ↗ interlocutory appeal of the city staff

16:49 ↗ report rather than waiting for the

16:52 ↗ Commission to actually issue its final

16:54 ↗ decision in the manner contemplated by

16:56 ↗ the city's code the staff report is not

16:59 ↗ and does not purport to be in any manner

17:01 ↗ an independently appealable final

17:04 ↗ decision in its own right while the

17:07 ↗ city's code does empower the development

17:09 ↗ services director to make determinations

17:11 ↗ regarding the vested status of land use

17:13 ↗ applications this determination is

17:16 ↗ way to facilitate the city's ultimate

17:18 ↗ review of each proposal by clarifying

17:21 ↗ which body of regulations will be used

17:23 ↗ to evaluate it nothing in the code

17:26 ↗ remotely suggests that this procedural

17:28 ↗ determination is appealable by itself if

17:32 ↗ it party ultimately feels that the city

17:34 ↗ applied the wrong body of regulations to

17:37 ↗ its project application its recourse is

17:40 ↗ to wait until a final decision has been

17:42 ↗ made on the application itself and then

17:45 ↗ to appeal it in the ordinary course

17:46 ↗ that's the first point the second point

17:49 ↗ is that this precise issue has already

17:52 ↗ been considered and formally addressed

17:54 ↗ by the city's Hearing Examiner and in

17:57 ↗ that regard I'd like to respectfully

17:58 ↗ direct the Commission's attention to the

18:01 ↗ development services directors April 4th

18:03 ↗ 2018 letter to the applicants Council

18:07 ↗ this is an exhibit 10 to your staff

18:09 ↗ report this letter explained the city's

18:21 ↗ position regarding the vested status of

18:23 ↗ IH IFC's pending project applications

18:27 ↗ and just like IH IFC is attempting to do

18:30 ↗ now with respect to the staff report for

18:32 ↗ tonight's hearing ih IFC previously

18:35 ↗ attempted to appeal the city's April 4th

18:38 ↗ letter to the city's Hearing Examiner

18:39 ↗ the examiner ultimately granted the

18:42 ↗ city's motion to dismiss that appeal

18:44 ↗ concluding correctly that the letter was

18:47 ↗ not a final decision that could be

18:50 ↗ independently appealed ih IFC is now

18:53 ↗ attempting to relitigate that precise

18:55 ↗ point and if it please the Commission I

18:59 ↗ would like to distribute copies of the

19:04 ↗ hearing examiner's decision in IH IFC's

19:08 ↗ previous administrative appeal the

19:10 ↗ decision was issued

19:11 ↗ June 28 2018 and it's under number 88

19:16 ↗ 2018 - to

19:19 ↗ cite a PN two seven two four zero six

19:23 ↗ nine two zero eight and the relevant

19:27 ↗ analysis and conclusion is on pages 5 &

19:30 ↗ 6 of the decision finally in the end the

19:44 ↗ city recognizes that it can't prevent

19:46 ↗ the applicant from filing an appeal of

19:48 ↗ the staff report to the Hearing Examiner

19:50 ↗ just like it couldn't physically prevent

19:52 ↗ the applicant from filing an appeal of

19:54 ↗ the city's previous April 4th letter

19:56 ↗ instead city can only wait and like it

20:00 ↗ did before file a motion to dismiss the

20:02 ↗ appeal if the Commission wishes to take

20:05 ↗ this issue under advisement or

20:07 ↗ ultimately decides to grant IHI fc's

20:09 ↗ motion for a stay of this proceeding

20:13 ↗ while it's Hearing Examiner appeal goes

20:15 ↗ forward then that is the Commission's

20:17 ↗ prerogative but I would like to be very

20:19 ↗ clear for the record that staff is fully

20:22 ↗ prepared tonight to go forward with this

20:24 ↗ hearing as scheduled and if these

20:26 ↗ proceedings are paused and delayed while

20:28 ↗ IH IFC pursues what the city strongly

20:31 ↗ believes is a baseless administrative

20:33 ↗ appeal of the staff report I would like

20:36 ↗ to the record to reflect that the

20:37 ↗ resulting delay is due to IH IFC's own

20:40 ↗ actions and not those of the city thank

20:42 ↗ you I would like an opportunity to

20:46 ↗ respond if I may so mr. Ellis is correct

20:54 ↗ that we tried

20:57 ↗ let her and mr. LL argue but it a

21:01 ↗ decision had not been made and therefore

21:05 ↗ there was nothing true and he succeeded

21:07 ↗ with that right now what he is saying is

21:11 ↗ well staff you know where the early

21:13 ↗ April to mid September what has happened

21:16 ↗ during that time nothing the applicant

21:19 ↗ has been sitting here unable to do

21:21 ↗ anything with his property waiting for

21:23 ↗ this staff report the staff report does

21:26 ↗ contain of nesting determinations it

21:29 ↗ says it does so now the city's position

21:32 ↗ is and I'm sure mister well will correct

21:35 ↗ me if I'm wrong but this city's position

21:37 ↗ tonight is you go ahead and conduct the

21:39 ↗ meaningless hearing that I just

21:42 ↗ described and take all this evidence and

21:44 ↗ all of this testimony and you can't make

21:46 ↗ a decision on the vesting determination

21:49 ↗ apparently it either hasn't been made or

21:51 ↗ you don't have I didn't hear any dispute

21:53 ↗ that you don't have jurisdiction over so

21:55 ↗ again the city is asking for months of

21:57 ↗ delay and meaningless expense of

22:00 ↗ resources in your time and energy over

22:03 ↗ an issue you have no jurisdiction over

22:05 ↗ and what are you going to do at the end

22:06 ↗ you're going to deny the the

22:10 ↗ applications because they don't comply

22:12 ↗ with the replacement regulations that's

22:14 ↗ not in dispute we concede that tonight

22:17 ↗ so this hearing is entirely meaningless

22:19 ↗ the city can get this resolved at any

22:22 ↗ point and it could have at any point

22:24 ↗ since April if the city is going to say

22:26 ↗ that the staff report is not a final

22:28 ↗ determination on this issue it can make

22:30 ↗ an appealable decision it can make a

22:33 ↗ level zero or level one decision it can

22:36 ↗ issue a code interpretation and we can

22:38 ↗ get the vesting issue resolved and cut

22:40 ↗ in front of a body with jurisdiction the

22:42 ↗ city is refusing to do that and it is

22:44 ↗ said creating this meaningless wasteful

22:47 ↗ damaging process that is the choice in

22:51 ↗ front of you or you're going to go ahead

22:52 ↗ and endure a couple of months where

22:55 ↗ their testimony on an issue that you can

22:57 ↗ make

22:58 ↗ the staff is in control of this if they

23:01 ↗ want to decide that no you have to do

23:03 ↗ that apparently they can do it and we

23:05 ↗ may not succeed in front of the hearings

23:07 ↗ amber we may have to wait but if we have

23:09 ↗ to wait it will be at your expense as

23:11 ↗ well as ours because we will have done

23:13 ↗ this meaningless hearing that you can't

23:15 ↗ even make findings and decisions on

23:16 ↗ because you don't have jurisdiction I

23:25 ↗ fully understand counsels frustration

23:29 ↗ about the length of time that any quasi

23:32 ↗ judicial proceeding it takes it's

23:35 ↗ inherently a time-consuming process

23:37 ↗ because it's supposed to be conducted in

23:39 ↗ a careful thorough manner with due

23:41 ↗ regard to the parties respective rights

23:43 ↗ that's part and parcel of the quasi

23:45 ↗ judicial land use decision on process

23:47 ↗ but at the end of the day what we're all

23:49 ↗ left with both parties and the

23:52 ↗ Commission is what the city's procedural

23:54 ↗ regulations is codified in the IMC

23:57 ↗ prescribed for proceedings like this and

24:00 ↗ the features that the IMC imc contains

24:04 ↗ could not be clearer a site development

24:07 ↗ permit within the Asuka Highlands

24:09 ↗ meeting the structural and locational

24:12 ↗ criteria of IH IFC's proposals requires

24:17 ↗ a level three review by the Development

24:19 ↗ Commission you are the only body in the

24:21 ↗ city capable of making a final decision

24:24 ↗ on that proposal and while the staff

24:29 ↗ through the director has indicated what

24:32 ↗ body of regulations should guide their

24:34 ↗ analysis what body of regulations you

24:37 ↗ should use to evaluate the proposal at

24:39 ↗ the end of the day mr. Niven if the

24:42 ↗ director doesn't have jurisdiction to

24:44 ↗ issue a final decision on the underlying

24:47 ↗ permit so this process as meaningless as

24:50 ↗ mr. Schneider contends that it might be

24:52 ↗ is ultimately one that the code requires

24:55 ↗ you to take and that's why we're here

24:56 ↗ today I don't have any particular

24:58 ↗ interest in delaying this any more than

25:00 ↗ anyone else does and I certainly

25:02 ↗ empathize with the

25:05 ↗ the desire people to have an expeditious

25:07 ↗ ending to this process but at the end of

25:10 ↗ the day we need to follow the procedure

25:12 ↗ that the code indicates and that's what

25:13 ↗ staff has attempted to do here and I

25:16 ↗ could not more profoundly disagree and I

25:18 ↗ know you need to put an end to this back

25:20 ↗ and forth at some point but I think that

25:21 ↗ it's fundamentally profoundly wrong and

25:24 ↗ I've been be happy to address it if you

25:26 ↗ if you will give me the opportunity so

25:32 ↗ to say that you have to go through an

25:35 ↗ entire quasi judicial process to reject

25:37 ↗ an application because it's not

25:39 ↗ consistent with the code is its

25:42 ↗ conditions there is no jurisdiction in

25:45 ↗ the state that has that practice and

25:48 ↗ there is nothing in this code that

25:49 ↗ requires it if someone comes in and

25:51 ↗ submits an application for a

25:53 ↗ multi-family building in a single-family

25:55 ↗ zone they don't put you through an

25:57 ↗ entire quasi judicial process to reject

26:00 ↗ your application if something doesn't

26:02 ↗ comply with the regulations it's not

26:04 ↗ even accepted for processing so if the

26:07 ↗ department has made a decision that with

26:09 ↗ that we are subject to the replacement

26:11 ↗ regulations and the application clearly

26:13 ↗ doesn't comply with those regulations it

26:16 ↗ can simply say no and as I pointed out

26:18 ↗ the department can say no in multiple

26:20 ↗ ways a level zero a level one a code

26:23 ↗ interpretation decision it can do that

26:25 ↗ it's choosing not to do that nothing in

26:27 ↗ the code compels it so there's

26:29 ↗ absolutely no reason except the exercise

26:31 ↗ of discretion on the part of the

26:33 ↗ department that has put us in this

26:34 ↗ situation there is one person a lost

26:48 ↗ truck is there currently an issue inside

26:50 ↗ the Hearing Examiner regarding the

26:53 ↗ decision of the director so the letter

26:56 ↗ of April 4th was you present you

26:58 ↗ provided hearing examiner's decisions on

27:02 ↗ that I thought I've heard you say that

27:04 ↗ that there's another appeal in front of

27:07 ↗ Hearing Examiner related to this matters

27:08 ↗ there is not and if I said that I

27:10 ↗ apologize I missed you in two

27:12 ↗ characterize that the appeal decision

27:15 ↗ from the Hearing Examiner that was

27:16 ↗ issued in June of this year was a

27:18 ↗ separate appeal an appeal filed by IH

27:20 ↗ IFC I believe in April of 2018

27:24 ↗ ultimately resolved in the city's favor

27:26 ↗ through a motion for dismissal

27:29 ↗ it was granted June of 2018 that case

27:33 ↗ was not further appealed to the Superior

27:35 ↗ Court and is essentially resolved at

27:37 ↗ this point I only provided copies of it

27:39 ↗ for context and to demonstrate hopefully

27:41 ↗ to the commissioners that this is the

27:44 ↗ precisely the same issue regarding

27:46 ↗ jurisdiction regarding the intent and

27:49 ↗ effect of the directors construction of

27:53 ↗ the the vesting framework that applies

27:55 ↗ in this context so you could understand

27:58 ↗ that what IH IFC is attempting to do

28:00 ↗ tonight through its motion for stay and

28:02 ↗ its attempt to appeal the staff report

28:04 ↗ is almost identical to their previous

28:07 ↗ attempt their unsuccessful attempt to

28:09 ↗ appeal mr. dibbens

28:11 ↗ April 4th letter and the city's position

28:12 ↗ that again it's not right for appeal

28:15 ↗ because a decision has not been made

28:17 ↗ that is correct and if the Commission

28:20 ↗ pleases the city's first witness that it

28:25 ↗ intends to call when when and if the

28:27 ↗ hearing actually proceeds is mr. Niven

28:30 ↗ and he will testify to his official

28:33 ↗ interpretation of the various I am I am

28:36 ↗ see provisions that bear on this

28:37 ↗ procedural issue and if the Commission

28:40 ↗ would prefer I would be happy to call

28:42 ↗ mr. Nibin right now and lead him through

28:45 ↗ a series of questions so you you have

28:47 ↗ the benefit of his official

28:49 ↗ interpretation of those code sessions I

28:52 ↗ take one step backwards so the the

28:57 ↗ applicants attorney maintains it's not

28:59 ↗ our jurisdiction

29:00 ↗ city says it is

29:03 ↗ who decides if it is or isn't how do we

29:06 ↗ move forward on any action is that our

29:09 ↗ decision to decide whether it's in our

29:11 ↗ jurisdiction

29:12 ↗ a commissioner I appreciate the question

29:14 ↗ I think that might be more appropriately

29:15 ↗ directed to your legal counsel and I'm

29:17 ↗ going to advocate here on behalf of

29:18 ↗ staff I can't advise you on that point

29:23 ↗ can I ask a question I guess if you

29:29 ↗ don't mind you're saying that the

29:32 ↗ directors decision on vesting is their

29:35 ↗ decision and we have no say over that's

29:37 ↗ correct yes in the letter we quote the

29:40 ↗ code provision that says only the

29:41 ↗ directors make that decision so you're

29:43 ↗ saying that we have no right to question

29:45 ↗ their decision yes because the code also

29:48 ↗ does not give you appellate jurisdiction

29:50 ↗ over the decisions made by the director

29:52 ↗ and would you agree with that too

29:54 ↗ I concur that the the code delegates the

29:57 ↗ authority to the director to determine

30:00 ↗ which body of regulations particularly

30:02 ↗ should be evaluated against a valid

30:06 ↗ caveat that heavily by noting that that

30:08 ↗ must inherently occur in the context of

30:11 ↗ the broader project review procedure

30:13 ↗ which in this case is a level three

30:16 ↗ process requiring a development

30:18 ↗ Commission final decision that is then

30:20 ↗ appealable to the hearings okay so if I

30:23 ↗ guess the question is if the director

30:25 ↗ has the right to make the decision on

30:29 ↗ best deemed and we can't question that

30:31 ↗ if the director comes to us and says

30:34 ↗ this is the status of vesting we can't

30:37 ↗ question that so if we can't question

30:40 ↗ that what would stop us from moving

30:43 ↗ forward on a project that they put in

30:45 ↗ front of us with a level three review

30:48 ↗ because we have to pursue that they have

30:51 ↗ the right to make that decision and we

30:53 ↗ can't question it right again if I would

30:58 ↗ I will answer your question but I would

31:00 ↗ suggest

31:02 ↗ that because you can't question it why

31:05 ↗ are we here but the problem that is

31:09 ↗ presented to us procedurally is that an

31:11 ↗ appeal from you to the Hearing Examiner

31:13 ↗ is a closed record appeal

31:16 ↗ we can't present the digital evidence as

31:18 ↗ part of the Hearing Examiner all the

31:20 ↗ evidence has to be taken here so they

31:23 ↗ are putting us in the impossible

31:24 ↗ situation of trying to make a record on

31:27 ↗ the vesting issue they've got no

31:29 ↗ jurisdiction over the disaster record

31:31 ↗ that the voters that does have

31:34 ↗ jurisdiction over the directors

31:36 ↗ decisions but if we make the record in

31:38 ↗ front of you and you don't have

31:39 ↗ jurisdiction as I say the case law is

31:41 ↗ clear you can't even make findings and

31:43 ↗ conclusions you can't make a decision so

31:45 ↗ how how how is that leading to a

31:48 ↗ resolution of this issue I guess from

31:50 ↗ our perspective we wouldn't be making a

31:52 ↗ decision on jurisdiction undusted I'm

31:54 ↗ sorry because we don't have that right -

31:56 ↗ we would just be making a decision on

31:59 ↗ the proposal right which is we wouldn't

32:02 ↗ care all the evidence you want to put up

32:05 ↗ for our final decision will only be on

32:07 ↗ the proposal itself the three

32:10 ↗ applications you've decided and proceed

32:14 ↗ in that manner it means that you will be

32:19 ↗ making a final decision of something

32:21 ↗ that isn't in dispute we did begin we do

32:23 ↗ not disagree that we I mean we agree

32:27 ↗ that we did not comply with the

32:28 ↗ replacement regulations that's not in

32:30 ↗ dispute

32:31 ↗ you can decide that issues is easy but

32:33 ↗ the problem is we have to make the

32:35 ↗ record so you're going to have to sit

32:37 ↗ here to take evidence make evidentiary

32:39 ↗ rulings decide when mr. Lowell and I

32:42 ↗ disagree with one another you know who's

32:44 ↗ right you're going to have to take all

32:46 ↗ that evidence on an issue that you can't

32:48 ↗ make any decision

32:57 ↗ captain's question you should want me to

33:02 ↗ address my question um well I will tell

33:07 ↗ you that at least the outset that I

33:08 ↗ similarly had been able to review this

33:11 ↗ for less than 12 hours so to the best

33:15 ↗ answer at the moment that I can give you

33:17 ↗ is they you know there are provisions of

33:20 ↗ the code multiple provisions of the code

33:22 ↗ that define what the scope and authority

33:25 ↗ that the Development Commission has here

33:28 ↗ and that like basically from for the

33:30 ↗ purposes of this evening is my best

33:32 ↗ response to you most all of the

33:36 ↗ provisions speak to the process and the

33:41 ↗ standards for making a decision on a

33:43 ↗ level three site development permit the

33:48 ↗ ones that I'll just rattle off the

33:51 ↗ provisions for the benefit of the

33:53 ↗ Commission that I I know summarize them

33:55 ↗ for the purposes of quickly illuminating

33:59 ↗ you section 18 o 3o 4'o subpart B

34:02 ↗ provides that you shall review and make

34:04 ↗ the decision on all elements including

34:06 ↗ design and technical of a series of

34:09 ↗ land-use actions including site

34:11 ↗ development permits the the code

34:14 ↗ provision cited by the applicant

34:16 ↗ eighteen oh three point oh eight Oh

34:17 ↗ speaks to the objective of the

34:19 ↗ Development Commission which is to

34:21 ↗ determine compliance with the design

34:23 ↗ criteria checklist 18 point oh three

34:26 ↗ point one hundred okay me vibrate my

34:30 ↗ hundred anything's up so pretty

34:31 ↗ adopt rules and regulations as necessary

34:34 ↗ for the conduct of business eighteen

34:37 ↗ point oh four point four three zero

34:38 ↗ process and decision sub per be can make

34:42 ↗ decisions to approve condition to not

34:44 ↗ your this is this is about the process

34:46 ↗ of site development permit review the

34:48 ↗ decision to approve conditioner deny

34:50 ↗ she'll be based on staff report applica

34:53 ↗ Legrand applicable criteria public

34:55 ↗ comment and discussion of the issues and

34:57 ↗ then the approval criteria is listed in

35:01 ↗ next subsection point 4.0 level three

35:03 ↗ permits decided in accordance with 1804

35:06 ↗ using approval criteria and eighteen

35:08 ↗ point oh seven including an applicable

35:10 ↗ development regulations assign criteria

35:13 ↗ checklist and other applicable approval

35:15 ↗ criteria so in terms of the code that's

35:17 ↗ the scope Authority you've been given as

35:20 ↗ effectively to implement consistent with

35:23 ↗ the scope that's been identified

35:25 ↗ glutamine coke I think I don't think

35:29 ↗ anyone is disagreement here that that

35:33 ↗ jurisdiction and that's out like there

35:37 ↗ speaks to vesting at all no I did not

35:41 ↗ all he talks about reviewing the permit

35:45 ↗ in compliance with the standards at

35:46 ↗ South fork's that in the Colo question

35:52 ↗ so if we are reviewing the applications

35:57 ↗ under the jurisdiction as defined in the

36:00 ↗ C's code for the development condition

36:02 ↗ and it doesn't include the question of

36:05 ↗ vesting but it would include designs to

36:07 ↗ meeting design standards etc of

36:09 ↗ standards that have been defined as

36:11 ↗ applicable by those directors the

36:17 ↗ placement regulations then would we

36:20 ↗ limit the amount of could we limit the

36:23 ↗ amount of testimony and discussion to

36:28 ↗ just that and not even include

36:31 ↗ conversation testimony etc about that

36:33 ↗ question of nested you could so to my

36:40 ↗ stance for this the one and let me see

36:41 ↗ this might need clarification are you

36:44 ↗ asking whether or not you can preclude

36:46 ↗ any evidence on that question of vesting

36:50 ↗ or are you asking whether or not you can

36:53 ↗ preclude your decision as addressing

36:56 ↗ that it's just yeah the discussion of

37:00 ↗ testing goes

37:01 ↗ we do things they have jurisdiction over

37:03 ↗ vacancy correct that's correct so we

37:07 ↗ would be hearing evidence considering

37:09 ↗ the application materials for the permit

37:12 ↗ the three site development permits and

37:14 ↗ reforming the Commission thinking

37:17 ↗ determination on compliance or not

37:19 ↗ standard from I can make a make our

37:23 ↗ decision based on that the technical

37:25 ↗ question about vesting if we conclude

37:30 ↗ our jurisdiction when the document stand

37:35 ↗ as it is part of the record but our

37:37 ↗ determination we did consider that yeah

37:39 ↗ so so if I'm in to repeat back to make

37:41 ↗ sure I'm clear and answering a question

37:43 ↗ you could allow they each party to put

37:46 ↗ information on to the record and I would

37:49 ↗ advise you to to not limit their ability

37:51 ↗ to do that but at the end of the day you

37:53 ↗ decide to make a decision that does not

37:55 ↗ address the question at that stage I do

37:56 ↗ it guys absolutely within your right

37:59 ↗ because that is consistent with decision

38:05 ↗ on the type of element permanent

38:07 ↗ standards are set forth in the code that

38:11 ↗ you can effectively let that evidence it

38:14 ↗ on the record and not make a district

38:16 ↗ determination or the other on that State

38:21 ↗ Council so I'm just trying to figure out

38:25 ↗ how to navigate through this what our

38:27 ↗ options are so because we have a special

38:30 ↗ meeting tonight agenda did not include

38:35 ↗ discussion deliberation decision-making

38:37 ↗ on the question and we're discussing has

38:39 ↗ a question of asking that the from the

38:41 ↗ dress by the letter we received today if

38:43 ↗ we were tonight to say take discussion

38:47 ↗ on that additional discussion on that

38:50 ↗ hear from the director of there etc and

38:53 ↗ then our next scheduled meeting whenever

38:57 ↗ that turns out to be

38:59 ↗ include as part of the agenda the

39:01 ↗ potential for a an executive session

39:02 ↗ with the

39:04 ↗ with the mission of our council and

39:08 ↗ include as part of the agenda that topic

39:13 ↗ I'm just trying to figure out how do we

39:15 ↗ get clear for the Commission what our

39:17 ↗ legal option and performance risks are

39:22 ↗ for the path that we choose to follow

39:24 ↗ here it's hard to do that on the fly um

39:29 ↗ I would say just to take this one step

39:32 ↗ at a time

39:33 ↗ it sounds like you're the first decision

39:35 ↗ to make is whether or not you're going

39:36 ↗ to to take and actually you've taken the

39:39 ↗ deliberation and I think you trying to

39:41 ↗ make sure that you guys are clear with

39:43 ↗ what you our next step is tonight each

39:44 ↗ other procedural essentially and then

39:47 ↗ thereafter in terms of putting us on the

39:50 ↗ agenda for decision at a future meeting

39:53 ↗ you have the ability to do that the

39:55 ↗ question of expected session I would

39:58 ↗ recommend that we do that and I deal

40:00 ↗ with that issue once you you know

40:04 ↗ potentially the end of the proceeding

40:05 ↗ tonight or in the future

40:08 ↗ public in that next session we can make

40:10 ↗ that determination about whether or not

40:11 ↗ that the executive session

40:19 ↗ it's a question of the city sent general

40:24 ↗ if an applicant came in and said want to

40:27 ↗ do this project and city spreading a

40:29 ↗ brain to the Development Commission and

40:30 ↗ the applicant said hold on we want to

40:33 ↗ hold off on that don't take it to the

40:36 ↗ Development Commission yet but the city

40:38 ↗ typically say okay well we'll delay that

40:42 ↗ if the applicants request so the city

40:46 ↗ code talks about inactive permits and

40:49 ↗ there's provisions in it for a certain

40:52 ↗ period of time where if something sits

40:54 ↗ on the books we can call it we can

40:56 ↗ basically call it inactive and then not

40:59 ↗ a permit so you know there there is the

41:03 ↗ opportunity to agree to a delay that is

41:07 ↗ not the case here can I ask a question

41:18 ↗ about the staff report I'm not sure do

41:23 ↗ they present three alternatives that we

41:27 ↗ may consider today and and you know

41:29 ↗ these all seem to present an alternative

41:34 ↗ that we haven't discussed one is to

41:36 ↗ remand you know this is specifically for

41:41 ↗ the retail and it back to tab to review

41:49 ↗ as is this recommendations and we

41:52 ↗ approve an alternate to approve as is

41:57 ↗ and 3-plays the application on hold

42:01 ↗ can we speak to that a little bit to the

42:07 ↗ alternative yeah so the staff report was

42:11 ↗ written with alternatives based on us

42:17 ↗ knowing that there was going to be some

42:19 ↗ differences of opinion here at this

42:21 ↗ meeting

42:22 ↗ this evening you know ultimately the

42:25 ↗ Commission you know I think the city

42:28 ↗ code is clear

42:30 ↗ whose decision vesting is the

42:34 ↗ responsibility of if the Commission

42:37 ↗ however wanted to heard the arguments

42:40 ↗ from the applicant and decided the city

42:42 ↗ erred the commission could remand this

42:45 ↗ back to the city to review under the

42:49 ↗ provisions of the now terminated

42:52 ↗ development agreement we would then have

42:54 ↗ the opportunity then to appeal that

42:56 ↗ decision to the Hearing Examiner so what

42:59 ↗ we try to do is create I think a

43:02 ↗ balanced playing field for you all so

43:05 ↗ that you could think about this

43:07 ↗ objectively and ultimately if if you

43:10 ↗ think we made an error in our decision

43:13 ↗ great we may have made an error I'm not

43:17 ↗ saying we did but that's something that

43:19 ↗ we're open to hearing that conversation

43:22 ↗ if ultimately that is a decision that

43:23 ↗ the Commission wanted to make we would

43:26 ↗ take that under consideration and then

43:28 ↗ we would have choices on what we did

43:31 ↗ with that if that's ultimately the

43:33 ↗ outcomes that the Commission made so so

43:36 ↗ we wanted to present that as an

43:37 ↗ alternative it's not our recommended

43:40 ↗ alternative obviously but it is an

43:43 ↗ alternative and so I think what we were

43:45 ↗ trying to do is provide you with all the

43:48 ↗ alternatives so that you could think

43:49 ↗ about this reasonably at the time we

43:51 ↗ wrote the staff reports we did not at

43:53 ↗ that point have counsel lined up for you

43:57 ↗ and I think what we wanted to make sure

43:59 ↗ is that you guys have all the tools you

44:02 ↗ needed to make a good decision through

44:04 ↗ this process so that was the intent and

44:06 ↗ why the staff report was written the way

44:08 ↗ it was thank you if I could mr. ed

44:13 ↗ sheeran I think the critical point from

44:15 ↗ staffs perspective is that there needs

44:17 ↗ to be a record made on these issues I

44:20 ↗ think we have a fundamental difference

44:22 ↗ of agreement

44:24 ↗ with the applicant regarding the extent

44:27 ↗ to which the director can make a vesting

44:29 ↗ determination that is independently

44:31 ↗ appealable that is divorced from the

44:33 ↗ larger project review process I guess

44:36 ↗ we'll have to agree to disagree on that

44:38 ↗ point for purposes of tonight's

44:39 ↗ proceeding but fundamentally what needs

44:43 ↗ to occur procedurally is that a record

44:45 ↗ must be created if this matter and

44:47 ↗ presumably will be is ultimately

44:50 ↗ appealed upward through the Hearing

44:52 ↗ Examiner and then potentially the court

44:53 ↗ after that there must be a record made

44:56 ↗ that establishes the factual basis for

44:59 ↗ why particular determinations were made

45:01 ↗ and and how the Commission reached its

45:04 ↗ decision this is really the opportunity

45:06 ↗ to do that so even though the director

45:11 ↗ has indicated what his position on

45:12 ↗ vesting is I don't think that that's the

45:15 ↗ end of the story what needs to occur

45:17 ↗ throughout this proceeding is the the

45:19 ↗ evidentiary gathering process the

45:21 ↗ elicitation of testimony the

45:23 ↗ presentation of written documents for

45:26 ↗ your review because all of that will

45:28 ↗ form the bundle of materials that will

45:30 ↗ form the closed record through which the

45:32 ↗ Hearing Examiner and then the Superior

45:34 ↗ Court will sit in judgment on that thank

45:37 ↗ you may I speak apologize I know things

45:44 ↗ are coming at you from many directions

45:45 ↗ here but I feel obliged to point out

45:47 ↗ that mr. Newton said is not only

45:50 ↗ inconsistent was like I said about your

45:52 ↗ authority I believe it's inconsistent

45:53 ↗ with mr. Lowell said you do not have the

45:57 ↗ authority to second-guess the domestic

46:01 ↗ issue the code is clear he has that

46:04 ↗ authority in his decision is not

46:07 ↗ appealable to you and it just muddies

46:09 ↗ the waters hopelessly and makes it much

46:13 ↗ more difficult to suggest you figure of

46:15 ↗ authority that I think mr. Lowell and I

46:17 ↗ both agree that you don't have so you

46:20 ↗ know that is a fundamental problem with

46:23 ↗ this

46:23 ↗ is all the confusion that is being

46:25 ↗ generated by this process yes a record

46:28 ↗ has to be made but the department has a

46:30 ↗ very simple way of making the record mr.

46:34 ↗ Niven can make his vesting determination

46:36 ↗ if he says he hasn't done it yet and

46:38 ↗ I've heard I've heard to completing

46:40 ↗ things from that side of the room either

46:42 ↗ it has been made or it hasn't been made

46:43 ↗ but there is a vesting determination in

46:46 ↗ the staff report if their position is

46:49 ↗ that's not appealable to you all and I

46:51 ↗ think it has to be because that's what

46:53 ↗ the code says they can make it

46:54 ↗ appealable to the Hearing Examiner by

46:56 ↗ simply calling it the levels there are a

46:58 ↗ level one decision or by calling it a co

47:02 ↗ determination that sends it to the

47:04 ↗ Hearing Examiner and not to you and so

47:06 ↗ this idea has just popped into my head

47:08 ↗ as I listen to this but I think one of

47:10 ↗ the alternatives you all want to

47:12 ↗ consider is making a recommendation to

47:15 ↗ the Hearing Examiner that he make a

47:18 ↗ decision that is appealable to hearing

47:20 ↗ his MO this issue so the record is made

47:22 ↗ in front of a body that can actually

47:24 ↗ decide the issue you can do that as a

47:26 ↗ recommendation without actually

47:29 ↗ exercising jurisdiction which you don't

47:31 ↗ have but that would get us out of this

47:33 ↗ hopeless situation okay if I hear

47:36 ↗ something tonight

47:39 ↗ so what's confusing to me as you've

47:42 ↗ already conceded that regulations

47:48 ↗ language so it really it really seems to

47:56 ↗ teach or to move ahead listening to the

48:01 ↗ our news when we hear don't

48:16 ↗ so how do you plead to that it doesn't

48:20 ↗ this ting really becomes a significant

48:24 ↗ I'm still confused but it doesn't sound

48:27 ↗ like we have jurisdiction so I just

48:31 ↗ asked for clarification has the Hearing

48:33 ↗ Examiner already made a decision on the

48:35 ↗ applicability of the vesting is that

48:37 ↗ what this does letter I haven't had time

48:39 ↗ to read this entire letter no that's a

48:41 ↗ fair question I'm sure to answer mr.

48:43 ↗ commissioners no the Hearing Examiner

48:44 ↗ made a jurisdictional determination and

48:47 ↗ concluded as part of the appeal decision

48:51 ↗ that I handed out that the directors

48:54 ↗ vesting determination as expressed in

48:57 ↗ the April 4th 2018 letter was not a

49:00 ↗ final appealable decision over which the

49:03 ↗ Hearing Examiner himself would have

49:05 ↗ appellate jurisdiction and it's tabs

49:07 ↗ position that in the same manner the

49:10 ↗ staff report before you tonight is

49:13 ↗ likewise not an independently appealable

49:15 ↗ determination over which the Hearing

49:18 ↗ Examiner has review Authority the

49:21 ↗ Hearing Examiner has review authority

49:23 ↗ over your decision so when you make a

49:25 ↗ final decision on a project permit

49:27 ↗ application that decision is properly

49:31 ↗ appealable to the Hearing Examiner and

49:33 ↗ the record of the hearing examiner will

49:34 ↗ review in conducting his or her

49:37 ↗ appellate review it's based on the

49:39 ↗ record that's created before you as the

49:41 ↗ Commission it's a and I think you agree

49:44 ↗ with mr. Schneider at least I think I

49:46 ↗ empathize with his point and that it's

49:48 ↗ somewhat of a procedural procedurally

49:51 ↗ unique situation where you have to make

49:55 ↗ a record on something for the purposes

49:57 ↗ of ultimately reaching a final decision

49:59 ↗ where either the code indicates that

50:02 ↗ that decision is supposed to have been

50:04 ↗ made as part of this review for you by

50:06 ↗ the director the missing link though is

50:09 ↗ that there's nothing in the code that

50:10 ↗ allows mr. nevan's staff report to be

50:15 ↗ independently appealed upward it's a

50:18 ↗ it's a recommendation on its on its face

50:20 ↗ the staff report is a recommendation to

50:23 ↗ you it doesn't do any anything more than

50:25 ↗ recommend to you how staff feels these

50:28 ↗ project permits should ultimately be

50:30 ↗ ruled upon and again in order to bring

50:34 ↗ this up to the examiner and allow the

50:36 ↗ examiner to review it in context we need

50:39 ↗ to make an evidentiary record here in

50:42 ↗ this proceeding that will form the basis

50:45 ↗ for future hire review so if I may of

50:47 ↗ our council then regarding the extent of

50:50 ↗ that record it was it your

50:51 ↗ recommendation to us that we not

50:53 ↗ constrain testimony only to our usual

50:59 ↗ purview of making our decision based on

51:03 ↗ detail and technical constraints the the

51:05 ↗ essentially what you read from the code

51:07 ↗ to us is it your advice to us that we do

51:11 ↗ not attempt to constrain any carrying of

51:14 ↗ this simply to those matters and exclude

51:19 ↗ the substantive testimony that may take

51:24 ↗ place over multiple weeks that may have

51:26 ↗ to do with a vesting issue should we try

51:28 ↗ to constrain it or not my recommendation

51:31 ↗ would you need to allow each side to put

51:33 ↗ information on the record that they

51:36 ↗ would like to make the decision that you

51:38 ↗ make though can be based on portions of

51:42 ↗ the record to the extent that you think

51:44 ↗ it's within your jurisdiction to review

51:46 ↗ and make a decision moving forward but

51:49 ↗ to limit or to control what people put

51:52 ↗ into the record I wouldn't open

51:54 ↗ recommend that add that at this time

51:58 ↗ just a follow-up question to instance

52:01 ↗ back to justice mr. well on the the

52:04 ↗ carrying exam the last page of the

52:06 ↗ hearing examiner's decision on summary

52:07 ↗ analysis he also also states it's the

52:11 ↗ last sentence if nothing in the

52:16 ↗ development agreement grants to hearing

52:18 ↗ hearing examiner authority to settle

52:19 ↗ disputes over interpretations of the

52:21 ↗ development agreement itself

52:23 ↗ the case here so even then which seems

52:27 ↗ to help complicate the matter even more

52:29 ↗ there's a question about the hearing

52:31 ↗ examiner's Authority now to even hear an

52:34 ↗ appeal of determination on vesting under

52:38 ↗ the unity so I think that in art isn't

52:41 ↗ it that's an excellent point and I think

52:43 ↗ that if reading that statement in

52:45 ↗ context what the examiner was doing was

52:49 ↗ construing not only the the the vesting

52:52 ↗ component of mr. nubbins April for 2018

52:56 ↗ letter but also the balance of that

52:59 ↗ document and if you look at that and

53:00 ↗ again I believe this exhibit ten of the

53:02 ↗ staff report a significant portion of

53:05 ↗ the April fourth letter didn't address

53:07 ↗ issues of vesting vesting was one issue

53:09 ↗ that was addressed at the front of the

53:11 ↗ letter but then the letter went on to

53:13 ↗ substantively address a series of I

53:16 ↗ believe almost 20 alleged breaches of

53:20 ↗ contract that IH IFC had notified the

53:24 ↗ city of and that was that was truly the

53:27 ↗ thrust of that letter and I believe that

53:29 ↗ the the Hearing Examiner statement that

53:31 ↗ he referring to mr. Commissioner was in

53:33 ↗ reference to those aspects of the April

53:38 ↗ 4th letter that really were were issues

53:40 ↗ of a contract dispute and the examiner

53:42 ↗ felt that he didn't have authority ton

53:44 ↗ to do they had to leave that was

53:45 ↗ incorrect as a line measurement since I

53:47 ↗ imagine the question that brought up the

53:53 ↗ idea that we would to run tell the city

53:57 ↗ what we think this should be just a

53:59 ↗ level zero review instead of a level

54:01 ↗ three but as the question is what I

54:04 ↗ don't understand what right we would

54:07 ↗ have as a commission to say that a

54:10 ↗ project does not at our level and

54:12 ↗ remanded back to lower levels that I

54:15 ↗ appreciate you asking for question

54:17 ↗ because I want to follow up on this when

54:19 ↗ I made that suggestion mr. lentil spoke

54:21 ↗ but he didn't respond to he just kept

54:24 ↗ saying we have to make a record and this

54:25 ↗ is how we do it but I didn't hear any

54:27 ↗ responses as to why the

54:30 ↗ - couldn't make a level zero or a level

54:32 ↗ one decision of our code interpretation

54:34 ↗ that would be a few I'm not suggesting

54:37 ↗ you have the authority to tell the

54:39 ↗ director to do that but I think you

54:41 ↗ certainly have the authority to make the

54:42 ↗ recommendation and as a practical matter

54:44 ↗ I agree this has all come up quickly

54:46 ↗ even though the directors snack reports

54:50 ↗ are needed last Monday they weren't

54:52 ↗ distributed until the end of the day on

54:54 ↗ wind speed we've had very little time to

54:56 ↗ prepare for this I think it would be

54:59 ↗ appropriate if you take things under

55:00 ↗ advisement my practical recommendation

55:03 ↗ would be to make a recommendation to the

55:07 ↗ staff they explain why they're not

55:10 ↗ willing to make the vesting decision as

55:13 ↗ a level zero or a level one or a code

55:16 ↗ interpretation and get it resolved

55:18 ↗ attorney examiner why they're not

55:20 ↗ willing to do that and give that

55:22 ↗ explanation to you in writing before the

55:24 ↗ next hearing and then we can take it up

55:26 ↗ the banned me again this whole process

55:30 ↗ was created out of whole cloth and

55:33 ↗ August we were told that the city would

55:36 ↗ issue the vesting determinations in July

55:39 ↗ or August it didn't happen we were

55:42 ↗ suddenly told that we're not going to do

55:44 ↗ that anymore we're going to do this

55:45 ↗ level three process that is a recent

55:47 ↗ invention it's a deliberate

55:51 ↗ discretionary decision that the city is

55:53 ↗ making and they have the discretion to

55:55 ↗ do it differently so why not have to

55:57 ↗ explain in writing why they're not doing

56:00 ↗ it differently and then you can decide

56:02 ↗ at the next meeting you can go into

56:03 ↗ executive session if you want to because

56:06 ↗ it is quasi judicial and then you can

56:08 ↗ they might have their written response

56:10 ↗ and an opportunity to us to briefly

56:12 ↗ respond to it then make a decision how

56:14 ↗ do you want to receive

56:20 ↗ um but I think that what's in front of

56:24 ↗ us right now at this point is the

56:26 ↗ question of what we do with the

56:27 ↗ recommendation letter that came out

56:29 ↗ today right so the this letter says stay

56:36 ↗ the hearing until the best in issue was

56:40 ↗ decided what I haven't or anything about

56:42 ↗ if that was the case how else would it

56:46 ↗ be decided what else would be happening

56:52 ↗ if I could mr. commissioner mr.

56:56 ↗ Schneider can correct me if I'm wrong

56:58 ↗ but my mic interpretation of the letter

57:01 ↗ that you received from the applicants

57:03 ↗ counsel today it was essentially a

57:05 ↗ request to stay these proceedings while

57:07 ↗ the applicant attempts to appeal the

57:10 ↗ staff report up to the Hearing Examiner

57:12 ↗ and that's that's not so much as I

57:15 ↗ understand it a determination investing

57:17 ↗ in and of itself it's really an issue of

57:20 ↗ whether or not the examiner is dick ssin

57:23 ↗ to consider an appeal of a staff report

57:27 ↗ is that is that consistent with your

57:29 ↗ understanding or did I state that yeah

57:33 ↗ well I don't know what do you be doing

57:36 ↗ and it's well I guess what I was

57:38 ↗ wondering is what would be happening to

57:40 ↗ resolve the issue and what I my recent

57:44 ↗ suggestion was a variation of what's in

57:46 ↗ the letter

57:47 ↗ because mr. L has made it clear he's

57:49 ↗ going to say that we can't appeal to the

57:51 ↗ Hearing Examiner fine let's assume he is

57:53 ↗ correct in that again that begs the

57:56 ↗ question of why the Department won't

57:58 ↗ make an appeal the decision when they

58:00 ↗ have the authority to do that and what

58:02 ↗ I'm asking you to do is to ask them to

58:05 ↗ explain in writing why they won't make

58:07 ↗ it viewable decision to the hearings

58:09 ↗ ever

58:19 ↗ so the Hearing Examiner will they can

58:23 ↗ she make a determination of Avesta

58:25 ↗ doesn't exactly the decision that they

58:27 ↗ will make so I can't prospectively

58:31 ↗ guesstimate what the Hearing Examiner

58:33 ↗ will do I haven't even seen the

58:35 ↗ applicants intended appeal of the staff

58:39 ↗ report my assumption is that mr.

58:42 ↗ Snyder's referring to a more

58:44 ↗ intermediate step which would if this

58:47 ↗ proceeding were to be stayed and staff

58:49 ↗ is not recommending that but if that

58:51 ↗ were to happen and I hoc were to attempt

58:54 ↗ to appeal the staff report to the

58:56 ↗ Hearing Examiner and the city would then

58:58 ↗ presumably bring a motion to dismiss

59:00 ↗ that appeal for jurisdictional reasons

59:03 ↗ in the same manner that had brought a

59:04 ↗ motion successfully to dismiss the April

59:07 ↗ 4th 2018 letter that at that point there

59:12 ↗ would be some more formal resolution of

59:16 ↗ the issue of whether or not at least the

59:19 ↗ staff report is in fact and

59:20 ↗ independently at the killable

59:22 ↗ determination staff doesn't believe that

59:24 ↗ it is the applicant fills otherwise I

59:26 ↗ believe that's the core of it so it

59:33 ↗ seems like we have an agenda it doesn't

59:35 ↗ have anything on it that taught us about

59:36 ↗ vesting

59:39 ↗ you have to see if it proposals within

59:47 ↗ [Music]

59:52 ↗ it doesn't seem reasonable to maybe seem

59:57 ↗ to start the process of listening to the

1:00:02 ↗ specific permanence requests without

1:00:05 ↗ talking about the best to put that on

1:00:08 ↗ the agenda for the next we would be

1:00:21 ↗ discussing the best you know my

1:00:24 ↗ understanding is that decision can only

1:00:27 ↗ be made in response to our decision

1:00:29 ↗ based on our ordinary purview our

1:00:32 ↗ ability is to decide the merits of

1:00:35 ↗ applications on all the standards that

1:00:39 ↗ we were never to use I don't since we

1:00:42 ↗ can't make a decision on testing my

1:00:44 ↗ understanding events we go through that

1:00:48 ↗ process in order for affordable

1:00:50 ↗ information I wish to make deficit so it

1:00:53 ↗ makes the most ultimate leave business

1:00:55 ↗ to go through the proposals I've

1:00:59 ↗ listened to the areas that we have

1:01:01 ↗ jurisdiction over that make it to make a

1:01:04 ↗ decision on that's my understanding and

1:01:07 ↗ yet we can't

1:01:08 ↗ it seems or it is not advisable for us

1:01:11 ↗ to try to limit discussions for those

1:01:13 ↗ matters but we must make a recordable

1:01:19 ↗ decision of some sort

1:01:21 ↗ it seems to me before any decision can

1:01:24 ↗ be made on testing if it's to be

1:01:26 ↗ channeled into the question in terms of

1:01:33 ↗ the question we're looking at right now

1:01:34 ↗ the proposal to

1:01:37 ↗ stay the hearing if we decide to do that

1:01:41 ↗ you think that both parties would have

1:01:43 ↗ to stipulate that can be done at this

1:01:46 ↗ meeting since it wasn't advertised yeah

1:01:49 ↗ I would recommend we treat this as a

1:01:51 ↗ special meeting meaning that you can't

1:01:53 ↗ make a final action on something that's

1:01:55 ↗ off the event if this was not listed on

1:01:57 ↗ the agenda unless both parties were

1:02:00 ↗ essentially to to stipulate that you

1:02:02 ↗ would not evaluating the open public

1:02:04 ↗ meeting at he chose to take action in

1:02:07 ↗ response to this this evening as opposed

1:02:10 ↗ to pushing that out to a future meeting

1:02:13 ↗ where it is you to properly know those

1:02:15 ↗ terms parts of your regular it's a

1:02:17 ↗ regular and you can also just you can

1:02:23 ↗ you can ask the parties to essentially

1:02:26 ↗ insulate you from making them serve

1:02:28 ↗ essentially stipulate that that this is

1:02:31 ↗ the quasi judicial proceeding and this

1:02:34 ↗ is a quasi judicial matter they here

1:02:35 ↗ taking up or you can also just decide

1:02:38 ↗ that you're going to not even answer the

1:02:42 ↗ question that just continue on with with

1:02:46 ↗ putting the decision that's on or the

1:02:49 ↗ motionless on the table putting that

1:02:51 ↗ aside and making that decision in a

1:02:52 ↗ future meeting and then so that would be

1:02:55 ↗ step one then step two what you want to

1:02:57 ↗ do with the rest of this meeting

1:02:58 ↗ continue have the hearing as as as

1:03:01 ↗ listed in the agenda or continue the

1:03:04 ↗ hearing if you decide that you'd like to

1:03:06 ↗ wrap up for this evening and continue

1:03:08 ↗ the hearing to another evening

1:03:12 ↗ so if we were going to continually hear

1:03:16 ↗ him and put the question questions

1:03:19 ↗ raised let me receive today for mr.

1:03:22 ↗ Schneider on the agenda I'm not clear

1:03:26 ↗ about what our authority to decide that

1:03:30 ↗ would be a future meeting I mean what

1:03:32 ↗ what's the question we're responding to

1:03:34 ↗ at the future meeting 22 yeah I mean you

1:03:40 ↗ you you've been asked the emotions been

1:03:44 ↗ raised as to whether you will status

1:03:46 ↗ hearing so you can make it so we're

1:03:49 ↗ talking about a future just future

1:03:51 ↗ meaning you can decide to rule on that

1:03:54 ↗ motion you can also decide there's up

1:03:57 ↗ there's proceedings we're in this type

1:04:00 ↗ of a context where some bodies will go

1:04:02 ↗ through the whole hearing and wait to

1:04:04 ↗ decide well you wouldn't be able to wait

1:04:06 ↗ to sight on the motion to stay that you

1:04:07 ↗ could also sort of put this

1:04:09 ↗ jurisdictional question to the end at

1:04:11 ↗ the hearing and make a decision on that

1:04:13 ↗ essentially procedural question about

1:04:15 ↗ whether I had jurisdiction period or the

1:04:17 ↗ end and your decision to wrap that all

1:04:18 ↗ together so you've got some flexibility

1:04:21 ↗ there

1:04:21 ↗ I do actually I guess need to make a

1:04:23 ↗ decision at some point as to whether

1:04:25 ↗ you're going to cram the session Tuesday

1:04:28 ↗ do something with the stay but the

1:04:31 ↗ jurisdictional question you could decide

1:04:33 ↗ to continue through the end of the here

1:04:37 ↗ going through the motion of a public

1:04:39 ↗ hearing to take all the evidence and

1:04:40 ↗ making your decision about jurisdiction

1:04:42 ↗ at the end of all that is part of your

1:04:45 ↗ decision so what the chair was

1:04:52 ↗ suggesting is that we begin the process

1:04:54 ↗ of just taking evidence tonight or some

1:04:57 ↗ period of time to begin the process put

1:05:01 ↗ on the agenda the question about

1:05:03 ↗ jurisdictional authority for deciding

1:05:06 ↗ this at a future today and that

1:05:09 ↗ jurisdictional authority that just the

1:05:11 ↗ decision to stay our hearing right yeah

1:05:15 ↗ that not at a minimum you probably ought

1:05:17 ↗ to do otherwise your continuing with the

1:05:20 ↗ hearing and you're not

1:05:21 ↗ babe I know slogans don't long day so if

1:05:28 ↗ we don't have jurisdictional authority

1:05:30 ↗ to decide on the question of vesting

1:05:32 ↗ what's in front of us then what happens

1:05:40 ↗ what I'm sorry if we stay them if we the

1:05:44 ↗ question of vesting is what's raised so

1:05:48 ↗ you know dude for now it's just a

1:05:50 ↗ question can we stay here right if we

1:05:55 ↗ stay the hearing for what purpose that's

1:05:58 ↗ what I was asking about what would be

1:06:00 ↗ the long name are the the motion on the

1:06:04 ↗ table is to stay to proceeding because

1:06:05 ↗ you don't have jurisdiction to hear this

1:06:09 ↗ to go forward with this proceeding

1:06:11 ↗ you could you could decide to you can

1:06:16 ↗ actually respond to this in multiple

1:06:18 ↗ ways when you get to that point to say

1:06:20 ↗ we're not going to stay in the

1:06:22 ↗ proceeding but we're also not going to

1:06:24 ↗ make a jurisdictional determination of

1:06:26 ↗ whether or not we can make a decision

1:06:28 ↗ here until we've gone through the public

1:06:31 ↗ hearing which is effectively your

1:06:33 ↗ jurisdiction to hear or to make a

1:06:36 ↗ decision even not to hear but to make a

1:06:39 ↗ decision on the applications that it can

1:06:41 ↗ put for you because there's a question

1:06:43 ↗ by vesting so that there are multiple

1:06:45 ↗ ways to review this and that's that's

1:06:48 ↗ something that you're entitled to

1:06:50 ↗ continue to discuss and make a decision

1:06:53 ↗ on at a future meeting we continue with

1:06:58 ↗ the hearing putting this off until it's

1:07:01 ↗ fully noticed and everything for the

1:07:03 ↗ next meeting

1:07:13 ↗ because by staying please become just a

1:07:18 ↗ little bit sorry I would agree so we

1:07:24 ↗ need to do that parliamentary life well

1:07:28 ↗ you can say your agenda at this point

1:07:30 ↗ which we're technically so on fun and

1:07:35 ↗ remembering that you can't make any

1:07:37 ↗ final actions off of this agenda you as

1:07:40 ↗ the chair could decide and as part of

1:07:47 ↗ that we would have to say yeah yeah

1:07:53 ↗ however normally it's your agenda is

1:07:56 ↗ developed by I posited um no functional

1:07:58 ↗ yeah you put it on the record that

1:07:59 ↗ there's a new one for us yes a there yes

1:08:02 ↗ that you'll that you'll that you'll put

1:08:05 ↗ this motion first day on the agenda for

1:08:07 ↗ the next meeting yes you could you

1:08:09 ↗ couldn't you could decide that is a

1:08:11 ↗ group if that's what you want to do

1:08:12 ↗ right now is this a procedural issue is

1:08:16 ↗ it please please be complete argument I

1:08:21 ↗ if you decide to proceed with the other

1:08:24 ↗ items resolution and I believe you are

1:08:26 ↗ acting outside your jurisdiction because

1:08:29 ↗ the the only issue is invested issue

1:08:33 ↗ nothing else's will disabuse me and they

1:08:35 ↗ may be proceeding to take evidence in

1:08:38 ↗ effect on the issue over which I don't

1:08:40 ↗ believe you have jurisdiction so I again

1:08:43 ↗ all I can do is make some suggestions to

1:08:45 ↗ you which are free to reject but again

1:08:48 ↗ my suggestion is that you don't proceed

1:08:50 ↗ with the agenda items until you make a

1:08:53 ↗ decision on this motion or in the

1:08:56 ↗ alternative that you can consider my

1:08:59 ↗ recommendation that you ask the

1:09:01 ↗ department to explain in writing why

1:09:03 ↗ they won't make an appealable decision

1:09:05 ↗ on the best issue

1:09:06 ↗ and takes this entire issue away from

1:09:09 ↗ you so you don't have to wrestle with it

1:09:12 ↗ and I also would just say you know I

1:09:14 ↗ again recognize you've given you a lot

1:09:16 ↗ and very little time to consider my

1:09:19 ↗ suggestion would be wait and make any

1:09:23 ↗ decision until the next schedule isn't

1:09:25 ↗ this as soon as you can but not make a

1:09:28 ↗ decision tonight because you decide to

1:09:30 ↗ go ahead and we have to say we're

1:09:32 ↗ proceeding under protest because we

1:09:34 ↗ don't get you have jurisdiction and if

1:09:37 ↗ you want additional briefing from me or

1:09:39 ↗ from mr. ll a sport but be fully

1:09:42 ↗ informed before you decide to go ahead

1:09:45 ↗ [Music]

1:09:59 ↗ go ahead

1:10:01 ↗ listening to the discussion of each one

1:10:04 ↗ of these building proposals you did if

1:10:07 ↗ you want to limit the hearings so that

1:10:11 ↗ that's all you're going to take evidence

1:10:13 ↗ on you don't allow us to make evidence

1:10:16 ↗ on the best inertia and you can go ahead

1:10:19 ↗ and do that we can be done tonight

1:10:21 ↗ because we don't dispute that we don't

1:10:23 ↗ comply with replacement regulations that

1:10:26 ↗ have gone hearing over and done with

1:10:28 ↗ tonight but you need to tell us you're

1:10:29 ↗ not going to make let us make a record

1:10:31 ↗ well that issue otherwise we have to

1:10:33 ↗ make the record and this is going to go

1:10:35 ↗ on now again I can't you need to listen

1:10:50 ↗ to your counsel not to me on that issue

1:10:52 ↗ that again isent in you to suggest that

1:10:57 ↗ this entire dilemma is unnecessary it

1:11:00 ↗ can be avoided by the department

1:11:02 ↗ exercising the discretion that has

1:11:06 ↗ by refusing to do that they are

1:11:09 ↗ basically continuing the problem that

1:11:12 ↗ has been in place since last people so

1:11:14 ↗ may I just ask the question in the view

1:11:16 ↗ of the city then why is this appropriate

1:11:18 ↗ as a level three review I think we know

1:11:20 ↗ what the position is but I would like to

1:11:22 ↗ do absolutely in the short answer mr.

1:11:25 ↗ Commissioner with all respect that the

1:11:27 ↗ city doesn't make that determination the

1:11:30 ↗ code which is a policy document that has

1:11:33 ↗ been adopted formally by the is

1:11:34 ↗ simplicity Council has made the decision

1:11:37 ↗ for us as much as I would prefer to

1:11:41 ↗ probably spend my Wednesday nights

1:11:43 ↗ elsewhere instead of going through a

1:11:45 ↗ lengthy quasi judicial proceedings and

1:11:47 ↗ runs the ASIC robust city code

1:11:48 ↗ designates this proceeding these types

1:11:51 ↗ of land use permits within the Issaquah

1:11:53 ↗ Highlands as being a level three process

1:11:55 ↗ that require a level three Development

1:11:58 ↗ Commission review with the

1:11:59 ↗ pre-decisional hearing you're the only

1:12:00 ↗ body that has jurisdiction to do that

1:12:02 ↗ and while again the vesting

1:12:04 ↗ determination is supposed to be made in

1:12:07 ↗ concert or in conjunction with your

1:12:09 ↗ larger permit review proceeding are they

1:12:12 ↗ for the development services director

1:12:14 ↗ this is our one opportunity to make a

1:12:16 ↗ record on everything I'm sorry if I keep

1:12:19 ↗ repeating myself again you can cut bears

1:12:21 ↗ emphasis in the staff report that's on

1:12:23 ↗ page 7 of 307 and three a and listen Lee

1:12:29 ↗ and clarifications of why this is level

1:12:33 ↗ three for any code yes sir

1:12:43 ↗ it was 24 I think a lot of in terms of

1:12:48 ↗ precedence of what we do feather

1:12:50 ↗ projects and thinking about if somebody

1:12:55 ↗ came to us with a project that would

1:12:57 ↗ qualify to the level 3 we turned around

1:13:01 ↗ that's the body that's supposed to hold

1:13:03 ↗ the public hearing and we said no work

1:13:06 ↗ these infections must be pushed down to

1:13:08 ↗ a level zero and the city should decide

1:13:11 ↗ that I don't think we could do that

1:13:13 ↗ because then that doesn't allow the

1:13:15 ↗ public to happy keeping our duties as a

1:13:23 ↗ development condition I would say that

1:13:25 ↗ based on the good provisions that I

1:13:27 ↗ listed there you're here as a your role

1:13:31 ↗ in receiving a site development permit

1:13:34 ↗ application is to decide whether or not

1:13:37 ↗ that meets the criteria applicable to

1:13:40 ↗ that application or not not to decide

1:13:43 ↗ what a process or level of government is

1:13:46 ↗ applicable to that that provision per se

1:13:51 ↗ yeah I mean of course we haven't an

1:13:53 ↗ interesting situation here because

1:13:54 ↗ what's essentially being presented is

1:13:56 ↗ that the analogous of this is supposed

1:13:59 ↗ to be levels or a level 3 moment at

1:14:01 ↗ different you know these standards of my

1:14:02 ↗ verses we don't have the right to say it

1:14:05 ↗ should be 0 not 3 that's in terms of

1:14:10 ↗ what the authority is that you've been

1:14:12 ↗ given under the code you know specific

1:14:14 ↗ determining which process is applicable

1:14:16 ↗ as opposed to what cry team the Krait

1:14:19 ↗ really speaks to the criteria you need

1:14:20 ↗ to decide if the applications replacing

1:14:22 ↗ some of the criteria that are that US

1:14:25 ↗ has specified in the code

1:14:34 ↗ that's it up to the so you guys on the

1:14:39 ↗ record the jurisdiction on his suppose

1:14:57 ↗ he makes a decision I recall there was a

1:15:00 ↗ time when we we said we didn't think it

1:15:02 ↗ was hard to say anything we were told it

1:15:04 ↗ was I'm still stuck with that I guess

1:15:15 ↗ overall it sounds like we're kind of in

1:15:19 ↗ a conundrum of having to make a decision

1:15:20 ↗ on whether we want to go ahead with the

1:15:22 ↗ public hearings or not without going

1:15:25 ↗ ahead with the public hearings that

1:15:27 ↗ decision is not going to be made that's

1:15:29 ↗ appealable developer wants wants a

1:15:37 ↗ decision made so that they can file an

1:15:39 ↗ appropriate to be an appeal to the

1:15:42 ↗ Hearing Examiner so I I feel compelled

1:15:46 ↗ and stuck with the notion of having to

1:15:48 ↗ sit here and listen to the public to

1:15:52 ↗ have full public hearings in his

1:15:53 ↗ building again that stuff entered into

1:15:56 ↗ the record get get the information

1:15:58 ↗ materials are counsel is saying we're

1:16:02 ↗ not going to try to constrain what is

1:16:06 ↗ discussed

1:16:11 ↗ so we don't know we don't have tonight

1:16:15 ↗ so what I think we need to do is move

1:16:18 ↗ him on the public hearing I think we

1:16:19 ↗ need to table the discussion on make a

1:16:22 ↗ decision on the proposal or bursters

1:16:27 ↗ stand the motion to stay get that on the

1:16:30 ↗ agenda for our next special meeting can

1:16:33 ↗ have some dialogue over that I need to

1:16:35 ↗ good I think we need to move forward on

1:16:37 ↗ listening to the recommendations of the

1:16:41 ↗ three buildings those three proposals

1:16:44 ↗ okay proceeding just proceed so you can

1:16:51 ↗ see where we get tonight and then that

1:16:53 ↗ little warmth in this room nobody else

1:16:56 ↗ would like to stand up for five minutes

1:16:58 ↗ I wouldn't mind standing up for five

1:17:00 ↗ minutes just Claire getting my head

1:17:01 ↗ clear a little bit so if you're all okay

1:17:04 ↗ with well I'm going to give you a five

1:17:06 ↗ minute break and you don't sit if you

1:17:07 ↗ want stand up don't talk in tax our

1:17:10 ↗ let's resume back

1:17:12 ↗ [Music]

1:17:16 ↗ you

1:17:20 ↗ you

1:17:23 ↗ you

1:17:30 ↗ [Music]

1:17:49 ↗ we are motion what I would like in

1:18:36 ↗ advance is for the parties to if they

1:18:39 ↗ are willing you know after they're

1:18:41 ↗ willing to help us better understand

1:18:44 ↗ what what the issue is in life decisions

1:18:48 ↗ are taken that are being taken if they

1:18:51 ↗ could give us a written explanation of

1:18:53 ↗ that and give it to us a couple of days

1:18:55 ↗ before the meeting so we'd have a chance

1:18:57 ↗ to be able to really understand it

1:18:59 ↗ because with I'll just be honest at

1:19:01 ↗ getting it the day of the meeting is

1:19:03 ↗ just really difficult I don't I didn't

1:19:05 ↗ even look at my email until like five

1:19:07 ↗ o'clock tonight so little behind time so

1:19:09 ↗ yeah

1:19:10 ↗ mr. chairman if I may since what has

1:19:15 ↗ been presented to you as of this morning

1:19:17 ↗ from mr. Schneider is essentially in the

1:19:19 ↗ nature of emotion my request and

1:19:22 ↗ proposal would be that the city have an

1:19:24 ↗ opportunity to respond to that that's

1:19:26 ↗ that's really what's on the table and if

1:19:29 ↗ I H I've C doesn't object to that my

1:19:34 ↗ request would be to have the opportunity

1:19:35 ↗ to respond in writing in the same

1:19:37 ↗ essential manner as the applicant has

1:19:39 ↗ done within some reasonable opportunity

1:19:42 ↗ for the applicant for to have a brief

1:19:44 ↗ reply and write and to have some

1:19:46 ↗ parameters established for that in terms

1:19:48 ↗ of page length limits and timing of

1:19:51 ↗ submittals so we're all clear about the

1:19:53 ↗ ground rules yes I agree completely and

1:19:58 ↗ my suggestion would be that we determine

1:20:06 ↗ when the next meeting will be and that

1:20:08 ↗ didn't work back from that and give us

1:20:10 ↗ the deadlines in the next meeting is

1:20:18 ↗ October 24th so the medium third is for

1:20:23 ↗ another topic the other time so October

1:20:26 ↗ 24 is the next week this topic this time

1:20:29 ↗ in the 1717 didn't it's a where the 17th

1:20:39 ↗ was not available

1:20:46 ↗ he's so sold it be reasonable to get the

1:20:49 ↗ written comments 517 cities the cities

1:20:55 ↗ before this 24 SHINee for the 24th

1:20:57 ↗ meeting

1:20:57 ↗ yes sir mr. chairman close of business

1:20:59 ↗ summit 17th so the packets get put

1:21:02 ↗ together before then you wouldn't have

1:21:06 ↗ time to respond so maybe we heard you

1:21:09 ↗ know the 24th so so 17 gets funding the

1:21:18 ↗ materials be forward to the

1:21:21 ↗ commissioners outside the packet just

1:21:23 ↗ analyst of and then made a violation is

1:21:29 ↗ whether they're made available to the

1:21:31 ↗ parties public all at the same time

1:21:34 ↗ question who does that need to be by for

1:21:38 ↗ 24th so we like to give you a week for

1:21:43 ↗ the packet and then I'd like to give

1:21:46 ↗ support services of data get that out so

1:21:50 ↗ the packet would be a week before 17 the

1:21:54 ↗ 17th what Lucy's saying is we would need

1:21:57 ↗ to have any documents for that packet on

1:22:00 ↗ the 16th 16th 16th so if we so what the

1:22:11 ↗ question that I think we're answering is

1:22:13 ↗ we would be able to provide that

1:22:15 ↗ information to the Commission as part of

1:22:17 ↗ the packet distribution which would

1:22:20 ↗ happen one week prior to the next

1:22:22 ↗ Commission meeting related to this topic

1:22:24 ↗ which would be the 17th right so they

1:22:26 ↗ have it by the 16th right so the

1:22:28 ↗ question our internal mechanics are

1:22:30 ↗ relevant to us and we're talking about

1:22:32 ↗ talking about the response to motion and

1:22:36 ↗ an opportunity for a brief response to

1:22:39 ↗ the response so we've got two documents

1:22:42 ↗ that we're trying to coordinate here and

1:22:44 ↗ adequate time to actually produce those

1:22:47 ↗ so given

1:22:49 ↗ the city till the end of the week

1:22:52 ↗ October 5th that be next week I think

1:22:57 ↗ that's right end of next week

1:22:59 ↗ to respond and then actually take it

1:23:04 ↗ think that back into like the 10th so

1:23:06 ↗ the 10th of October and then there would

1:23:10 ↗ be until the 15th would be the response

1:23:15 ↗ to make sure there's adequate time for

1:23:16 ↗ processing the documents with the city

1:23:18 ↗ to get them in the packet by the 16th

1:23:21 ↗ don't agree to that yet cuz we're in

1:23:26 ↗ budget I'm not like the budget so

1:23:38 ↗ council member Commission remember what

1:23:40 ↗ were you suggesting the city's response

1:23:43 ↗ would be the 10th use so that would be

1:23:50 ↗ two weeks from today and then applicants

1:23:57 ↗ response to the city by the signal by

1:23:59 ↗ the 15th or 16th whatever is needed for

1:24:02 ↗ publication okay

1:24:07 ↗ mr. Snyder's end I would request if they

1:24:14 ↗ needed by the 16th that we be given a

1:24:16 ↗ deadline of 16th 16th young so the 16th

1:24:23 ↗ would need to be if we're gonna get that

1:24:24 ↗ information out to the Commission in the

1:24:28 ↗ morning

1:24:59 ↗ [Music]

1:25:21 ↗ mr. chairman yes I'm if I could also

1:25:24 ↗ make yoga requests that the Commission

1:25:26 ↗ and posts and reasonable page limits on

1:25:28 ↗ these submittals just so the process

1:25:30 ↗ does not get too out of a sermon we do

1:26:22 ↗ have the staff level one additional

1:26:24 ↗ procedural during the past couple of

1:26:30 ↗ weeks we've been attempting to reach his

1:26:32 ↗ stipulation with the applicant in their

1:26:34 ↗ legal counsel regarding the format for

1:26:37 ↗ tonight's procedure and jointly or

1:26:40 ↗ independently reviewing the code it was

1:26:43 ↗ determined that the IMC doesn't really

1:26:45 ↗ contain particularly clear procedural

1:26:48 ↗ strictures for a out of his time and I

1:26:51 ↗ had prepared with in consultation with

1:26:54 ↗ the applicant a proposed stipulation

1:26:57 ↗ regarding the order of presentation the

1:27:00 ↗ time and extent for producing evidence

1:27:02 ↗ etc mr. Snyder can speak as a point but

1:27:05 ↗ I believe that the applicant declined at

1:27:07 ↗ the end to to ultimately execute that

1:27:11 ↗ stipulation while their motion for the

1:27:15 ↗ stay was pending so we haven't been able

1:27:17 ↗ to count

1:27:17 ↗ formal agreement and in lieu of that

1:27:19 ↗ what I have done is prepared unilateral

1:27:22 ↗ proposal based on the exact same

1:27:23 ↗ substance of our original proposed

1:27:25 ↗ stipulation regarding the procedural

1:27:28 ↗ format and I've already provided a copy

1:27:30 ↗ of this to mr. Schneider at the

1:27:32 ↗ commencement of tonight's hearing and

1:27:34 ↗ with your leave I would like to pass it

1:27:35 ↗ out for the Commission's consideration

1:27:38 ↗ thank you it's very basic as you can see

1:27:44 ↗ it just provides general parameters

1:27:46 ↗ regarding the order of presentation and

1:27:49 ↗ the extent to which the parties can

1:27:50 ↗ produce evidence

1:28:06 ↗ [Music]

1:28:21 ↗ yes one question would be the item for

1:28:25 ↗ public testimony and typically I

1:28:27 ↗ understand this right we closed public

1:28:30 ↗ testimony and after that there's no more

1:28:33 ↗ public testimony they can come but then

1:28:37 ↗ there would be rebuttal witnesses and

1:28:41 ↗ applicant with witnesses that would come

1:28:43 ↗ after that someone green is that an

1:28:48 ↗ issue of witnesses come after in the

1:28:50 ↗ public testimony and public doesn't have

1:28:52 ↗ a chance for me and I appreciate the

1:28:55 ↗ question I think it's a valid point I

1:28:56 ↗ believe that that was a point of at

1:28:59 ↗ least conceptual agreement with the

1:29:01 ↗ applicants legal counsel and the reason

1:29:03 ↗ for proposing the format and the

1:29:05 ↗ presentation order in that way was to

1:29:08 ↗ ensure that the rights of the applicant

1:29:10 ↗ are actually protected that the public

1:29:11 ↗ will get its bite at the Apple I have an

1:29:13 ↗ opportunity to comment based on the

1:29:15 ↗ primary witnesses that have provided

1:29:17 ↗ testimony with them at the very end of

1:29:20 ↗ the proceeding there will be at least a

1:29:21 ↗ brief opportunity for both the applicant

1:29:23 ↗ and the city to comment on the comments

1:29:25 ↗ that the public itself had had provided

1:29:27 ↗ keeping in mind that the purpose of this

1:29:29 ↗ proceeding is to essentially review and

1:29:31 ↗ sit in judgment on the applicants

1:29:33 ↗ projects of the applicant should I think

1:29:36 ↗ in fairness get an opportunity to

1:29:38 ↗ respond an end to the proceedings based

1:29:40 ↗ on all the other comments that has been

1:29:42 ↗ received during the course of the

1:29:43 ↗ hearing respond to that the fundamental

1:29:51 ↗ problem we have is that public testimony

1:29:54 ↗ is not appropriate for quasi judicial

1:29:56 ↗ proceeding it's entirely appropriate for

1:29:58 ↗ what you normally do which is deal with

1:30:01 ↗ design issues and that sort of thing but

1:30:03 ↗ the issue on which you're going to be

1:30:06 ↗ taking testimony of depending I suppose

1:30:09 ↗ on the outcome of what you decide at the

1:30:11 ↗ next meeting but on the issue of vested

1:30:13 ↗ rights that is a quasi judicial

1:30:15 ↗ proceeding you need to make a place a

1:30:17 ↗ judicial record and public testimony is

1:30:20 ↗ not appropriate in that God

1:30:22 ↗ so we object to the public testimony on

1:30:25 ↗ the vested rights issue if you are going

1:30:29 ↗ to allow it then I agree that mr. Loans

1:30:32 ↗ put it in the right place in the agenda

1:30:34 ↗ but I don't think it should be part of

1:30:36 ↗ the vested rights issue at all

1:30:46 ↗ it's one questions I don't know that

1:30:48 ↗ we've ever had the ability to tell

1:30:51 ↗ somebody from the public what they can

1:30:53 ↗ or can to say customer to limited them

1:30:58 ↗ to a time period but so just maybe it

1:31:05 ↗ can I ask a follow-up clarifying

1:31:07 ↗ question as far as after the public

1:31:08 ↗ testimony the additional evidence that

1:31:14 ↗ will be presented will be there won't be

1:31:16 ↗ new evidence it will be rebuttal

1:31:18 ↗ evidence two witnesses or statements or

1:31:22 ↗ information that has already been

1:31:24 ↗ submitted

1:31:26 ↗ yes that's the nature of rebuttal

1:31:28 ↗ evidence it's supposed to respond to

1:31:30 ↗ something that has previously been

1:31:31 ↗ presented the question is I'm just

1:31:37 ↗ thinking about our typical public

1:31:39 ↗ hearings and public employees where we

1:31:41 ↗ take public testimony they raise issues

1:31:44 ↗ we raised as questions etc sometimes on

1:31:48 ↗ behalf of the public after we tell the

1:31:51 ↗ public hearings or and then we make a

1:31:53 ↗ decision so I don't know if that this is

1:31:55 ↗ too far astray from that and I think the

1:31:58 ↗ question before us if it is revealing

1:32:01 ↗ what the question was about testing its

1:32:04 ↗ harmful procedural Elisabeth Community

1:32:07 ↗ Impact question

1:32:24 ↗ [Music]

1:32:40 ↗ yes Thank You mr. chairman

1:32:43 ↗ so staff presentation thank you again

1:32:46 ↗ exactly all on behalf of the development

1:32:49 ↗ services department I will be fairly

1:32:52 ↗ brief in my opening comments because I

1:32:53 ↗ think much of issues before you have

1:32:57 ↗ been addressed during the preliminary

1:32:58 ↗ discussions - yes sir presiding right -

1:33:01 ↗ well you know to me parents of fairness

1:33:04 ↗ disclosures which at our meetings is

1:33:06 ↗ typically brought up by staff we want to

1:33:10 ↗ go through that to make sure that you

1:33:12 ↗ have that covered we know what it is but

1:33:14 ↗ Lucy you typically at these hearings

1:33:16 ↗ well remind us of that and you ask an

1:33:20 ↗ important question right so he's told

1:33:25 ↗ that now she has to find

1:34:12 ↗ so I will skip the introduction and just

1:34:15 ↗ to say that this please review the first

1:34:19 ↗ set of questions and once you believe

1:34:22 ↗ those questions I will ask for your

1:34:25 ↗ responses

1:34:33 ↗ inners would indicate no to all

1:34:36 ↗ questions yes there have been any ex

1:34:45 ↗ parte contents very challenged from

1:34:53 ↗ applicant just like to clarify that

1:34:57 ↗ given the nature the proceeding ex parte

1:35:00 ↗ context would include contacts with

1:35:02 ↗ staff regarding this issue as long as

1:35:06 ↗ that's the question when responding to

1:35:09 ↗ [Music]

1:35:12 ↗ do you need to amend your answers

1:35:15 ↗ regarding any context milestones that I

1:35:18 ↗ wasn't what your mind said they can't

1:35:20 ↗ have any communication with us on this

1:35:22 ↗ and so I slipped in here have been more

1:35:25 ↗ than quick to remind us that they can't

1:35:27 ↗ speak to this with us

1:35:39 ↗ [Music]

1:35:48 ↗ stab presentation thank you sir please

1:35:53 ↗ pass the Commission is aware of the

1:35:55 ↗ purpose of this hearing as to review and

1:35:58 ↗ evaluate three project permit

1:36:00 ↗ applications that have been submitted by

1:36:01 ↗ the applicant ih IFC for various Gildan

1:36:07 ↗ proposals located within the usable

1:36:09 ↗ Highlands area context of this hearing

1:36:14 ↗ as has been discussed is somewhat

1:36:15 ↗ unusual and that the typical land use

1:36:18 ↗ hearing involves potentially a dispute

1:36:22 ↗ over how particulars owning regulations

1:36:25 ↗ are applied in which conditions of

1:36:27 ↗ approval are appropriate but here the

1:36:30 ↗ dispute is primarily over which set of

1:36:32 ↗ regulations should govern the proceeding

1:36:34 ↗ and which set of standards should be

1:36:36 ↗ used to evaluate the regulatory

1:36:38 ↗ compliance of the permit applications

1:36:40 ↗ that have been submitted and there are

1:36:42 ↗ three permit applications before you

1:36:44 ↗ tonight to administrative site

1:36:47 ↗ development permits or a SDPs and one

1:36:50 ↗ site development permit or SDP these

1:36:54 ↗ applications were submitted under the

1:36:57 ↗ auspices of development agreement that

1:37:00 ↗ formerly covered the ahsoka Highlands

1:37:02 ↗ that was originally executed and

1:37:03 ↗ recorded against the Issaquah Highlands

1:37:06 ↗ area in 1996 refer to it throughout the

1:37:09 ↗ proceeding as the 1996 development

1:37:12 ↗ agreement or simply the development

1:37:14 ↗ agreement that agreement had a build out

1:37:17 ↗ period that ended in September of 2017

1:37:24 ↗ subsequently the Issaquah City Council

1:37:27 ↗ as was always intended under the

1:37:28 ↗ development agreement adopted an

1:37:31 ↗ ordinance in March of 2008 in ordinance

1:37:34 ↗ number 28 30 which enacted a series of

1:37:38 ↗ replacement regulations to govern future

1:37:40 ↗ development in the Issaquah Islands as

1:37:43 ↗ replacement regulations were now

1:37:44 ↗ codified at chapter 18 19 B of the

1:37:48 ↗ Issaquah municipal code

1:37:50 ↗ and the fundamental dispute between the

1:37:53 ↗ parties in this proceeding is which body

1:37:55 ↗ of standards which regulations should be

1:37:58 ↗ used to evaluate the three ASDP s and s

1:38:02 ↗ TVs that are before you and and for

1:38:05 ↗ several reasons as explained in the

1:38:08 ↗ staff report and we further enunciated

1:38:11 ↗ during the public hearing testimony that

1:38:15 ↗ is staff strong belief and position that

1:38:18 ↗ the development agreement standards are

1:38:21 ↗ inapplicable into these three permit

1:38:23 ↗ applications and instead these permit

1:38:26 ↗ applications should be reviewed under

1:38:28 ↗ the recently enacted replacement

1:38:31 ↗ regulations that are now codified in the

1:38:33 ↗ Issaquah Municipal Code I think to set

1:38:38 ↗ the table for the staff testimony that

1:38:41 ↗ will be shortly received by the

1:38:44 ↗ Commission elected to note for the

1:38:47 ↗ Commission's edification that there are

1:38:50 ↗ generally three ways by which a project

1:38:54 ↗ permit application or over vesting can

1:38:56 ↗ occur at the local land use level the

1:38:59 ↗ first and most basic type of vesting

1:39:01 ↗ occurs when a project applicant submits

1:39:04 ↗ a fully complete subdivision application

1:39:07 ↗ on preliminary plat application or a

1:39:10 ↗ building permit application and both of

1:39:12 ↗ those types of vesting are established

1:39:14 ↗ by state statute RCW 5870 no 33 for

1:39:19 ↗ Platts and RCW

1:39:22 ↗ 1927 o 95 for building permits and there

1:39:25 ↗ are different vesting rules that apply

1:39:28 ↗ for each of those statutes but neither

1:39:30 ↗ one of those vesting mechanisms is

1:39:33 ↗ applicable here because what's before

1:39:36 ↗ you tonight is not a plat and it's not a

1:39:39 ↗ building permit is instead a series of

1:39:42 ↗ site development permits and Washington

1:39:45 ↗ case law could not be clearer that site

1:39:48 ↗ development permits do not trigger

1:39:50 ↗ vested rights there are at least two

1:39:53 ↗ expressed decisions by the Washington

1:39:55 ↗ appellate courts that of established

1:39:57 ↗ binding precedent on that point and in

1:40:00 ↗ recent investing

1:40:01 ↗ slaw in Washington has clarified

1:40:02 ↗ unequivocally but unless the particular

1:40:06 ↗ type of vesting at issue is specifically

1:40:10 ↗ codified and the Revised Code of

1:40:12 ↗ Washington that it does not exist

1:40:14 ↗ anymore and therefore site development

1:40:17 ↗ permits do not vest under state law

1:40:20 ↗ that's the first category of vesting the

1:40:23 ↗ second category of vesting is a more

1:40:25 ↗ nuanced approach and that occurs if

1:40:28 ↗ there was for example in preliminary

1:40:31 ↗ plat that was fully complete a plaid

1:40:34 ↗ application was fully complete and

1:40:36 ↗ submitted to the city and that plat

1:40:38 ↗ application went into such significant

1:40:41 ↗ detail regarding the applicants future

1:40:44 ↗ development plans that it essentially

1:40:48 ↗ defines precisely what the applicant

1:40:51 ↗ wants to do in the future on that piece

1:40:53 ↗ of property that property for which a

1:40:55 ↗ preliminary plan has been submitted and

1:40:57 ↗ this type of vesting is based on a

1:41:00 ↗ relatively famous or seminal Washington

1:41:02 ↗ Supreme Court case called noble Manor

1:41:05 ↗ versus Pierce County and the role that

1:41:07 ↗ came out of noble Manor versus Pierce

1:41:09 ↗ County is that what is vested is what is

1:41:14 ↗ shown on the plat so for example if a

1:41:17 ↗ plat applicant goes beyond the usual

1:41:18 ↗ approach of simply drawing a few lines

1:41:21 ↗ on a map and indicating how a particular

1:41:24 ↗ piece of property is going to be divided

1:41:25 ↗ into future Lots and goes one step

1:41:28 ↗ further than that and actually shows

1:41:30 ↗ building footprints on that plateau

1:41:33 ↗ application well if those building

1:41:35 ↗ footprints indicate a particular setback

1:41:37 ↗ between the edge of the building and a

1:41:40 ↗ lot line what the city cannot do after

1:41:43 ↗ that point is adopt a new setback

1:41:45 ↗ requirement that's different than that

1:41:47 ↗ that would that would be violated by

1:41:49 ↗ that plat and then apply those new

1:41:51 ↗ setback regulations against the

1:41:53 ↗ applicant because the applicant is

1:41:55 ↗ affected to what he or she showed on the

1:41:57 ↗ face of his or her plat but that didn't

1:42:00 ↗ occur here either

1:42:01 ↗ I enjoy FC did submit a plat application

1:42:05 ↗ to the city in August of 2017

1:42:08 ↗ during the build-out period of the

1:42:11 ↗ in agreement but that plat did not show

1:42:13 ↗ building footprints that platen gave a

1:42:16 ↗ very general description about what the

1:42:18 ↗ applicant intended to do on the subject

1:42:20 ↗ property and therefore the noble manner

1:42:23 ↗ versus Pierce County type of vesting

1:42:26 ↗ that I've just described doesn't apply

1:42:29 ↗ in this situation different type of

1:42:32 ↗ vesting under Washington law is vesting

1:42:35 ↗ through a development agreement and this

1:42:38 ↗ is a fundamentally different type of

1:42:39 ↗ vesting because it doesn't really rely

1:42:42 ↗ on state law standards or case law and

1:42:45 ↗ precedent or anything it is basically

1:42:47 ↗ determined by what the parties

1:42:49 ↗ themselves have contractually agreed to

1:42:51 ↗ through their development agreement and

1:42:53 ↗ instead of looking to some different

1:42:57 ↗ body of case law or statute how you

1:43:01 ↗ determine vesting under development

1:43:02 ↗ agreement is to look at what the

1:43:04 ↗ language of the development agreement

1:43:05 ↗ says about that site and that I think is

1:43:08 ↗ really the source of the primary dispute

1:43:10 ↗ between the staff and the applicant in

1:43:13 ↗ this case it is how the 1996 development

1:43:16 ↗ agreements vesting provision should be

1:43:19 ↗ construed in relation to the three ASTP

1:43:23 ↗ and ask if the applications that are

1:43:25 ↗ before you and the evidence will show I

1:43:28 ↗ think it's fairly clear I don't know

1:43:30 ↗ that they can reasonably be disputed

1:43:33 ↗ that IH IFC's site development permit

1:43:36 ↗ applications were submitted after the

1:43:39 ↗ build-out period of the development

1:43:41 ↗ agreement they were submitted in the

1:43:42 ↗ fall of 2017 after the 1996 development

1:43:46 ↗ agreements build-out period had already

1:43:48 ↗ expired if you read the vesting clause

1:43:52 ↗ the one provision of the development

1:43:55 ↗ agreement that purports to address

1:43:57 ↗ vesting it's in Section three point two

1:44:00 ↗ three of the agreement strongly

1:44:02 ↗ encouraged the commissioners to look at

1:44:04 ↗ that very carefully because that I think

1:44:05 ↗ is the linchpin of this proceeding the

1:44:09 ↗ only reference to anything vesting

1:44:13 ↗ related in that section says by its

1:44:16 ↗ terms that the city is prohibited from

1:44:19 ↗ imposing

1:44:21 ↗ different regulations and new

1:44:22 ↗ regulations are modifying its

1:44:24 ↗ regulations during the build-out period

1:44:28 ↗ and the obvious corollary to that

1:44:31 ↗ statement is that once the build-out

1:44:33 ↗ period is ended the city isn't

1:44:36 ↗ constrained at all from adopting new

1:44:38 ↗ regulations and it isn't constrainted

1:44:40 ↗ often applying and enforcing those new

1:44:42 ↗ regulations and that's precisely what

1:44:45 ↗ the city of Issaquah did through its

1:44:47 ↗ adoption of ordinance number 28 30 on

1:44:50 ↗ March 19th of this year the ordinance

1:44:52 ↗ that adopted the replacement regulations

1:44:54 ↗ those are the new regulations that were

1:44:56 ↗ by their terms intended to replace the

1:44:59 ↗ standards that are contained in the 1996

1:45:02 ↗ development agreement all of the

1:45:04 ↗ applicants all the landowners had 20

1:45:07 ↗ years plus to file applications and

1:45:10 ↗ develop their property under the

1:45:12 ↗ auspices of that agreement and the

1:45:14 ↗ 20-year build-out period that was

1:45:16 ↗ established underneath 15 and IHI FC

1:45:19 ↗ didn't do that with respect to its STP

1:45:22 ↗ and ASTP applications they submitted a

1:45:25 ↗ preliminary plan that didn't show

1:45:27 ↗ building footprints but they didn't

1:45:29 ↗ submit their STP and ast Keys until

1:45:32 ↗ after the build-out period ended so in

1:45:35 ↗ staff's view they are fully subject to

1:45:38 ↗ the replacement regulations and if there

1:45:40 ↗ was any doubt about that if there was

1:45:42 ↗ any reasonable doubt and that really

1:45:44 ↗ shouldn't be after reviewing that

1:45:46 ↗ provision of the development agreement I

1:45:47 ↗ would respectfully direct your attention

1:45:49 ↗ to the clause that immediately follows

1:45:51 ↗ though that a section 3 point 2 point 3

1:45:55 ↗ point 2 and that provision expressly

1:45:59 ↗ governs situations like this one where

1:46:03 ↗ an applicant submits project permit

1:46:06 ↗ applications after the build-out period

1:46:09 ↗ of the development agreement has expired

1:46:11 ↗ but before the new replacement

1:46:13 ↗ regulations have come into being while

1:46:15 ↗ the agreement is technically in effect

1:46:17 ↗ and what that provision says by its

1:46:20 ↗ terms is

1:46:21 ↗ that the development standards of the

1:46:24 ↗ agreement continue to govern that

1:46:26 ↗ situation but any party can then provide

1:46:30 ↗ notice under the agreement of

1:46:32 ↗ termination and then when that happens

1:46:34 ↗ that section refers you to a different

1:46:37 ↗ section of the development agreement

1:46:38 ↗ section 5.1 3 and if you read that all

1:46:42 ↗ the way through the linchpin there the

1:46:45 ↗ absolutely dispositive provision that

1:46:47 ↗ should govern this proceeding it says at

1:46:49 ↗ the very end that once the City Council

1:46:52 ↗ adopts the replacement regulations they

1:46:54 ↗ govern they govern immediately it

1:46:56 ↗ doesn't purport to reach back in time

1:46:58 ↗ and rescue or save or or grant vested

1:47:02 ↗ rights to previously submitted permit

1:47:05 ↗ applications it doesn't say that at all

1:47:07 ↗ it simply says the new regulations shall

1:47:10 ↗ govern period and that's what I think

1:47:14 ↗ despite all of the lengthy dispute and

1:47:17 ↗ then mounds of paper that have been

1:47:19 ↗ generated throughout the course of the

1:47:21 ↗ city's dealings with the applicant on

1:47:22 ↗ this point that the vesting issue here

1:47:26 ↗ is actually very simple it's a basic

1:47:28 ↗ question of contract interpretation

1:47:31 ↗ regarding a clause in the agreement that

1:47:35 ↗ in staff's view is clear on its face and

1:47:37 ↗ its intent and in its effect so moving

1:47:43 ↗ forward with the permission of the

1:47:45 ↗ Commission I would like to proceed by

1:47:48 ↗ calling a few City witnesses I don't

1:47:51 ↗ believe that we'll be able to get

1:47:52 ↗ through too much testimony tonight but

1:47:55 ↗ the city's first witness is development

1:47:58 ↗ services director Keith Nevin

1:48:07 ↗ I'm gonna come up here commissioner so I

1:48:09 ↗ can actually see you all thank you could

1:48:16 ↗ you please state your full name for the

1:48:17 ↗ record

1:48:18 ↗ sure my name is Keith Wayne Yemen

1:48:21 ↗ what is your official title and position

1:48:23 ↗ for the city of Issaquah I'm the

1:48:26 ↗ director of the city's Economic

1:48:28 ↗ Development Department as well you also

1:48:32 ↗ the city's official yeah how long have

1:48:36 ↗ you held the positions that you just

1:48:37 ↗ referenced so economic development

1:48:40 ↗ director since 2012 own services

1:48:44 ↗ director since 2015 in your position do

1:48:49 ↗ you have ultimate supervisory authority

1:48:51 ↗ over the city of Vista cause Development

1:48:52 ↗ Services Department and you does your

1:48:56 ↗ supervisor III include the city's permit

1:48:58 ↗ center the long have you work for the

1:49:01 ↗ city

1:49:01 ↗ yes I mean sorry to interrupt but if

1:49:03 ↗ we're doing this as a place like

1:49:05 ↗ judicial proceeding I think the

1:49:06 ↗ witnesses of the city has an objection

1:49:09 ↗ to the hearing the witnesses should be

1:49:13 ↗ put under oath they had tested their

1:49:15 ↗ great to tell the truth under penalty of

1:49:17 ↗ perjury okay you we would stipulate to

1:49:21 ↗ that and I typically it's the city clerk

1:49:24 ↗ I I don't believe that I'm available to

1:49:27 ↗ to administer oaths court reporter man

1:49:44 ↗ mr. Nibin are you the city's highest

1:49:46 ↗ official with interpretive authority

1:49:48 ↗ with respect to the city's development

1:49:51 ↗ regulations as codified in the Issaquah

1:49:53 ↗ Municipal Code yes do you have personal

1:49:56 ↗ knowledge of the subject matter of

1:49:58 ↗ tonight's hearing specifically the 1996

1:50:00 ↗ Issaquah violence development agreement

1:50:02 ↗ the city's promulgation and adoption of

1:50:05 ↗ their replacement regulations for the

1:50:06 ↗ SFO Highlands area they were nakid under

1:50:09 ↗ ordinance number 28 30 the development

1:50:12 ↗ of the Issaquah Highlands area under the

1:50:14 ↗ 1996 development agreement and the

1:50:16 ↗ submittals processing and evaluation of

1:50:19 ↗ IH IFC's various land use applications

1:50:21 ↗ yes and I'd like to ask you a series of

1:50:25 ↗ questions now concerning procedural

1:50:28 ↗ issues that have been implicated in

1:50:29 ↗ tonight's hearing were you present for

1:50:32 ↗ mr. Schneider's statements throughout

1:50:35 ↗ tonight's proceedings yes I was did you

1:50:38 ↗ personally read the motion for stay that

1:50:42 ↗ mr. Schneider submitted on behalf of the

1:50:44 ↗ applicant IHI FC dated today's date I

1:50:48 ↗ briefly read it this morning yes like

1:50:53 ↗ you call your attention first to section

1:50:55 ↗ 1801 o 500 of the Issaquah Municipal

1:50:59 ↗ Code are you familiar with this

1:51:10 ↗ provision which subsection yes did you

1:51:17 ↗ please read aloud subsection a of 1801

1:51:20 ↗ o5o

1:51:21 ↗ sure thority unless otherwise noted in

1:51:26 ↗ this code development services

1:51:28 ↗ department director or his or her

1:51:31 ↗ designee shall be responsible for

1:51:34 ↗ administering this code the development

1:51:36 ↗ services director or his or her designee

1:51:39 ↗ shall have the authority to interpret

1:51:42 ↗ this code anyone may request an

1:51:45 ↗ interpretation of this code by filing a

1:51:47 ↗ written request with the permit center

1:51:51 ↗ the development services director or

1:51:53 ↗ or her designee shall respond in writing

1:51:56 ↗ to all requests for a code

1:51:58 ↗ interpretation clarifying language of

1:52:01 ↗ one interpretation of this code may be

1:52:03 ↗ used for another interpretation of this

1:52:05 ↗ code Thank You mr. given to your

1:52:08 ↗ knowledge has IH IFC ever submitted a

1:52:10 ↗ request for an interpretation of the

1:52:13 ↗ code to the permit center under the

1:52:15 ↗ authority of this provision in your

1:52:19 ↗ official interpretation of the Amissah

1:52:21 ↗ qualm municipal code is a request to

1:52:24 ↗ confirm or otherwise determine the

1:52:26 ↗ vested status of a project application a

1:52:29 ↗ request for an interpretation of the

1:52:32 ↗ code within the meaning of IMC 1801 o5o

1:52:37 ↗ you say that again do you believe that

1:52:43 ↗ it requests to confirm or determine the

1:52:46 ↗ vested status of a particular project

1:52:48 ↗ application is that the same thing as a

1:52:50 ↗ request for interpretation of the code

1:52:59 ↗ you please read aloud subsection C of

1:53:03 ↗ 1801 o5o the whole thing just the

1:53:08 ↗ preface I'm unclear

1:53:09 ↗ it's as vested rights nothing in this

1:53:12 ↗ chapter shall be interpreted to require

1:53:14 ↗ an applicant to obtain approval of any

1:53:18 ↗ other permit or approval from the city

1:53:21 ↗ prior to applying for a building permit

1:53:23 ↗ all city determinations regarding

1:53:25 ↗ vesting shall be made only by the

1:53:28 ↗ development services director in

1:53:29 ↗ consultation with city attorneys

1:53:35 ↗ in your official interpretation of the

1:53:38 ↗ code section is the directors quote

1:53:42 ↗ determination regarding vested rights

1:53:44 ↗ end quote

1:53:46 ↗ intended to be formatted as a standalone

1:53:50 ↗ independently and separately appealable

1:53:53 ↗ administrative decision I do not believe

1:53:56 ↗ so as written is that a determination of

1:54:02 ↗ that type simply the directors direction

1:54:05 ↗ as to which set of local regulations

1:54:08 ↗ will be applied to the city's processing

1:54:10 ↗ in review or evaluation of a particular

1:54:13 ↗ project proposal with the ultimate

1:54:15 ↗ decision then being made by the final

1:54:17 ↗ decision-maker on the permit

1:54:19 ↗ I am objecting that these are leading

1:54:21 ↗ questions which are inappropriate for

1:54:23 ↗ someone asking questions of his own

1:54:26 ↗ witness the question should be

1:54:28 ↗ open-ended not directing the witness to

1:54:30 ↗ a specific response with respect to two

1:54:36 ↗ responses first of all as I believe the

1:54:38 ↗ Commission is aware strict rules of

1:54:40 ↗ evidence don't apply and local land use

1:54:42 ↗ proceedings of this type second a

1:54:44 ↗ leading question basically answers its

1:54:47 ↗ own question and that's not what the

1:54:49 ↗ questions that have been posed to mr.

1:54:51 ↗ Nigam attempt to do and I believe that

1:54:53 ↗ this is a clearly relevant topic in fact

1:54:55 ↗ it's the the basis of the dispute

1:54:57 ↗ between the parties and I would

1:54:58 ↗ respectfully request the opportunity to

1:55:01 ↗ continue questioning mr. mr. Nimmo I'm

1:55:05 ↗ not suggesting it's not relevant but I'm

1:55:07 ↗ suggesting that in effect we're having

1:55:09 ↗ mr. lile testify and not the witness so

1:55:13 ↗ I

1:55:15 ↗ again you don't have rules of procedure

1:55:17 ↗ but I think the questions are

1:55:19 ↗ necessarily leading and that the witness

1:55:23 ↗ should be asked to get his opinion not

1:55:26 ↗ confirm whether he agrees with mr. lel's

1:55:28 ↗ opinion when this decision for use

1:55:39 ↗ decision making quite excited even like

1:55:42 ↗ to ask the city attorney to advise how

1:55:47 ↗ he's asking any questions or not so

1:55:52 ↗ typically in our hearings we don't have

1:55:54 ↗ a question answer it's now to judicial

1:55:58 ↗ proceeding we get a presentation made to

1:56:01 ↗ us to consider evidence don't limit what

1:56:05 ↗ applicants say during wanting to hear

1:56:13 ↗ mr. dibbens

1:56:15 ↗ answers so if there's a way to ask

1:56:19 ↗ questions that don't appear as as

1:56:21 ↗ leading thank you I will try to keep

1:56:25 ↗ that in mind so I'll try to rephrase

1:56:31 ↗ that mr. Miller

1:56:32 ↗ you might have the Newton's direction

1:56:37 ↗ when you as a director make a

1:56:40 ↗ determination regarding the vesting

1:56:44 ↗ status of a particular project

1:56:46 ↗ application under subsection C of 1801

1:56:50 ↗ o5o of the Issaquah Municipal Code in

1:56:54 ↗ your experience or intent or belief is

1:56:58 ↗ that an independently appealable

1:57:01 ↗ determination or does any appeal of your

1:57:04 ↗ determination have to wait until the

1:57:06 ↗ underlying project permit has reached a

1:57:09 ↗ final decision so I think again as I

1:57:13 ↗ responded earlier I you know that

1:57:19 ↗ decision doesn't happen typically what

1:57:25 ↗ happens is

1:57:26 ↗ I mean if you think if you think about

1:57:28 ↗ the staff reports that come before you

1:57:30 ↗ from staff and you think about you pull

1:57:33 ↗ the last 50 that we've given you you're

1:57:35 ↗ not gonna see a section on vested rights

1:57:37 ↗ it's just not there and part of that is

1:57:40 ↗ we determine what regulations apply to

1:57:42 ↗ applications and we provide our staff

1:57:45 ↗ reports in response to that in this

1:57:49 ↗ particular case the applicant doesn't

1:57:52 ↗ agree with the regulations we believe

1:57:54 ↗ are applicable to their permits and so a

1:57:58 ↗ vested decision again as part of the

1:58:02 ↗ length normal land use process is not

1:58:04 ↗ evident in part of the land use process

1:58:07 ↗ it's there if you look at what

1:58:10 ↗ regulations staff would apply his word

1:58:13 ↗ adopting new regulations all the time

1:58:15 ↗ related to different things within the

1:58:17 ↗ city right and so part of it is we then

1:58:19 ↗ apply those regulations to applications

1:58:21 ↗ and there's a decision that's been made

1:58:23 ↗ about what applies to each application

1:58:25 ↗ typically that's not pulled out as a

1:58:28 ↗ separate decision as part of the process

1:58:33 ↗ in your experience as the director

1:58:37 ↗ working with the city are you aware of

1:58:39 ↗ any situation in which you're vesting

1:58:43 ↗ determination regarding a particular

1:58:45 ↗ project application was independently

1:58:48 ↗ appealed to the Hearing Examiner some

1:58:50 ↗ other Authority before a final decision

1:58:54 ↗ on the project application was made then

1:58:57 ↗ thank you please turn to IMC eighteen oh

1:59:05 ↗ three oh seven oh a one let's scroll

1:59:09 ↗ down could you please read aloud

1:59:14 ↗ actually just to save time can you just

1:59:17 ↗ review that place that a

1:59:22 ↗ subsection a okay and can you scroll

1:59:27 ↗ down on the screen to reach the end of

1:59:29 ↗ it okay okay so in the enumerated list

1:59:38 ↗ of administrative actions for which you

1:59:44 ↗ as the director are granted by this

1:59:46 ↗ section of the code the authority to

1:59:49 ↗ make final decisions which I believe is

1:59:51 ↗ the the wording of the of the ordinance

1:59:54 ↗ are any of those that are options that

2:00:00 ↗ are listed any of them encompass a

2:00:02 ↗ vesting determination in your view under

2:00:05 ↗ 1801 o5o C so the lists one through

2:00:10 ↗ seven that's part of that section does

2:00:14 ↗ not indicate vesting as a separate item

2:00:19 ↗ thank you are you aware of him that he's

2:00:24 ↗ cutting off his own witnesses testimony

2:00:27 ↗ I think the witness should be allowed to

2:00:28 ↗ complete an answer I sorry I thought you

2:00:31 ↗ were done to you but you know as I

2:00:35 ↗ mentioned earlier I mean that's did the

2:00:39 ↗ decision about vested rights is somewhat

2:00:41 ↗ in every discipline use permit decision

2:00:44 ↗ that's made I mean you look at things

2:00:46 ↗ like all of these things have

2:00:49 ↗ regulations tied to them and those

2:00:52 ↗ regulations can change based on city

2:00:55 ↗ council action our decision would have

2:00:59 ↗ to have an understanding of what

2:01:02 ↗ regulations apply to each one of those I

2:01:05 ↗ understand that I just want to have you

2:01:09 ↗ clarify that of the list of items that

2:01:12 ↗ are designated under this section of the

2:01:15 ↗ code as being matters for which you have

2:01:18 ↗ ultimate final decision authority

2:01:20 ↗ starting with number one

2:01:25 ↗ an administrative site development

2:01:27 ↗ permit wait generally do you have

2:01:30 ↗ authority over that for this section of

2:01:35 ↗ code yes but for example under a site

2:01:39 ↗ development permit submitted under the

2:01:41 ↗ auspices of the Issaquah Islands

2:01:42 ↗ replacement regulations would you have

2:01:45 ↗ authority over that you not because

2:01:47 ↗ that's a different section of city code

2:01:49 ↗ applies to that geography thank you

2:01:52 ↗ and for an administrative adjustment of

2:01:55 ↗ standards is that the same thing as a

2:01:57 ↗ vesting determination you know is a

2:02:01 ↗ shoreline substantial development permit

2:02:03 ↗ under subsection 3 would a vesting

2:02:05 ↗ termination for the auspices of that as

2:02:14 ↗ as I described earlier codes codes

2:02:17 ↗ represent a certain point in time and

2:02:20 ↗ there's static until they change you

2:02:24 ↗ know the the idea of vested rights you

2:02:29 ↗ know would apply to every application

2:02:32 ↗ potentially right

2:02:34 ↗ and so shoreline and shoreline

2:02:37 ↗ exemptions are about request to do

2:02:41 ↗ something within the shoreline and it's

2:02:43 ↗ reviewed against a code that's in place

2:02:44 ↗ right it has it is it is not

2:02:51 ↗ specifically a vested rights

2:02:54 ↗ application but does it potentially

2:02:57 ↗ apply sure it does everything can you

2:03:03 ↗ please go now to IMC 1819 bo4 oh this is

2:03:09 ↗ the interpretive provision of the

2:03:11 ↗ replacement regulations are you familiar

2:03:12 ↗ with this section and drawing your

2:03:18 ↗ attention to the provision of this code

2:03:21 ↗ that specifically authorizes the party

2:03:26 ↗ to file a request for an interpretation

2:03:31 ↗ of this code by filing a written request

2:03:34 ↗ the permit center do you see that

2:03:36 ↗ in the middle of the paragraph beginning

2:03:38 ↗ with the word e anyone yes as IH IFC to

2:03:49 ↗ your knowledge ever submitted a request

2:03:51 ↗ for an interpretation of the code as

2:03:54 ↗ referenced in this provision to the

2:03:56 ↗ permit section or the musubi of the

2:03:58 ↗ permit center under the authority of

2:03:59 ↗ this IMC provision in your capacity as

2:04:07 ↗ director have you ever issued a stand

2:04:09 ↗ alone separately appealable

2:04:10 ↗ determination regarding the vested

2:04:12 ↗ status of a project application thank

2:04:16 ↗ you are you aware of any of your

2:04:18 ↗ predecessors or designee z' ever having

2:04:21 ↗ issued a stand alone separately

2:04:23 ↗ appealable determination to that effect

2:04:26 ↗ in your official interpretation of the

2:04:29 ↗ Issaquah municipal code does the code

2:04:32 ↗ contain any provision that would

2:04:34 ↗ authorize you as the director to issue a

2:04:36 ↗ stand alone separately appealable

2:04:38 ↗ determination regarding the vested

2:04:41 ↗ status of a project application I'm not

2:04:55 ↗ sure I'm ready to answer that question I

2:04:57 ↗ think you can come back to them okay in

2:05:00 ↗ your official interpretation of the

2:05:02 ↗ Issaquah Municipal Code does the

2:05:04 ↗ Development Commission have the

2:05:06 ↗ exclusive authority under the code to

2:05:08 ↗ issue final decisions on IH IFC's a STP

2:05:12 ↗ and STP applications okay why would you

2:05:15 ↗ say that it's so because it's identified

2:05:18 ↗ as a level three review because they are

2:05:28 ↗ and that was my last question which is

2:05:31 ↗ just to confirm that in your

2:05:33 ↗ interpretation of the code our HRC is a

2:05:36 ↗ STP and STP applications subject to

2:05:39 ↗ level three thank you like to asking out

2:05:42 ↗ questions regarding the 1996 development

2:05:46 ↗ agreement could you please describe the

2:05:48 ↗ history and purpose of that contract

2:05:50 ↗ Jim general Trumps sure so the

2:05:54 ↗ development agreement was executed

2:05:57 ↗ between the city and crankily sure

2:05:59 ↗ partnership more than 20 years ago and

2:06:09 ↗ it was to guide the development on

2:06:14 ↗ property that was at the time outside of

2:06:17 ↗ jurisdiction so it was actually a

2:06:20 ↗ development agreement and annexation

2:06:21 ↗ agreement there was a three-party

2:06:24 ↗ agreement with the city and King County

2:06:26 ↗ and and I'm going to use port Blakely it

2:06:29 ↗ was legally they were grand glaciar

2:06:31 ↗ partnership to to guide that development

2:06:37 ↗ so brought it into the urban area

2:06:41 ↗ annexed into the city and the

2:06:43 ↗ development agreement and provided a

2:06:49 ↗ contract by which the developer could

2:06:53 ↗ then build out the

2:06:55 ↗ project okay did you describe or define

2:06:59 ↗ the build-out period under the agreement

2:07:01 ↗ what was an effective that was sure so

2:07:06 ↗ the purpose so the build-out period was

2:07:09 ↗ you know part of a development agreement

2:07:11 ↗ is to provide predictability for a

2:07:14 ↗ property owner typically there's

2:07:16 ↗ significant either infrastructure

2:07:19 ↗ improvements or other costs associated

2:07:22 ↗ with doing those and so the the purpose

2:07:25 ↗ of the 20-year build-out period for his

2:07:29 ↗ Collins was to give the property owner a

2:07:31 ↗ reasonable expectation to then recoup

2:07:34 ↗ investments on the property and with

2:07:38 ↗ Issaquah Highlands it wasn't just major

2:07:43 ↗ infrastructure but it was also the

2:07:45 ↗ provision of a significant amount of

2:07:48 ↗ open space and so it gave them time to

2:07:51 ↗ then recoup their investment costs

2:07:54 ↗ through the sale of property builders

2:07:57 ↗ when did the go got period expire so

2:08:00 ↗ build-up Curt expired in September of

2:08:03 ↗ seventeen you read section three point

2:08:14 ↗ two three of the development of ground I

2:08:22 ↗ did you read aloud the third sentence of

2:08:25 ↗ that provision of three twenty three

2:08:29 ↗ Lucy would probably need to scroll up

2:08:31 ↗ just a little bit

2:08:35 ↗ [Music]

2:08:47 ↗ third sentence you said or third line

2:08:49 ↗ with what did you ask for the third

2:08:51 ↗ sentence of section three point two

2:08:54 ↗ three beginning with the words during

2:08:57 ↗ that build-out plated during the

2:09:00 ↗ build-out period the city shall not

2:09:02 ↗ modify or in pull or impose new or

2:09:05 ↗ additional development standards beyond

2:09:07 ↗ those set forth in this agreement do you

2:09:12 ↗ construe this reference as meaning that

2:09:14 ↗ the city is prohibited from applying

2:09:16 ↗ action it's a leading question the

2:09:18 ↗ question should be how do you construe

2:09:20 ↗ this not do you construe it in the way

2:09:23 ↗ that he's suggesting it sorry how do you

2:09:31 ↗ construe this for this provision mr.

2:09:33 ↗ Navin in relation to the concept of

2:09:36 ↗ vested rights under the agreement so

2:09:39 ↗ what this sentence says to me is during

2:09:43 ↗ the build-out period we cannot

2:09:47 ↗ unilaterally modify or impose new

2:09:50 ↗ development standards beyond those set

2:09:51 ↗ forth in this agreement there was a

2:09:53 ↗ provision in the development agreement

2:09:55 ↗ that said if there was a situation that

2:09:57 ↗ was a compromise of public health and

2:10:01 ↗ safety we did have the authority to

2:10:03 ↗ amend the standards but what this says

2:10:06 ↗ is during that build-out period we could

2:10:09 ↗ propose but we couldn't unilaterally

2:10:12 ↗ adopt changes to the development

2:10:14 ↗ standards

2:10:16 ↗ based on what you just read or anything

2:10:20 ↗ else that you're aware of in the

2:10:21 ↗ development agreement is there anything

2:10:23 ↗ that would prohibit the city from

2:10:26 ↗ applying new or different regulations

2:10:28 ↗ after the expiration of the build-out

2:10:30 ↗ period thank you

2:10:38 ↗ you scroll down please Lucy to section

2:10:42 ↗ 3.2 3.2 that section allowed mr. Devon

2:10:51 ↗ please it's a short section we need to

2:10:55 ↗ be point to please

2:10:56 ↗ so titled after build-out the

2:10:59 ↗ development standards shall continue to

2:11:01 ↗ apply to all applications for

2:11:03 ↗ implementing approvals submitted after

2:11:06 ↗ expiration of the build-out period

2:11:08 ↗ except either party may terminate this

2:11:11 ↗ agreement and the zoning and development

2:11:14 ↗ regulations may be modified as provided

2:11:17 ↗ in Section five point thirteen scroll to

2:11:21 ↗ 5.30

2:11:46 ↗ can you please read the last two

2:11:51 ↗ sentences of five point thirteen this is

2:11:56 ↗ the section that was cross-referenced in

2:11:58 ↗ section 3.2 3.2 yes this section is

2:12:03 ↗ called term giving with no sooner than

2:12:11 ↗ oh oh there it is

2:12:13 ↗ sorry I guess missing the beginning of

2:12:15 ↗ the sentence no sooner than six months

2:12:18 ↗ after the notice of termination the city

2:12:21 ↗ shall hold public hearings and shall

2:12:23 ↗ adopt zoning and related development

2:12:25 ↗ standards for the urban growth area

2:12:27 ↗ portion of the property or portions

2:12:30 ↗ thereof as determined appropriate by the

2:12:33 ↗ city upon such adoption this agreement

2:12:37 ↗ shall terminate and thereafter the uga

2:12:40 ↗ portion of the property shall be

2:12:42 ↗ governed by the adopted city zoning and

2:12:45 ↗ related development regulations thank

2:12:47 ↗ you how do you construe that provision

2:12:50 ↗ in conjunction with the previous

2:12:52 ↗ provision that you just read section

2:12:54 ↗ three point two point so 3.2 3.2 with

2:12:59 ↗ respect to project applications that are

2:13:01 ↗ submitted after the build-out period so

2:13:04 ↗ the way I understand the language in

2:13:08 ↗ these sections of the development

2:13:10 ↗ agreement is during the term of the

2:13:14 ↗ build-out period applications that were

2:13:17 ↗ submitted the city could not change

2:13:19 ↗ standards and therefore they could reach

2:13:22 ↗ their term which would be a permit under

2:13:25 ↗ the provisions of the development

2:13:27 ↗ agreement as they were crafted once the

2:13:31 ↗ replacement regulations are adopted then

2:13:36 ↗ those regulations shall apply to

2:13:40 ↗ everything that is not vested thank you

2:13:43 ↗ so just to clarify is it your position

2:13:44 ↗ that a project permit application

2:13:48 ↗ submitted

2:13:49 ↗ during the effective term of the

2:13:51 ↗ development agreement but after the

2:13:53 ↗ build-out period expired would be fully

2:13:56 ↗ subject to the new replacement

2:13:59 ↗ regulations that the city adopted a LAN

2:14:03 ↗ site development permit or

2:14:05 ↗ administrative site development permit

2:14:07 ↗ would be the preliminary plat because

2:14:09 ↗ it's its festival is a different thing

2:14:13 ↗ right thank you

2:14:19 ↗ are you aware of any a provision of a

2:14:22 ↗ development agreement that expressly

2:14:24 ↗ states that applications submitted after

2:14:26 ↗ the expiration of the build-out period

2:14:28 ↗ would remain vested to the development

2:14:31 ↗ standards in the agreement despite the

2:14:33 ↗ city's adoption of replacement

2:14:34 ↗ regulations I'm not aware of any

2:14:37 ↗ provisions like that in the are you

2:14:39 ↗ aware of any addendum or amendment or

2:14:41 ↗ attachment or appendix to the

2:14:43 ↗ development agreement that would support

2:14:44 ↗ that interpretation

2:14:50 ↗ did the development agreement contain

2:14:52 ↗ timeframes governing the city's

2:14:54 ↗ processing of permit applications that

2:14:56 ↗ were submitted under the auspices of the

2:14:58 ↗ agreement yes there's a an appendix

2:15:01 ↗ within the development agreement its

2:15:04 ↗ appendix L I believe without opening my

2:15:06 ↗ development agreement that had timelines

2:15:11 ↗ associated with different permit reviews

2:15:16 ↗ so that was a piece were these

2:15:21 ↗ timeframes mandatory or binding or were

2:15:24 ↗ they aspirational well there was a

2:15:26 ↗ caveat within those timelines that

2:15:29 ↗ identified that they were subject to

2:15:31 ↗ adequate staffing over the approximately

2:15:35 ↗ two decades in which the development

2:15:37 ↗ agreement was in effect was most of the

2:15:39 ↗ property that was subject to the

2:15:41 ↗ agreement ultimately developed oh yes

2:15:44 ↗ there's you know the the four to one

2:15:47 ↗ left approximately 460 developable acres

2:15:52 ↗ and what's left to be developed is if I

2:15:59 ↗ was going to guess I'd say somewhere

2:16:00 ↗ around 30 or 40 acres was IH IFC's

2:16:05 ↗ property developed at all during this

2:16:07 ↗ period no could you please a turn to

2:16:15 ↗ section five of ordinance number 28 30

2:16:22 ↗ you familiar with this provision yes do

2:16:35 ↗ you interpret this provision as

2:16:36 ↗ categorically terminating the 1996

2:16:38 ↗ development agreement yes do please turn

2:16:43 ↗ to IMC 1819 B to 80

2:17:06 ↗ [Music]

2:17:18 ↗ you familiar with this program yes in

2:17:22 ↗ your official interpretation of the

2:17:24 ↗ Issaquah Municipal Code does this

2:17:25 ↗ provision afford any how in terms about

2:17:30 ↗ whether he agrees with mr. Lowe I'll

2:17:33 ↗ rephrase the question for councils

2:17:35 ↗ benefit how do you interpret this

2:17:37 ↗ provision in relation to IH IFC's a STP

2:17:42 ↗ and STP applications what this says to

2:17:54 ↗ me is the only thing that that's under

2:17:59 ↗ the replacement regulations our building

2:18:02 ↗ permits longer short plats

2:18:04 ↗ and development agreements AAS DPS and

2:18:06 ↗ SDPs do not thank you so to clarify is

2:18:09 ↗ it your position that under this

2:18:11 ↗ provision the vesting protection

2:18:13 ↗ afforded by IMC 1819 B 280 does not

2:18:18 ↗ cover IH IFC's a STP and STP

2:18:22 ↗ applications thank you was IHI have C

2:18:28 ↗ the original land owner and signatory of

2:18:30 ↗ the 1996 development agreement you know

2:18:35 ↗ when approximately IH IFC acquired its

2:18:38 ↗ property I don't know I don't know

2:18:42 ↗ exactly I believe it was somewhere

2:18:45 ↗ around 2013 do you know from whom it was

2:18:49 ↗ acquired the property was previously

2:18:51 ↗ owned by the Microsoft Corporation after

2:18:55 ↗ IH IFC acquired its property

2:18:58 ↗ approximately how much time was left

2:19:00 ↗ before the build-out period of the

2:19:02 ↗ agreement was scheduled to expire well

2:19:05 ↗ it was the fall of 2013 and the build up

2:19:09 ↗ period ended in the fall of 2017

2:19:13 ↗ for years in light of this looming

2:19:16 ↗ deadline did i hif see proceed to file

2:19:21 ↗ and use applications to develop its

2:19:23 ↗ property under the development agreement

2:19:25 ↗ after acquiring its property they did

2:19:29 ↗ eventually but not in those first three

2:19:33 ↗ years give or take

2:19:36 ↗ what did IH IFC do instead of seeking to

2:19:41 ↗ submit project permit applications they

2:19:44 ↗ were pursuing support for a rezone what

2:19:49 ↗ would be analogous to a rezone which

2:19:50 ↗ would allow residential on the property

2:19:53 ↗ that they did not have entitlement for

2:19:57 ↗ so to clarify ih IFC instead of

2:20:01 ↗ submitting permit applications to

2:20:04 ↗ develop its property expeditiously after

2:20:06 ↗ it acquired the property sought instead

2:20:09 ↗ some type of movie zone or amendment to

2:20:12 ↗ the agreement right you be analogous to

2:20:15 ↗ okay and what was the process for that

2:20:18 ↗ amendment well the process to amend that

2:20:22 ↗ to allow residential which was already

2:20:27 ↗ excused up within the entitlement

2:20:30 ↗ allowance within the development

2:20:32 ↗ agreement would require the city council

2:20:34 ↗ to convert some of the commercial or

2:20:39 ↗ retail entitlement to residential design

2:20:42 ↗ selection did IHI of C submit a formal

2:20:45 ↗ application or request to that effect to

2:20:47 ↗ the City Council what did they do in

2:20:51 ↗ lieu of that so the process began with

2:20:56 ↗ them trying to get the administration to

2:20:58 ↗ support that request the administration

2:21:02 ↗ after multiple meetings with the

2:21:04 ↗ applicant told them we would not support

2:21:07 ↗ that request unless they had community

2:21:10 ↗ support so they then tried they had a

2:21:14 ↗ number of meetings with the community to

2:21:17 ↗ try and garner support for

2:21:19 ↗ residential mixed use project so that is

2:21:23 ↗ the pathway they went down and how long

2:21:26 ↗ did that process take approximately so

2:21:34 ↗ conversations and public outreach I

2:21:37 ↗ don't know two plus years and were there

2:21:42 ↗ efforts to obtain public support

2:21:45 ↗ necessary to proceed with the proposal

2:21:47 ↗ ultimately successful did IH IFC then

2:21:54 ↗ abandoned its efforts to seek some type

2:21:57 ↗ of a reclassification or de facto rezone

2:22:00 ↗ under the agreement so IH IFC then

2:22:04 ↗ submitted their land use permits and

2:22:09 ↗ those are the land use permits that were

2:22:10 ↗ submitted in 2017 so if I understood

2:22:14 ↗ your testimony correctly from

2:22:15 ↗ approximately 2013 when IH IFC acquired

2:22:19 ↗ the property until 2017 when they

2:22:23 ↗ actually submitted permit applications

2:22:25 ↗ they owned the property and were not

2:22:28 ↗ actively attempting to seek development

2:22:31 ↗ approval through the submission of

2:22:33 ↗ permit applications objection it is

2:22:37 ↗ testimony and it mischaracterizes the

2:22:39 ↗ evidence that I heard who would the test

2:22:43 ↗ acquit missus testimony speaks for

2:22:44 ↗ itself it doesn't need

2:22:45 ↗ recharacterization I'm asking

2:22:48 ↗ clarification of the witness's testimony

2:22:50 ↗ I think that with all respect I think

2:22:52 ↗ that's appropriate answer the question

2:22:58 ↗ mr. Nevins show so again all I know is

2:23:02 ↗ is what was evident from city staff

2:23:06 ↗ perspective and what I can tell you is

2:23:08 ↗ when they purchased the property they

2:23:13 ↗ sought a land use that was not within

2:23:17 ↗ their ability to get permits for they

2:23:20 ↗ initially went through a phase where

2:23:22 ↗ they tried to

2:23:22 ↗ that out administratively with staff to

2:23:24 ↗ get staff support for that when it

2:23:28 ↗ became when the staff made it clear that

2:23:30 ↗ we were not going to support that

2:23:32 ↗ without strong community support they

2:23:35 ↗ then turned to get the community support

2:23:37 ↗ and that was the next chapter of their

2:23:42 ↗ process trying to get something to

2:23:44 ↗ happen when that didn't succeed then

2:23:48 ↗ they moved on to submitting the permits

2:23:51 ↗ therefore the Commission this evening in

2:23:52 ↗ that process took approximately three

2:23:54 ↗ and a half or four years if I heard you

2:23:56 ↗ correctly I that would yes Thank You mr.

2:24:01 ↗ chairman

2:24:02 ↗ I have several more questions about

2:24:04 ↗ mindful of the Commission's intents who

2:24:06 ↗ I believe break at 9:30 and I'm about to

2:24:09 ↗ shift into a different area of question

2:24:12 ↗ and I think that this might be an

2:24:13 ↗ appropriate breaking point before the

2:24:15 ↗ Commission would be happy to continue

2:24:16 ↗ with mr. dibbens testimony if that's the

2:24:19 ↗ preference of the Commission I would

2:24:30 ↗ assume at least 30 probably fortunately

2:24:35 ↗ 31 minutes with mr. Newman

2:24:37 ↗ [Music]

2:24:48 ↗ I appreciate it I appreciate the

2:24:50 ↗ dialogue of the information we look

2:24:53 ↗ forward to our meeting Chairman real

2:24:58 ↗ quick for the 2014 there's a question

2:25:01 ↗ for our council can we we don't know

2:25:04 ↗ what we're going to get in response to

2:25:07 ↗ the letter from today we put a

2:25:09 ↗ placeholder on the agenda for an

2:25:11 ↗ executive session in case we need so

2:25:25 ↗ recap the the response from the city is

2:25:29 ↗ due the 10th is that correct yes

2:25:31 ↗ response from the applicant it was due

2:25:34 ↗ the 16th the 10th by close of business

2:25:36 ↗ the 16th by noon and will start at 7

2:25:41 ↗ o'clock the 24th I appreciate your time

2:25:45 ↗ appreciate your attendance and return

2:25:49 ↗ thank you thank you

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