Development Commission – SPECIAL MEETING · 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

Approved minutes

Extracted from the next meeting's packet, where this meeting's minutes were approved as a consent-calendar attachment.

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Recommendations & actions (3)

Sentences extracted from the narrative containing words like recommended, requested, directed, moved, or approved. Best-effort — verify against the full minutes for context.

MORGAN asked would the City typically delay taking a project to the Commission as part of the review process if the applicant so requested.
She recommended that tonight’s meeting be considered a special meeting, and that the motion to stay not be included on tonight’s agenda.
The City Council subsequently approved an ordinance that created replacement regulations that would apply to future development in the Issaquah Highlands, which was adopted in March