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Development Commission – Special Meeting Agenda in PDF

Wednesday, October 24, 2018

7:00 PM · Council Chambers, 135 E. Sunset Way, Issaquah WA
Watch on YouTube ↗ Agenda PDF ↗ Minutes PDF Transcript .txt
1720 segments .txt ↗
0:14 ↗ good evening ladies gentlemen welcome
0:17 ↗ you to the Development Commission
0:19 ↗ special meeting and public hearings for
0:22 ↗ Issaquah Highlands retail site
0:24 ↗ development permit Issaquah highlands
0:26 ↗ medical office administrative site
0:28 ↗ development permit and Issaquah
0:30 ↗ Highlands Self Storage administrative
0:32 ↗ site development permit and appreciate
0:36 ↗ everybody being here this is a
0:38 ↗ continuation of a meeting that we
0:41 ↗ started on September 26th we have some
0:46 ↗ administrative things that we need to
0:47 ↗ talk about as a commission and not to
0:49 ↗ start off which probably is not real fun
0:52 ↗ for anybody else but we need to go into
0:53 ↗ an executive session for about 15
0:55 ↗ minutes to discuss some legal issues a
0:58 ↗ process and clarifications for the
1:01 ↗ Commission so if you'll indulge us we're
1:03 ↗ going to take 15 minutes we're going to
1:05 ↗ step into the council room and we'll be
1:07 ↗ right back
1:11 ↗ you
1:22 ↗ you
18:16 ↗ all right thank you for that indulgence
18:20 ↗ we appreciate it and so we have a
18:24 ↗ question the to the applicant in your
18:27 ↗ October 16th letter you request that you
18:29 ↗ withdrew your request to stay the
18:31 ↗ proceedings and I'm asking that you
18:33 ↗ would verify that make sure that that's
18:35 ↗ that we understand that's the direction
18:37 ↗ that you choose to go this day we
18:48 ↗ however are continuing to participate
18:50 ↗ under protest this body has no
18:53 ↗ jurisdiction over the vested rights
18:54 ↗ issue that the hearing is going to be
18:58 ↗ about we are in the position of having
19:02 ↗ to do whatever we can to mitigate the
19:04 ↗ damages as is stated in this Himes
19:08 ↗ declaration of a hundred thousand
19:09 ↗ dollars a month for delay and so unless
19:12 ↗ and until the department is willing to
19:14 ↗ acknowledge that it has made an
19:16 ↗ appealable decision or we persuade a
19:18 ↗ court or Hearing Examiner that it has
19:20 ↗ then getting through this hearing as
19:22 ↗ quickly as possible is the best we can
19:24 ↗ do to mitigate our damages but we do so
19:27 ↗ under protest I thank you thank you very
19:30 ↗ much I think we understand that and so
19:33 ↗ when couldn't we concluded our meeting
19:37 ↗ last I'm losing the date here at our
19:43 ↗ last meeting we can the 26th we left off
19:47 ↗ the city and so we'll turn the time over
19:48 ↗ to you Thank You mr. chairman the city
19:51 ↗ does have one preliminary procedural
19:54 ↗ issue that I would like to raise it
19:58 ↗ shows a red light is that better thank
20:03 ↗ you no thank you as the Commission is
20:08 ↗ aware the Commission has recently
20:10 ↗ entertained the request for stay and
20:12 ↗ objection to jurisdiction that the
20:15 ↗ appellant or applicant IHI FC has
20:17 ↗ submitted this development Commission is
20:20 ↗ also aware of the city's response to
20:22 ↗ that and the reply that was submitted on
20:24 ↗ October 16th by IHI FC
20:28 ↗ I understand that there was drawing
20:29 ↗ there the request for a stay however the
20:33 ↗ staff would respectfully move to strike
20:35 ↗ the declaration that was included with
20:37 ↗ IHI FCS October 16th reply brief or
20:42 ↗ letter because it exceeds the page
20:44 ↗ limitations that the Commission had
20:46 ↗ agreed to and had imposed during our
20:48 ↗ previous formulation of the rules that
20:52 ↗ would apply to that the reply was
20:53 ↗ supposed to be limited to three pages
20:55 ↗ they submitted a five page declaration
20:58 ↗ in response to that plus attachments and
21:00 ↗ we would respectfully ask that be
21:01 ↗ stricken from the record may I respond
21:09 ↗ please it's quite common to submit a
21:13 ↗ brief with accompanying attachments
21:16 ↗ including declarations I don't think we
21:17 ↗ did anything here that isn't commonplace
21:19 ↗ in court and in all the proceedings that
21:22 ↗ I'm familiar with hey thank you as a as
21:36 ↗ a practical matter the page limitations
21:40 ↗ on the briefing generally does refer to
21:42 ↗ the argument itself and when when
21:45 ↗ parties do put a graded page limits I
21:48 ↗ would offer as a practical matter
21:52 ↗ applicant or may be able to submit this
21:56 ↗ in their in their other presentation of
21:59 ↗ evidence in any regards so or your
22:03 ↗ consideration with respect to at least
22:05 ↗ how typically it's done in practice as
22:07 ↗ well as sort of the practical
22:08 ↗ consideration those were the would be
22:09 ↗ the be two things I'd suggest you think
22:12 ↗ about in making that decision and I I
22:15 ↗ apologize I couldn't hear everything
22:16 ↗ that was said so if I could just ask
22:18 ↗ that people speak up or get closer to
22:19 ↗ the microphone okay dude would you like
22:23 ↗ me to repeat that I think I got the gist
22:26 ↗ of it thank you so let me summarize what
22:29 ↗ you said was that in in content it was
22:32 ↗ consistent with the items being
22:35 ↗ discussed and so you felt like it was
22:37 ↗ appropriate
22:37 ↗ be able include that as part of the
22:39 ↗ record I understood the party is a page
22:43 ↗ limit to reference the the argument I
22:46 ↗ didn't necessarily understand it to
22:48 ↗ limit the number of exhibits that that
22:53 ↗ each side would be presenting however if
22:56 ↗ he were to decide to exclude those from
22:58 ↗ the record it's possible that the
23:00 ↗ applicant would be able to submit them
23:02 ↗ in there there case-in-chief
23:04 ↗ when they when they present their
23:06 ↗ evidence that probably should be the
23:10 ↗ course of action we take you probably
23:12 ↗ should deny the occlusion of it in the
23:13 ↗ record and ask the applicant to resubmit
23:15 ↗ it in their record all right that's
23:20 ↗ certainly one path and gets in I mean in
23:22 ↗ all honesty I think it gets in the
23:23 ↗ record whether we just accept it and
23:26 ↗ deny the request from the city's
23:29 ↗ attorney to strike it or just be fishing
23:34 ↗ about it accept it as part of its a
23:38 ↗ medal the arguments are within the
23:39 ↗ three-page limit or the moment that we
23:42 ↗ said I think it's a moot point it ends
23:46 ↗ up in the way that's my point I agree I
23:49 ↗ think we'll just accept it accept it and
23:52 ↗ the record as presented thank you thank
23:55 ↗ you in that event
23:56 ↗ the city would like to recall mr. Niven
23:59 ↗ for the continuation of his testimony on
24:02 ↗ direct examination thank you and could
24:06 ↗ we either have the witness acknowledge
24:08 ↗ he's still under oath or have the court
24:09 ↗ reporter swearing in again
24:16 ↗ mr. Nibin could you please react
24:19 ↗ knowledge that you were previously
24:21 ↗ placed under oath for purposes of your
24:23 ↗ testimony and that you are continuing
24:24 ↗ under oath for purposes of today's
24:26 ↗ proceeding I acknowledge and continue
24:29 ↗ yes thank you I'd like to start by
24:32 ↗ revisiting one of the answers that you
24:34 ↗ gave during your original testimony I
24:36 ↗ had asked you on direct examination
24:39 ↗ in your official interpretation of the
24:42 ↗ Issaquah Municipal Code does the code
24:45 ↗ contain any provision that would
24:47 ↗ authorize you as the director to issue a
24:49 ↗ stand alone separately appealable
24:52 ↗ determination regarding the vested
24:54 ↗ status of a project application and I
24:56 ↗ believe you answered I'm not sure I'm
24:59 ↗ ready to answer that question our words
25:01 ↗ to that effect do you recall that
25:03 ↗ response I do okay now that you have
25:08 ↗ hopefully had an opportunity to review
25:10 ↗ the code or collect your thoughts are
25:12 ↗ you ready to answer that question today
25:14 ↗ yes so so the reason I didn't I wasn't
25:19 ↗ ready to answer that last time was you
25:22 ↗ know even though we used the code on a
25:25 ↗ daily basis I don't know the code
25:28 ↗ verbatim and and so I wanted to make
25:30 ↗ sure that what I was going to answer it
25:32 ↗ was going to be true so my answer is no
25:36 ↗ I do not
25:38 ↗ thank you approximately how many
25:43 ↗ meetings or and or telephone
25:46 ↗ communications did you have with IHI FC
25:49 ↗ or its representative since IHI FC
25:51 ↗ acquired its Issaquah Highlands property
25:54 ↗ I don't have a number off the top of my
25:59 ↗ head multiple correspondence both in
26:04 ↗ person so emails correspondence phone
26:09 ↗ calls meetings with TIA hi I'm Gary
26:13 ↗ young Patrick Mulaney could you
26:16 ↗ approximately estimate how many direct
26:19 ↗ meetings and/or phone communications you
26:21 ↗ may have had with IHI FC or its
26:23 ↗ representatives if I had to guess it I
26:26 ↗ would
26:27 ↗ 50 out thank you and did you have
26:30 ↗ written communications with IH IFC or
26:32 ↗ its representative during that period
26:33 ↗ sure yes approximately how many written
26:36 ↗ communications do you estimate that you
26:38 ↗ would have had dozen two dozen okay if
26:47 ↗ you're including email yes no yes so
26:50 ↗ couple dozen okay thank you at least in
26:54 ↗ your dealings with IH IFC did you
26:56 ↗ consistently act honestly and in good
26:57 ↗ faith of course
26:59 ↗ did you ever deliberately discriminate
27:01 ↗ against IH IFC or otherwise
27:03 ↗ intentionally target IH IFC for negative
27:06 ↗ disparate treatment ethically I could
27:09 ↗ not do that as a certified planner did
27:13 ↗ you answer the question you no no I'm
27:15 ↗ sorry it's no thank you were you aware
27:18 ↗ of any such negative or otherwise
27:21 ↗ discriminatory treatment by other city
27:23 ↗ staff members no did you ever inform IH
27:27 ↗ IFC that it's a STP or SDP applications
27:31 ↗ were permanently vested such that they
27:34 ↗ will not be subject to the replacement
27:36 ↗ regulations when they were adopted by
27:38 ↗ the City Council No
27:40 ↗ are you aware of any other city staff
27:43 ↗ members that informed IH is see that
27:46 ↗ it's a STP or STP applications were
27:48 ↗ permanently vested such that they would
27:51 ↗ not be subject to the replacement
27:52 ↗ regulations no thank you based upon your
27:58 ↗ interpretation of the relevant
28:00 ↗ provisions of the city's code and/or the
28:02 ↗ 1996 development agreement are IH IFC's
28:06 ↗ a STP and STP applications vested to the
28:09 ↗ 1996 development agreement No
28:16 ↗ are you aware of statements from IH IFC
28:21 ↗ regarding the value of mitigation
28:25 ↗ payments or other mitigation measures
28:27 ↗ that were previously made or contributed
28:31 ↗ or installed regarding the IH IFC
28:33 ↗ property am I where am i aware that they
28:37 ↗ have raised that issue with the city yes
28:39 ↗ yes could you expound on the nature of
28:43 ↗ your awareness what was said what what
28:45 ↗ if what have you heard in relation to
28:46 ↗ that that the property owner IH IFC has
28:57 ↗ paid basically impact fees as part of
29:01 ↗ their acquisition of the property and
29:03 ↗ that their belief is that those paid
29:10 ↗ impact fees should be considered in any
29:13 ↗ future applications was the the
29:17 ↗ contention from IH I see as you're aware
29:19 ↗ of it limited to impact fees or other
29:22 ↗ was it also include other mitigation
29:24 ↗ measures that had been made by previous
29:26 ↗ landowners it would be both okay thank
29:31 ↗ you
29:34 ↗ did I H IFC to your knowledge ever
29:36 ↗ contend that the value of those
29:39 ↗ mitigation measures made or impact fees
29:43 ↗ previously paid equalled or exceeded 24
29:47 ↗ million dollars I believe they've
29:48 ↗ contended that yeah thank you
29:55 ↗ in your experience as the development
29:59 ↗ services director mr. Niven how does the
30:03 ↗ city typically treat previous mitigation
30:07 ↗ measures that were made with respect to
30:10 ↗ a particular project application or in
30:13 ↗ relation to a particular project
30:14 ↗ property excuse me I'll rephrase it is
30:24 ↗ our previously installed mitigation
30:28 ↗ improvements taken into account by the
30:30 ↗ city when the city evaluates a new
30:33 ↗ project permit application so it's okay
30:41 ↗ I'm gonna answer and I think I'm going
30:44 ↗ to answer one of your two questions and
30:45 ↗ I'm not sure which one it was so if if a
30:49 ↗ property owner pays for an improvement
30:53 ↗ to infrastructure the city
30:59 ↗ my understanding of impact fees is the
31:02 ↗ city cannot double count a property
31:07 ↗ owner so if there has been mitigation
31:09 ↗ performed in terms of whether its
31:13 ↗ infrastructure improvements water sewer
31:14 ↗ transportation the city needs to
31:18 ↗ consider that before it charges impact
31:22 ↗ fees to that property owner because they
31:24 ↗ may be the credits need to be given okay
31:29 ↗ so if I understood your testimony mr.
31:31 ↗ given there is a potential opportunity
31:33 ↗ for credit in some circumstances to IH
31:38 ↗ IFC or in general generally yes
31:41 ↗ did you ever inform ih IFC categorically
31:45 ↗ that their project applications their
31:49 ↗ SDP and si SDP application would receive
31:53 ↗ absolutely no credit for previous
31:55 ↗ mitigation measures no to the contrary I
31:58 ↗ actually tried to initiate a
32:00 ↗ conversation with foster pepper to the
32:03 ↗ contrary to actually try and have that
32:05 ↗ conversation about credits and what was
32:07 ↗ the response when
32:08 ↗ you try to initiate that conversation
32:12 ↗ the initially the response I interpreted
32:17 ↗ the response that they did not want to
32:18 ↗ have that conversation they later
32:21 ↗ clarified that they did and but we have
32:23 ↗ never had that conversation thank you
32:29 ↗ when the city determines what if any
32:34 ↗ credit or offset should be made for
32:39 ↗ previous mitigation measures or
32:41 ↗ mitigation payments when does that occur
32:44 ↗ in the project permit application
32:47 ↗ procedure at what stage of the process
32:49 ↗ it would come with permit issuance okay
32:51 ↗ have you performed that analysis with
32:54 ↗ respect to IH IFC's s DP and ASTP
32:57 ↗ applications
32:58 ↗ no have you informed IHI of C or its
33:02 ↗ representatives that you have already
33:04 ↗ completed that analysis we've now got to
33:06 ↗ their applications
33:07 ↗ no thank you under the city's
33:12 ↗ regulations would that determination by
33:16 ↗ the city regarding the amount of any of
33:19 ↗ credit or offset to be given or afforded
33:23 ↗ in regard to previous mitigation
33:25 ↗ measures would that be independently
33:27 ↗ with it would that be appealable as part
33:29 ↗ of a future project permit sort of
33:31 ↗ application I believe so
33:33 ↗ thank you I have no further questions
33:39 ↗ so applicant you have your chance to
33:43 ↗ talk to mr. Niven Thank You mr. Niven
33:46 ↗ you were asked by mr. lell whether you
33:49 ↗ ever told us that we were permanently
33:53 ↗ vested that's a new concept to me I've
33:55 ↗ never heard of permanent vesting as
33:58 ↗ opposed to a temporary or fleeting
34:01 ↗ vesting can you explain the difference
34:03 ↗ to me
34:06 ↗ I took his adjective for adverb
34:10 ↗ permanently to mean for till the end of
34:13 ↗ time
34:14 ↗ well it so what distinction are you
34:18 ↗ drawing if someone is vested they get to
34:22 ↗ develop according to the rules that
34:24 ↗ rested - right so if they're vested they
34:31 ↗ are vested per the terms of city code
34:35 ↗ and at some point they may no longer
34:38 ↗ have an active permit and they may lose
34:41 ↗ their vesting status well we're not
34:44 ↗ talking about a situation where someone
34:46 ↗ no longer has an active permit are we
34:48 ↗ we're talking about a situation where
34:50 ↗ our client says and believes it's vested
34:55 ↗ both pursuant to this the site
34:58 ↗ development permits and the subdivision
35:01 ↗ and you told them in fact they were
35:04 ↗ vested as to both correct so those
35:07 ↗ conversations happened in the fall of
35:11 ↗ 2017 and at that time the draft
35:16 ↗ replacement regulations would have had
35:20 ↗ those permits vested at the end of the
35:24 ↗ day the City Council chose a different
35:26 ↗ vesting provision and that's where they
35:32 ↗ then lost their vesting so it's your
35:35 ↗ understanding and belief that the City
35:39 ↗ Council can enact an ordinance that
35:42 ↗ retroactively Lee takes away vested
35:44 ↗ rights that you have previously
35:46 ↗ acknowledged existed so my understanding
35:49 ↗ is that
35:50 ↗ they were vested to a contract that
35:53 ↗ expired and that the replacement
35:55 ↗ regulations provided a different vesting
35:57 ↗ provision and is that are you agreeing
36:00 ↗ or disagreeing with what I said my
36:02 ↗ question was is it your understanding
36:03 ↗ that the City Council can retroactively
36:06 ↗ Lee take away vested rights it's cross
36:12 ↗ examination and I am too entitled to get
36:15 ↗ an answer to my questions on
36:16 ↗ cross-examination and mr. Zell or mr. LL
36:29 ↗ excuse me asked him multiple times for
36:32 ↗ his legal conclusions as the person in
36:35 ↗ charge of these issues why don't you
36:43 ↗ answer the question why don't you
36:46 ↗ restate the question thank you mr. Hays
36:47 ↗ is it your understanding that the City
36:50 ↗ Council can retroactively Lee take away
36:53 ↗ vested rights by subsequently enacted
36:56 ↗ ordinance I think my my understanding is
37:01 ↗ it depends if they were vested to a
37:03 ↗ contract that expires then that is
37:06 ↗ different than if they were vested to
37:08 ↗ something that was in city code or state
37:12 ↗ statute well mr. Navin you repeatedly
37:16 ↗ told IHI FC that it was vested over and
37:23 ↗ you told them that over a period of time
37:25 ↗ long before the City Council was even
37:28 ↗ contemplating the replacement
37:30 ↗ regulations correct so I told them they
37:32 ↗ were vested to the development agreement
37:34 ↗ yes which was an expiring document so
37:38 ↗ again your opinion is that vested rights
37:42 ↗ now expire when the regulation that
37:45 ↗ creates the rights no longer is in place
37:48 ↗ my belief I'm not a lawyer is that what
37:54 ↗ they were vested to was a expiring
37:56 ↗ contract and when that contract expired
37:59 ↗ they were then subject to the
38:01 ↗ replacement regulations which what which
38:03 ↗ what was stated in the development
38:06 ↗ agreement well the development agreement
38:07 ↗ wasn't just a contract was it it was for
38:10 ↗ 20 years the development regulations
38:13 ↗ that applied to the Issaquah Highlands
38:15 ↗ correct I considered a contract well it
38:18 ↗ doesn't state law RCW 3670 B that
38:23 ↗ creates the authority for development
38:26 ↗ agreements Express expressly say they're
38:29 ↗ an exercise of the police power as well
38:31 ↗ as the contract if you say so I don't
38:35 ↗ well let's assume for a moment that's
38:36 ↗ what the statute says okay so there the
38:40 ↗ development regulations you didn't you
38:42 ↗ didn't come in and decide whether
38:44 ↗ someone can proceed according to
38:47 ↗ anything other than development
38:49 ↗ regulations they were enacted after the
38:51 ↗ growth management act they were the GMA
38:53 ↗ development regulations for the
38:55 ↗ highlands were they not it was a
38:57 ↗ contract for how to build out the
38:59 ↗ property it gave certain rights to the
39:01 ↗ developer it gave certain rights to the
39:03 ↗ city so let's talk for a moment about
39:06 ↗ the plat mister Nevin you agree that my
39:13 ↗ client is vested to their subdivision
39:15 ↗ application I believe so I said I
39:18 ↗ believe so hey and you have any doubt
39:21 ↗ about that I would defer to my technical
39:23 ↗ staff who's working on that that's
39:25 ↗ Lucy's home and she will be I think
39:28 ↗ testifying later this evening okay when
39:36 ↗ one vests
39:40 ↗ there's one vest - thank you well let's
39:43 ↗ let's let me rephrase the question
39:45 ↗ so we have the development agreement you
39:47 ↗ refer to it as a contract state law
39:51 ↗ refers to it as a development exercise
39:54 ↗ of the police power so if one vests to
39:58 ↗ the development agreement including
40:00 ↗ exhibit L which is the process part of
40:04 ↗ the development agreement correct that's
40:06 ↗ my recollection yesterday then your
40:10 ↗ department in fact has treated people
40:12 ↗ who have vested to the development
40:14 ↗ agreement as vested to the process in
40:17 ↗ appendix L correct yes and you've done
40:23 ↗ that for multiple polygons projects for
40:25 ↗ example yes and appendix L requires a
40:30 ↗ subdivision application to be processed
40:32 ↗ and a final decision made in how many
40:35 ↗ days I don't know that number off the
40:37 ↗ top of my head it's a matter of a few
40:43 ↗ months is it not I don't believe it's
40:47 ↗ that short I'm looking for a document
40:52 ↗ that mrs. Lowman created that actually
40:59 ↗ calculated the number of days and we can
41:04 ↗ introduce this when she testifies but
41:06 ↗ her document says it's a hundred and
41:09 ↗ seventeen days to process a plat a
41:13 ↗ plunderer development agreement do you
41:15 ↗ disagree with that like I said I do not
41:19 ↗ remember what that number is in appendix
41:22 ↗ L okay and that is calculated from the
41:25 ↗ date the application is deemed complete
41:27 ↗ I'll ask you to accept my representation
41:31 ↗ to that effect so when was the
41:34 ↗ subdivision application submitted by IH
41:37 ↗ IFC deemed complete I don't know it was
41:44 ↗ in August of 2017 wasn't
41:48 ↗ I don't know
41:53 ↗ so mr. chairman we we have the issue of
41:58 ↗ exhibits that we need to offer too great
42:01 ↗ a record so I'm gonna propose that I
42:09 ↗ hand up at a copy to you all to be the
42:12 ↗ official record I'll hand a copy to the
42:14 ↗ witness I'll hand a copy to mr. lell and
42:17 ↗ then as we go forward we may also
42:21 ↗ project some of them up on the screen to
42:23 ↗ be capable at this point now I believe
42:30 ↗ that under the rules that the Commission
42:33 ↗ approved that evidence can be offered at
42:35 ↗ any time while the the hearing is still
42:37 ↗ ongoing and we have not yet apart from
42:39 ↗ the staff report and the attachments to
42:41 ↗ that
43:00 ↗ you recognize this document mr. Navin
43:03 ↗ yes is it the notice of application sent
43:07 ↗ out by your department for IH IFC's plat
43:11 ↗ for the entirety of its property yes and
43:16 ↗ what is the date of the application
43:19 ↗ first of August which year 2017 so that
43:23 ↗ was what about 14 months ago yes and
43:31 ↗ when was it deemed complete the 11th of
43:35 ↗ August fact it wasn't deemed complete
43:37 ↗ until October was it I'm I can't answer
43:43 ↗ that question I don't okay well let's
43:45 ↗ assume that it was deemed complete on
43:47 ↗ august 11 miss lumens mo calculates that
43:53 ↗ under the appendix L of the development
43:56 ↗ agreement the last day for making a
43:59 ↗ decision whether to approve or deny that
44:02 ↗ application would have been November
44:05 ↗ 26th of 2017 you have any reason to
44:09 ↗ disagree with that well so those
44:14 ↗ timelines are subject to the submit all
44:17 ↗ of information by applicants so the
44:20 ↗ clock technically stops when it is out
44:24 ↗ for additional information so I think
44:27 ↗ there's always some flexibility in the
44:31 ↗ schedule because we can't determine how
44:34 ↗ quickly applicants will return requested
44:38 ↗ information on mr. Navin my question was
44:40 ↗ do you have any reason to disagree that
44:41 ↗ November 26 would have been the date
44:44 ↗ that a decision was required under the
44:48 ↗ procedures in the development agreement
44:50 ↗ that you've understand my client is
44:53 ↗ vested to my my statement was in
45:00 ↗ response to that is yes I don't think
45:02 ↗ there's a finite time line because
45:04 ↗ there's a there is a on
45:09 ↗ managed portion of time that an
45:13 ↗ applicant has to respond to questions by
45:15 ↗ staff during staff review okay there's a
45:18 ↗ rare that we don't ask for additional
45:20 ↗ information so what outstanding
45:23 ↗ information has prevented you from
45:27 ↗ making a decision for over four fourteen
45:31 ↗ months on our platen so I'm not the
45:35 ↗ staff reviewing that plat application I
45:37 ↗ would ask that you redirect that
45:40 ↗ question to miss Loman a you submitted a
45:43 ↗ declaration to the Hearing Examiner in
45:48 ↗ an hour appeal to it a while ago did you
45:52 ↗ not and here I'll show you a copy you
45:58 ↗ don't have to do this from memory this
46:01 ↗ could be exhibit two please
46:20 ↗ and we'll probably look at so many
46:22 ↗ attachments later mr. Nevin but right
46:24 ↗ now I'd like to direct your attention to
46:25 ↗ paragraph eight of your declaration on
46:27 ↗ page two yes and what do you say in that
46:34 ↗ about final decisions on both IH IFC's
46:41 ↗ SDP applications and its preliminary lat
46:44 ↗ what this says is although not certain I
46:47 ↗ anticipate that a final decision on IH
46:49 ↗ IFC's STP and a SDP applications will be
46:53 ↗ issued in June or July 2018 and that a
46:56 ↗ decision on IH I have seized preliminary
47:01 ↗ plat will be issued in August or
47:02 ↗ September of 18 and that hasn't happened
47:07 ↗ in either case has it it has not
47:09 ↗ happened so and you also say in that
47:16 ↗ pair at the beginning of that paragraph
47:17 ↗ that each of these applications is
47:19 ↗ currently under active administrative
47:21 ↗ review correct that's what it states
47:24 ↗ okay so what active in administrative
47:28 ↗ review was underway when you wrote this
47:30 ↗ declaration on May 3rd of this year
47:38 ↗ for or either the SGP applications or
47:43 ↗ the plat so we were in process of
47:53 ↗ reviewing all of those applications
47:55 ↗ requesting information and revisions by
47:59 ↗ the applicants is my understanding which
48:03 ↗ ultimately led to the staff reports this
48:06 ↗ evening for the SDP in a STPs
48:08 ↗ again you said under active
48:14 ↗ administrative review I am asking you
48:16 ↗ what is the factual foundation for your
48:18 ↗ statement in your declaration what
48:21 ↗ active administrative review were you
48:23 ↗ aware of when you wrote this so it was
48:27 ↗ it's as opposed to being inactive which
48:31 ↗ is in city code identified as something
48:35 ↗ that has sat for six months and these
48:38 ↗ applications were not that so they were
48:42 ↗ deemed active still well Mike was your
48:45 ↗ department doing anything you review any
48:49 ↗ of these applications my understanding
48:53 ↗ is that every active permit in the
48:56 ↗ system in the city is being worked by
49:01 ↗ that Review staff can you you have any
49:04 ↗ actual knowledge of any things that
49:07 ↗ would qualify as active administrative
49:09 ↗ review for any of these applications
49:11 ↗ when you wrote this declaration other
49:15 ↗ than my understanding of how my
49:16 ↗ department works no I mean I don't I did
49:19 ↗ not interview staff related to these
49:23 ↗ specific applications to understand what
49:27 ↗ daily activity they were doing in terms
49:30 ↗ of review you know how many months that
49:34 ↗ my client had to wait before it could
49:36 ↗ even be told what was going on with the
49:39 ↗ supplied application with no response
49:41 ↗ from your department I do not know so
49:46 ↗ what is my client vested to under its
49:50 ↗ plat applications that exhibit one was
49:52 ↗ issued for so so the plat is not part of
50:02 ↗ can I ask just a subject question the
50:05 ↗ plat is not part of the the staff
50:08 ↗ reports in front of the Commission I
50:10 ↗ don't know why we're spending so much
50:12 ↗ time on the plat so maybe I can ask that
50:15 ↗ I don't know if that's a clarification
50:17 ↗ to the applicant or I just I I want to
50:21 ↗ know the relevancy of the plat
50:23 ↗ conversation because the three staff
50:25 ↗ reports in front of the Commission are
50:27 ↗ not the plat a good question well it's
50:30 ↗ it's it would be a good objection for
50:34 ↗ the attorney to make they the whole
50:37 ↗ issue is vested rights that's what this
50:39 ↗ hearing is about the department has
50:42 ↗ acknowledged in writing that we are
50:44 ↗ vested pursuant to the plat application
50:46 ↗ the plat application includes all of the
50:49 ↗ property including the property that is
50:51 ↗ subject to the STPs under the case law
50:54 ↗ if we are vested to the plat application
50:57 ↗ then we are vested to applications that
50:59 ↗ implement the the plat vesting now mr. L
51:04 ↗ and I you know we'll both give you
51:06 ↗ differing opinions about what that case
51:08 ↗ law means but but I believe he talked
51:11 ↗ about it in his opening statement here
51:13 ↗ and the if we're vested pursuant to the
51:16 ↗ PLAs we believe we are then there is no
51:20 ↗ issue under these site development
51:22 ↗ permits and the city has sat on for 14
51:25 ↗ months on our platen and refused to tell
51:28 ↗ us whether we are vested or what we are
51:31 ↗ vested to and what we're not vested to
51:33 ↗ so it's very relevant to the core issue
51:36 ↗ of this hearing and the fact that the
51:39 ↗ department's issued decisions on the SDP
51:42 ↗ without resolving the plat application
51:45 ↗ vesting issue and what we're vesting to
51:47 ↗ is just part of our incredible
51:51 ↗ frustration here and what we believe is
51:53 ↗ the fundamental ill
51:54 ↗ galatea this entire proceeding we we
51:57 ↗ submitted an application in August of
51:59 ↗ 2017 that we believe bested us to
52:02 ↗ everything that is in front of you
52:04 ↗ tonight to the development agreement and
52:06 ↗ it's certainly very relevant the fact
52:09 ↗ that the department has tried to ignore
52:11 ↗ it is part of the problem with this
52:13 ↗ whole vested rights issue and we are
52:17 ↗ creating a record on vested rights so
52:19 ↗ when this goes to the Hearing Examiner
52:20 ↗ or the Superior Court this issue belongs
52:24 ↗ as part of the record okay
52:28 ↗ proceed
52:39 ↗ oh so the question was is what is vested
52:43 ↗ by your preliminary plat application yes
52:46 ↗ so I would I have not had that
52:50 ↗ conversation with my staff I don't know
52:52 ↗ what has been communicated out to you so
52:56 ↗ I would want to confer with my staff so
52:59 ↗ if we need to if we need to do that now
53:02 ↗ I can do that now but I have not had
53:06 ↗ that conversation with my staff so even
53:09 ↗ though the application was deemed
53:10 ↗ complete more than fourteen months ago
53:13 ↗ you've not decided what were vested to I
53:17 ↗ have not had that conversation now
53:34 ↗ if in fact my interpretation of noble
53:38 ↗ manner is correct and mr. lel's is wrong
53:41 ↗ then we would be vested to the sgp
53:44 ↗ applications pursuant to the plat I'm
53:47 ↗ not I'm sorry I have to object this is a
53:49 ↗ completely legal line of questioning and
53:51 ↗ it calls for a legal conclusion I would
53:53 ↗ respectfully reiterate my objection to
53:55 ↗ that well and mr. loyalty a lot of the
53:58 ↗ to the witness this is this is not the
54:00 ↗ time or place for legal arguments if he
54:02 ↗ has factual questions to ask mr. Niven
54:04 ↗ that's appropriate but legal conclusion
54:07 ↗ oriented questions are simply
54:08 ↗ inappropriate in this context and I was
54:11 ↗ not asking for anything other than what
54:14 ↗ he has responsibility for is the head of
54:16 ↗ the department I didn't ask him to
54:18 ↗ decide whether you were right or I was
54:20 ↗ right I asked him to assume if I was
54:23 ↗ right wouldn't that mean that we were
54:26 ↗ vested pursuant to the plat application
54:28 ↗ that is his responsibility as an
54:31 ↗ administrator to decide what were vested
54:33 ↗ to and not vested to respectfully but
54:35 ↗ reiterate my objection all right he is
54:39 ↗ he's said that he hasn't spoken to his
54:42 ↗ staff so that seems to be the answer
54:44 ↗ that he doesn't know what is what his
54:47 ↗ staff agreed was he they were vested too
54:50 ↗ right no but I didn't asked a second
54:53 ↗ subsequent question which was if we were
54:56 ↗ vested and wouldn't all of this all of
55:02 ↗ the decisions about the SGB and their
55:05 ↗ vesting be irrelevant because the
55:07 ↗ decision would have the issue would have
55:08 ↗ been decided by the platen that's the
55:11 ↗ this follow-up question that I'm asking
55:13 ↗ and again mr. Sherman the question by
55:17 ↗ its terms is asking the witness to
55:20 ↗ assume hypotheticals regarding legal
55:21 ↗ conclusions and cited case law that's
55:24 ↗ simply inappropriate in this context I
55:26 ↗ agree I agree with that
55:38 ↗ so if I hadn't asked the question
55:41 ↗ tonight mr. Niven when were you going to
55:43 ↗ decide what were vested to pursuant to
55:45 ↗ the preliminary plat if if the applicant
55:51 ↗ has that question and has asked that
55:54 ↗ question of staff I would assume staff
55:56 ↗ would provide that answer to the
55:57 ↗ applicant so if that has been conveyed
56:01 ↗ to staff as a written question I would
56:04 ↗ assume we would have responded if not
56:06 ↗ then we should respond so if that is a
56:09 ↗ question of the applicant I and I and if
56:11 ↗ it has not been conveyed to staff yet I
56:13 ↗ would say send staff an email if let's
56:18 ↗ assume that staff and my client disagree
56:23 ↗ about the scope of the vested rights
56:27 ↗ under the plumeria plat does my client
56:30 ↗ have any opportunity to challenge that
56:34 ↗ decision until you make a decision on
56:37 ↗ the plenary plat allocation my hope
56:41 ↗ would be that your client and staff
56:44 ↗ including myself would have a chance to
56:47 ↗ have a conversation about that before a
56:50 ↗ decision was made that would need to be
56:51 ↗ challenged by your client mr. Nevin that
56:54 ↗ wasn't my question the question was let
56:58 ↗ me phrase it differently there is no
57:00 ↗ opportunity to resolve a disagreement
57:03 ↗ between your staff and my client about
57:06 ↗ the scope of vested rights until you
57:08 ↗ make a decision that can be appealed
57:09 ↗ correct well so there's an opportunity
57:18 ↗ to have a conversation ultimately if
57:20 ↗ your client does not agree with the
57:23 ↗ position of the city then you need to
57:26 ↗ your avenue for relief would be to
57:30 ↗ appeal that decision when that decision
57:32 ↗ gets made right and you've waited 14
57:36 ↗ months and haven't made a decision yet
57:37 ↗ correct I believe that we've asked for
57:41 ↗ information that has not been responded
57:43 ↗ to why do you believe that it's what I
57:46 ↗ think my staff has told me
57:49 ↗ do you know what information hasn't been
57:51 ↗ responded to I do not know the I do not
57:56 ↗ know the extent of that tonight so I
58:02 ↗ want to turn to one of the polygon
58:06 ↗ applications so how about the polygon
58:15 ↗ West Ridge townhomes North light
58:18 ↗ development for permit application are
58:21 ↗ you familiar with that generally and you
58:28 ↗ know when polygons submitted its
58:33 ↗ application for that SDP I do not know
59:03 ↗ excuse me just a moment
59:40 ↗ let's start with this one
59:46 ↗ we're gonna switch gears and I'm gonna
59:48 ↗ ask you first of all about the North
59:54 ↗ Ridge North the West region North single
59:56 ↗ family plaid okay that one you're
59:58 ↗ familiar with all right yes generally
1:00:01 ↗ this is exhibit three
1:00:13 ↗ so what was well first of all this is
1:00:20 ↗ the note of application for the plac
1:00:22 ↗ correct correct and according to this it
1:00:26 ↗ was applied for in July of 2017 and Dean
1:00:30 ↗ complete the same month yes
1:00:32 ↗ this was processed under procedures in
1:00:39 ↗ the development agreement including in
1:00:44 ↗ Excel correct yes and is that also the
1:00:49 ↗ case for the
1:01:28 ↗ so what I've handed you is exhibit four
1:01:32 ↗ can you identify it for us yes this is
1:01:36 ↗ the this is the recommendation from the
1:01:40 ↗ urban village Development Commission
1:01:42 ↗ signed by mr. Jeff Walker chair okay and
1:01:48 ↗ the urban village Development Commission
1:01:50 ↗ is the entity that processes flats under
1:01:58 ↗ the development agreement they make a
1:02:01 ↗ recommendation to the City Council who
1:02:03 ↗ are the decision-maker
1:02:04 ↗ back then if this plaque was applied for
1:02:08 ↗ today under the replacement regulations
1:02:11 ↗ adopted in March you wouldn't go to
1:02:14 ↗ there you VDC correct it would not how
1:02:18 ↗ it would lose so my staff is saying it
1:02:20 ↗ would and the Commission recommends to
1:02:25 ↗ the Hearing Examiner
1:02:27 ↗ okay well we'll come back to that with
1:02:29 ↗ mrs. Lowman then but you would you would
1:02:33 ↗ agree this was processed pursuant to the
1:02:36 ↗ procedures in the development agreement
1:02:38 ↗ yes okay and this application was
1:02:43 ↗ actually submitted after the end of the
1:02:46 ↗ build-out period was it not
1:02:53 ↗ I don't know because you didn't give me
1:02:55 ↗ the notice of application for that okay
1:03:02 ↗ unless it says in here does it know all
1:03:08 ↗ right
1:03:09 ↗ okay we're we're gonna rather than have
1:03:12 ↗ everyone wait while I look through these
1:03:15 ↗ documents so I'm going to represent to
1:03:17 ↗ you and we'll find the document later
1:03:19 ↗ mr. Navin that polygons West Ridge
1:03:23 ↗ townhomes North SVP application was
1:03:28 ↗ submitted in October of 2017 actually
1:03:33 ↗ submitted October 20 2017 and deem
1:03:36 ↗ complete on October 30 oh I'd like you
1:03:39 ↗ to accept that representation as being
1:03:41 ↗ accurate and then it was approved by the
1:03:44 ↗ u VDC under the procedures and the
1:03:47 ↗ standards in the development agreement
1:03:48 ↗ on May 10th so can you explain to me do
1:03:54 ↗ you know why polygons application for a
1:03:59 ↗ site development permit that was
1:04:01 ↗ submitted during the same period of time
1:04:04 ↗ as my clients by that I mean after the
1:04:08 ↗ end of the build-out period but before
1:04:10 ↗ termination of the development agreement
1:04:11 ↗ why it was vested to both the substance
1:04:15 ↗ and the procedures in the development
1:04:18 ↗ agreement my understanding is that poly
1:04:23 ↗ so polygons executed a separate
1:04:25 ↗ development agreement with the City
1:04:27 ↗ Council for the inclusion of 100 TDRs
1:04:32 ↗ onto their property it also created an
1:04:36 ↗ affordable housing obligation that
1:04:40 ↗ polygon had to fulfill as part of
1:04:44 ↗ build-out of their properties so I'm
1:04:47 ↗ gonna hand you what I think
1:05:12 ↗ so mr. human this is a what can you
1:05:17 ↗ identify the overall document for it
1:05:19 ↗ there are many exhibits and I included
1:05:21 ↗ with it but what is the overall document
1:05:23 ↗ the document is entitled developer sales
1:05:27 ↗ agreement for affordable units Westridge
1:05:30 ↗ and I'm going to represent to you that
1:05:34 ↗ what I believe is the separate
1:05:38 ↗ development
1:06:03 ↗ okay so it is there a solution it's hard
1:06:09 ↗ to identify the business Exhibit A maybe
1:06:16 ↗ elimination to the document it's an
1:06:19 ↗ attachment okay it's page five maybe of
1:06:38 ↗ of the ordinance okay I did I have as
1:06:53 ↗ creating vested rights for the polygon
1:06:55 ↗ application
1:07:48 ↗ [Applause]
1:08:13 ↗ [Applause]
1:08:34 ↗ I'm gonna say I'm gonna say no I do not
1:08:42 ↗ believe that this documen 2017 - 10
1:08:55 ↗ provides additional vesting provisions
1:08:59 ↗ for polygons I will need to look through
1:09:05 ↗ these documents a little bit further
1:09:06 ↗ before I may to say which document did
1:09:09 ↗ but I do not believe it's that
1:09:11 ↗ resolution the resolution that aid to
1:09:16 ↗ the resolution we were paid to a
1:09:18 ↗ development agreement not a resolution
1:09:20 ↗ this is the only development agreement
1:09:23 ↗ I'm aware of other than the one that
1:09:25 ↗ issue in this appeal so have you had a
1:09:28 ↗ chance to look through that development
1:09:30 ↗ agreement so I'm if the question is why
1:09:38 ↗ did polygons get to proceed under the
1:09:41 ↗ provisions of this equivalence
1:09:43 ↗ development agreement and not the
1:09:45 ↗ replacement regulations what I'm telling
1:09:48 ↗ you is I will need more time to give you
1:09:51 ↗ a specific answer for that question
1:09:53 ↗ okay well that's an important question
1:09:56 ↗ so when we take a break if you could
1:09:58 ↗ take the time I may not have those
1:10:00 ↗ documents with me so I do not think
1:10:03 ↗ we're gonna finish tonight if we are I
1:10:04 ↗ will definitely provide it by the end of
1:10:06 ↗ night if we continue to another evening
1:10:08 ↗ I believe we are planning for that I
1:10:10 ↗ will definitely have it by next meeting
1:10:12 ↗ okay well why don't we assume for the
1:10:15 ↗ moment isn't it fair to say there's
1:10:28 ↗ nothing in this particular development
1:10:30 ↗ agreement that addresses vested rights I
1:10:32 ↗ would agree with that so if in fact and
1:10:37 ↗ you're not agreeing that it is but if in
1:10:38 ↗ fact this is the development agreement
1:10:40 ↗ that allowed polygons
1:10:43 ↗ to vest there's nothing in it that
1:10:47 ↗ addresses that issue this particular
1:10:50 ↗ document no miss mr. Schneider it would
1:10:58 ↗ help in the future if you site some
1:11:01 ↗ specific things if you could read that
1:11:02 ↗ text for us that the specific text that
1:11:04 ↗ you want us to read as opposed to having
1:11:06 ↗ us look look for it that would help
1:11:09 ↗ well it I think the I appreciate that
1:11:12 ↗ and I will I do my best in this case the
1:11:14 ↗ problem is there isn't any text I don't
1:11:17 ↗ have anything for him to read because
1:11:18 ↗ he's acknowledged that there's nothing
1:11:20 ↗ in this document that addresses the
1:11:22 ↗ issue okay
1:11:35 ↗ mr. Navin my recollection is that when
1:11:38 ↗ we were here last month you testified
1:11:42 ↗ about some of the your understanding of
1:11:44 ↗ the purposes of the development
1:11:46 ↗ agreement I testified that I understood
1:11:50 ↗ the purposes of the development
1:11:51 ↗ agreement I'm sorry for example one of
1:11:54 ↗ them was to provide certainty to the
1:11:56 ↗ applicant right and the one of the one
1:12:05 ↗ of the ways that provides that certain
1:12:06 ↗ DEA's that not is in appendix L the
1:12:09 ↗ procedures that provide for expedited
1:12:11 ↗ review yes and one of the things that
1:12:16 ↗ Appendix L says for example is that
1:12:18 ↗ reapplication conferences are optional
1:12:21 ↗ direct correct but in fact you and your
1:12:25 ↗ Department refused to accept any
1:12:28 ↗ applications from IH IFC under the
1:12:32 ↗ development agreement while it was in
1:12:33 ↗ effect unless they spent months and
1:12:36 ↗ months preparing pre applications
1:12:38 ↗ correct my understanding is that my
1:12:42 ↗ staff was requiring the applicant to
1:12:49 ↗ work through a pre-application meeting
1:12:52 ↗ process before a formal permit
1:12:57 ↗ application could be submitted with the
1:13:00 ↗ intent that the hope that processing of
1:13:04 ↗ that permit could then happen more
1:13:06 ↗ expeditiously when that issue was
1:13:09 ↗ brought to my attention by the applicant
1:13:13 ↗ we clarified that a pre-application
1:13:15 ↗ meeting was not required and it was it
1:13:20 ↗ was listed as optional in the
1:13:21 ↗ development agreement but in fact you
1:13:23 ↗ continued to require the pre
1:13:25 ↗ applications did you not I do not
1:13:28 ↗ believe so you said that you told the
1:13:32 ↗ applicant they were optional how and
1:13:34 ↗ when did you do that
1:13:35 ↗ that was an email I believe to miss hime
1:13:39 ↗ I do not remember what the date is
1:13:43 ↗ is that an email from you it would be
1:13:54 ↗ when we go back for a moment to the
1:13:58 ↗ exhaustive application for IH IFC's
1:14:02 ↗ laughs which is Exhibit one sure I want
1:14:09 ↗ to direct your attention to page 2 of
1:14:12 ↗ that document you see that the back of
1:14:20 ↗ the first page yes yes and what what do
1:14:24 ↗ we see there what I see is IH IFC's
1:14:30 ↗ property
1:14:32 ↗ broken into five blocks Street
1:14:42 ↗ extensions and buildings building
1:14:47 ↗ footprints C building footprints really
1:14:49 ↗ not I see I see building footprints
1:14:55 ↗ [Applause]
1:15:03 ↗ when did the public comment period end
1:15:06 ↗ on this notice of application for the
1:15:09 ↗ clap I have no idea you know I direct
1:15:13 ↗ your attention to the top of the first
1:15:14 ↗ page it looks like it ended January 17th
1:15:19 ↗ of 2018 you describe anything that
1:15:23 ↗ you're anything that your department has
1:15:26 ↗ done to process this application since
1:15:28 ↗ that day I haven't that would be a
1:15:30 ↗ question for Miss Loman
1:15:48 ↗ though mr. lell asked you questions
1:15:52 ↗ about mitigation
1:16:01 ↗ and you inform my client that with the
1:16:07 ↗ enactment of the price replacement
1:16:09 ↗ regulations it was the city's position
1:16:11 ↗ that all of that mitigation that had
1:16:14 ↗ previously been provided would evaporate
1:16:16 ↗ I think to the contrary I actually think
1:16:19 ↗ we tried to have a conversation about
1:16:22 ↗ credits and conversation about credits
1:16:24 ↗ whether there would be any you didn't
1:16:27 ↗ use the word evaporate to describe what
1:16:29 ↗ would happen to the previous mitigation
1:16:31 ↗ I not that I'm aware and my client when
1:16:39 ↗ when's your understanding you testified
1:16:40 ↗ to this last time of when my client
1:16:42 ↗ acquired its property I believe it was
1:16:49 ↗ 2013 maybe I don't remember if it was
1:16:54 ↗ 2012 or 2013 it's been as IH IFC done
1:16:58 ↗ any other development in the assaut qua
1:17:01 ↗ highlands that would be subject to the
1:17:03 ↗ development agreement other than the SD
1:17:08 ↗ peas the ASD peas and the Platt that are
1:17:10 ↗ at issue here can you restate your
1:17:16 ↗ question now the question was have as as
1:17:19 ↗ my client developed any other projects
1:17:22 ↗ or the ones that are at issue in this
1:17:24 ↗ hearing the only ones that you're aware
1:17:26 ↗ of that they've developed in the
1:17:28 ↗ highlands so that's a tricky question I
1:17:36 ↗ don't know it's not intended to but it
1:17:38 ↗ is so one of your clients I used to be
1:17:42 ↗ part of a homebuilder that has built in
1:17:46 ↗ Issaquah Highlands not like the client
1:17:49 ↗ I'm referring to as simply I hoc not any
1:17:52 ↗ predecessor entities so I believe and
1:17:55 ↗ again I don't know if I'm right on this
1:17:58 ↗ I believe that I H IFC may have built
1:18:01 ↗ Highlands Terrace which is the apartment
1:18:05 ↗ complex kind of north of the YWCA okay
1:18:12 ↗ ask the question in a different way
1:18:14 ↗ sorry in heaven so and again I'm going
1:18:20 ↗ back to the way mr. lell asked the
1:18:21 ↗ questions of you yet basically asked you
1:18:25 ↗ as as my notes reflect that if applicant
1:18:28 ↗ has paid fees has paid fees then you
1:18:39 ↗ wouldn't make them pay again is that a
1:18:41 ↗ fair summary of what you were saying so
1:18:44 ↗ you know at that that's not that's not a
1:18:47 ↗ it's not a open-ended yes you got a pass
1:18:51 ↗ for life you know part of the
1:18:54 ↗ conversation what makes it complicated
1:18:56 ↗ potentially for your client is is there
1:19:00 ↗ has to be at least some consideration
1:19:02 ↗ over the aging of any of the
1:19:06 ↗ infrastructure that may have been
1:19:08 ↗ credited towards their properties so for
1:19:10 ↗ example you know let's assume that a
1:19:13 ↗ property owner put in a water line and
1:19:18 ↗ and that was 20 years ago and then sat
1:19:20 ↗ on the property that water line has been
1:19:22 ↗ in service for 20 years the city has
1:19:24 ↗ maintained that water line for 20 years
1:19:26 ↗ at some point the value of that
1:19:28 ↗ infrastructure improvement has
1:19:30 ↗ depreciated and so I think that is part
1:19:34 ↗ of the conversation why this is maybe a
1:19:37 ↗ more complicated conversation than just
1:19:39 ↗ they bought the property and the
1:19:41 ↗ previous property owner paid twenty five
1:19:43 ↗ million dollars in mitigation and impact
1:19:45 ↗ fees and therefore they should get
1:19:46 ↗ twenty five million dollars of credit I
1:19:48 ↗ think it's a little bit more complicated
1:19:49 ↗ than that
1:19:50 ↗ I'm not quite sure what question you are
1:19:52 ↗ answering mr. Navin with those comments
1:19:54 ↗ but I thought I was answering your
1:19:56 ↗ question if I missed it sorry so let me
1:20:01 ↗ approach it from yet a different angle
1:20:02 ↗ okay so
1:20:10 ↗ if let's assume that that for the moment
1:20:21 ↗ that you're correct that my client is
1:20:25 ↗ not vested they have to do their
1:20:27 ↗ applications under the replacement
1:20:29 ↗ regulations and let's assume for a
1:20:32 ↗ moment that there's is some economically
1:20:36 ↗ viable development under the replacement
1:20:38 ↗ regulations so we'll make we'll make two
1:20:41 ↗ assumptions they are going to have to
1:20:48 ↗ comply with what those regulations say
1:20:53 ↗ regardless of how much money they paid
1:20:56 ↗ for their property correct yes so if in
1:21:03 ↗ fact the value they paid for their
1:21:05 ↗ property reflected the value of the
1:21:08 ↗ mitigation that was already provided as
1:21:10 ↗ part of the development agreement how
1:21:14 ↗ how on earth could you give them credit
1:21:16 ↗ for that if they're subject to the new
1:21:19 ↗ regulations that don't take any of that
1:21:21 ↗ into account
1:21:31 ↗ if the witness doesn't understand it I'm
1:21:33 ↗ happy to ask re ask it but that's his
1:21:36 ↗ issue and I have many issues so so the
1:21:41 ↗ property owner needs to meet the
1:21:43 ↗ regulations the regulations to my
1:21:46 ↗ recollection don't talk about impact
1:21:48 ↗ fees and mitigations the mitigations and
1:21:51 ↗ impact fees that are in place citywide
1:21:53 ↗ would be interpreted to these
1:21:57 ↗ applications and part of any decision
1:22:01 ↗ process I think what your clients have
1:22:04 ↗ attested to is they believe that that
1:22:07 ↗ there have been mitigations paid and
1:22:10 ↗ therefore they are due accredit I think
1:22:13 ↗ the city has not dismissed that claim I
1:22:16 ↗ think we need to have that conversation
1:22:18 ↗ and hopefully it would be resolved in a
1:22:23 ↗ way that was acceptable to your client I
1:22:27 ↗ don't know that it would be but I would
1:22:29 ↗ hope that's the goal is it fair to say
1:22:36 ↗ mr. Nevin going back to what you were
1:22:39 ↗ saying about one of the purposes of the
1:22:41 ↗ development agreement was to provide
1:22:42 ↗ certainty and that exhibit L and the
1:22:46 ↗ expedited procedures were part of that
1:22:50 ↗ bargain correct betweens let me go back
1:22:55 ↗ let me tell you my understanding is you
1:22:57 ↗ can tell me if if I'm barely
1:23:00 ↗ characterizing what you said last time
1:23:02 ↗ that in exchange for the developer doing
1:23:07 ↗ an environmental impact statement
1:23:09 ↗ figuring everything out up front coming
1:23:11 ↗ in and providing the mitigation upfront
1:23:13 ↗ building the streets providing the open
1:23:15 ↗ space they got certain things in return
1:23:17 ↗ and one of those things in return was
1:23:20 ↗ certainty and an expedited approval
1:23:22 ↗ process is that fair No
1:23:24 ↗ so I'd say I wouldn't I wouldn't use the
1:23:27 ↗ word certainty I'd use the word
1:23:28 ↗ predictability and I think it's I think
1:23:31 ↗ it's a little different so what what the
1:23:34 ↗ development agreement did is for 20
1:23:36 ↗ years said here's the rules by which
1:23:39 ↗ properties can develop within this
1:23:41 ↗ geographic area
1:23:43 ↗ and that was the predictability that
1:23:46 ↗ they got well one of the if you want to
1:23:50 ↗ use the word predictability one of the
1:23:52 ↗ predict abilities they got was appendix
1:23:57 ↗ L delighted for an expedited process
1:23:59 ↗ right but the development agreement also
1:24:01 ↗ said that those timelines were subject
1:24:03 ↗ to staffing and it also provided
1:24:07 ↗ basically the damages that the city
1:24:10 ↗ would face if it did not meet those
1:24:13 ↗ timelines and that was it would refund
1:24:15 ↗ application fees okay and you you can
1:24:19 ↗ use itis for the parts of the
1:24:20 ↗ development agreement there you're
1:24:21 ↗ referring to
1:24:22 ↗ I can not right now so I don't have it
1:24:25 ↗ okay so I'm looking again in this
1:24:29 ↗ woman's memo and again these are her
1:24:34 ↗ calculations I haven't done the math
1:24:36 ↗ independently but for example she says
1:24:39 ↗ that the maximum number of days to
1:24:41 ↗ process an application under the
1:24:44 ↗ development agreement or an
1:24:46 ↗ administrative site development permit
1:24:48 ↗ was 50 days let's assume for the moment
1:24:50 ↗ that her math is correct and her reading
1:24:53 ↗ of the of the document was correct
1:24:57 ↗ that's 50 days from the application
1:25:01 ↗ being determined complete the
1:25:03 ↗ development agreement says that pre apps
1:25:07 ↗ are optional so isn't it fair to say
1:25:11 ↗ with the three administrative site
1:25:13 ↗ development permits that are at issue
1:25:15 ↗ this evening you required pre apps and
1:25:21 ↗ the 50 days expired last year so the 50
1:25:28 ↗ days is 50 staff days and again appendix
1:25:33 ↗ L which this is a separate argument
1:25:37 ↗ where they are they are contending a
1:25:40 ↗ breach of contract by the city so I
1:25:43 ↗ would like to defer that particular
1:25:46 ↗ piece to that other hearing that's going
1:25:47 ↗ to come but you know those days are
1:25:51 ↗ staff work days it's subject to
1:25:55 ↗ city staffing resources and I will
1:25:57 ↗ provide the applicant with those
1:26:01 ↗ sections of the development agreement if
1:26:04 ↗ that would be helpful and if you could
1:26:05 ↗ also provide we're in the development
1:26:08 ↗ agrees agreement it says those are 50
1:26:10 ↗ staff days sure but according to miss
1:26:13 ↗ Loman here the 50 days for processing
1:26:18 ↗ administrative site development permits
1:26:20 ↗ on behalf of my client expired on
1:26:23 ↗ January 15th of 2002 7 2017 she met 2008
1:26:33 ↗ mr. chairman I'm sorry the council keeps
1:26:36 ↗ referring to a memorandum can I ask has
1:26:38 ↗ that been submitted into evidence I've
1:26:40 ↗ heard multiple references to it but I
1:26:42 ↗ don't think I've actually seen the
1:26:43 ↗ document and it's a little difficult to
1:26:45 ↗ track the line of questioning and it
1:26:47 ↗ must be also for the witness I think a
1:26:49 ↗ very fair comment so 6
1:27:18 ↗ now again she has everyone can read the
1:27:24 ↗ document and she has qualifications in
1:27:26 ↗ there about some of the practical
1:27:28 ↗ difficulties with compliance but I don't
1:27:31 ↗ think there's anything in here about
1:27:34 ↗ snap days you'll correct me if I'm wrong
1:27:36 ↗ but in any event
1:27:41 ↗ bring to the bottom of that and her
1:27:43 ↗ calculations according to the
1:27:47 ↗ development agreement if we're vested to
1:27:49 ↗ it then the plat should have been
1:27:52 ↗ approved on November 26th of 2017 the
1:27:57 ↗ site development permit on March 14th
1:28:01 ↗ Jesus 17 with unity the administrative
1:28:06 ↗ ones On January 15 she said 17 events
1:28:10 ↗ you have any reason to disagree with any
1:28:13 ↗ of that I I have never seen this
1:28:17 ↗ document before I would ask you to ask
1:28:20 ↗ those questions to miss Loman I don't
1:28:26 ↗ have an understanding of why this was
1:28:29 ↗ provided so I don't have a reason to
1:28:31 ↗ agree or disagree with it because I have
1:28:37 ↗ no context sorry is it fair to say that
1:28:41 ↗ if my client is vested to the
1:28:46 ↗ development agreement that your
1:28:51 ↗ department is many months and in case
1:28:57 ↗ the plat more than a year late making a
1:29:01 ↗ decision
1:29:12 ↗ I'm sorry I couldn't hear the objection
1:29:17 ↗ you can't they can't hear you I believe
1:29:20 ↗ that the question has already been asked
1:29:22 ↗ and I believe that the Commission has
1:29:23 ↗ indicated that it's improper if that's
1:29:31 ↗ the case I don't recall that but nor do
1:29:36 ↗ I so than you it was the beginning of
1:29:39 ↗ the early part of mr. Keith or mr. Alan
1:29:42 ↗ Evans testimony and I would respectfully
1:29:43 ↗ object to it again here for the same
1:29:46 ↗ reason I think the question has already
1:29:49 ↗ been answered right no I meant just now
1:30:02 ↗ so mr. Nevin you you started out this
1:30:05 ↗ evening
1:30:06 ↗ response to him mr. well saying that you
1:30:09 ↗ were as I understood it that this is my
1:30:11 ↗ characterization of your answer so
1:30:13 ↗ correct me but I understood you
1:30:17 ↗ basically to say you were helpless to do
1:30:19 ↗ anything except put my client through
1:30:21 ↗ the process it's going through tonight
1:30:22 ↗ you couldn't you couldn't make a vesting
1:30:25 ↗ determination in the way that could have
1:30:27 ↗ gotten it resolved without having a
1:30:31 ↗ hearing that doesn't a body that doesn't
1:30:33 ↗ have jurisdiction have to sue this
1:30:36 ↗ hearing is that your opinion the the the
1:30:42 ↗ process allows for a singular appeal and
1:30:46 ↗ that appeal is of the decision that's
1:30:49 ↗ made which includes our interpretation
1:30:53 ↗ that these applications fall under the
1:30:56 ↗ auspices of the replacement regulations
1:30:58 ↗ Oh mr. Nevin directing your attention to
1:31:02 ↗ the declaration that you submitted on
1:31:06 ↗ May 31st which is you said that you or
1:31:15 ↗ rather your department was anticipating
1:31:17 ↗ a final decision and again referring to
1:31:20 ↗ paragraph 8 you entered July on the SGP
1:31:24 ↗ applications in August and September on
1:31:27 ↗ the plat right that's what we believed I
1:31:31 ↗ think was this in May dated this May
1:31:36 ↗ 31st yeah
1:31:38 ↗ so back in May I think we thought we
1:31:40 ↗ were on a better pathway then ultimately
1:31:45 ↗ we have been on in May you clearly
1:31:48 ↗ thought you could have made vesting
1:31:52 ↗ decisions
1:31:53 ↗ look would have made them at the staff
1:31:55 ↗ level right I don't believe so what are
1:32:02 ↗ you thinking where are you getting that
1:32:05 ↗ I guess implication you're saying final
1:32:08 ↗ decisions will be made in June
1:32:10 ↗ August and September there's no mention
1:32:14 ↗ in here of sending any of this to a
1:32:17 ↗ commission like this it will have to
1:32:19 ↗ hold a public hearing before making a
1:32:22 ↗ decision you you wrote this in at the
1:32:27 ↗ end of May so I don't understand I guess
1:32:33 ↗ what you are implying I mean so that
1:32:35 ↗ section 8 isn't intended to be a
1:32:41 ↗ narrative of the entire process so so
1:32:45 ↗ what all it was saying was that we
1:32:47 ↗ believed we were going to have decisions
1:32:49 ↗ by a certain day not what process would
1:32:51 ↗ be followed to get to those decisions
1:32:53 ↗ well mr. Navin on the last day of May
1:32:56 ↗ you say under oath that you anticipate a
1:32:59 ↗ final decision June or July right so
1:33:03 ↗ there it's obviously not possible to
1:33:06 ↗ convince a process before this
1:33:08 ↗ commission and get it done in a month or
1:33:11 ↗ two right that's not correct I think he
1:33:16 ↗ pointed to a timeline for polygons that
1:33:19 ↗ was August to December so I mean I don't
1:33:26 ↗ it depends on the applicant is that that
1:33:29 ↗ was my comment earlier about the number
1:33:31 ↗ of days we can do our process in a
1:33:36 ↗ certain specific amount of time but a
1:33:38 ↗ lot of it depends on the applicant and
1:33:40 ↗ their willingness to respond to
1:33:43 ↗ questions raised by staff mr. Nevin I
1:33:45 ↗ don't understand what anything he just
1:33:47 ↗ said had to do with the question I asked
1:33:49 ↗ how is it possible
1:33:54 ↗ let me approach it a different way and
1:33:56 ↗ on the last day of May you anticipated
1:33:59 ↗ not just as a decision a final decision
1:34:01 ↗ on the applications on the applications
1:34:05 ↗ not just on the testing issue are you
1:34:09 ↗ saying that you were going to send these
1:34:11 ↗ applications to the development wrote
1:34:14 ↗ this declaration as what I believed when
1:34:20 ↗ I when this declaration was written is
1:34:22 ↗ that we believed we were almost
1:34:25 ↗ completed with our review of the
1:34:28 ↗ applications and you were going to make
1:34:30 ↗ final decisions you your Department
1:34:33 ↗ correct it does not say that well what
1:34:35 ↗ else could it possibly mean what other
1:34:37 ↗ process were you contemplating on May
1:34:40 ↗ 31st so so STPs and AST peas had
1:34:44 ↗ different processes in the development
1:34:47 ↗ agreement agreed so that so there would
1:34:51 ↗ not be a singular process even under the
1:34:54 ↗ development agreement or am I missing
1:34:59 ↗ your question again well never is the
1:35:05 ↗ decision maker EDA can decide whether
1:35:07 ↗ that was a responsive answer or not
1:35:09 ↗ the point is mr. Navin you correct me if
1:35:12 ↗ I'm wrong
1:35:12 ↗ that when you wrote this you your
1:35:16 ↗ department was going to make a final
1:35:18 ↗ decision on all the applications by the
1:35:20 ↗ date stated right that's what we
1:35:22 ↗ believed in May that we would be done in
1:35:25 ↗ June or July and September okay so in
1:35:28 ↗ May under oath you believe that the
1:35:31 ↗ process was an administrative process at
1:35:35 ↗ least for the SDP and ASDP applications
1:35:40 ↗ and presumably you are going to send a
1:35:43 ↗ plumber a plat
1:35:44 ↗ to the City Council or what how are you
1:35:48 ↗ possibly going to make a final decision
1:35:51 ↗ on the preliminary plat within this time
1:35:54 ↗ frame so May to September is plenty of
1:36:03 ↗ months to get a plat through commission
1:36:05 ↗ and through the council
1:36:07 ↗ and so why hasn't that happened I can't
1:36:11 ↗ answer that question I'm not doing the
1:36:13 ↗ permit review and it's also plenty of
1:36:15 ↗ time to make final decisions on the SDP
1:36:18 ↗ and a SVP applications I believe it was
1:36:21 ↗ a reasonable expectation in May that we
1:36:27 ↗ would be done by these dates and when
1:36:29 ↗ did you first decide that these
1:36:31 ↗ applications had to go to this
1:36:34 ↗ development so that was realized when
1:36:40 ↗ the replacement regulations were adopted
1:36:42 ↗ that was in March right at the end of
1:36:48 ↗ May there's nothing in here about
1:36:51 ↗ sending in development like I said this
1:36:55 ↗ is not about process this is about an
1:36:57 ↗ expectation for decisions so mister
1:37:03 ↗ Niven were we're now in the second month
1:37:06 ↗ of a process that we were informed would
1:37:09 ↗ start in August now a lot later than
1:37:15 ↗ August and we're a long ways from the
1:37:20 ↗ decision are you saying that when you
1:37:24 ↗ wrote this in May you were you were
1:37:27 ↗ going to send these applications to the
1:37:29 ↗ Development Commission as you made that
1:37:31 ↗ decision back in March yes
1:37:39 ↗ you know that your attorney called me
1:37:42 ↗ and August and said that you had changed
1:37:46 ↗ your mind about how to process these
1:37:48 ↗ applications I do not know that
1:38:06 ↗ so with this pause it seems like we've
1:38:09 ↗ been going for a fairly long period of
1:38:11 ↗ time I think it would be appropriate if
1:38:15 ↗ councils agree that we take a five
1:38:17 ↗ minute break and I get everybody a
1:38:21 ↗ chance to stand up and get blood flowing
1:38:23 ↗ again is that acceptable yes thank you
1:38:27 ↗ and I would just request that if
1:38:29 ↗ possible mr. Nibin use some of the break
1:38:33 ↗ time to decide whether that is the
1:38:35 ↗ development agreement dealing with the
1:38:37 ↗ polygon application that I referred to
1:38:39 ↗ him that is part of I think exhibit 5
1:38:44 ↗ chairman the Commission's aware Council
1:38:48 ↗ for IHI FC has deposited several
1:38:52 ↗ documents and and some of them are
1:38:53 ↗ somewhat voluminous into the record
1:38:55 ↗ tonight I don't believe that the witness
1:38:57 ↗ certainly not the city team has had an
1:39:01 ↗ opportunity to digest those my
1:39:03 ↗ recommendation would be to continue
1:39:05 ↗ through mr. Schneider's
1:39:09 ↗ cross-examination was evening since we
1:39:10 ↗ are coming up on the the anticipated 9
1:39:13 ↗ p.m. break time and then resume with mr.
1:39:16 ↗ Nevins redirect examination at the the
1:39:19 ↗ next reconvening of the Commission is
1:39:22 ↗ proceeding would be my suggestion I
1:39:24 ↗ agree with that night and I know we were
1:39:26 ↗ talking about stopping at 9:00 but with
1:39:29 ↗ the five minute break I think we might
1:39:30 ↗ be able to go over maybe go as late as
1:39:32 ↗ 9:30 but we don't want to go much past
1:39:36 ↗ well my process of mr. Nevin is not
1:39:40 ↗ going to take until 9:30 so if we're not
1:39:42 ↗ gonna do redirect I think we should can
1:39:48 ↗ I ask who's gonna come next or are you
1:39:50 ↗ resting we were going to call miss
1:39:52 ↗ Sloman and I anticipate at least 45
1:39:56 ↗ minutes give or take on direct
1:39:59 ↗ examination for her and at this point
1:40:02 ↗ the city anticipates arresting following
1:40:05 ↗ miss Loehmann's testimony thank you
1:40:10 ↗ so we've got five minutes thank you
1:48:00 ↗ all right I think it's we're back in
1:48:03 ↗ session mr. Inoue and I want to ask you
1:48:16 ↗ Westridge block for affordable housing
1:48:19 ↗ project no we've already got six
1:48:38 ↗ thank you
1:48:46 ↗ let's see this is titled Westridge block
1:48:49 ↗ for affordable housing application date
1:48:54 ↗ was April 27th 2018 application was
1:48:59 ↗ deemed complete May 16th of 2018 correct
1:49:11 ↗ this was still processed and approved
1:49:15 ↗ under the procedures and the development
1:49:17 ↗ agreement right right so we're gonna get
1:49:27 ↗ back to you on that
1:49:28 ↗ yeah that was the question you asked
1:49:29 ↗ earlier earlier question was about the
1:49:32 ↗ other Westwood project this one is about
1:49:37 ↗ the affordable housing project and I
1:49:40 ↗ showed you the development agreement
1:49:42 ↗ I've wore this specific affordable
1:49:46 ↗ housing project so my answer is that I
1:49:51 ↗ am going to get back to you on both of
1:49:54 ↗ those because I think they might be the
1:49:56 ↗ same thing so you're you're trying to
1:50:00 ↗ draw a distinction between the two and
1:50:02 ↗ I'm not conceding that there is a
1:50:03 ↗ distinction between the two on one on
1:50:05 ↗ why one vested and one didn't know I'm
1:50:09 ↗ not trying to draw a distinction I am
1:50:11 ↗ trying to get you to agree that the
1:50:14 ↗ development agreement that I showed you
1:50:16 ↗ is the development agreement for this
1:50:19 ↗ affordable housing project so there were
1:50:25 ↗ there was there was a ninth major
1:50:27 ↗ amendment there was a development
1:50:29 ↗ agreement there was a memorandum of
1:50:30 ↗ understanding there were a lot of
1:50:32 ↗ documents that the city processed with
1:50:34 ↗ polygons northwest and what I'm saying
1:50:36 ↗ is I want some time to look through
1:50:38 ↗ those - before I answer the questions
1:50:42 ↗ that you keep going back to related to
1:50:43 ↗ their property and is it fair to say
1:50:46 ↗ that as you sit here this afternoon
1:50:48 ↗ or this
1:50:48 ↗ they're not aware of any development
1:50:52 ↗ agreements other than the Swat Highlands
1:50:56 ↗ development agreement and the
1:50:58 ↗ development agreement for the affordable
1:51:00 ↗ housing project for polygons that have
1:51:02 ↗ anything to do with any of these
1:51:04 ↗ applications if you're specifically
1:51:09 ↗ asking about development agreements the
1:51:11 ↗ answer is no I'm sorry yes there's no
1:51:16 ↗ your I'm not aware of any others so if
1:51:21 ↗ in fact the cities records reflect that
1:51:24 ↗ polygon was vested to the development
1:51:28 ↗ agreement even though it applied after
1:51:32 ↗ the development agreement expired
1:51:36 ↗ and the basis for that was the
1:51:38 ↗ affordable housing development agreement
1:51:41 ↗ which you've already said doesn't have
1:51:43 ↗ anything in it about vesting music can
1:51:46 ↗ you explain that I'm not wanting to talk
1:51:49 ↗ about any of those documents this
1:51:51 ↗ evening we can keep you can keep asking
1:51:53 ↗ I'm gonna keep saying I'm not gonna talk
1:51:54 ↗ about it
1:52:10 ↗ I did my client IH IFC and its attorneys
1:52:15 ↗ light to you about the mitigation issue
1:52:19 ↗ and what would happen to the mitigation
1:52:21 ↗ once the development agreement expired
1:52:24 ↗ if we weren't vested I don't know maybe
1:52:35 ↗ you don't remember any written
1:52:37 ↗ communications on that issue
1:52:39 ↗ I don't know so as I mentioned earlier I
1:52:45 ↗ initiated a conversation about credits
1:52:47 ↗ there were correspondents back if those
1:52:50 ↗ are what you're referring to then yes I
1:52:52 ↗ do remember those if there were others
1:52:54 ↗ that you were alluding to I'm not sure I
1:52:57 ↗ recall them at this moment
1:53:23 ↗ so doesn't even begin back to what you
1:53:26 ↗ said at the outset I didn't response to
1:53:28 ↗ mr. ll is it your belief that you have
1:53:40 ↗ no authority to make an administrative
1:53:44 ↗ vesting determination under the city's
1:53:48 ↗ regulations I think we answered that
1:53:51 ↗ already - let me ask a different short
1:53:54 ↗ why isn't siding which code applies it
1:53:59 ↗ could interpret so
1:54:22 ↗ I don't know that it's not good
1:54:26 ↗ interpretations available isn't sure so
1:54:30 ↗ you have if it's I'd say it's not then
1:54:33 ↗ you do have the discretion to make a
1:54:35 ↗ vesting determination as a code
1:54:37 ↗ determination that could be appealed
1:54:39 ↗ directly to the Hearing Examiner correct
1:54:42 ↗ so right now nobody has asked for a code
1:54:46 ↗ interpretation on that issue to me
1:54:51 ↗ so no decision has been made separate
1:54:54 ↗ from the staff reports that are in front
1:54:56 ↗ of the Commission this evening are you
1:54:58 ↗ saying you don't interpret the code
1:55:00 ↗ unless someone on the outsides asks you
1:55:03 ↗ to so there's there's reasons to
1:55:06 ↗ interpret the code one is a written
1:55:08 ↗ request from a property owner or an
1:55:10 ↗ applicant the other is based on staff
1:55:14 ↗ needing clarification
1:55:15 ↗ well you interpreted the code to send
1:55:19 ↗ these applications to this Commission
1:55:23 ↗ did you not I did and you're saying you
1:55:26 ↗ did that back in March correct yes why
1:55:32 ↗ did you wait then until September to do
1:55:34 ↗ so we were working on trying to get
1:55:41 ↗ application decisions with the applicant
1:55:45 ↗ we moved it it happened in this time
1:55:49 ↗ frame because the applicant decided or
1:55:53 ↗ told us that they were not going to
1:55:55 ↗ amend their applications to be
1:55:57 ↗ consistent with the replacement
1:55:58 ↗ regulations because they did not believe
1:56:00 ↗ that they applied that let us no other
1:56:03 ↗ alternative but to write a staff report
1:56:05 ↗ for denial so that played itself out
1:56:09 ↗ maybe not in as expeditious way that the
1:56:13 ↗ applicant would have liked but the city
1:56:16 ↗ tried to move it along as best we could
1:56:19 ↗ and that's this the way it worked out so
1:56:22 ↗ again you're testifying tonight
1:56:29 ↗ that took you from March until September
1:56:35 ↗ to send this issue to the Development
1:56:39 ↗ Commission even though you had
1:56:42 ↗ interpreted the code in March that it
1:56:44 ↗ had to come here and you're saying
1:56:46 ↗ that's because the applicant wouldn't
1:56:49 ↗ agree to its amend its application and
1:56:51 ↗ thereby give up its the claim to vested
1:56:54 ↗ rights so any question about processing
1:56:57 ↗ of these permit applications should be
1:56:59 ↗ directed to miss Loman because I was not
1:57:02 ↗ doing that staff work she was so they're
1:57:06 ↗ the one who made the code interpretation
1:57:08 ↗ in March correct right and you decided
1:57:14 ↗ in an April letter that we weren't
1:57:16 ↗ vested correct there was a letter if it
1:57:20 ↗ was April that I will give you that
1:57:22 ↗ April fourth saying you're not vested
1:57:24 ↗ okay and now it's a it's what October
1:57:28 ↗ almost November and that issue is
1:57:31 ↗ finally in front of this Commission why
1:57:34 ↗ did it take you from April until
1:57:37 ↗ September you make a decision that could
1:57:40 ↗ be appealed to a body without
1:57:42 ↗ jurisdiction over the issue again you're
1:57:44 ↗ asking a question of why did it take
1:57:46 ↗ that long to draft the staff reports for
1:57:48 ↗ denial I would ask that you ask miss
1:57:51 ↗ Loman that question
1:58:06 ↗ have you ever made a vesting
1:58:07 ↗ determination for anyone else
1:58:11 ↗ I believe polygon asked if they were
1:58:14 ↗ vested and I think we told them yes and
1:58:24 ↗ if so you you do make vesting
1:58:28 ↗ determinations did with you yes in April
1:58:31 ↗ correct yes
1:58:48 ↗ [Applause]
1:59:07 ↗ [Applause]
1:59:16 ↗ [Applause]
1:59:45 ↗ [Applause]
2:00:06 ↗ mr. Devin did the mayor direct you to
2:00:08 ↗ change your position about vesting no
2:00:11 ↗ did that on your own yes did you
2:00:15 ↗ acknowledge to my clients that you were
2:00:17 ↗ following the directions of your new
2:00:18 ↗ boss when the Mayor was elected I do not
2:00:23 ↗ remember that conversation thank you
2:00:24 ↗ that's all if it please the Commission
2:00:33 ↗ as I indicated previously because of the
2:00:35 ↗ numerous documents that were submitted
2:00:37 ↗ into evidence this evening many of which
2:00:39 ↗ we haven't seen before I would
2:00:41 ↗ respectfully request that the hearing be
2:00:43 ↗ continued until a future date and we
2:00:46 ↗ continue with our redirect with mr.
2:00:48 ↗ Niven at that point okay I would just
2:00:52 ↗ point out that the documents see saying
2:00:54 ↗ he hasn't seen are the city's own
2:00:56 ↗ documents that we've obtained from the
2:00:58 ↗ city so I understand that mr. Niven
2:01:03 ↗ needs time to look at the documents for
2:01:04 ↗ the vesting issue but that's not a
2:01:07 ↗ reason to continue the hearing I assume
2:01:09 ↗ we're gonna proceed with miss Loman at
2:01:11 ↗ this point counsel said that they he
2:01:15 ↗ thought he needed 45 minutes and I think
2:01:17 ↗ that that probably would exceed the time
2:01:19 ↗ that we want to extend this well then
2:01:22 ↗ can I express our frustration that this
2:01:26 ↗ hearing is being scheduled for two hours
2:01:29 ↗ a month and my client is paying $100,000
2:01:32 ↗ a month in carrying costs and there's no
2:01:35 ↗ effort on anyone's part to expedite this
2:01:38 ↗ and allow us more than two hours a month
2:01:40 ↗ at this rate it's going to be well into
2:01:42 ↗ next year before we're done and there's
2:01:45 ↗ no reason for that as far as I can see
2:01:47 ↗ except unwillingness to get this
2:01:49 ↗ resolved in a timely and fair manner if
2:01:52 ↗ I could mr. Chairman I would repudiate
2:01:54 ↗ any suggestion that staff is
2:01:56 ↗ deliberately attempting to delay these
2:01:57 ↗ proceedings we have just as much
2:01:59 ↗ interest as as the applicant and in
2:02:01 ↗ trying to obtain an efficient end to
2:02:04 ↗ this process I would defer to the
2:02:07 ↗ Commission on whatever scheduling
2:02:09 ↗ constraints that you might have but the
2:02:11 ↗ staff is very much willing and able to
2:02:14 ↗ proceed in a more expeditious fashion if
2:02:17 ↗ the Commission can
2:02:18 ↗ time to do that but we're also very
2:02:20 ↗ conscious and sensitive to the fact that
2:02:22 ↗ you're all volunteer members and you're
2:02:25 ↗ doing this on off hours so with that
2:02:27 ↗ constraint we're very happy to have
2:02:30 ↗ multiple days longer sessions whatever
2:02:33 ↗ the Commission's preference is well we
2:02:37 ↗ had we had two dates proposed for the
2:02:40 ↗ next the continuation of this meeting
2:02:42 ↗ one was November 29th and the other was
2:02:44 ↗ December 5th we're available for either
2:02:50 ↗ the Commission is available for either
2:02:52 ↗ of those dates and we're willing to let
2:02:54 ↗ the council decide which would be most
2:02:56 ↗ appropriate for them all I would request
2:02:58 ↗ both the city has no objection to both
2:03:02 ↗ as well we were available for both so I
2:03:07 ↗ think that we're willing to do that
2:03:08 ↗ we're probably also willing to extend
2:03:11 ↗ the time it's just we can go longer if
2:03:14 ↗ we need to well but we're gonna be
2:03:18 ↗ transitioning now so why don't we
2:03:21 ↗ adjourn for tonight and and we start
2:03:27 ↗ again on the 29th and we'll have the
2:03:30 ↗ 29th scheduled and the 5th of the 29th
2:03:33 ↗ of November and the 5th of December if
2:03:36 ↗ if the Commission is willing to extend
2:03:38 ↗ the hours would there be any willingness
2:03:41 ↗ or availability to start at 6:30 instead
2:03:44 ↗ of 7:00 to give us a little more time
2:03:48 ↗ staff has no objection again I would
2:03:50 ↗ have to defer to you the Commission yeah
2:03:53 ↗ I believe both of those meetings were
2:03:54 ↗ already scheduled for 7:00 to 10:00 is
2:03:56 ↗ that correct don't believe they've been
2:03:59 ↗ noticed yet so I understand we could
2:04:02 ↗ probably start at 6:30 as long as we can
2:04:07 ↗ no we're both at 6:30 to 10:00 if that's
2:04:10 ↗ the thank you that would see variable
2:04:13 ↗ okay may I ask a question of counsel
2:04:18 ↗ absolutely mr. Schneider how long do you
2:04:20 ↗ anticipate your case-in-chief lasting
2:04:22 ↗ just for scheduling purposes
2:04:30 ↗ well we're probably going to have three
2:04:33 ↗ witnesses I would expect even with an
2:04:37 ↗ extended evening it's probably going to
2:04:40 ↗ take two evenings to put on those three
2:04:42 ↗ witnesses plus you're across thank you
2:04:46 ↗ and will almost certainly bring in
2:04:48 ↗ rebuttal witnesses after that and I
2:04:50 ↗ would expect that to last at least one
2:04:54 ↗ and a half to two hours ok so it appears
2:04:59 ↗ we're in agreement we'll meet that 29th
2:05:01 ↗ and of November and the 5th of December
2:05:05 ↗ will start at 6:30 and go until 10:00
2:05:07 ↗ o'clock and so we should consider that
2:05:10 ↗ our meeting tonight adjourned until then
2:05:13 ↗ thank you thank you for your
2:05:14 ↗ participation
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 (2)

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

  • He said the City would like to strike the declaration of the applicant dated October 16, 2018 because the letter (plus exhibits) exceeds the page limitation of five total pages agreed to at the September 26 meeting.
  • The dates, times, and location were agreed to by the Commissioners, the applicant and applicant’s attorneys, and City staff and attorneys.