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Development Commission - Special Meeting - 24 O Cancelled Auto captions

Wednesday, October 24, 2018

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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
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