Development Commission - Special Meeting - 05 D · Wednesday, December 5, 2018 · City Council Digest

1. CALL TO ORDER

Commission Membership

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Staff report:

Development Commission About Staff Liaison Created in 1983, this commission reviews all land Lucy Sloman, use actions requiring a Level 3 review. The Land Development Manager Commission further serves as an advisory board to Email the City Council on land use actions requiring council approval (Level 5 review). Regular Members 2019 – Michael Brennan The appearance of fairness doctrine prohibits 2019 – Randolph Harrison Development Commission members and City 2020 – Melvin Morgan Council members from discussing the merit of 2020 – Kevin Price specific land use development applications outside 2022 – Jasmina Mihova of the formal public meeting process. Citizens, 2022 – Richard Sowa however, may discuss any issue with the City's 2022 – Richard Sanford Development Services Department. Written comments are also welcome. Alternate Members 2019 – Ryan Roeter Membership 2019 – Vacant The…

Issaquah Highlands Retail (High Street Collection) Site Development Permit, Application No. SDP18-00001; PRJ17-00027 Issaquah Highlands Medical Office Administrative Site Development Permit, (Q)* Application No. ASDP18-00007; PRJ17- Issaquah Highlands Self-Storage Administrative Site Development Permit, (Q)* Application No. ASDP18-00006; PRJ17

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Topics: Land UseTransportation

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0:11 ↗ like coming on what I see off there we

0:13 ↗ are all right good evening ladies

0:16 ↗ gentlemen I'd like to welcome into the

0:17 ↗ continuation of the Development

0:19 ↗ Commission special meeting concerning

0:21 ↗ this acquire lands retail is qua

0:24 ↗ Highlands medical office administration

0:27 ↗ administrative site development in

0:29 ↗ Issaquah Highlands self storage

0:31 ↗ administrative site development permit a

0:33 ↗ continuation from our November 29th 2018

0:37 ↗ meeting and so with no further delay

0:42 ↗ I'll turn the time over to mr. Lowe who

0:44 ↗ will continue his on thank you very much

0:47 ↗ mr. chairman

0:48 ↗ I believe that the next order in the

0:51 ↗ proceedings is for mr. Schneider to

0:53 ↗ begin his cross-examination of miss

0:56 ↗ Loman

0:56 ↗ of the city's witness but before that

0:58 ↗ there is one procedural or a preliminary

1:00 ↗ point that I would like to address

1:01 ↗ during the most recent hearing it was

1:06 ↗ requested that the city provide copies

1:08 ↗ of the polygon agreement that was

1:11 ↗ referenced in mr. nevan's testimony and

1:13 ↗ the city has eight copies of these two

1:16 ↗ documents which we'd like to introduce

1:17 ↗ as C 33 and C 34 and we would be happy

1:23 ↗ to introduce or to recall mr. Niven to

1:25 ↗ provide context for these materials or

1:28 ↗ we'll be happy to do that at a later

1:29 ↗ time during a rebuttal opportunity why

1:31 ↗ don't we wait why don't we wait until

1:33 ↗ the rebuttal thank you for me happy to

1:35 ↗ do that time thank you yes mrs. Lowman

1:48 ↗ if you could please take the stand

1:50 ↗ thank you thank you

1:55 ↗ as a preliminary matter could you please

1:58 ↗ confirm and acknowledge that you

2:00 ↗ continue to be under oath from your

2:03 ↗ original testimony I continue to be

2:07 ↗ under oath thank you Sloman why don't we

2:15 ↗ start with the documents that mr. L is

2:19 ↗ just introduced I would note that z33 is

2:23 ↗ the same document as s5 that's already

2:27 ↗ in the record and that C 34 is a signed

2:32 ↗ version of the development agreement

2:35 ↗ that is part of C 33 and is also in the

2:40 ↗ record in the unsigned as part of RS 5

2:44 ↗ so both documents are in the record the

2:47 ↗ change is that we now have a signed

2:50 ↗ version of this second development

2:53 ↗ agreement miss Loman these are the

2:58 ↗ documents that mr. Nevin identified as

3:01 ↗ explaining why the city processed

3:06 ↗ polygons applications submitted after

3:10 ↗ the termination of the development

3:12 ↗ agreement under the procedures and

3:16 ↗ standards in the development agreement

3:20 ↗ do you agree that's a care fair

3:23 ↗ characterization of his testimony that

3:25 ↗ these are the documents that were the

3:27 ↗ basis for processing those land use

3:30 ↗ permits yes I believe so yes and you

3:34 ↗ identify forests in either document

3:39 ↗ where it says anything about vesting

3:42 ↗ polygons to the expired regulations and

3:47 ↗ procedures in the earlier development

3:50 ↗ agreement

3:51 ↗ I was not party to developing these mr.

3:54 ↗ Niven answered those questions I think

3:56 ↗ if you have additional questions you

3:58 ↗ need to ask mr. Newman well--that's am i

4:02 ↗ correct and understanding then that you

4:04 ↗ are not aware of any basis in either

4:06 ↗ document for

4:07 ↗ treating polygons is as vested to the

4:11 ↗ expired development agreement I'm not

4:14 ↗ saying that I'm just I'm not I'm not the

4:17 ↗ expert on these documents and I am NOT

4:20 ↗ going to try and explain them to you

4:22 ↗ well I'm asking whether you're aware of

4:24 ↗ anything in them it seems to me either

4:27 ↗ you are or you are not are you aware of

4:30 ↗ anything in either document that would

4:32 ↗ justify how you treated polygon under

4:35 ↗ the expired development agreement I

4:38 ↗ understand them to be a development

4:40 ↗ agreement related to certain properties

4:42 ↗ and as that that I believe understood to

4:48 ↗ be the basis for how they were handled

4:50 ↗ if you're asking for specific provisions

4:52 ↗ I think someone who is familiar with

4:54 ↗ these documents would have to answer

4:56 ↗ that question mr. Niven I believe said

4:59 ↗ you would be the person because he

5:01 ↗ wasn't familiar with them but he

5:03 ↗ identified them so I don't I don't

5:05 ↗ believe he said that I did go back

5:07 ↗ through the record I mr. Niven was the

5:12 ↗ primary author and took these documents

5:16 ↗ through counsel he is the one that has

5:18 ↗ the familiarity and I think would be

5:20 ↗ best able to answer those questions

5:22 ↗ which is why I believe mr. well offered

5:25 ↗ to make mr. Niven available if there

5:27 ↗ were follow-up questions why don't we

5:36 ↗ turn to and compare if you would please

5:40 ↗ your two charts that you did talking

5:45 ↗ about the timelines for processing

5:47 ↗ shelters application the first one is

5:50 ↗ the one you prepared for the City

5:53 ↗ Council which is f6 in the record and

5:57 ↗ the second chart is the one you prepared

6:01 ↗ for this hearing which is C 27

6:28 ↗ so we have up on the screen see 27 why

6:32 ↗ don't we start with it so like to walk

6:40 ↗ through and have you explain for us

6:42 ↗ where these numbers of days come from

6:48 ↗ let's start with the column you've

6:51 ↗ identified pre plat and you say 117 days

6:56 ↗ how do we get to 117 days so back in the

7:02 ↗ late 90s as we were beginning to develop

7:06 ↗ or implement the development agreement

7:09 ↗ port Blakely communities the master

7:12 ↗ developer and the city found the exhibit

7:16 ↗ which was from appendix L I don't

7:21 ↗ remember what exhibit number it is that

7:24 ↗ was introduced last time C 28 okay was

7:27 ↗ this one okay thank you

7:29 ↗ C 28 that chart found it difficult not

7:34 ↗ only for city staff and the master

7:36 ↗ developer but for applicants and so city

7:40 ↗ staff undertook to develop individual

7:45 ↗ charts that were trying to explain four

7:50 ↗ different land use types how how the

7:55 ↗ steps and timeframes rolled out from

8:00 ↗ that appendix L chart those were

8:05 ↗ developed as I said about two decades

8:07 ↗ ago we the master developer and city

8:11 ↗ have used those since then as a way of

8:15 ↗ explaining both the timeframes and steps

8:19 ↗ where are these documents that you're

8:22 ↗ now referring to I have them in my

8:25 ↗ office

8:26 ↗ they were never formally adopted they

8:29 ↗ were used as tools by as I said the

8:33 ↗ master developer in the city well I

8:36 ↗ would request that you provide those to

8:40 ↗ mr. ll and ask

8:41 ↗ that he provide them to me before the

8:43 ↗ next hearing certainly is it fair to say

8:46 ↗ based on what you just testified to that

8:48 ↗ the numbers of days that are in c-27 are

8:53 ↗ not the number of days that are in

8:55 ↗ Appendix L to the development agreement

8:57 ↗ no they we considered those that the for

9:03 ↗ instance the 117 days was our

9:06 ↗ understanding of the Appendix L chart

9:10 ↗ and how that would the steps and dates

9:14 ↗ in that appendix l chart worked for in

9:19 ↗ implementing Appendix L there was no

9:22 ↗ intent to change why don't you turn the

9:25 ↗ page then to the next Exhibit C 28 and

9:28 ↗ explain to us how you come up with a

9:29 ↗ hundred and seventeen days or getting

9:33 ↗ from the middle to approval of a

9:35 ↗ preliminary flat

9:52 ↗ I haven't studied this in a long time I

9:57 ↗ believe that it is looking through the

10:03 ↗ combining both the Grand Ridge

10:05 ↗ Commission which has to make a

10:07 ↗ recommendation on a preliminary plat as

10:09 ↗ well as City Council I think the best

10:13 ↗ way to explain it rather than trying to

10:16 ↗ work through this document and explain

10:18 ↗ is to provide that chart for you to look

10:22 ↗ at the basis on which we calculated that

10:25 ↗ hundred and seventeen days and I would

10:28 ↗ like to see that chart rather than have

10:30 ↗ you walked through this document is it

10:33 ↗ fair to say just so that we understand

10:36 ↗ how to interpret it that each step for

10:41 ↗ example if we look under the column for

10:43 ↗ the grand Ridge Commission in the middle

10:44 ↗ it has between submit preliminary

10:49 ↗ application and project feasibility

10:51 ↗ meeting it has in days and if you go

10:54 ↗ down further submit application or

10:57 ↗ request including SEPA documentation you

10:59 ↗ have another ten days to complete

11:01 ↗ application decision so if we go in my

11:05 ↗ correct and understanding that if you go

11:07 ↗ through this development and add up the

11:09 ↗ number of days that are between those

11:11 ↗ boxes we'll end up with 117 that's my

11:15 ↗ understanding and that's that was how we

11:17 ↗ took the chart and tried to pull apart

11:21 ↗ the various permits to calculate what

11:26 ↗ that number of days was and the same

11:30 ↗ thing would apply if one was we're

11:32 ↗ trying to calculate the time periods for

11:35 ↗ the columns called administrative and

11:37 ↗ City Council one would add up the days

11:39 ↗ that are in parentheses between the

11:41 ↗ boxes yes although with a preliminary

11:47 ↗ plat for instance then you have to

11:49 ↗ continue to the council column in order

11:54 ↗ to get the final plat yes

11:56 ↗ so okay so let's go back for a moment

12:00 ↗ then to your C 27 the prior page why is

12:07 ↗ there anything on here about there's the

12:10 ↗ third column about final plat what is

12:15 ↗ the final plat decision have to do with

12:18 ↗ the processing of the shelter's

12:23 ↗ administrative site development permit

12:25 ↗ or its other site development permit so

12:31 ↗ there is a preliminary plat followed by

12:35 ↗ a site work permit which is your

12:38 ↗ infrastructure improvements followed by

12:41 ↗ a final plat and the parcels that the

12:46 ↗ land use permits are being placed on

12:48 ↗ would not exist until that final plan

12:52 ↗ recorded and why does and what effect

12:57 ↗ does that have on the processing of the

12:59 ↗ applications for SGP ASDP if you look at

13:03 ↗ your fourth column you you have

13:06 ↗ processing times there that begin the

13:09 ↗ day after final plat approval correct

13:11 ↗ I do but those that date 3:18 is also

13:15 ↗ the date on which the complete letter

13:19 ↗ APLA a complete letter agreement was

13:22 ↗ approved coincidentally I'm and I'm not

13:27 ↗ asking about the letter agreement the

13:30 ↗ point is that you have the processing of

13:32 ↗ the SPP applications beginning the day

13:35 ↗ after final plat approval correct that

13:40 ↗ is one way to read this chart it is also

13:42 ↗ the day on which they were deemed

13:45 ↗ complete which would be the day on which

13:47 ↗ you would begin the processing if you

13:50 ↗ were going straight into land use

13:52 ↗ permits no what I'm trying to find out

13:55 ↗ is it your position that these SDP ASTD

13:59 ↗ applications could not you cannot begin

14:02 ↗ processing them until final plat

14:05 ↗ approval is a

14:07 ↗ well I couldn't begin processing them

14:10 ↗ until they were deemed complete I'm

14:14 ↗ sorry can you say that again I could not

14:16 ↗ begin processing them until they were

14:18 ↗ deemed complete I'm not asking about

14:21 ↗ them I'm asking you whether it is your

14:24 ↗ position and whether this vivid c-27 is

14:29 ↗ intended to state that they could not be

14:33 ↗ processed until the final plan was

14:36 ↗ approved well they couldn't be processed

14:39 ↗ unless they were deemed complete you're

14:41 ↗ not answering my question miss Loman

14:43 ↗ let's leave aside for a moment the

14:45 ↗ question of completeness is it your

14:48 ↗ position that the applications could not

14:50 ↗ be processed until final platypus was

14:53 ↗ obtained from the City Council

15:01 ↗ in the letter agreement on that was

15:04 ↗ approved on March 18th there was the

15:08 ↗ potential of processing them after the

15:12 ↗ final plat was approved using the

15:14 ↗ timeframes in that letter agreement

15:17 ↗ woman I'm sorry I didn't mean to

15:20 ↗ interrupt go ahead

15:25 ↗ based on the information I had there

15:28 ↗ were two scenarios that were laid out

15:30 ↗ one was through the completeness letter

15:35 ↗ processing them after the preliminary

15:37 ↗ plat using the time frames in the letter

15:40 ↗ that Patrick knew Lanie from foster

15:43 ↗ Pepper drafted or if we were processing

15:47 ↗ based on when they were deemed to

15:50 ↗ complete it coincidentally happened

15:53 ↗ after the final plat was approved this

15:57 ↗ woman is it not in fact true that the

16:02 ↗ letter agreement was required because

16:05 ↗ you were refusing to process the SGP

16:09 ↗ applications until there was Blatter

16:11 ↗ move oh I was the sufficiency checklist

16:18 ↗ had elements that included legal

16:22 ↗ descriptions lot lines right of way and

16:27 ↗ easements those materials were not

16:30 ↗ available and because the plat had not

16:34 ↗ been completed my concern was that there

16:38 ↗ were elements that were shown in the

16:40 ↗ preliminary plat which if they were not

16:42 ↗ approved would negate certain aspects of

16:46 ↗ the land use permits for instance

16:49 ↗ require I believe required I'm doing

16:51 ↗ this from memory I haven't looked at

16:53 ↗ these in a while but my memory was there

16:55 ↗ was something like an easement or other

16:58 ↗ provisions that existed when the plat

17:01 ↗ was submitted which would have if they

17:04 ↗ had not been lifted through the planning

17:06 ↗ process would have precluded locating

17:11 ↗ required parking where it was shown in

17:13 ↗ the land use permit and so there was a

17:15 ↗ concern that we were being asked to

17:20 ↗ process land use permits in ways that

17:24 ↗ were not consistent with our some middle

17:26 ↗ requirements and which seemed to leave a

17:30 ↗ lot of variables on the table when we

17:32 ↗ were being asked to render a decision

17:35 ↗ this woman does that mean

17:37 ↗ the answer is yes you were refusing to

17:41 ↗ process the STP ASTP applications unless

17:45 ↗ absent disagreement unless there was

17:48 ↗ final plat approval

17:49 ↗ I was not refusing I was Patrick Mulaney

17:53 ↗ from your office and I had quite a few

17:55 ↗ conversations because I was concerned

17:59 ↗ that I was being asked to agree that

18:02 ↗ certain things existed and were fixed

18:05 ↗ which at the time because the

18:07 ↗ preliminary plat and final plat had not

18:09 ↗ been approved were concepts they were

18:11 ↗ not real right-of-way locations were not

18:15 ↗ approved property lines and easements

18:19 ↗ had not been lifted again miss Loman

18:25 ↗ does that mean you were refusing to

18:27 ↗ process the application or the SDP ASDP

18:31 ↗ applications unless there was plat

18:33 ↗ approval I'm not comfortable with the

18:35 ↗ word refusing we were trying to have a

18:38 ↗ conversation about the discrepancy

18:41 ↗ between the semental requirements and

18:44 ↗ the materials that were being submitted

18:47 ↗ well you've just referred to a

18:49 ↗ discrepancy what was the discrepancy the

18:53 ↗ semental requirements asked for

18:55 ↗ right-of-way location of right-of-way

18:57 ↗ lines legal descriptions lot lines

19:01 ↗ easements the things that were being

19:04 ↗ shown in the land use permits were

19:09 ↗ proposed right-of-way proposed lot line

19:12 ↗ proposed legal descriptions proposed

19:14 ↗ easements or removal of easements and my

19:18 ↗ concern was that we were being asked to

19:20 ↗ render a decision which we would be held

19:23 ↗ to with a lot of variables that we did

19:27 ↗ not know if those would actually be

19:29 ↗ proved in the form in which they were

19:30 ↗ shown in Islam and according to the

19:35 ↗ timelines in the development agreement

19:38 ↗ for example if we turn back to the

19:42 ↗ cities exhibit excuse me shelters

19:45 ↗ exhibit

19:49 ↗ six timeline that you prepared for the

19:53 ↗ City Council on March 19th

19:55 ↗ deployment a plat that have been

19:59 ↗ approved Winn

20:02 ↗ so I'm I'm I'm not comfortable with the

20:05 ↗ word should if we used the number of

20:10 ↗ days that were that we had calculated

20:12 ↗ that appendix L showed and if we did

20:16 ↗ that as if everything was perfect we

20:20 ↗ needed no additional information there

20:22 ↗ were no Corrections it would have been

20:27 ↗ approved on November 26th however as

20:30 ↗ we've seen we asked for additional

20:31 ↗ information in Corrections with the

20:34 ↗ preliminary plat and so that date is a

20:40 ↗ concept so miss lovin the the notice of

20:52 ↗ application that your department gave

20:55 ↗ for the preliminary a plat is entirely

20:58 ↗ consistent with sdp applications that

21:03 ↗ we're talking about correct could you

21:07 ↗ ask that question again please yeah I'm

21:09 ↗ asking you to take a look at exhibit s1

21:14 ↗ which is the notice of application that

21:17 ↗ your department gave for my clients

21:21 ↗ preliminary plat application and if you

21:25 ↗ turn to the second page of that that's

21:28 ↗ the page that shows the site plan shows

21:32 ↗ the rights away it shows the parking it

21:36 ↗ shows the building footprints as we've

21:39 ↗ already heard testimony about is there

21:41 ↗ anything about shelters SGP applications

21:45 ↗ that is inconsistent with age two of the

21:50 ↗ notice of application you gave for their

21:52 ↗ short plat or for their subdivision

21:56 ↗ I don't know that whether it's

21:59 ↗ consistent or not is the relevant

22:01 ↗ question because someone I'm not asking

22:04 ↗ you your opinion about what's relevant

22:06 ↗ I'm asking you is there anything in

22:08 ↗ there that isn't consistent this is not

22:13 ↗ an approved preliminary plat it may

22:15 ↗ match the SDP

22:16 ↗ but that doesn't mean that it would be

22:18 ↗ approved in this form as it or does it

22:21 ↗ not match the SDP applications I don't

22:24 ↗ know I haven't done that comparison I

22:26 ↗ would not be able to answer that without

22:28 ↗ comparing it so you've had this

22:29 ↗ application for almost a year and you

22:32 ↗ haven't compared it to the SDP

22:34 ↗ applications to see whether there's any

22:36 ↗ consistency or not we're still waiting

22:40 ↗ for information on the preliminary plat

22:44 ↗ we have asked for Corrections and for

22:47 ↗ additional information some of that may

22:50 ↗ change what is depicted here

23:18 ↗ [Applause]

23:37 ↗ [Applause]

23:51 ↗ this one is single sided attention

24:15 ↗ this is Castro yes chief

24:31 ↗ we recognize this

24:35 ↗ yes parts of it read between your staff

24:45 ↗ and you and miss I'm yes okay so why

24:50 ↗ don't we start at the back which is

24:53 ↗ where the earliest emails are on the

24:55 ↗ thread and and work towards the

24:57 ↗ beginning so what's the first email

25:04 ↗ dated April 13

25:08 ↗ did you ask what's the date of the April

25:11 ↗ 13 mmm I asked you what the email was

25:13 ↗ that has that date oh it's from kinship

25:19 ↗ Liat core design to city staff and

25:23 ↗ others asking to follow up on a few

25:26 ↗ items discussed at the meeting and once

25:29 ↗ you read the first sentence to us I want

25:31 ↗ to follow up on a few items discussed at

25:33 ↗ the meeting and for which were awaiting

25:34 ↗ answers information or action from city

25:36 ↗ staff and do you remember the date of

25:38 ↗ the meeting to which he's referring no

25:40 ↗ okay so what is your department's

25:46 ↗ response and from whom in the next email

25:51 ↗ thanks for your patience we've been

25:53 ↗ working on a comprehensive response to

25:55 ↗ the follow-up items from our meeting and

25:57 ↗ your answers below and we'll be getting

25:59 ↗ back to you tomorrow

26:00 ↗ and who's that email from sorry Jeanne

26:03 ↗ Lynn who works for the city to kinship

26:06 ↗ Lea at all and you referred to Jeanne

26:10 ↗ LAN last time in your testimony as a

26:12 ↗ Senior Planner is that correct that's

26:14 ↗ correct and how many years experienced

26:16 ↗ so she have I don't know exactly

26:18 ↗ I don't remember as close to 20 isn't it

26:22 ↗ I unless I looked at her resume I don't

26:27 ↗ remember okay and she's been assigned to

26:30 ↗ IH IFC's applications from the outset

26:34 ↗ correct yes

26:36 ↗ she didn't come or go she wasn't one of

26:38 ↗ the staff people you had to hire yes she

26:41 ↗ was she's been part of IH IFC's

26:45 ↗ applications from the beginning correct

26:47 ↗ yes

26:47 ↗ started in June 2017 and the application

26:52 ↗ came in in August 2017 okay and then why

26:56 ↗ don't we though when does she respond

27:01 ↗ then more substantively to the request

27:07 ↗ April 18 okay and then if we can turn

27:10 ↗ over to the next email which is from TIA

27:13 ↗ hime on behalf of IGF C would you read

27:20 ↗ the first paragraph of her email so this

27:23 ↗ is from TIA to Jean and others Jean we

27:27 ↗ are puzzled and concerned that the city

27:29 ↗ has again changed direction that is

27:31 ↗ giving us with respect to rights of way

27:33 ↗ and trail connections that will be

27:35 ↗ required within our platter SPECT to the

27:38 ↗ scope of the transportation analysis and

27:40 ↗ information that will be required are

27:43 ↗ you asking me to read the full paragraph

27:45 ↗ yes we are even more concerned that many

27:48 ↗ of the comments that you provided are

27:50 ↗ not consistent with the development

27:52 ↗ standards set forth in the development

27:53 ↗ agreement to which this application is

27:55 ↗ vested the city has acknowledged that

27:58 ↗ our subdivision application is vested to

28:00 ↗ the development agreement but the city

28:01 ↗ appears to be ignoring the standards in

28:03 ↗ that agreement in the requirements it is

28:06 ↗ imposing on us we request that you

28:07 ↗ provide response to the following

28:09 ↗ questions and comments hey and then what

28:12 ↗ is the next email TIA on June 6 so he

28:23 ↗ made that request on April 26th and

28:26 ↗ she's following up on June 6 what does

28:28 ↗ she say then please advise us to win we

28:31 ↗ can expect a response to my email below

28:33 ↗ as we are unable to revise and submit

28:36 ↗ our preliminary plat application without

28:38 ↗ clarity regarding the city's additional

28:40 ↗ comments and corrections in your email

28:42 ↗ below and then what's the response from

28:45 ↗ Miss Lin on June 8th Jean Lin says we

28:49 ↗ are still working on those items and

28:51 ↗ will we be getting back to you with our

28:52 ↗ responses next weeks thanks for your

28:54 ↗ patience and then what's the next email

28:57 ↗ June 29th

29:00 ↗ from Tia Haim to Jean Lin just checking

29:03 ↗ in again to see how you're coming on the

29:05 ↗ response to my email from April below if

29:07 ↗ you could let me know when we can expect

29:09 ↗ a response that would be helpful and

29:11 ↗ miss Lin's response to that is dated win

29:14 ↗ July 18th and what does it say we are in

29:19 ↗ the process of finalizing our responses

29:21 ↗ and aim to get those to you at the end

29:23 ↗ of this month and what's the next email

29:26 ↗ then August 16th from TIA hi I'm - Jean

29:30 ↗ Lin and what does it say following up

29:35 ↗ again to check on timing of your

29:37 ↗ response the questions in my email from

29:39 ↗ April your last email indicated that we

29:41 ↗ should expect a response by the end of

29:42 ↗ July and is now mid August please advise

29:45 ↗ as to when you anticipate being able to

29:47 ↗ provide a response so that we continue

29:49 ↗ to move our platform okay and then

29:52 ↗ what's the next email it's it appears to

29:54 ↗ be from you it is if it's from me - Tia

29:57 ↗ hi I'm on August 16th and I said I

30:00 ↗ apologize this is taken longer than

30:02 ↗ anticipated we had some coordination

30:04 ↗ with other departments and some research

30:06 ↗ to answer your questions I commit that

30:08 ↗ you will have it next week before I go

30:10 ↗ on vacation the last week of the month

30:12 ↗ okay and then what's the next email

30:16 ↗ August 24th from me to TIA attached our

30:20 ↗ are attached are the following okay so I

30:27 ↗ understand from this that on August 24th

30:31 ↗ your Department responded to the

30:35 ↗ questions that were initially asked in

30:39 ↗ April correct no I believe that there

30:45 ↗ was an initial response and on April

30:49 ↗ 18th from Jeanne Lynn and - that Tia

30:53 ↗ Haim responded asking a lot or not I'm

30:57 ↗ sorry not June 6 April 26 asking a

31:02 ↗ number of additional questions and it

31:04 ↗ was that email that generated a lot of

31:08 ↗ research and coordination on our

31:10 ↗ are to respond to the depth of questions

31:13 ↗ that were asked okay so on April 26 miss

31:20 ↗ hime asked questions that your

31:22 ↗ department responded to in substance on

31:25 ↗ August 24th correct yes oh we have

31:31 ↗ slightly over four months in which my

31:34 ↗ client couldn't do anything because you

31:36 ↗ hadn't responded to their requests is

31:39 ↗ that fair to say we were trying to do

31:42 ↗ the research and answer the depth of

31:44 ↗ questions that were being asked and that

31:46 ↗ took more time than we anticipated okay

31:50 ↗ well we've heard both we've heard

31:52 ↗ comments about how the delay is my

31:54 ↗ clients own fault

31:55 ↗ are you attributing this four months

31:57 ↗ delay to IH IFC we were simply trying to

32:03 ↗ respond to the complexity of comments

32:06 ↗ and research that was requested in a

32:09 ↗ thorough way and what what was complex

32:11 ↗ that require a four month research time

32:14 ↗ to respond to well there were four one

32:19 ↗ thing I wanted to ensure that the

32:22 ↗ comments were thorough

32:25 ↗ which meant that I had to understand the

32:27 ↗ basis that the staff had given because

32:30 ↗ clearly the April 18th response was not

32:35 ↗ sufficient for your client there were

32:38 ↗ requests to provide all the

32:43 ↗ modifications that had taken place to

32:47 ↗ certain Road standards which meant going

32:49 ↗ through twenty years of Records

32:51 ↗ to determine which standards which

32:54 ↗ decisions had modified those standards

32:57 ↗ there were questions about whether other

33:01 ↗ projects had I believe there were

33:04 ↗ questions about whether other projects

33:06 ↗ had utilized or how they had been

33:10 ↗ treated we had to go and look at those

33:12 ↗ records we were trying to provide a

33:15 ↗ thorough response so you testified last

33:19 ↗ time that balls in my Clark clients

33:23 ↗ court today and you can't process the

33:26 ↗ Platt application because you're waiting

33:28 ↗ for a response from them does that

33:29 ↗ correct yes what are you waiting for

33:33 ↗ well following the August 24th letter we

33:39 ↗ received another email response from Ms

33:43 ↗ hime which is the one on the cover

33:44 ↗ October 10th

33:46 ↗ I have been working on the responses to

33:50 ↗ those and expect to have them out in the

33:54 ↗ next week or two

33:55 ↗ well I think what you just said is that

33:57 ↗ my client is waiting to hear from you

33:59 ↗ and not the other way around

34:01 ↗ isn't that what you just said in

34:05 ↗ response to this email yes but we cannot

34:09 ↗ we do not have any drawings resubmitted

34:12 ↗ so we are attempting to answer the

34:16 ↗ questions and provide the information

34:18 ↗ that your client is asking so that they

34:21 ↗ are ready to resubmit their drawings so

34:24 ↗ what so what request to my client have

34:29 ↗ you submitted for additional drawings in

34:34 ↗ I believe it was January and March

34:38 ↗ comments were sent on the drawings we

34:43 ↗ use a electronic plan review and on

34:47 ↗ those drawings were questions

34:51 ↗ suggestions clarifications I don't have

34:56 ↗ the list of comments in front of me so I

35:00 ↗ am assuming those are the kinds of

35:02 ↗ things that were included in that letter

35:07 ↗ to your client well what I'm asking you

35:10 ↗ to identify if you can is what

35:12 ↗ communication has been given to my

35:14 ↗ client to tell my client what it needs

35:17 ↗ to do - for you to continue processing

35:21 ↗ the application that they submitted 15

35:25 ↗ months ago so as I said in January and

35:29 ↗ March I believe I'm doing this from

35:31 ↗ memory

35:33 ↗ were there was a correction letter sent

35:37 ↗ to your client okay well is it fair to

35:42 ↗ say that the October email from Miss

35:45 ↗ hime is explaining to you that they need

35:49 ↗ more information in order to understand

35:51 ↗ what you're asking for I that yes they

35:56 ↗ are asking for questions and they are

35:58 ↗ providing us with additional questions

36:00 ↗ and clarifications well they're asking

36:02 ↗ you to clarify what you want so they can

36:05 ↗ respond correct no I'm not sure they're

36:10 ↗ asking what we want I think they are

36:13 ↗ challenging some of materials that we

36:19 ↗ provided or requests that we made trying

36:22 ↗ to understand the basis as well as the

36:28 ↗ standards and are you is what you just

36:31 ↗ said is that a characterization of the

36:33 ↗ the email and exhibit s11 that we've

36:36 ↗ just been talking about could you answer

36:39 ↗ that again please

36:40 ↗ I'm asking if the testimony you just

36:43 ↗ gave is your characterization of Miss

36:46 ↗ Himes email her last response and email

36:51 ↗ chain we've been talking about well I

36:55 ↗ think there it's over the course of this

37:00 ↗ series of communications there have been

37:04 ↗ both requests for clarification and

37:12 ↗ questioning the basis for some of the

37:14 ↗ things that we have asked for and I'm

37:17 ↗ but I'm trying to understand is if your

37:20 ↗ testimony is based on Ms Himes

37:24 ↗ email which is the last one in the chain

37:26 ↗ we've been talking about or whether

37:28 ↗ there's another document that you are

37:31 ↗ talking about

37:37 ↗ so as I have responded to his times

37:47 ↗ questions and requests I have created a

37:53 ↗ separate document that assembles her

37:58 ↗ requests and our responses into a single

38:01 ↗ document for easier understanding and

38:04 ↗ referencing so some of it is some of the

38:08 ↗ response is in this email and some is in

38:13 ↗ that document because I think it's

38:15 ↗ important to understand be able to see

38:18 ↗ both the questions and the responses as

38:20 ↗ they're unfolding is the document you

38:23 ↗ were just referred to and described

38:25 ↗ something that's been given to my client

38:27 ↗ yes it's how I respond to her it's been

38:30 ↗ it was for instance in my August 24th

38:36 ↗ with response I say attached are the

38:39 ↗ following are responses the

38:41 ↗ administrative minor modifications and

38:44 ↗ [Music]

38:46 ↗ and then a link to a SharePoint site

38:50 ↗ okay and again all I'm trying to do now

38:52 ↗ is make sure we have the universe of

38:54 ↗ documents so you're saying if we pull up

38:57 ↗ the attachments to that email that will

39:00 ↗ be the universe of communications to my

39:03 ↗ client about the city's expectations I'm

39:09 ↗ not sure there are expectations I think

39:12 ↗ there are responses to your clients

39:15 ↗ questions and requests miss Sullivan I'm

39:20 ↗ trying to determine whether we have all

39:23 ↗ the documents identified i'm simply if

39:27 ↗ you want to challenge my

39:28 ↗ characterization of the document that's

39:30 ↗ fine but please answer the question are

39:33 ↗ there any other documents other than the

39:35 ↗ email in the attachment to it the email

39:39 ↗ and the attachments to it are together

39:43 ↗ that is that is the things i am

39:45 ↗ referring to

39:46 ↗ okay thank you so let's go back for a

39:49 ↗ moment to the chart you prepared for

39:52 ↗ this hearing see 27

40:12 ↗ you have

40:19 ↗ I know Platt approval March 17th they

40:23 ↗ have the to do the medical office

40:29 ↗ building the center column medical

40:31 ↗ office building processed over a 50 day

40:36 ↗ time period and approved on May 7th

40:39 ↗ correct this is as I said straight

40:42 ↗ processing time that does not take any

40:44 ↗ requests for information for

40:46 ↗ clarification or Corrections into

40:49 ↗ account and the the time periods on here

40:54 ↗ are obviously all three of those time

40:57 ↗ periods for the retail the mo B and the

40:59 ↗ storage are shorter than the April to

41:03 ↗ August time period in which my client

41:05 ↗ was sitting waiting for you to respond

41:07 ↗ to their questions about the plat

41:09 ↗ application correct I don't understand

41:17 ↗ the relationship between those two well

41:20 ↗ you've shown a relationship on this

41:23 ↗ chart between plat and SCP and in part

41:27 ↗ I'm trying to understand what you think

41:29 ↗ the relationship is is there a

41:31 ↗ relationship or is there not the plat we

41:40 ↗ sent out for Corrections and we are

41:44 ↗ waiting Risa middle we recognize that

41:46 ↗ there is a conversation going back and

41:48 ↗ forth for clarification prior to your

41:51 ↗ client resubmitting the land use permits

41:55 ↗ that are shown here have been on a

41:59 ↗ separate timeline based on responses

42:04 ↗ from you and your client is it and I

42:12 ↗ apologize if you've answered this

42:14 ↗ question but the agreement that you

42:18 ↗ referred to on March 18th that again was

42:23 ↗ necessary because of the explanation

42:27 ↗ you've already given us that you were

42:29 ↗ concerned that the

42:31 ↗ of information shown on the plat didn't

42:34 ↗ yet exist correct yes yes and you in

42:42 ↗ fact approved a sharp light application

42:45 ↗ for polygons months after you approved

42:50 ↗ the SDP application for the same project

42:53 ↗ didn't you I'm sorry which same project

42:56 ↗ are we referring to

43:26 ↗ I'm referring to the West Ridge

43:29 ↗ townhomes one south polygon application

43:36 ↗ at you your Department approved John

43:39 ↗ July 19th of 2016 even though you didn't

43:45 ↗ approve the short plat that created the

43:47 ↗ lot on which that project was located

43:49 ↗ until the January of the following year

43:51 ↗ I don't have that material in front of

43:54 ↗ me and I am unable to answer without

43:56 ↗ looking at those materials and reviewing

43:59 ↗ the timelines you don't have any

44:01 ↗ recollection of doing I remembered that

44:03 ↗ there were permits processed at that

44:06 ↗ time I don't know exactly which Lots

44:12 ↗ were created in which way and at what

44:15 ↗ time and how all those pieces fit

44:17 ↗ together is it your belief that you have

44:21 ↗ treated IH IFC's applications in the

44:27 ↗ same way that you have treated polygons

44:28 ↗ applications yes so how is it then that

44:33 ↗ polygons

44:50 ↗ polygons Westridge north single-family

44:53 ↗ plat application excuse me

45:10 ↗ polygons Westridge townhomes north

45:13 ↗ application of the the names are very

45:16 ↗ confusing and I apologize the extent I'm

45:18 ↗ adding to them but West Ridge townhomes

45:21 ↗ north application was submitted on

45:26 ↗ October 20th the two south thousand

45:28 ↗ seventeen I'm not expecting you to

45:30 ↗ remember the exact date but you recall

45:33 ↗ that application being submitted after

45:35 ↗ the end of the build-out period correct

45:37 ↗ yes and at application was processed

45:41 ↗ under the procedures in the development

45:46 ↗ agreement correct yes and in fact the

45:49 ↗ application was approved in May of this

45:53 ↗ year under the procedures and the

45:55 ↗ standards in the development agreement

45:57 ↗ correct yes you your testimony is that

46:02 ↗ you're treating ih IFC and polygons in

46:06 ↗ the same error and reasonable manner if

46:11 ↗ the question it seems to imply that we

46:16 ↗ should not be using this COIs Highlands

46:19 ↗ development agreement and I think that

46:20 ↗ speaks to your original set of questions

46:22 ↗ regarding the affordable housing and TDR

46:26 ↗ agreements that Westridge undertook and

46:29 ↗ were in which were approved by council

46:31 ↗ which was the basis for which set of

46:38 ↗ regulations applied to them well so

46:41 ↗ you're you're saying that the West Ridge

46:43 ↗ townhomes North application the one I

46:46 ↗ just described is also processed under

46:49 ↗ the development agreement because of

46:52 ↗ exhibits C 33 and C 34

47:07 ↗ I yes I assume so but again I defer to

47:12 ↗ mr. Niven who has far greater expertise

47:15 ↗ in those documents than I do

47:17 ↗ I asked the question because I thought

47:19 ↗ it was only the West Ridge block for

47:22 ↗ affordable housing application that was

47:27 ↗ assessed under the already expired

47:29 ↗ development agreement because of these

47:31 ↗ exhibits c33 and c34 but it's your

47:36 ↗ understanding that that is also the

47:39 ↗ justification for West Ridge townhomes

47:43 ↗ north yes because there's affordable

47:45 ↗ housing in that project ok so ok

47:55 ↗ and you explained any other reason why

47:59 ↗ polygons application other than whatever

48:04 ↗ mr. Niven identifies in Exhibit C 33 and

48:08 ↗ 34 other than that is there any other

48:11 ↗ explanation you're aware of for the

48:13 ↗ disparate treatment of polygon and IH

48:16 ↗ IFC that's your characterization I'm not

48:21 ↗ saying that it was disparate but you

48:23 ↗ processed one under the development

48:26 ↗ agreement and you're processing my

48:27 ↗ client under the replacement regulations

48:30 ↗ so why don't we assume that that's

48:32 ↗ disparate treatment and I'm asking if

48:35 ↗ there's any other explanation or

48:38 ↗ justification other than whatever mr.

48:40 ↗ Niven can identify and exhibits 30 C 33

48:43 ↗ and C 34 I think this speaks to vesting

48:46 ↗ and which set of regulations apply to

48:49 ↗ each set of permits based on the vesting

48:56 ↗ provisions that the Council adopted in

48:59 ↗ Solem and I I don't understand how that

49:01 ↗ was responsive to my question I'm simply

49:05 ↗ asking are you aware of any other

49:08 ↗ Authority explanation justification for

49:12 ↗ processing polygons under the

49:14 ↗ development and an IHI of C under the

49:17 ↗ replacement regulations other than

49:19 ↗ exhibits C 33 and C 34 if I think you

49:25 ↗ can answer that yes or no and if the

49:26 ↗ answer is yes then you can tell us what

49:28 ↗ the other Authority is so if I'm

49:36 ↗ understanding your question your

49:37 ↗ questions I believe your that we're

49:41 ↗ saying that C 33 and C 34 applied to

49:47 ↗ Westridge North town homes and linked

49:54 ↗ them to or place them under the

49:57 ↗ Highlands development agreement while

49:59 ↗ the replacement regulations that the

50:01 ↗ council adopted applied to your clients

50:06 ↗ site development

50:07 ↗ miss lemon I'm asking you whether

50:11 ↗ there's any other explanation Authority

50:16 ↗ justification or processing polygon

50:20 ↗ under the development agreement and IHI

50:22 ↗ of C under replacement regulations

50:26 ↗ besides exhibit C 33 and C 34 is there

50:30 ↗ or is there not I thought I just

50:33 ↗ answered that question by saying that

50:35 ↗ the replacement regulations applied to

50:37 ↗ your clients SDP okay so why that with

50:43 ↗ all due respect begs the question why do

50:46 ↗ the replacement regulations apply to my

50:49 ↗ client and not the polygon is there any

50:53 ↗ explanation other than C 33 and C 34

50:57 ↗ that you can identify so it is the

51:00 ↗ documents that were adopted in

51:03 ↗ association with transfer of development

51:07 ↗ rights and the affordable housing

51:09 ↗ agreement I am NOT an expert on those

51:12 ↗ and I'm feeling very uncomfortable

51:14 ↗ saying that these are the absolute only

51:18 ↗ documents that's why I've asked for mr.

51:21 ↗ Niven to answer these questions well and

51:24 ↗ I deferring questions about the content

51:27 ↗ of these documents too until mr. Nibin

51:30 ↗ returns I'm asking you whether you're

51:33 ↗ aware of anything other than these two

51:35 ↗ documents that you're asking mr. Niven

51:37 ↗ to explain well as as you saw at the

51:41 ↗ last meeting there was some confusion

51:43 ↗ about the full universe of documents

51:47 ↗ that applied and there was a map that

51:52 ↗ mr. Niven provided via mr. lile there

51:55 ↗ are these documents I do not feel

51:57 ↗ comfortable that I know the full

52:00 ↗ universe of documents to say that C 33

52:02 ↗ and C 34 are the only documents all I'm

52:05 ↗ asking for is what you as the land

52:08 ↗ manager are aware of are you aware of

52:11 ↗ any other documents I would have to do

52:14 ↗ research to feel comfortable answering

52:15 ↗ that question under these circumstances

52:17 ↗ as you stand here to

52:19 ↗ night miss Loman are you aware of any

52:22 ↗ other documents that explained why your

52:26 ↗ department processed polygons

52:30 ↗ application for the West Ridge townhomes

52:33 ↗ north project under the development

52:37 ↗ agreement process and regulations and is

52:40 ↗ refusing to do so for my client refusing

52:48 ↗ is not the word I would use and I and

52:52 ↗ let me finish there are also major

52:57 ↗ amendments to the wash TDR agreement and

53:00 ↗ it's Kuo Highlands development agreement

53:02 ↗ that I am not familiar with and I don't

53:03 ↗ know if there are any provisions in

53:05 ↗ there so that's why I'm uncomfortable

53:07 ↗ making the declaration that you're

53:09 ↗ asking me to make all I'm asking you to

53:11 ↗ tell us is what you know miss Loman

53:14 ↗ answer Snyder I think I think that

53:17 ↗ you've adequately asked the question and

53:18 ↗ and miss Loman has done her best to

53:21 ↗ respond a probe as appropriately as she

53:23 ↗ feels comfortable doing it I think

53:25 ↗ continuing on that same question with

53:26 ↗ now about the fifth time would not be

53:29 ↗ very profitable

53:42 ↗ are you familiar with the vesting

53:45 ↗ provisions of the development agreement

53:46 ↗ miss lumen of the replacement

53:50 ↗ regulations or of the Issaquah Highlands

53:53 ↗ development agreement or of another

53:56 ↗ development agreement well the only

53:59 ↗ development agreement I'm aware of that

54:01 ↗ says anything about vesting is yosakoi

54:05 ↗ Highlands development agreement are you

54:07 ↗ aware of another no it's just you said

54:10 ↗ development agreement there's been some

54:12 ↗ confusion around the agreements that

54:15 ↗ polygon the development agreements that

54:18 ↗ polygon executed and I want to make sure

54:19 ↗ that I'm answering the question you're

54:21 ↗ asking me okay well let's assume that if

54:23 ↗ I don't say otherwise any time I refer

54:25 ↗ to a development agreement I'm referring

54:27 ↗ to the Issaquah Highlands development

54:29 ↗ agreement and my question is are you

54:31 ↗ familiar with the vesting provisions in

54:33 ↗ it I think you'd have to tell me which

54:36 ↗ provisions you're referring to

54:38 ↗ well I'm referring to Section C 23 we

54:43 ↗ could bring that up please that is

54:46 ↗ called vesting in the development

54:48 ↗ agreement

55:04 ↗ referring to the section of the

55:06 ↗ development agreement is three

55:08 ↗ [Music]

55:28 ↗ so let's start yeah section 323 as a

55:31 ↗ whole are you familiar with it I have

55:36 ↗ read it Hey and when did you first read

55:40 ↗ it around the time that the consulting

55:44 ↗ firm that I worked for was hired to

55:48 ↗ provide staff services to the city of is

55:50 ↗ qua didn't you approximately what year

55:51 ↗ that was probably 1996 1996 so you've

55:57 ↗ been aware of this language for what 22

56:00 ↗ years it's something like that

56:02 ↗ hey could we scroll down to read 23 I

56:08 ↗ think it's to the section called after

56:13 ↗ build-out can you read that for us

56:17 ↗ please

56:18 ↗ 3.23 - after build-out the development

56:22 ↗ standard shall continued to apply to all

56:24 ↗ applications for implementing approval

56:26 ↗ submitted after expiration of the

56:29 ↗ build-out period except either party may

56:31 ↗ terminate this agreement and the zoning

56:33 ↗ and development regulations may be

56:35 ↗ modified as provided in Section 5 . 13

56:40 ↗ okay then we're gonna offer a new

56:43 ↗ exhibit

57:12 ↗ I think you may have it's quite thick

57:30 ↗ I'm sorry mr. Stanner could you clarify

57:36 ↗ again what the number of this exhibit

57:38 ↗ was thank you you recognize those twelve

57:50 ↗ yes

57:51 ↗ is this a PowerPoint that you prepared

57:54 ↗ yes and who did you show this PowerPoint

57:56 ↗ to well it doesn't say on the front page

58:03 ↗ I believe February 7th was the land and

58:07 ↗ short committee but I am guessing okay

58:10 ↗ my understanding is that the seventh was

58:13 ↗ a community meeting and the land and

58:15 ↗ short committee was the next night no

58:17 ↗ yes you're correct okay so you showed it

58:20 ↗ to both the city council committee unto

58:22 ↗ a community group no this is the one

58:26 ↗ that was prepared for the is kryolan's

58:28 ↗ community community and I believe I had

58:31 ↗ a separate presentation for the land in

58:34 ↗ short committee okay well let's turn to

58:36 ↗ if you would please towards the back

58:39 ↗ it's the it's the fourth page from the

58:44 ↗ back called vesting you see that

58:51 ↗ there and what's why don't you read the

58:54 ↗ first bullet point to us the first

59:01 ↗ bullet point well whatever you want to

59:04 ↗ call that the first signaled statement

59:07 ↗ there the development agreement does not

59:10 ↗ provide regulations or guidance on

59:12 ↗ vesting of projects you knew for over 20

59:18 ↗ years that the vesting agreement did

59:21 ↗ provide regulations on vesting of

59:23 ↗ projects did you not yes I imagined that

59:29 ↗ this was shorthand to indicate what

59:32 ↗ happened following the build-out period

59:36 ↗ miss is that what it says miss Loman I

59:42 ↗ believe the words are here and it says

59:45 ↗ guidance on vesting of projects within

59:49 ↗ the context though of ending the

59:53 ↗ development agreement as the title slide

59:55 ↗ indicates miss Loman you told the City

59:58 ↗ Council in the community that the

1:00:00 ↗ development agreement that you had been

1:00:02 ↗ familiar with for over 20 years and that

1:00:04 ↗ expressly provides regulations for

1:00:07 ↗ vesting did not provide those

1:00:09 ↗ regulations correct not related to

1:00:14 ↗ ending the development agreement I'm

1:00:16 ↗ sorry what not related to ending the

1:00:18 ↗ development agreement you presented this

1:00:21 ↗ slide on multiple occasions did you not

1:00:24 ↗ do the City Council before it ended the

1:00:30 ↗ development agreement telling them that

1:00:31 ↗ the development agreement did not

1:00:33 ↗ provide regulations that it does provide

1:00:43 ↗ mr. chairman I'm going to respectfully

1:00:45 ↗ object that said an argumentative

1:00:47 ↗ question and miss Loman has already

1:00:49 ↗ essentially answered the question unless

1:00:56 ↗ you're directing the quit witness not to

1:00:58 ↗ answer then I think I'm entitled to an

1:01:01 ↗ answer I don't think she needs to I

1:01:03 ↗ think she's answered it why did you put

1:01:10 ↗ this language in the PowerPoint that you

1:01:14 ↗ showed to the community in the City

1:01:16 ↗ Council I think that we were trying to

1:01:22 ↗ explain a relatively complex and

1:01:30 ↗ variable concept of vesting to a lay

1:01:37 ↗ audience you consider the City Council a

1:01:44 ↗ lay audience well they are not acting as

1:01:48 ↗ attorneys we have a range very smart

1:01:52 ↗ professional people however this is

1:01:57 ↗ clearly a complex legal argument since

1:02:03 ↗ we are here well there may be other

1:02:07 ↗ explanations for why we're here then the

1:02:09 ↗ complexity of the legal argument but

1:02:16 ↗ okay so do you want to provide any other

1:02:19 ↗ explanation than you've already given

1:02:21 ↗ for why you told the City Council the

1:02:23 ↗ development agreement does not provide

1:02:26 ↗ regulations on vesting

1:02:40 ↗ mr. well asked you twice whether you had

1:02:45 ↗ ever told my client or anyone else that

1:02:48 ↗ they were permanently vested correct do

1:02:50 ↗ you remember I know he asked me that I

1:02:53 ↗ don't remember how many times okay and

1:02:56 ↗ what was your answer that no I hadn't

1:03:00 ↗ hey so what is permanent vesting

1:03:12 ↗ so I made an assumption that permanent

1:03:16 ↗ vesting would be vesting that was

1:03:20 ↗ established in such a manner that it was

1:03:28 ↗ not open for the council to make a

1:03:34 ↗ determination to termination on well

1:03:40 ↗ explained to me permanent vesting as

1:03:42 ↗ opposed to some other kind of vesting I

1:03:48 ↗ thought that's what I just did well is

1:03:52 ↗ it your understanding that if you're

1:03:56 ↗ permanently vested the City Council

1:03:58 ↗ can't take it away but if you're not

1:04:02 ↗ permanently vested they can that what

1:04:06 ↗ you're telling us I'm not saying that

1:04:08 ↗ they can take it away there are things

1:04:11 ↗ like if you've submitted a building

1:04:13 ↗ permit it is established through state

1:04:19 ↗ law that you are vested and language

1:04:24 ↗ that that council could choose would not

1:04:30 ↗ be able to impact that vesting so state

1:04:34 ↗ law also says you can best pursuant to a

1:04:37 ↗ development agreement does it not yes

1:04:41 ↗ so again will you agree that you and mr.

1:04:47 ↗ Niven both repeatedly told my client

1:04:49 ↗ that they could vest to the development

1:04:54 ↗ agreement and that the termination of

1:04:56 ↗ the development agreement would not

1:04:57 ↗ affect their vested rights I don't

1:05:00 ↗ remember making those statements you

1:05:03 ↗ remember mr. Nevin making those

1:05:05 ↗ statements I that it would not terminate

1:05:11 ↗ with the development agreement I do not

1:05:13 ↗ recall him saying that

1:06:15 ↗ [Applause]

1:06:22 ↗ take a look at that while we bring it up

1:06:24 ↗ on the screen please

1:06:42 ↗ are you familiar with s13 no I mean I

1:06:49 ↗ may have seen it I this is a letter from

1:06:51 ↗ Keith Niven to Nick Abdel Noir I'm not

1:06:55 ↗ cc'd on it I don't know if I have

1:06:58 ↗ received it previously

1:07:10 ↗ okay well I'll ask mr. Niven about this

1:07:12 ↗ if he returns to the stand but what it's

1:07:15 ↗ once you turn to the top of the second

1:07:17 ↗ page and read what mr. Libin wrote

1:07:21 ↗ requirements for a complete application

1:07:23 ↗ necessary to vest are set forth by

1:07:26 ↗ Municipal Code I am C 1801 oh five Oh

1:07:30 ↗ seat subsection C subsection sub

1:07:34 ↗ subsection one sets forth the

1:07:36 ↗ requirements for a complete application

1:07:38 ↗ when an application is submitted meeting

1:07:41 ↗ those requirements the application is

1:07:42 ↗ vested and would be unaffected by any

1:07:45 ↗ future changes in zoning or development

1:07:47 ↗ regulations so long as the application

1:07:50 ↗ remains active imc 18.04 - to OD - this

1:07:57 ↗ would include any changes the result of

1:07:59 ↗ termination of the Issaquah Hyland's

1:08:01 ↗ development agreement okay so we have

1:08:03 ↗ mr. Nevin telling polygons that vesting

1:08:08 ↗ would not end as a result of

1:08:11 ↗ determination of the assuage Islands

1:08:13 ↗ development agreement does that a fair

1:08:14 ↗ characterization I think it's best to

1:08:17 ↗ ask mr. Niven what he is intending by

1:08:19 ↗ the statement I didn't that was my

1:08:21 ↗ question I asked you if I had fairly

1:08:23 ↗ characterized that paragraph

1:08:40 ↗ so I'm ok ask me the question again err

1:08:49 ↗ to say that mr. Niven expressly wrote

1:08:52 ↗ that vesting would survive termination

1:08:55 ↗ of the development agreement under the

1:08:57 ↗ circumstances he's identified

1:09:21 ↗ is it fair to say this is an email from

1:09:24 ↗ you to mr. Apple an hour who who wrote

1:09:27 ↗ to who mr. Nibin wrote exhibit s13 yes

1:09:33 ↗ this is the same person

1:09:42 ↗ and what is the date of this

1:09:47 ↗ communication December 1st 2016 okay and

1:09:55 ↗ what do you say there at the conclusion

1:09:58 ↗ of your first paragraph about a separate

1:10:07 ↗ vesting summary from mr. Niven can you

1:10:10 ↗ explain that to us please I'm sorry say

1:10:13 ↗ that again I'm trying to look at the

1:10:15 ↗ language and listen take your time I

1:10:17 ↗ want you to familiarize yourself with

1:10:19 ↗ the first paragraph and then explain the

1:10:23 ↗ reference to a summary by mr. Niven

1:10:42 ↗ well this although not marked as such is

1:10:45 ↗ a draft letter that was sent with the

1:10:50 ↗ intent of trying to clarify entitlements

1:10:55 ↗ and infrastructure allotments associated

1:10:59 ↗ with their property this was not

1:11:04 ↗ finalized and so I I don't know that and

1:11:09 ↗ I don't know that the vesting

1:11:12 ↗ requirements the last phrase using

1:11:14 ↗ vesting requirements summarized by the

1:11:16 ↗ DSD director Keith Niven in a separate

1:11:19 ↗ interpretation I don't know whether that

1:11:22 ↗ was issued I don't have that document

1:11:25 ↗ well first of all why don't you turn to

1:11:29 ↗ the last page of Exhibit C 14 there's an

1:11:34 ↗ approved stamp right is that your stamp

1:11:37 ↗ yes so you approve the content of this

1:11:40 ↗ correct initially yes then there was a

1:11:45 ↗ determination around this time we

1:11:54 ↗ recognize that shelter Holdings had some

1:12:00 ↗ property nick abdel nor had some

1:12:03 ↗ property as a representative of polygons

1:12:07 ↗ in response to this we received many

1:12:11 ↗ questions and clarifications and at the

1:12:15 ↗ time determined not to follow through

1:12:17 ↗ with it are you saying this document

1:12:19 ↗ wasn't communicated to mr. young or mr.

1:12:22 ↗ Allen our it was sent to them but we

1:12:26 ↗ never received I don't believe that we

1:12:29 ↗ received signatures back from them and

1:12:31 ↗ so it was never fully executed oh that

1:12:33 ↗ you know I'm not asking about that that

1:12:35 ↗ you sent this you approved it and you

1:12:38 ↗ sent it to mr. Allen our and mr. Yong

1:12:40 ↗ correct it would seem so I assumed that

1:12:45 ↗ okay and he exhibit s13 the one I handed

1:12:50 ↗ out before this where mr. Nevin says

1:12:54 ↗ that vesting Will Survive Turman

1:12:56 ↗ Viswa Highlands agreement that's the

1:12:59 ↗ only vesting summary by mr. Niven that

1:13:02 ↗ we have seen in response to exhibit s 14

1:13:06 ↗ or you are you aware of another one I

1:13:10 ↗ did not that was the director and the

1:13:13 ↗ city attorney's purview and I am

1:13:18 ↗ uncertain of which documents were

1:13:20 ↗ produced around vesting so I I couldn't

1:13:23 ↗ attest to that okay all I'm asking for

1:13:26 ↗ is your personal knowledge you're not

1:13:28 ↗ aware of it any other correct I I don't

1:13:31 ↗ know that there were other applicants

1:13:33 ↗ who were asking about vesting as we came

1:13:37 ↗ to the conclusion of the development

1:13:39 ↗ agreement and I directed them to keep

1:13:41 ↗ Niven and I don't know what the outcome

1:13:44 ↗ of those conversations were what is the

1:13:51 ↗ West's main problem I'm going to

1:13:55 ↗ respectfully object that's calls for a

1:13:57 ↗ legal conclusion I believe that we

1:13:58 ↗ addressed that during our previous

1:14:00 ↗ testimony and our previous objection

1:14:03 ↗ which I believe the the Commission

1:14:05 ↗ sustained his sloman has testified to

1:14:10 ↗ the City Council at the landed shore

1:14:12 ↗ committee about the West's main problem

1:14:14 ↗ so she she has historically spoken about

1:14:19 ↗ it in public and I think I'm entitled to

1:14:21 ↗ ask her about it she made

1:14:24 ↗ representations about it to the City

1:14:25 ↗ Council and we can play the tape if we

1:14:27 ↗ need to I do not remember providing any

1:14:33 ↗ level of detail that was predominantly

1:14:37 ↗ the city attorney and mr. Niven I may

1:14:40 ↗ have referenced it in a slide but I am

1:14:44 ↗ NOT a lawyer and uncomfortable in this

1:14:48 ↗ setting being responsible to

1:14:49 ↗ characterize legal decisions okay well

1:14:52 ↗ my suggestion if it's okay with the

1:14:55 ↗ Commission is we do have a video excerpt

1:14:58 ↗ from the councilmember from the council

1:15:00 ↗ meeting we're missile manned talked

1:15:02 ↗ about this issue we can take a short

1:15:03 ↗ 5-minute break we can set that up and

1:15:05 ↗ and we can

1:15:07 ↗ are they still going to be asking her to

1:15:09 ↗ make a legal decision is that I think

1:15:11 ↗ I'm not asking is to make a legal

1:15:12 ↗ conclusion I'm asking her to testify

1:15:14 ↗ about issues she's already testified

1:15:17 ↗ about in public and again mr. chairman

1:15:21 ↗ to the extent that that counsels a

1:15:23 ↗ question is what what is the West's main

1:15:25 ↗ problem that is inherently a request for

1:15:27 ↗ a legal conclusion and this lay witness

1:15:30 ↗ should not be expected to answer that or

1:15:31 ↗ be able to answer that well the city has

1:15:37 ↗ repeatedly stated that it was allowing

1:15:42 ↗ applicants to vest when they applied for

1:15:44 ↗ land use permits because that was

1:15:47 ↗ compelled by the West Maine case miss

1:15:49 ↗ Loman made that representation to the

1:15:52 ↗ City Council and Miss Kerry has informed

1:15:54 ↗ me that we can play the videotape right

1:15:56 ↗ now I think it would be helpful to

1:15:58 ↗ refresh her recollection with what she

1:16:00 ↗ said and then we can ask questions based

1:16:02 ↗ on testimony she has already given in

1:16:05 ↗ public yeah I think I think we should

1:16:10 ↗ see the video I think we should

1:16:11 ↗ constrain the questioning so that it

1:16:14 ↗ doesn't ask mrs. Lowman to reach any

1:16:19 ↗ legal legal conclusion about that

1:16:21 ↗ particular case but without seeing what

1:16:26 ↗ okay we'll watch thank you and we will

1:16:30 ↗ use the same caveat that mr. Brennan

1:16:33 ↗ offered that Erika mr. Brennan offered

1:16:35 ↗ that what we aren't going to be asking

1:16:37 ↗ her to come up with legal conclusion

1:16:39 ↗ well and I understand the ruling but I

1:16:42 ↗ have to respectfully object because miss

1:16:46 ↗ Loman in her capacity of as the land use

1:16:49 ↗ manager has repeatedly had to make

1:16:52 ↗ decisions about vested rights in the law

1:16:54 ↗ and I'm simply asking her about the

1:16:56 ↗ scope of her own activities in her

1:16:59 ↗ position with the city everyone

1:17:01 ↗ recognizes she's not a lawyer and her

1:17:04 ↗ opinions are those of someone in her

1:17:06 ↗ position as a Senior Planner but I think

1:17:09 ↗ I'm entitled to ask questions about how

1:17:11 ↗ she interprets and applies the city code

1:17:14 ↗ and why she does so okay we'll see

1:17:25 ↗ so just for the record before I play

1:17:27 ↗ this this is a video YouTube video from

1:17:31 ↗ the Issaquah City Council in in short

1:17:33 ↗ committee it's dated November 21st 2017

1:17:36 ↗ and we're starting at the hour oh nine

1:17:39 ↗ eleven mark we are specific that we only

1:17:46 ↗ are vesting the ones that are vested by

1:17:49 ↗ state law now there was some concern or

1:17:55 ↗ discussion around West Main versus

1:17:58 ↗ Bellevue which is a land use law case

1:18:01 ↗ that if you have linked permits that

1:18:06 ↗ those permits become vested so in our

1:18:10 ↗ case to submit for a building permit you

1:18:13 ↗ have to have an approved land use permit

1:18:15 ↗ so there was a concern I think that was

1:18:19 ↗ part of the thinking about with the

1:18:20 ↗ moratorium why certain permits were

1:18:24 ↗ included as part of the vesting miss

1:18:33 ↗ Loman could return to the stand in place

1:18:42 ↗ and before I represented the questions

1:18:46 ↗ let me out for one more exhibit please

1:18:48 ↗ which is another PowerPoint

1:19:17 ↗ fifteen

1:19:24 ↗ his s 15 another PowerPoint that you

1:19:27 ↗ presented to the land in Germany yes has

1:19:31 ↗ that on the same date as the video we

1:19:33 ↗ just saw I guess so I wasn't really

1:19:37 ↗ paying attention to the date of the

1:19:39 ↗ video and I would like you to turn when

1:19:43 ↗ you're ready to it once again it's the

1:19:52 ↗ fourth page from the back called vesting

1:19:54 ↗ topic for yes

1:20:20 ↗ okay so I'm not sure what I should call

1:20:24 ↗ them but one of a better word I'm going

1:20:29 ↗ to call them bullets the first the

1:20:31 ↗ fourth bullet down says West main versus

1:20:34 ↗ Bellevue land use required for building

1:20:36 ↗ permit so is this the topic you were

1:20:39 ↗ just speaking on yes so can you explain

1:20:45 ↗ what this means in the city of Issaquah

1:20:51 ↗ or what it did mean I think that what

1:20:57 ↗ this was speaking to is the point the

1:21:04 ↗ land use case we were not speaking as

1:21:08 ↗ much about the city I believe there was

1:21:11 ↗ a separate I don't have my materials

1:21:14 ↗ here but I believe there was a separate

1:21:15 ↗ City Attorney memo related to that and I

1:21:20 ↗ was simply setting that up for the

1:21:25 ↗ council committee it's fair to say is it

1:21:29 ↗ not that in the city of Issaquah one has

1:21:33 ↗ to have your department requires let me

1:21:37 ↗ phrase it that way that one have a land

1:21:40 ↗ use decision before one can apply for a

1:21:43 ↗ building permit that isn't consisted

1:21:45 ↗ with consistent with the IMC provision

1:21:47 ↗ that's not my question is Slom and my

1:21:51 ↗ question is that your department does it

1:21:53 ↗ not requires applicants to have a land

1:21:57 ↗ use decision before they can apply for a

1:22:00 ↗ building permit if the city code says

1:22:05 ↗ that you can submit a building permit at

1:22:07 ↗ any time then you can submit a building

1:22:09 ↗ permit at any time miss Loman we're in

1:22:12 ↗ another pattern where you're refusing to

1:22:13 ↗ answer my question my question is about

1:22:16 ↗ the practice of your department your

1:22:19 ↗ department refuses to accept a building

1:22:22 ↗ permit without a land use decision

1:22:25 ↗ preceding it correct I am unaware of a

1:22:27 ↗ circumstance in which we have refused to

1:22:29 ↗ accept

1:22:30 ↗ a building permit because of a land use

1:22:32 ↗ permit would you turn to exhibit s9

1:22:36 ↗ please it was introduced last time and

1:22:53 ↗ the second page of that the first page

1:23:02 ↗ that dot this document says commercial

1:23:05 ↗ and multi-family building permits the

1:23:07 ↗ middle requirements correct I'm sorry

1:23:11 ↗ you said the first page says that I went

1:23:13 ↗ back to the title of the document on the

1:23:15 ↗ first page is the title of the document

1:23:17 ↗ okay and then the second page which is

1:23:20 ↗ what on this is on the screen now what

1:23:24 ↗ is the first item required under

1:23:26 ↗ presubmit 'el land use permit notice of

1:23:29 ↗ decision has been issued okay so this is

1:23:32 ↗ the document that you provide to

1:23:34 ↗ applicants fine to a submitter project

1:23:39 ↗ in the city of Issaquah correct these

1:23:42 ↗ are the middle requirements available on

1:23:45 ↗ our website ok can I speak to that you

1:23:52 ↗ can answer any questions your attorney

1:23:53 ↗ wants to have right now I would like to

1:24:02 ↗ earn to Appendix L again of the

1:24:07 ↗ development agreement which is city's

1:24:12 ↗ Exhibit C 28 okay

1:24:32 ↗ so what kind of pre-application before I

1:24:37 ↗ ask you about this document what kind of

1:24:38 ↗ pre application process did you require

1:24:42 ↗ of IH IFC before you would accept any

1:24:45 ↗ application for a subdivision or a site

1:24:49 ↗ development permit so I initially we

1:24:56 ↗ told your client that they needed to

1:24:59 ↗ have a pre-application meeting and we I

1:25:05 ↗ believe that with the preliminary plat I

1:25:10 ↗ believe that I'm not entirely certain

1:25:13 ↗ then with the land use permits your

1:25:18 ↗ client questioned that requirement and

1:25:23 ↗ initially we identified that we thought

1:25:27 ↗ it was necessary then we conceded that

1:25:31 ↗ it was not which is there are

1:25:37 ↗ indications that we did not require

1:25:40 ↗ those and yet your client proceeded with

1:25:42 ↗ them okay when and how did you tell my

1:25:46 ↗ client that they weren't required to go

1:25:50 ↗ through a pre application process before

1:25:53 ↗ they could convince the procedure in

1:25:55 ↗ Appendix L I'm sorry was that positive

1:25:59 ↗ or negative that we required or did not

1:26:02 ↗ require I'll rephrase the question when

1:26:05 ↗ and how I'm trying to get specific about

1:26:09 ↗ what you just said when and how did you

1:26:12 ↗ communicate to my client that they

1:26:14 ↗ weren't required to go through this

1:26:17 ↗ city's typical pre application process

1:26:21 ↗ and by that I mean a collaborative

1:26:23 ↗ meeting and a pre application process I

1:26:28 ↗ don't have that email I believe mr.

1:26:31 ↗ Niven spoke to that in his testimony

1:26:34 ↗ last time

1:26:35 ↗ each of us seem to remember an email we

1:26:40 ↗ have not attempted to locate that email

1:26:42 ↗ I would add though that with the retail

1:26:48 ↗ land use permit the your client

1:26:56 ↗ submitted that permit for review in on

1:27:00 ↗ November 22nd our letter identifying the

1:27:05 ↗ ways in which it was insufficient was

1:27:08 ↗ issued on December 1st it did not

1:27:11 ↗ include the fact that a pre app had not

1:27:15 ↗ had not taken place because that pre app

1:27:18 ↗ did not take place until December 5th so

1:27:21 ↗ as we went through this middle

1:27:24 ↗ requirements we were not calling out

1:27:27 ↗ that particular item

1:27:29 ↗ okay so miss lemon the narrative you

1:27:31 ↗ just gave was not responsive to any

1:27:33 ↗ question that I asked so please answer

1:27:37 ↗ my question and you can testify about

1:27:40 ↗ other matters when mr. well is asking

1:27:43 ↗ you questions

1:27:44 ↗ is it not accurate to say that you

1:27:48 ↗ required IHI of C you go through your

1:27:54 ↗ department's typical pre application

1:27:57 ↗ procedures before you would allow them

1:28:00 ↗ to even submit an application initially

1:28:04 ↗ yes sorry

1:28:05 ↗ initially yes and you're saying at some

1:28:11 ↗ point in the document that you haven't

1:28:14 ↗ or at least here tonight can't identify

1:28:17 ↗ you told my client they were free to go

1:28:19 ↗ ahead and submit without going through

1:28:21 ↗ that process my memory is that there was

1:28:28 ↗ a form of communication I believe mr.

1:28:31 ↗ Nevin testified that it was an email in

1:28:35 ↗ which we agreed that they didn't have to

1:28:37 ↗ do it

1:28:37 ↗ it might have been a verbal ID I have

1:28:39 ↗ not gone back through my records

1:28:42 ↗ I'm just identifying there was another

1:28:45 ↗ method in which we did not hold

1:28:48 ↗ your clients permits based on the need

1:28:52 ↗ to complete a pre-op so when during the

1:28:56 ↗ pre-op process did you send this email

1:29:00 ↗ or give this oral communication that

1:29:02 ↗ they didn't have to go through the

1:29:03 ↗ process they were already in I don't

1:29:05 ↗ know I would have to go back to my notes

1:29:07 ↗ or emails to determine that it's fair to

1:29:11 ↗ say is it not that the timelines that

1:29:14 ↗ you prepared both when you prepared for

1:29:16 ↗ the City Council and the timeline that

1:29:19 ↗ you prepared for this hearing which is

1:29:21 ↗ the city's exhibit 27 those both

1:29:25 ↗ commence with the date of complete

1:29:30 ↗ application and say nothing about the

1:29:32 ↗ months of pre application procedures

1:29:35 ↗ that preceded that correct that the

1:29:39 ↗ timelines that I showed did not indicate

1:29:44 ↗ a pre-op is that was that your question

1:29:49 ↗ it did not indicate a pre-op or any

1:29:52 ↗ other free application process such as a

1:29:55 ↗ collaborative meeting the time frames

1:30:01 ↗ that are shown in on them either C 27 or

1:30:08 ↗ the document that we prepared for

1:30:09 ↗ counsel were from the date it was

1:30:13 ↗ submitted until in a straight sort of

1:30:18 ↗ time application of time when it could

1:30:21 ↗ be approved we did not show any of the

1:30:26 ↗ steps associated with that particular

1:30:29 ↗ process it is it also fair to say that

1:30:33 ↗ either an appendix L or anywhere else in

1:30:37 ↗ the development agreement is there any

1:30:39 ↗ kind of requirement for a pre

1:30:42 ↗ application process in looking at the

1:30:48 ↗ appendix L chart C 28 that is shown as

1:30:52 ↗ optional I'm going to

1:30:56 ↗ interject reinsert insert myself herons

1:30:58 ↗ and we've been going for a long time it

1:31:01 ↗ seems like not a bad appropriate point

1:31:03 ↗ to take a five-minute break so if you'll

1:31:08 ↗ indulge me with that I would appreciate

1:31:09 ↗ it no objection thank you thank you

1:31:25 ↗ you

1:40:20 ↗ all right I appreciate that short break

1:40:24 ↗ and I think we're ready to resume it

1:40:28 ↗ miss Loman could you turn back for a

1:40:30 ↗ moment please to exhibit s1 the first

1:40:35 ↗ exhibit in the smaller of the two

1:40:37 ↗ packages you have to the copy again of

1:40:42 ↗ the notice the city gave of IHI fc's lat

1:40:48 ↗ application and again turn you the

1:40:54 ↗ second page which is the plat map that

1:40:57 ↗ you gave notice of to the community okay

1:41:01 ↗ so my understanding from your testimony

1:41:06 ↗ and that of mr. Niven is that this is

1:41:12 ↗ not the application that you're going to

1:41:15 ↗ process because the building footprints

1:41:20 ↗ and parking areas and so forth were not

1:41:22 ↗ shown on the original application is

1:41:25 ↗ that correct

1:41:27 ↗ yes and are not part of a typical

1:41:33 ↗ preliminary plat it's for subdividing

1:41:37 ↗ land not establishing building placement

1:41:40 ↗ well if this is not the application

1:41:43 ↗ you're going to process did you ever

1:41:44 ↗ provide corrected public notice that you

1:41:48 ↗ were going to process a different

1:41:50 ↗ application no not at this time because

1:41:55 ↗ we are waiting to continue until the

1:41:58 ↗ plat is resubmitted so when did you

1:42:05 ↗ decide that you weren't going to process

1:42:09 ↗ the application that you gave public

1:42:11 ↗ notice of in December of last year

1:42:25 ↗ so the notice used I assumed that the

1:42:35 ↗ planner grabbed the more recent plan and

1:42:39 ↗ included that in the notice of

1:42:42 ↗ application that was not the original

1:42:47 ↗ sim it'll it was a sim it'll that your

1:42:52 ↗ client made of their own volition not

1:42:56 ↗ responsive to any comments that that had

1:42:59 ↗ been received and so I think that once

1:43:04 ↗ we realized that was the nature of the

1:43:07 ↗ materials that have been received we

1:43:10 ↗ determined that that was inconsistent

1:43:13 ↗ with a preliminary plat I don't know

1:43:16 ↗ specifically the date of that

1:43:23 ↗ so when are you going to give revised

1:43:25 ↗ public notice that this is not the

1:43:28 ↗ polite application that you're

1:43:29 ↗ processing I would assume that when we

1:43:34 ↗ send notice for the public hearing

1:43:36 ↗ associated with the Platt that we would

1:43:40 ↗ revise that and make that notice so

1:43:45 ↗ we're in the city regulation does it say

1:43:49 ↗ that in the city code or anywhere else

1:43:52 ↗ does it say that you're not going to

1:43:58 ↗ process the Platt that the applicant

1:44:02 ↗ submits to you before you give public

1:44:04 ↗ notice I think our intention is to

1:44:13 ↗ process the Platt that was deemed

1:44:16 ↗ complete oh the city code expressly

1:44:20 ↗ allows all applicants to supplement

1:44:24 ↗ their original applications after

1:44:26 ↗ they're deemed complete does it not I

1:44:31 ↗ don't know that off the top of my head

1:44:33 ↗ you're unaware that an applicant by

1:44:37 ↗ express provision of the city code can

1:44:39 ↗ supplement its materials at any time I

1:44:42 ↗ don't know that that's overtly stated in

1:44:45 ↗ the IMC that that's the way I understood

1:44:47 ↗ your question isn't that in fact your

1:44:51 ↗ department's practice that you allow an

1:44:55 ↗ applicant to supplement their

1:44:58 ↗ application with additional materials I

1:45:05 ↗ would say that is an unusual

1:45:07 ↗ circumstance most applicants when they

1:45:11 ↗ are submitting materials are submitting

1:45:14 ↗ them as a response to comments that they

1:45:17 ↗ have received

1:45:50 ↗ so how and when did your department

1:45:54 ↗ decide that I client this is a different

1:46:01 ↗ question in the last time that my client

1:46:02 ↗ was not vested to the plat application

1:46:06 ↗ that you gave public notice of how and

1:46:12 ↗ when did we decide that your client was

1:46:15 ↗ not vested to the application they gave

1:46:19 ↗ as that was that your question

1:46:20 ↗ mm-hmm well they had a complete some

1:46:26 ↗ middle in August and in December changed

1:46:33 ↗ their proposal that was the description

1:46:39 ↗ that was selected when these new

1:46:42 ↗ materials were submitted well the that

1:46:45 ↗ description they selected was one that

1:46:48 ↗ your website required them to select was

1:46:51 ↗ it not I don't it is it may be an option

1:46:54 ↗ that is provided I am NOT an expert on

1:46:57 ↗ submitting plans through my building

1:46:58 ↗ permit com but it is I don't review lots

1:47:05 ↗ of plans but the more typical one is

1:47:08 ↗ response to request for recent middle or

1:47:12 ↗ something to that effect which was shown

1:47:14 ↗ on one of our previous exhibits that is

1:47:17 ↗ I think a much more common reason for

1:47:21 ↗ recent middle that is selected what your

1:47:26 ↗ client or their consultants selected was

1:47:29 ↗ a change in the original proposal and my

1:47:34 ↗ question is or my point is that the

1:47:40 ↗ website that you require applicants to

1:47:43 ↗ use requires an applicant to choose

1:47:46 ↗ among a set of reasons that are on the

1:47:51 ↗ website the applicant can't write their

1:47:53 ↗ own description of the reason correct

1:47:55 ↗ that may very well be true I don't

1:47:57 ↗ submit applications so I'm not familiar

1:47:59 ↗ with how that part

1:48:00 ↗ the process works okay so what are the

1:48:02 ↗ changes that my client made to its

1:48:04 ↗ application lien August and December

1:48:07 ↗ that made you decide they weren't vested

1:48:13 ↗ what do you mean by they weren't vested

1:48:18 ↗ weren't vested to the SDP application

1:48:23 ↗ buildings that are depicted on you're

1:48:28 ↗ going to hear testimony I assume you're

1:48:30 ↗ aware of it already miss Loman that

1:48:31 ↗ these buildings are consistent with the

1:48:35 ↗ SDP applications so and you've obviously

1:48:38 ↗ decided you the city has decided that

1:48:42 ↗ were not vested to the development

1:48:45 ↗ agreement because you're putting us

1:48:46 ↗ through a process that doesn't exist

1:48:48 ↗ under the development agreement when did

1:48:51 ↗ you decide who process this application

1:48:55 ↗ submitted in August of last year under

1:48:58 ↗ regulations that were adopted in March

1:49:00 ↗ of this year I'm not entirely

1:49:07 ↗ understanding your question we are

1:49:11 ↗ processing the plat application that was

1:49:15 ↗ submitted in August which subdivides

1:49:20 ↗ properties shows rights-of-way lot lines

1:49:23 ↗ legal descriptions which is consistent

1:49:26 ↗ with a plat it appears that the December

1:49:33 ↗ sim it'll was combining the purposes of

1:49:38 ↗ a site development permit with a plat

1:49:41 ↗ application wasn't in fact the

1:49:47 ↗ application that we see here that you

1:49:51 ↗ gave public notice of updated in

1:49:53 ↗ response to comments from your

1:49:55 ↗ department that wanted to see the

1:49:58 ↗ relationship between the STD EP

1:50:00 ↗ applications in the plat if that request

1:50:04 ↗ was made I don't know about

1:50:06 ↗ I'm not saying it didn't happen I just

1:50:08 ↗ don't know

1:50:09 ↗ hey and again if you don't know the

1:50:11 ↗ answer you can just say that but my

1:50:13 ↗ question is when did your department

1:50:16 ↗ decide process this application

1:50:20 ↗ submitted 15 months ago under

1:50:23 ↗ regulations that were adopted in March

1:50:25 ↗ of this year I that question is

1:50:30 ↗ confusing to me the plat is being

1:50:38 ↗ processed under consistent with the

1:50:43 ↗ April 4th letter which talked about

1:50:48 ↗ vesting related to the plat the extent

1:50:53 ↗ to which the plat is vested and I I I'm

1:51:02 ↗ so I'm just confused by your question

1:51:10 ↗ my recollection is that mr. Niven

1:51:12 ↗ testified that he decided in March when

1:51:16 ↗ the replacement regulations were enacted

1:51:20 ↗ at our applications IHI of C's

1:51:24 ↗ applications would be processed under

1:51:27 ↗ the replacement regulations at your

1:51:32 ↗ understanding if you have a table that

1:51:34 ↗ was related only to the site development

1:51:39 ↗ permit and the administrative site

1:51:42 ↗ development permits the plat would use

1:51:45 ↗ the development agreement to the extent

1:51:48 ↗ that the plat is vested to particular

1:51:52 ↗ regulations okay so if in fact the LAT

1:52:02 ↗ that the city gave public notice of is

1:52:05 ↗ entirely consistent with the SDP

1:52:11 ↗ applications and why isn't my client

1:52:17 ↗ vested by virtue of the plat to the

1:52:20 ↗ development regulations I'm sorry I

1:52:27 ↗ don't understand your question

1:52:28 ↗ well are you saying because we used this

1:52:34 ↗ drawing in error that I I'm sorry I

1:52:41 ↗ don't understand your question

1:52:42 ↗ okay we'll move on why don't we turn on

1:52:45 ↗ to I would have the last two more

1:52:56 ↗ you meet his mother

1:53:12 ↗ okay back to the platen exhibit

1:53:15 ↗ s1 for a moment so if you're treating

1:53:23 ↗ you and your department or treating the

1:53:25 ↗ December 15 2017 application as a

1:53:30 ↗ separate or new application what have

1:53:34 ↗ you done the process process it as a

1:53:36 ↗ separate or new application I don't

1:53:41 ↗ believe that we are trying treating it

1:53:43 ↗ as a separate or new application I

1:53:46 ↗ believe we are processing the one that

1:53:49 ↗ was submitted in August but what have

1:53:53 ↗ you done to reject or comment on or in

1:53:58 ↗ any way communicate with my client about

1:54:01 ↗ the December 15 some it'll tell them

1:54:07 ↗ you're not processing it again I am NOT

1:54:11 ↗ the planner I know that there was one

1:54:14 ↗ comment that we included as one of our

1:54:20 ↗ exhibits last time C 10 and that said

1:54:32 ↗ that there were

1:54:37 ↗ [Applause]

1:54:40 ↗ that the information in note 7 was

1:54:45 ↗ needed to be revised or something to

1:54:48 ↗ that effect I can't really read the

1:54:50 ↗ words up there and I believe that in

1:54:55 ↗ other communications it may be through

1:54:59 ↗ the various venues that we are seeing

1:55:03 ↗ each other that we are have communicated

1:55:06 ↗ that the footprints are not part of the

1:55:10 ↗ preliminary class this little that I my

1:55:14 ↗ understanding is Exhibit C 10 is the

1:55:17 ↗ original August 1 plat application we

1:55:20 ↗ disagree well I believe last time one of

1:55:27 ↗ the things that we discovered that that

1:55:30 ↗ that is my supposition however I don't

1:55:34 ↗ believe there's a date on here

1:55:36 ↗ when we were looking last time I could

1:55:41 ↗ not find preparation date so I could not

1:55:44 ↗ confirm that well if you can't confirm

1:55:48 ↗ whether this was part of the original

1:55:50 ↗ application or a response to the

1:55:56 ↗ December 15th sim it'll is it fair to

1:55:59 ↗ say that you can't confirm that this was

1:56:01 ↗ a response to the December 15th Camille

1:56:03 ↗ no

1:56:16 ↗ as I'm not the planner and I on this

1:56:19 ↗ permit I primarily been focused on

1:56:22 ↗ responding to the comments and I have

1:56:27 ↗ not studied the responses that were sent

1:56:30 ↗ out on the plat to be able to adequately

1:56:33 ↗ respond alright we have two more

1:56:40 ↗ exhibits and I think we'll be done

1:57:24 ↗ what is exhibit s16 I believe it was one

1:57:32 ↗ of a series of letters that we sent to

1:57:35 ↗ miss hime and the applicant for each of

1:57:39 ↗ the land use permits asking them to be

1:57:42 ↗ updated for to be compliant with the

1:57:46 ↗ replacement regulations and I agree you

1:57:50 ↗ sent similar letters regarding all the

1:57:52 ↗ applications and you signed or approved

1:57:56 ↗ or initial letter on the last page yes

1:57:59 ↗ and would you read for us the paragraph

1:58:03 ↗ at the bottom of the first page please

1:58:06 ↗ if your position is that the replacement

1:58:09 ↗ regulations are not applicable to your

1:58:11 ↗ permit application and you do q and make

1:58:13 ↗ the modifications referenced above

1:58:15 ↗ please confirm your intent to this

1:58:18 ↗ effect in writing at your earliest

1:58:19 ↗ convenience in that event the city will

1:58:22 ↗ proceed expeditiously to issue a final

1:58:24 ↗ decision on your permit based upon the

1:58:27 ↗ applications compliance or

1:58:29 ↗ non-compliance with the replacement

1:58:31 ↗ regulations

1:58:39 ↗ [Applause]

1:58:56 ↗ it says 17 times response to f/16

1:59:01 ↗ yes I believe it is what's the date of

1:59:05 ↗ the two letters May 25th and May 31st Oh

1:59:10 ↗ he responded six calendar days later yes

1:59:17 ↗ and what did she say in her a 31st

1:59:22 ↗ response about whether they were going

1:59:28 ↗ to revise the application to comply with

1:59:32 ↗ the replacement regulations I JFC

1:59:38 ↗ declines to revise its applications to

1:59:40 ↗ comply with the replacement regulations

1:59:43 ↗ okay then going back to exhibit s 16 for

1:59:47 ↗ a moment and the paragraph you read at

1:59:51 ↗ the bottom of the first page about the

1:59:55 ↗ city expedition issuing expeditiously

1:59:58 ↗ issuing a final decision if my client

2:00:01 ↗ wouldn't revise explain what the city

2:00:05 ↗ has done to expeditiously issue a final

2:00:08 ↗ decision between May 31st and today

2:00:12 ↗ [Applause]

2:00:15 ↗ following the receipt of your letter

2:00:18 ↗ your clients letter of May 31st I my

2:00:24 ↗ understanding is that negotiations began

2:00:27 ↗ on how to process what would be what was

2:00:32 ↗ understood to be a denial and the venue

2:00:37 ↗ the nature of that what the rules of the

2:00:42 ↗ [Music]

2:00:46 ↗ proceedings would be that staff report

2:00:50 ↗ was issued in September and we have

2:00:54 ↗ proceeded to process those staff reports

2:00:59 ↗ you said negotiations commenced who was

2:01:03 ↗ negotiating with whom about what

2:01:07 ↗ I don't know exactly as I understood it

2:01:11 ↗ I thought the city attorney and you were

2:01:15 ↗ speaking about those matters well I'm

2:01:19 ↗ asking you what you have knowledge of

2:01:22 ↗ and what was there to be negotiated I

2:01:26 ↗ have never been in this circumstance

2:01:30 ↗ before where an applicant declines to

2:01:35 ↗ comply with adopted standards and we are

2:01:38 ↗ asked to process those permits where it

2:01:43 ↗ is essentially a court proceeding within

2:01:47 ↗ infront of a development Commission I

2:01:50 ↗ was not clear the best way to proceed or

2:01:54 ↗ how that would happen so I as I

2:01:59 ↗ understood there was discussions taking

2:02:02 ↗ place when was the decision made by your

2:02:06 ↗ department to send these applications to

2:02:09 ↗ the Development Commission I don't know

2:02:14 ↗ exactly when there was a discussion that

2:02:19 ↗ I had at some point with Keith Niven who

2:02:25 ↗ is our director and he pointed out that

2:02:29 ↗ under the development regulations these

2:02:32 ↗ would go to the I mean none of the

2:02:35 ↗ develop replacement regulations it would

2:02:37 ↗ go to the development Commission and I

2:02:40 ↗ don't remember when that conversation

2:02:43 ↗ took place but that was the point at

2:02:45 ↗ which I realized that this was going in

2:02:48 ↗ a different way than I had initially

2:02:50 ↗ expected you approximate the month when

2:02:56 ↗ that conversation took place I believe

2:02:59 ↗ someone is said to me that that took

2:03:01 ↗ place in July or August but again I have

2:03:04 ↗ not looked at email to see if there is a

2:03:08 ↗ way to identify exactly when that

2:03:10 ↗ happened okay so

2:03:14 ↗ can you identify anything other than

2:03:16 ↗ what you've assumed about conversations

2:03:19 ↗ between the city attorney and me you

2:03:22 ↗ identify anything else your department

2:03:24 ↗ did to expeditiously expeditiously

2:03:27 ↗ process the applications after May 31st

2:03:36 ↗ I think we were awaiting direction

2:03:40 ↗ because as I said this is not a familiar

2:03:42 ↗ process to me as soon as the decision

2:03:46 ↗ was made we began to compile the staff

2:03:49 ↗ reports

2:03:55 ↗ when did you start work on the staff

2:03:58 ↗ reports to send this to the Development

2:04:01 ↗ Commission again I don't remember that

2:04:04 ↗ exactly I think it may have been

2:04:07 ↗ sometime in August in anticipation of

2:04:11 ↗ September hearing did anything at all

2:04:16 ↗ happened in June or July just them

2:04:20 ↗ matters that I'm talking about that I

2:04:22 ↗ previously described you your

2:04:25 ↗ assumptions about communications you

2:04:27 ↗ weren't a part of I'm asking you whether

2:04:32 ↗ there's anything you know as opposed to

2:04:34 ↗ assumed about anything the city did to

2:04:38 ↗ get us from May 31st until staff reports

2:04:43 ↗ in September so I I know that there were

2:04:51 ↗ some conversations that took place

2:04:54 ↗ between I and I may have been in some of

2:04:58 ↗ those conversations I don't remember

2:05:01 ↗ them with enough detail to describe them

2:05:06 ↗ you recall who the conversations were

2:05:08 ↗ with the ear were calling they may have

2:05:10 ↗ been with the city attorney and they may

2:05:12 ↗ have been with Keith Niven or they may

2:05:14 ↗ have been between Keith Niven in the

2:05:16 ↗ city attorney I really I I just don't

2:05:20 ↗ remember with sufficient detail to feel

2:05:22 ↗ confident in describing a sequence okay

2:05:26 ↗ thank you that's all I have so

2:05:35 ↗ right so it's your opportunity now for

2:05:38 ↗ indirect Thank You mr. chairman I would

2:05:40 ↗ respectfully request a 10-minute break

2:05:42 ↗ to discuss our redirect examination

2:05:45 ↗ which way you anticipate to be probably

2:05:48 ↗ half hour to a 45 minutes long okay is

2:05:52 ↗ that acceptable that's acceptable I hope

2:05:54 ↗ we can also have mr. Niven come back and

2:05:58 ↗ testify about the exhibits the city

2:06:00 ↗ introduced tonight so we can get that

2:06:03 ↗ out of the way before we start our case

2:06:06 ↗ which were prepared to do immediately

2:06:08 ↗ tonight I'm happy to call mr. Niven

2:06:13 ↗ again with the understanding that his

2:06:14 ↗ additional testimony tonight would not

2:06:17 ↗ be considered our opportunity for

2:06:19 ↗ rebuttal testimony which we intend to

2:06:21 ↗ present following the case in chief of

2:06:25 ↗ the applicant okay so you're you're

2:06:27 ↗ agreeable that mr. Niven could come and

2:06:29 ↗ respond to mr. Schneider's comments on

2:06:33 ↗ 33 and 34 I haven't discussed that with

2:06:37 ↗ mr. Niven but I believe that would be

2:06:39 ↗ permissible yes thank you okay so let's

2:06:43 ↗ let's proceed with that ten-minute break

2:06:47 ↗ but let's take a 10-minute break first

2:06:49 ↗ thank you

2:06:50 ↗ sorry Thank You mr. chair

2:07:00 ↗ you

2:21:34 ↗ okay well we're back in session thank

2:21:38 ↗ you so as I recall before the break we

2:21:41 ↗ decided that mr. Niven would come and be

2:21:45 ↗ responsive to see 33 and 34 whose

2:21:55 ↗ understanding was he gonna be after mr.

2:21:57 ↗ sloman is redirect all right sorry I had

2:22:01 ↗ it the other way around

2:22:02 ↗ so I'm flexible miss Loman I'd like to

2:22:05 ↗ ask you a few questions as a follow-up

2:22:07 ↗ to your testimony on direct examination

2:22:09 ↗ and also with respect to the questions

2:22:12 ↗ that mr. Schneider asked you first of

2:22:15 ↗ all in your experience is there a

2:22:19 ↗ practical difference between processing

2:22:23 ↗ a land use permit independently versus a

2:22:27 ↗ land use permit that is dependent on a a

2:22:29 ↗ pending or unapproved plat a planarian

2:22:34 ↗ on the table that you don't know exactly

2:22:38 ↗ what may come out of the plat process

2:22:41 ↗ that could eventually impact something

2:22:45 ↗ like a site development permit okay

2:22:47 ↗ thank you

2:22:47 ↗ and draw your attention to the city

2:22:54 ↗ exhibits C 16 through C 22 those were

2:22:58 ↗ the sufficiency determinations do you

2:23:00 ↗ recall those documents yes thank you

2:23:09 ↗ can you please describe the impact if

2:23:13 ↗ any that those issues identified in

2:23:17 ↗ those letters had on the the timeframe

2:23:19 ↗ for the city's processing of a the ASTP

2:23:23 ↗ that s DPS that IH IFC had filed

2:23:28 ↗ well they the as I mentioned in my

2:23:31 ↗ testimony last time the retail s DP was

2:23:38 ↗ submitted in November the medical office

2:23:41 ↗ building was submitted in November and

2:23:44 ↗ we went through I think four submittals

2:23:49 ↗ prior to reaching the agreement that was

2:23:53 ↗ signed in March so there was review and

2:23:57 ↗ writing of those letters to identify if

2:24:01 ↗ they were sufficient or not in this case

2:24:04 ↗ they were not with the storage building

2:24:06 ↗ I believe that there were two submittals

2:24:09 ↗ and therefore two letters prior to the

2:24:14 ↗ agreement in March and my understanding

2:24:21 ↗ from your testimony is that ultimately

2:24:24 ↗ the the determination of completeness

2:24:27 ↗ regarding IH IFC's STP and ASD fee

2:24:30 ↗ applications was made through the the

2:24:33 ↗ letter agreement executed by mr. maleeni

2:24:36 ↗ and the city on March 15th is that

2:24:39 ↗ correct the letter was dated March 15th

2:24:42 ↗ but I think the last signature was

2:24:43 ↗ placed on March 18th could you describe

2:24:45 ↗ the process of how that letter was

2:24:48 ↗ ultimately negotiated and executed so I

2:24:54 ↗ believe my memory is that you know there

2:24:58 ↗ was a point at which understandably the

2:25:03 ↗ applicant was frustrated they were

2:25:04 ↗ making submittals and were unable to be

2:25:09 ↗ deemed sufficient mr. maleeni from also

2:25:14 ↗ from Foster pepper had

2:25:16 ↗ spoken with mr. Niven then he spoke to

2:25:20 ↗ me he and I discussed at some length

2:25:24 ↗ some of the challenges that we were

2:25:26 ↗ facing in trying in not having certain

2:25:32 ↗ pieces of information decided but they

2:25:38 ↗ were more concepts as I mentioned and so

2:25:41 ↗ we agreed that we would try and write up

2:25:44 ↗ an agreement that would resolve this in

2:25:49 ↗ a way that preserved both parties needs

2:25:52 ↗ so that we can move forward if you the

2:25:54 ↗ city work cooperatively with mr. maleeni

2:25:57 ↗ in coming up with that agreement

2:25:59 ↗ absolutely I mean we thought that was a

2:26:01 ↗ good solution to try and get out of the

2:26:06 ↗ submit write a letter submit write a

2:26:08 ↗ letter would you characterize that

2:26:10 ↗ negotiation and execution process that

2:26:13 ↗ culminated with the March 15th letter as

2:26:16 ↗ being amicable it seemed that way to me

2:26:19 ↗ thank you

2:26:19 ↗ did you ever or did the city ever quote

2:26:22 ↗ refuse end quote to process ih IFC's STP

2:26:27 ↗ or ASTP applications I would not use

2:26:30 ↗ that word we were trying to get

2:26:33 ↗ applications that were complete so that

2:26:36 ↗ we could continue our review and and

2:26:42 ↗ then we hit the road block of not having

2:26:46 ↗ them updated to the replacement

2:26:48 ↗ regulations I'd like to call your

2:26:51 ↗ attention now to applicants exhibit s11

2:26:56 ↗ this is the lengthy email exchange

2:26:59 ↗ between your office and Tia hime which

2:27:02 ↗ in the exhibit terminates with the

2:27:06 ↗ October 10th 2018 email from MS hime to

2:27:11 ↗ yourself

2:27:11 ↗ yes he's seeing mr. schlep and MS Lin

2:27:15 ↗ yes is this email thread currently

2:27:20 ↗ ongoing yes we're in the process of

2:27:23 ↗ preparing our response and what's the

2:27:25 ↗ current status of that again

2:27:27 ↗ as I said I think we're quite close to

2:27:30 ↗ being able to issue it please call your

2:27:38 ↗ attention to the very last page of that

2:27:43 ↗ email exchange this is an email from mr.

2:27:46 ↗ Ken Shipley

2:27:48 ↗ - mr. schlep and mr. and Miss Lin as

2:27:51 ↗ primary recipients on April 13th of this

2:27:54 ↗ year uh-huh

2:27:56 ↗ as of that date had the replacement

2:27:59 ↗ regulations already taken effect yes

2:28:02 ↗ thank you

2:28:03 ↗ I believe mr. Schneider asked you

2:28:08 ↗ several questions regarding the IHI FC

2:28:11 ↗ preliminary plat that is pending and the

2:28:17 ↗ extent to which the city had asked

2:28:21 ↗ questions or raised correction issues

2:28:23 ↗ for that submittal in your experience ms

2:28:28 ↗ Sloman is it normal for plat applicants

2:28:31 ↗ to ask as many questions as IH ifc has

2:28:34 ↗ throughout this process no we usually

2:28:41 ↗ it's just been a lot a lot of questions

2:28:44 ↗ and they have continued to expand I mean

2:28:47 ↗ we're trying to help provide the

2:28:51 ↗ information they need but they have

2:28:54 ↗ continuing to become broader has that

2:28:57 ↗ back and forth that you've just

2:28:59 ↗ described impacted the city's timeframe

2:29:02 ↗ for reaching a final decision on the

2:29:04 ↗ final of the preliminary plat

2:29:05 ↗ application yes we can't proceed till we

2:29:08 ↗ get a recent middle thank you if you

2:29:10 ↗ attempted to address the questions that

2:29:13 ↗ have been raised by IH IFC in good faith

2:29:16 ↗ yes

2:29:22 ↗ like to now call your attention to some

2:29:25 ↗ of the questions that were asked

2:29:27 ↗ concerning the polygon applications and

2:29:31 ↗ you recall that testimony and mr.

2:29:33 ↗ Schneider's questions I believe so okay

2:29:36 ↗ first of all did did polygon what was

2:29:40 ↗ polygon issued any sufficiency

2:29:42 ↗ determination letters from the city not

2:29:45 ↗ that I'm aware of but I wasn't the only

2:29:47 ↗ planner on these permits okay I'd like

2:29:50 ↗ to introduce into evidence the exhibit C

2:29:56 ↗ 35

2:30:26 ↗ thank you

2:30:34 ↗ mr. Ouma can you please identify this

2:30:36 ↗ document and specifically that the top

2:30:39 ↗ communication the most recent

2:30:41 ↗ communication it's an email from myself

2:30:44 ↗ to Keith Nibin okay could you please

2:30:47 ↗ read aloud the first four line or five

2:30:52 ↗ lines of that of that email likely

2:30:57 ↗ nothing you haven't already thought of

2:30:59 ↗ this is in response to Keith's question

2:31:02 ↗ of thoughts my first bullet is why we

2:31:06 ↗ can say that we do or don't agree with

2:31:09 ↗ vesting in the end only the counsel can

2:31:12 ↗ do that hard to say what their reaction

2:31:14 ↗ will be to accepting the draft language

2:31:16 ↗ what was the context of their

2:31:18 ↗ communication well I think that we were

2:31:25 ↗ I I think mostly we were trying to

2:31:29 ↗ respond to ms hynes proposal around

2:31:36 ↗ minimum fa are having a variable fa are

2:31:40 ↗ on various Lots

2:31:49 ↗ perhaps we could get some indication of

2:31:52 ↗ how this is responsive to the direct

2:31:58 ↗ it's not clear how this is housing to do

2:32:01 ↗ with the direct or both my

2:32:02 ↗ cross-examination can you tell me where

2:32:04 ↗ we're going with this I will conclude on

2:32:06 ↗ this document fairly quickly mr.

2:32:09 ↗ chairman that an answer district just

2:32:10 ↗ mr. Snyder's question this deals with

2:32:13 ↗ the issue of how the city construed

2:32:15 ↗ vesting under the development agreement

2:32:18 ↗ and the timeframe for its determination

2:32:21 ↗ and making that decision and I think

2:32:24 ↗ that was a a very consistent theme

2:32:27 ↗ throughout both the direct testimony and

2:32:29 ↗ the cross-examination sounds appropriate

2:32:34 ↗ to me so if you look on the second page

2:32:36 ↗ of the email I don't I mean I haven't

2:32:38 ↗ looked at this email in a long time but

2:32:43 ↗ the top fall paragraph above the chart

2:32:46 ↗ is missed I'm asking about vesting and

2:32:51 ↗ [Music]

2:32:53 ↗ what was going to happen to proposals

2:32:56 ↗ and I'm just talking about the the

2:33:01 ↗ uncertainty that existed around vesting

2:33:04 ↗ what the final vesting provisions that

2:33:07 ↗ the council would adopt would be thank

2:33:09 ↗ you I'd now like to introduce Exhibit C

2:33:12 ↗ 36

2:33:24 ↗ this is a Monday November 27th 2017

2:33:30 ↗ email from yourself to the entire

2:33:33 ↗ development services department if I'm

2:33:35 ↗ yes understanding that correctly could

2:33:37 ↗ you please describe the purpose and

2:33:39 ↗ context of this document mr. Wolman well

2:33:41 ↗ I think we wanted I wanted to update the

2:33:45 ↗ department on what was happening we had

2:33:49 ↗ originally thought that at December 18th

2:33:53 ↗ meeting of the council that the

2:33:55 ↗ replacement regulations would be adopted

2:33:57 ↗ and at the last the previous meeting of

2:34:02 ↗ the Landon Shore committee we they had

2:34:05 ↗ communicated to us that they would not

2:34:07 ↗ be prepared to make a recommendation to

2:34:10 ↗ do that at December 18th and that I

2:34:16 ↗ wanted staff to be aware that that one

2:34:21 ↗ of the up shots of this was it would

2:34:23 ↗ give applicants more time to vest by

2:34:26 ↗ submitting a building permit and then

2:34:29 ↗ characterizing what as we understood it

2:34:32 ↗ were the elements that could vest thank

2:34:35 ↗ you can you please read the the last

2:34:37 ↗ full paragraph beginning with this means

2:34:39 ↗ this means that applicants who are

2:34:41 ↗ trying to vest have more time to submit

2:34:43 ↗ vlds which means building permits to

2:34:46 ↗ definitively be vested or land use

2:34:48 ↗ permits to try to be vested paren only

2:34:52 ↗ preliminary plats short plats building

2:34:54 ↗ permits and development agreements best

2:34:56 ↗ for state law staff proposed additional

2:34:59 ↗ vesting language which the council is

2:35:01 ↗ considering thank you and just to

2:35:04 ↗ clarify since this was sent by you to

2:35:06 ↗ the entire development services

2:35:09 ↗ department as recipients did this

2:35:11 ↗ reflect the department's official

2:35:12 ↗ position at that time yes I mean it was

2:35:16 ↗ our understanding I I don't know that it

2:35:18 ↗ was a position it was our perspective on

2:35:21 ↗ the state of the development regs

2:35:25 ↗ replacement regs process thank you now

2:35:28 ↗ like to introduce Exhibit C 37

2:35:48 ↗ could you please identify this document

2:35:50 ↗ miss Loman the top email is from Craig

2:35:55 ↗ Ramey who is I don't know exactly

2:36:00 ↗ exactly his title he's with Regency

2:36:03 ↗ centers in Oregon and is the person

2:36:06 ↗ directly overseeing Grand Ridge Plaza at

2:36:09 ↗ his clients to me and Keith Nevin and

2:36:12 ↗ could you please identify the purpose in

2:36:15 ↗ context of your December 1st 2017

2:36:18 ↗ message near the top of that page right

2:36:24 ↗ I'm trying to describe how vesting works

2:36:28 ↗ because that was Craig Rama's question

2:36:34 ↗ December 1st about whether shelter

2:36:37 ↗ Holdings was whether their application

2:36:40 ↗ was vested or not and I was trying to

2:36:43 ↗ describe our understanding of this

2:36:46 ↗ current state of vesting to him thank

2:36:48 ↗ you in your second paragraph beginning

2:36:50 ↗ with right now can you please read the

2:36:52 ↗ first two sentences right now other than

2:36:54 ↗ the land use permits which the state has

2:36:57 ↗ identified as being vested per in

2:36:59 ↗ preliminary Platts short plots building

2:37:01 ↗ permits development agreements close

2:37:03 ↗ paren there's a lot of uncertainty about

2:37:05 ↗ which permit pre app a SDP SDP close

2:37:09 ↗ paren would vest them if the vesting

2:37:12 ↗ language is removed only the land use

2:37:14 ↗ permits which state law identifies for

2:37:16 ↗ vesting would be vested any applicant

2:37:19 ↗ without one of those would have to start

2:37:21 ↗ over again using the new replacement

2:37:23 ↗ regulations which include a minimum at

2:37:26 ↗ they are of one and structured parking

2:37:28 ↗ thank you

2:37:29 ↗ and did that again reflect a

2:37:33 ↗ understanding of your department at the

2:37:35 ↗ time yes thank you I'd like to now

2:37:38 ↗ introduce City Exhibit C 38

2:37:48 ↗ can you identify this document this

2:37:50 ↗ woman this is an email from Keith Nibin

2:37:53 ↗ - tissue geyser a geezer who is the

2:37:57 ↗ assistant city clerk or deputy city

2:38:00 ↗ clerk for the city and acc2 me and what

2:38:06 ↗ was the purpose of this communication

2:38:08 ↗ strength

2:38:10 ↗ well tisha had originally John Haase who

2:38:15 ↗ was a property well he wasn't even a

2:38:17 ↗ property owner he was helping to develop

2:38:20 ↗ purchase and develop a piece of property

2:38:22 ↗ at Issaquah Highlands had received one

2:38:26 ↗ of my interested party emails of

2:38:29 ↗ February 2nd and he had contacted tisha

2:38:33 ↗ asking - wanting to facility a ski if

2:38:38 ↗ she would facilitate a meeting tisha had

2:38:41 ↗ sent it to me and I had responded that

2:38:47 ↗ this was not really up to me to

2:38:49 ↗ facilitate the meeting and then Keith

2:38:52 ↗ had responded trying to clarify to tisha

2:38:55 ↗ how a meeting mr. Haas or any other

2:38:59 ↗ parties that were interested in talking

2:39:01 ↗ about the changes that had taken place

2:39:04 ↗ to the proposed replacement regs how

2:39:09 ↗ they could facilitate a meeting with the

2:39:10 ↗ mayor and at the time that email was

2:39:12 ↗ written what was the administration's

2:39:15 ↗ then current proposal regarding the

2:39:18 ↗ vesting provision of the replacement

2:39:20 ↗ regulations to restrict it to those

2:39:24 ↗ items that were vested per state law

2:39:26 ↗ thank you

2:39:27 ↗ I'm now like to introduce exhibit number

2:39:29 ↗ C 39 please

2:39:52 ↗ mr. omec you please identify this

2:39:54 ↗ document this is an email from me to

2:39:58 ↗ Nick Abdel noir who has a high position

2:40:04 ↗ in polygon Northwest and Keith Nibin and

2:40:09 ↗ what was the purpose of this

2:40:10 ↗ communication well mister I believe mr.

2:40:14 ↗ Abdul noir had read our white paper that

2:40:17 ↗ had been sent to the land and Shore

2:40:20 ↗ Committee for the November 21st meeting

2:40:23 ↗ I'm guessing from looking at this and

2:40:28 ↗ had wanted clarification on what that

2:40:32 ↗ meant about his projects and can you

2:40:35 ↗ explain the basis for your response to

2:40:39 ↗ him beginning with the word yes so Nick

2:40:47 ↗ says on November 21st am I reading too

2:40:50 ↗ much into this on page 2 of the white

2:40:52 ↗ paper our projects were not included on

2:40:54 ↗ the short list because the city believes

2:40:56 ↗ and it's confirming our project spur in

2:40:59 ↗ single-family north multi-family north

2:41:01 ↗ track D and blocked for close paren are

2:41:04 ↗ vested and I said yes and I'll say it

2:41:06 ↗ again tonight when we look at unbuilt

2:41:08 ↗ properties and what was the basis for

2:41:11 ↗ your conclusion or determination in that

2:41:13 ↗ response that there that the properties

2:41:18 ↗ that he referenced had either a building

2:41:23 ↗ permit a preliminary plat or related to

2:41:26 ↗ the development agreements that we have

2:41:29 ↗ talked about before related to

2:41:31 ↗ affordable housing and all that all

2:41:36 ↗ those documents thank you

2:41:38 ↗ I'd like to introduce exhibit number C

2:41:40 ↗ 40

2:42:05 ↗ you please identify this document it's

2:42:07 ↗ an email from me to Richard Rawlings who

2:42:11 ↗ is also at polygon I don't know his

2:42:13 ↗ title as well as CC to nick abdel nor at

2:42:21 ↗ polygon and david Avenel at polygon and

2:42:25 ↗ Jennifer are woods who is a city staff

2:42:27 ↗ person if you could you please quote the

2:42:31 ↗ second paragraph of your November 3rd

2:42:35 ↗ 2017 response to mr. Rawlings

2:42:38 ↗ beginning with as for as for your

2:42:41 ↗ Westridge properties they are all vested

2:42:43 ↗ under the I HD a due to the development

2:42:45 ↗ agreement while I appreciate your

2:42:47 ↗ insights into the proposed standards

2:42:48 ↗ most won't apply ok what was the basis

2:42:51 ↗ excuse me could you please repeat the

2:42:56 ↗ last few words that so that the court

2:42:58 ↗ reporter once again so while I

2:43:01 ↗ appreciate your insights into the

2:43:03 ↗ proposed standards most won't apply most

2:43:08 ↗ won't apply thank you

2:43:15 ↗ and again what was the basis for this

2:43:18 ↗ response by development agreement

2:43:22 ↗ I meant the documents that had been

2:43:26 ↗ recorded in association with the TDRs

2:43:29 ↗ and affordable housing with the polygon

2:43:32 ↗ properties thank you I'd like to call

2:43:39 ↗ your attention to the applicants exhibit

2:43:43 ↗ s9

2:43:56 ↗ yes mr. Snyder's questions to you

2:44:01 ↗ regarding this document yes

2:44:03 ↗ okay I believe you indicated that you've

2:44:08 ↗ been employed by the city of Issaquah

2:44:11 ↗ for several years and you have been a

2:44:13 ↗ consultant for the city for even a

2:44:15 ↗ longer period of a defer to your actual

2:44:19 ↗ response but I believe it was at least

2:44:21 ↗ since 1996 or there abouts yes okay in

2:44:24 ↗ that period miss lemon has it had been

2:44:28 ↗ your experience and observation that the

2:44:30 ↗ city of Issaquah rigidly enforces the

2:44:34 ↗ priests of midal requirement listed on

2:44:37 ↗ page 2 of this document for a land use

2:44:40 ↗ permit notice of decision to be issued

2:44:42 ↗ before a DC I'm referring to yes the

2:44:50 ↗ middle requirements are not code they

2:44:54 ↗ are based on code they are based on the

2:44:59 ↗ things that we have to review but they

2:45:02 ↗ are more like a guide we have the

2:45:07 ↗ ability to ask for the things here but

2:45:10 ↗ we go through this list and review it

2:45:14 ↗ with applicants not every applicant but

2:45:18 ↗ often applicants will ask us to go

2:45:20 ↗ through and say do we need this thing do

2:45:22 ↗ we need that thing I don't think this

2:45:24 ↗ thing is relevant to our project why are

2:45:26 ↗ you asking for this and tailor it to the

2:45:33 ↗ project that's actually in front of us

2:45:34 ↗ do you consider that submitted checklist

2:45:37 ↗ to have independent binding regulatory

2:45:40 ↗ effect in the city no if there was a

2:45:43 ↗ conflict between adopted city code and

2:45:46 ↗ this document adopted city code would

2:45:49 ↗ take precedence do you consider the

2:45:53 ↗ vesting provision codified at IMC 1801

2:45:58 ↗ Oh 5oc to be in conflict with that

2:46:01 ↗ provision of the checklist submittal

2:46:03 ↗ requirements

2:46:05 ↗ it potentially could be yes and in the

2:46:07 ↗ event of such a conflict which of those

2:46:10 ↗ provisions would would prevail in

2:46:12 ↗ control they adopted I would note that

2:46:14 ↗ mr. L is asking for a legal opinion and

2:46:18 ↗ he's repeatedly objected to me doing

2:46:20 ↗ that he's also resorted again to asking

2:46:23 ↗ leading questions fair enough I will

2:46:25 ↗ rephrase the question

2:46:26 ↗ thank you miss Loman does the city

2:46:30 ↗ enforce I am IMC 1801 oh five OC over an

2:46:38 ↗ inconsistent provision of the

2:46:40 ↗ application checklist yes thank you

2:46:44 ↗ I'd like to then turn your attention

2:46:46 ↗ miss Loman to the applicants exhibit s12

2:46:57 ↗ this is a February 7 2018 powerpoint

2:47:02 ↗ presentation entitled ending the

2:47:04 ↗ development agreement in Issaquah

2:47:05 ↗ highlands yes could you please turn to

2:47:08 ↗ item number 7 entitled vesting the

2:47:12 ↗ provision that I believe mr. Snyder

2:47:13 ↗ referred to to during his

2:47:15 ↗ cross-examination yes in the first

2:47:22 ↗ bullet point mr. Snyder was correct

2:47:26 ↗ I refer to it as a bullet point when the

2:47:32 ↗ document states the development

2:47:33 ↗ agreement does not provide regulations

2:47:35 ↗ or guide guidance on vesting of projects

2:47:38 ↗ did you draft this provision this

2:47:42 ↗ reference to the PowerPoint probably

2:47:43 ↗ there did you at least participate in

2:47:45 ↗ the drafting yes okay what did you mean

2:47:48 ↗ by this reference well I think given

2:47:50 ↗ that the as the first page of s 12 shows

2:47:54 ↗ that this was in the context of ending

2:47:56 ↗ the development agreement that this was

2:48:01 ↗ to because we had been for months

2:48:05 ↗ talking about what provisions for

2:48:08 ↗ vesting or not vesting would apply as

2:48:12 ↗ the development agreement and

2:48:15 ↗ the point was to say that the

2:48:17 ↗ development agreement was did not

2:48:20 ↗ provide guidance on what vesting for

2:48:24 ↗ those permits that were in process what

2:48:29 ↗ that would be do you stand by that

2:48:31 ↗ statement today sure thank you could I

2:48:35 ↗ direct your attention to exhibit 4

2:48:38 ↗ attachment 9 to the staff report the

2:48:42 ↗ preface as these proceedings yes this is

2:48:46 ↗ the excerpts or select excerpts from the

2:48:50 ↗ Issaquah Highlands annexation and

2:48:52 ↗ development agreement yes I believe that

2:48:53 ↗ mr. Schneider had asked you some

2:48:56 ↗ questions

2:48:56 ↗ specifically related to section 3.23 of

2:49:01 ↗ that agreement and 3.2 3.2 do you recall

2:49:07 ↗ those questions and your testimony yes

2:49:09 ↗ okay are you aware of anything in those

2:49:13 ↗ provisions miss Loman that expressly

2:49:17 ↗ states that an applicant is vested

2:49:20 ↗ permanently to the standards in the

2:49:23 ↗ development agreement I don't think that

2:49:28 ↗ permanently vested is used in this

2:49:30 ↗ document they call your attention to

2:49:33 ↗ section five point one three also

2:49:35 ↗ contained in the excerpts in attachment

2:49:38 ↗ nine yes have you read this section yes

2:49:42 ↗ okay how do you construe or how does

2:49:45 ↗ this how do you construe this section in

2:49:48 ↗ relation to IH IFC's ASDP and SDP

2:49:53 ↗ permits well the very last sentence of

2:49:58 ↗ 5.1 three-term says upon such adoption

2:50:04 ↗ well I guess I should note that above

2:50:06 ↗ this it talks about replacement

2:50:08 ↗ regulations and so upon such adoption

2:50:14 ↗ this agreement shall terminate and

2:50:17 ↗ thereafter the UGA which is the urban

2:50:19 ↗ growth area portion of the property

2:50:21 ↗ shall be governed by the adopted city

2:50:24 ↗ zoning and related development

2:50:26 ↗ regulations

2:50:27 ↗ and again how do you construe that

2:50:31 ↗ provision as applying if at all - IH

2:50:34 ↗ IFC's a STP and SDP applications that

2:50:37 ↗ are issue in this proceeding that if you

2:50:40 ↗ don't have a permit that is vested to

2:50:44 ↗ the it Highlands development

2:50:46 ↗ agreement based on the replacement

2:50:49 ↗ regulations that whatever zoning and

2:50:51 ↗ development regulations are adopted

2:50:54 ↗ become the upon adoption of that

2:50:58 ↗ replacement zoning and development

2:51:00 ↗ regulations those are then in effect

2:51:02 ↗ thank you

2:51:03 ↗ elected returned your attention to

2:51:06 ↗ section 3.2 3 of the agreement also

2:51:10 ↗ excerpted at exhibit 9 yes in the title

2:51:15 ↗ of that section vesting of development

2:51:18 ↗ standards and mitigation do you think

2:51:20 ↗ you see that yes are you aware of any

2:51:23 ↗ other provision in the Issaquah

2:51:25 ↗ Highlands development agreement that

2:51:26 ↗ uses the words vest or vesting without

2:51:31 ↗ doing a word search I can't say but I

2:51:33 ↗ know that when in the time period in

2:51:39 ↗ which we implemented the development

2:51:42 ↗ agreement since I started working on it

2:51:44 ↗ in 1996 if someone asked me about

2:51:48 ↗ development standards and their vesting

2:51:50 ↗ this would be the likely place I would

2:51:52 ↗ start thank you

2:51:53 ↗ but just to clarify are are you aware of

2:51:56 ↗ any other place in the document where

2:51:58 ↗ that term occurs or exists not at the

2:52:00 ↗ top of my head thank you and just to

2:52:04 ↗ clarify you've had familiarity with this

2:52:06 ↗ document since 1996 according to your

2:52:08 ↗ earlier testimony is that correct yes

2:52:10 ↗ thank you

2:52:11 ↗ I'd like to now call your attention to

2:52:13 ↗ applicants exhibit s 15 yes this is the

2:52:22 ↗ PowerPoint presentation I believe from

2:52:25 ↗ your department for the November 21st

2:52:28 ↗ 2017 council land and Shore committee

2:52:31 ↗ yes meeting okay can you please turn

2:52:33 ↗ your attention to topic 4 entitled

2:52:36 ↗ vesting yes at the end of that document

2:52:41 ↗ okay in the second bullet point

2:52:44 ↗ reference what does it mean to say at

2:52:50 ↗ risk permits and then followed by pre

2:52:54 ↗ apps ASTP s and s DPS well looking under

2:52:59 ↗ the title topic for vesting it sort of

2:53:02 ↗ begins with an introductory question of

2:53:04 ↗ what happens to permits in review or

2:53:06 ↗ with active land use permits and the

2:53:10 ↗ first bullet identifies those that state

2:53:14 ↗ law ves and then the second bullet

2:53:18 ↗ identifies permits that are at risk

2:53:21 ↗ because they are not covered by state

2:53:23 ↗ law

2:53:23 ↗ thank you so this was a PowerPoint

2:53:27 ↗ presentation on November 21st 2017 and

2:53:36 ↗ was the council land and shore committee

2:53:38 ↗ meeting that that date opened to the

2:53:41 ↗ public yes was the agenda and related

2:53:46 ↗ materials for that meeting sent out to

2:53:48 ↗ the interested parties I my in I would

2:53:55 ↗ send a link to the PAC the land and

2:53:57 ↗ short packet where I hoc representatives

2:54:01 ↗ including MS Heim included as email

2:54:04 ↗ recipients of those materials yes would

2:54:06 ↗ this document have been included in that

2:54:08 ↗ no this document was prepared as a

2:54:12 ↗ summary of the materials that were in

2:54:15 ↗ the packet do you recall if Miss Heim or

2:54:17 ↗ any other IHI FC representatives

2:54:19 ↗ attended that meeting I would assume so

2:54:22 ↗ they were very interested in the

2:54:24 ↗ proceedings and had regularly attended

2:54:27 ↗ all the meetings

2:54:29 ↗ beginning with the land and Shore in the

2:54:31 ↗ fall of 2016 thank you the final bullet

2:54:35 ↗ point under the the topic for vesting

2:54:38 ↗ heading in your PowerPoint could you

2:54:42 ↗ please read that to me it's already

2:54:44 ↗ closed it

2:54:46 ↗ the last bullet please recommendation

2:54:49 ↗ recommendation ad vesting language and

2:54:53 ↗ what did you what what did that

2:54:55 ↗ reference mean what was the the purpose

2:54:58 ↗ and context of that well I think staffs

2:55:00 ↗ recommendation was that there that I

2:55:03 ↗ mean one of the options that had been

2:55:05 ↗ put forward over the month or two before

2:55:10 ↗ this meeting probably two months before

2:55:13 ↗ this meeting one of the options was to

2:55:18 ↗ be silent in the replacement regulations

2:55:20 ↗ with regards to vesting and staff did

2:55:22 ↗ not recommend that why not

2:55:24 ↗ we thought that it created uncertainty

2:55:25 ↗ and we wanted more clarity for

2:55:29 ↗ applicants staff the public thank you

2:55:39 ↗ we'd like to call your attention now to

2:55:41 ↗ applicants exhibit s13 this is a March

2:55:47 ↗ 27th 2017 letter sent by mr. Niven of

2:55:53 ↗ your department to mr. Nick Abdel nor

2:55:57 ↗ Abdul nor of polygon wlh LLC uh-huh okay

2:56:08 ↗ did you participate in the drafting of

2:56:11 ↗ this letter I don't think so thank you

2:56:21 ↗ like to call your attention to

2:56:23 ↗ applicants exhibit what is now termed s1

2:56:27 ↗ this is the notice of application for

2:56:30 ↗ the IH IFC preliminary plat that was

2:56:33 ↗ issued I believe in in December of I

2:56:36 ↗ believe in either December or January of

2:56:38 ↗ last year yes to your knowledge and

2:56:46 ↗ understanding miss Loma is a notice of

2:56:49 ↗ application independently appealable

2:56:52 ↗ under the city's regulations no it and

2:56:55 ↗ my understanding is that it begins a

2:56:57 ↗ process that culminates in a decision

2:56:59 ↗ that can be appealed but it didn't it in

2:57:02 ↗ and of itself would not be thank you

2:57:10 ↗ have no further questions actually I'm

2:57:13 ↗ sorry pardon me did you have anything

2:57:14 ↗ else that you wanted to clarify miss

2:57:16 ↗ Loman from your original testimony or

2:57:19 ↗ your cross-examination testimony from

2:57:21 ↗ mr. Snyder well I I guess mr. Snyder did

2:57:29 ↗ not you know it wasn't he didn't find it

2:57:31 ↗ responsive to his question but I know

2:57:34 ↗ that one of the questions that we have

2:57:37 ↗ focused on is the pre application

2:57:42 ↗ process I think that the city had

2:57:46 ↗ started by saying that they were

2:57:48 ↗ necessary and then conceded that they

2:57:51 ↗ weren't when you look at the processing

2:57:57 ↗ of the various land use permits when the

2:58:00 ↗ pre apse took place and when the

2:58:03 ↗ applications were submitted as I

2:58:05 ↗ mentioned the retail site development

2:58:09 ↗ permit was submitted on November 22nd

2:58:13 ↗ 2017 and our sufficiency letter went out

2:58:17 ↗ on December 1st 2017 and while we

2:58:21 ↗ identified a number of items that we

2:58:24 ↗ felt were insufficient not holding a

2:58:27 ↗ preliminary pre-op meeting was one of

2:58:30 ↗ them and and their pre-op meeting did

2:58:32 ↗ not take place until

2:58:34 ↗ were fifth so if we were going to

2:58:36 ↗ require that of them that would have

2:58:38 ↗ been something that we would have

2:58:40 ↗ identified and just for purposes of

2:58:44 ↗ clarification the city originally told

2:58:47 ↗ IH IFC that a pre-op was required but

2:58:51 ↗ then clarified that it was not was that

2:58:53 ↗ right after Ms hime pointed out that

2:58:56 ↗ they should be treated as optional

2:58:58 ↗ meetings so in the end the city did not

2:59:02 ↗ require a pre-application no and we

2:59:04 ↗ assumed that they were proceeding with

2:59:06 ↗ them because they thought there would be

2:59:09 ↗ beneficial we certainly found them to be

2:59:11 ↗ helpful in terms of improving the

2:59:14 ↗ quality of the land jusa middle and I

2:59:19 ↗ believe mr. Schneider touched on this in

2:59:23 ↗ his questioning but I don't recall the

2:59:25 ↗ response how was that communicated to

2:59:29 ↗ the applicant that you were not going to

2:59:31 ↗ require a pre-application I thought that

2:59:35 ↗ it was through an email but I don't

2:59:37 ↗ actually I have not done any research to

2:59:40 ↗ determine how whether who or how we

2:59:43 ↗ conveyed that thank you very much no

2:59:45 ↗ further questions mr. Haines so mr.

2:59:50 ↗ Schneider I think you have a chance now

2:59:52 ↗ to address specifics to the new material

2:59:55 ↗ you've just received well much of the

2:59:59 ↗ new material we just received I think

3:00:01 ↗ goes way beyond the scope of any

3:00:04 ↗ questions I asked and it's remarkable

3:00:06 ↗ that all these exhibits can be put

3:00:08 ↗ together in ten minute a ten minute

3:00:11 ↗ break this is I think clearly in an

3:00:13 ↗ introduction of new evidence and new

3:00:15 ↗ issues and it's going to take me a while

3:00:18 ↗ to go through these documents they're

3:00:20 ↗ there beyond the scope of anything I

3:00:22 ↗ went into so again I suggest in terms of

3:00:27 ↗ efficiency we break here I've got like

3:00:30 ↗ 10 new documents to look at and figure

3:00:32 ↗ out how they're relevant to do this I

3:00:35 ↗ can go ahead and get started but I don't

3:00:37 ↗ see any hope of being done by 10 with

3:00:39 ↗ all of this new information in the

3:00:41 ↗ record in the city does not have any

3:00:42 ↗ objection to breaking at this point with

3:00:44 ↗ the understanding that mr. Niven would

3:00:45 ↗ come

3:00:46 ↗ at the next meeting to discuss the

3:00:48 ↗ polygon materials okay well we can

3:00:52 ↗ certainly do the politician Evans

3:00:54 ↗ testimony tonight but I think it would

3:00:57 ↗ be more efficient for everyone if I have

3:00:59 ↗ a chance to look at these new materials

3:01:01 ↗ no objection

3:01:02 ↗ okay so let's proceed with mr. Newman's

3:01:04 ↗ discussion of attack of attachments 32

3:01:10 ↗ and 33 33 and 34 that correct 33 and 34

3:01:16 ↗ okay Jack are you gonna have questions

3:01:25 ↗ or very briefly if I could mr. chairman

3:01:28 ↗ okay thank you

3:01:43 ↗ mr. Niven could you please acknowledge

3:01:45 ↗ for the record that you continue to be

3:01:47 ↗ under oath from your earlier testimony I

3:01:50 ↗ do thank you as you're aware the city

3:01:55 ↗ introduced into evidence tonight two

3:01:57 ↗ documents labeled exhibit 33 and 34 are

3:02:02 ↗ you familiar with these materials I am

3:02:05 ↗ okay I think you could you briefly

3:02:06 ↗ describe exhibit 33 see 33 so exhibit 33

3:02:12 ↗ is a development agreement with polygon

3:02:17 ↗ northwest and it relates to the

3:02:20 ↗ provision of affordable housing units

3:02:22 ↗ that was associated with the transfer of

3:02:25 ↗ development right agreement that the

3:02:27 ↗ city approved for Issaquah islands and

3:02:32 ↗ when was this document executed it was

3:02:39 ↗ recorded in January can we see the 27th

3:02:44 ↗ of December 2017 okay thank you

3:02:48 ↗ what was the purpose and context of this

3:02:51 ↗ document the purpose of this document

3:02:56 ↗ was to obligate the terms by which

3:03:02 ↗ polygons would provide affordable

3:03:07 ↗ housing as part of its development of

3:03:10 ↗ two different neighborhoods

3:03:13 ↗ in Issaquah Highlands that was part of a

3:03:19 ↗ development agreement amendment for

3:03:23 ↗ Issaquah Islands because they had

3:03:26 ↗ purchased a hundred TDRs transfer of

3:03:29 ↗ development rights sorry for the

3:03:30 ↗ acronyms and what is a TDR our tribes

3:03:33 ↗ for development right just for the

3:03:35 ↗ record so transfer development rights so

3:03:38 ↗ the city has code which allows which

3:03:42 ↗ creates both sending sites and receiving

3:03:45 ↗ sites for transfer of development rights

3:03:48 ↗ one of the sending sites was development

3:03:53 ↗ on tiger called Park point

3:03:54 ↗ and all of those development rights

3:03:58 ↗ except for 100 were used up previously

3:04:01 ↗ by port Blakely the remaining hundred

3:04:06 ↗ were purchased by polygon Northwest and

3:04:10 ↗ they sought to move those to actuate

3:04:17 ↗ those hundred transfer of development

3:04:19 ↗ rights in property they owned in

3:04:22 ↗ Issaquah Islands thank you so the city

3:04:24 ↗ started a conversation with them about

3:04:26 ↗ that and about amending the existing

3:04:30 ↗ Issaquah Islands development agreement

3:04:32 ↗ to allow an additional 100 residential

3:04:35 ↗ units could I please turn your attention

3:04:37 ↗ to page 7 section 4 of this document yes

3:04:46 ↗ could you please read that aloud yes so

3:04:49 ↗ section 4 is titled covenant running

3:04:52 ↗ with the land semicolon enforcement and

3:04:56 ↗ it reads this agreement shall constitute

3:04:59 ↗ a covenant running with the land and

3:05:01 ↗ shall inure to the benefit of and be

3:05:04 ↗ binding upon the parties and their

3:05:07 ↗ respective heirs successors and assigns

3:05:09 ↗ until terminated as provided in section

3:05:12 ↗ 5 of this Agreement the covenants and

3:05:15 ↗ restrictions contained herein shall

3:05:17 ↗ benefit the city and the city is hereby

3:05:20 ↗ granted full authority to enforce this

3:05:22 ↗ agreement by any means available under

3:05:24 ↗ the law thank you

3:05:26 ↗ what's the purpose of that section as

3:05:28 ↗ you understand it the purpose of this

3:05:30 ↗ section is to identify that this

3:05:34 ↗ document was executed to the benefit of

3:05:38 ↗ the city between the parties that

3:05:40 ↗ executed it and did you read aloud

3:05:44 ↗ section 5 yes section 5 was the section

3:05:48 ↗ I clipped in the exhibit that we I

3:05:51 ↗ provided last meeting to try and explain

3:05:54 ↗ why polygon was treated differently

3:05:56 ↗ section 5 is titled termination and it

3:06:00 ↗ reads upon the final sale and closing of

3:06:03 ↗ the affordable units as provided

3:06:07 ↗ in in this agreement then the city shall

3:06:09 ↗ at the owner's request execute a

3:06:11 ↗ document in recordable form in

3:06:15 ↗ substantially the form of exhibit F

3:06:18 ↗ paren termination agreement that so

3:06:23 ↗ states and recites that this agreement

3:06:25 ↗ and its covenants are therefore

3:06:27 ↗ terminated the owner shall pay all fees

3:06:30 ↗ and charges incurred in connection with

3:06:33 ↗ any such recording and I believe that

3:06:36 ↗ this section 5 was excerpted and

3:06:40 ↗ included in a previous exhibit that was

3:06:43 ↗ submitted do you recall that I did what

3:06:45 ↗ was the purpose of that the purpose of

3:06:48 ↗ that was to provide an explanation to

3:06:55 ↗ the applicant why polygons Northwest was

3:07:00 ↗ allowed to continue to develop its

3:07:04 ↗ parcels under the Issaquah Highlands the

3:07:05 ↗ velum agreement and so I'm clear are you

3:07:09 ↗ saying that the part of the reason was

3:07:11 ↗ because the city had undertaken this

3:07:13 ↗ contractual obligation was that what you

3:07:15 ↗ mean yes okay thank you could I please

3:07:19 ↗ turn your attention to Exhibit C 34 yes

3:07:24 ↗ this is a development agreement I think

3:07:26 ↗ that you answered some questions about

3:07:28 ↗ this previously but could you please

3:07:29 ↗ describe this document yes so this

3:07:33 ↗ document is was was basically the

3:07:38 ↗ document that we took through the City

3:07:41 ↗ Council and identified the parcels you

3:07:49 ↗ can see the exhibit which is labeled

3:07:51 ↗ attachment 2 on page 6 those are the two

3:07:55 ↗ parcels that we've been discussing that

3:07:59 ↗ our own by polygon it also then if you

3:08:02 ↗ move on to attachment 3 we provided

3:08:08 ↗ a valuation because ultimately what was

3:08:12 ↗ being requested was that a city-owned

3:08:15 ↗ parcel which is track D I think there's

3:08:19 ↗ an exhibit that shows where that is here

3:08:21 ↗ maybe not would be basically traded to

3:08:29 ↗ polygon in exchange for the affordable

3:08:32 ↗ housing units that were identified and

3:08:34 ↗ that the the city needed to demonstrate

3:08:37 ↗ that there was a benefit to the public

3:08:41 ↗ so that there wouldn't be gifting of

3:08:43 ↗ land to polygon through this transaction

3:08:47 ↗ mr. Nevin to your understanding do

3:08:50 ↗ either one of these documents either the

3:08:52 ↗ the agreement identified as Exhibit C 33

3:08:56 ↗ or the exhibit identified as C 35

3:08:59 ↗ contain a defined build-out period

3:09:04 ↗ similar to the Issaquah Highlands

3:09:06 ↗ development agreement by C 35 did you

3:09:10 ↗ mean before excuse me okay so so what

3:09:17 ↗ these documents did was they created a

3:09:20 ↗ construct by which polygons could

3:09:24 ↗ actualize those hundred TDRs transferred

3:09:27 ↗ development rights as part of their

3:09:29 ↗ build-out of their property and the city

3:09:31 ↗ would in return get a certain number of

3:09:34 ↗ affordable housing units constructed as

3:09:38 ↗ part of the build out of those two

3:09:39 ↗ divisions and so the termination that

3:09:42 ↗ the build-out period was basically set

3:09:46 ↗ up so that those two neighborhoods could

3:09:48 ↗ get built out we would get our

3:09:50 ↗ affordable housing and then these

3:09:52 ↗ documents would sunset okay I have no

3:09:55 ↗ further questions thank you would if I

3:09:59 ↗ could I like to introduce one additional

3:10:00 ↗ document for context into the

3:10:04 ↗ I think the appropriate time to do that

3:10:05 ↗ would be now because it's a relates at

3:10:08 ↗ least peripherally to the the agreements

3:10:12 ↗ that were previously entered as see 33

3:10:15 ↗ and see 34 okay thank you this will be C

3:10:18 ↗ 41

3:10:37 ↗ [Applause]

3:11:03 ↗ no further question mr. Charlie thank

3:11:05 ↗ you

3:11:12 ↗ [Applause]

3:12:07 ↗ a mr. Navin I'm trying to digest the new

3:12:10 ↗ exhibit c41

3:12:12 ↗ did you write this letter I did was it

3:12:16 ↗ written by mr. Abdel our instead of you

3:12:21 ↗ I don't believe so but it's been a year

3:12:26 ↗ so I don't I can't say conclusively it

3:12:29 ↗ was or was not I don't believe he wrote

3:12:32 ↗ this but I don't remember it mr. advil

3:12:36 ↗ now or write any letter for you

3:12:38 ↗ regarding the vesting of those projects

3:12:40 ↗ and asked you to put it on your

3:12:41 ↗ letterhead and sign it I don't recall

3:12:44 ↗ you don't recall one way or the other

3:12:47 ↗ I don't recall one way or the other

3:12:58 ↗ so this is dated November 22nd of 2017

3:13:05 ↗ but it says it's supplementary to the

3:13:08 ↗ correspondence of March 2017

3:13:10 ↗ I guess those were statements rather

3:13:17 ↗ than questions

3:13:23 ↗ though it refers to a new development

3:13:25 ↗ agreement that the City and polygon

3:13:28 ↗ entered into and says based on the terms

3:13:36 ↗ of the new agreement that these projects

3:13:45 ↗ are vested to the Issaquah Highlands

3:13:47 ↗ development agreement correct yes I

3:13:50 ↗ submit to you mr. Nevin that mr. Allen

3:13:54 ↗ our wrote this letter and asked you to

3:13:57 ↗ put it on let your letterhead and sign

3:13:59 ↗ it and that's what happened is that not

3:14:02 ↗ correct I think I already answered that

3:14:04 ↗ question okay so we're in the

3:14:16 ↗ so let's turn to Exhibit C 33 for a

3:14:19 ↗ minute you referred to this as a

3:14:22 ↗ development agreement that's not what it

3:14:24 ↗ is is it I believe it's an affordable

3:14:28 ↗ housing development agreement where does

3:14:30 ↗ it say it's a development agreement yeah

3:14:32 ↗ it's an agreement for development

3:14:34 ↗ development agreement is a creature

3:14:37 ↗ created by state statute that requires

3:14:39 ↗ certain procedures to to create is that

3:14:44 ↗ not correct that is a defined

3:14:47 ↗ development agreement by state statute

3:14:49 ↗ right okay and are you asserting this

3:14:51 ↗ document which is called a developer

3:14:54 ↗ sales agreement is in fact a development

3:14:56 ↗ agreement executed pursuant to state law

3:15:03 ↗ you're gonna need to say that one more

3:15:06 ↗ time are you saying that this is a

3:15:08 ↗ development agreement executed pursuant

3:15:11 ↗ to state law in the same way the

3:15:13 ↗ Issaquah Highlands development agreement

3:15:15 ↗ was

3:15:35 ↗ so I think so I'm going to answer the

3:15:38 ↗ question the way I want to and then you

3:15:40 ↗ can tell me if you want me to Rianne sir

3:15:42 ↗ it c34 is a development agreement which

3:15:46 ↗ I consider equivalent to the development

3:15:49 ↗ agreement for Zeke watt Highlands c33

3:15:52 ↗ is called out for as a requirement of

3:15:57 ↗ the development agreement c34 and

3:16:02 ↗ whether that legally has a standing of

3:16:04 ↗ equivalents I'm not a lawyer and I can't

3:16:07 ↗ answer that question

3:16:08 ↗ okay so let's turn to c34 then and where

3:16:11 ↗ does it call out

3:16:12 ↗ c33 in subsections 1 e as in elephant

3:16:31 ↗ you're gonna have to forgive me for a

3:16:33 ↗ minute

3:16:34 ↗ our copy of that agreement has walked

3:16:37 ↗ off here

3:16:48 ↗ okay so I'm sorry which section again

3:16:50 ↗ mr. Navin section one elephant it's on

3:16:59 ↗ page three top of page three we must be

3:17:07 ↗ looking at a different document to the

3:17:09 ↗ top of its I have section e at the top

3:17:14 ↗ of page three its

3:17:17 ↗ section one and in the letter is e under

3:17:21 ↗ section one

3:17:21 ↗ okay one subsection yes okay

3:17:59 ↗ okay I'm having trouble seeing why we're

3:18:03 ↗ not in a circle here terms of the dates

3:18:07 ↗ and the documents is it not correct that

3:18:11 ↗ the c30 for the document that is called

3:18:16 ↗ a development agreement is an attachment

3:18:19 ↗ to Exhibit C 33 so C 33 is a requirement

3:18:30 ↗ of C 34 and C 34 is an attachment to C

3:18:36 ↗ 33

3:19:22 ↗ c34 is part of C 33 so C 33 has attached

3:19:32 ↗ to it the development agreement a so

3:19:40 ↗ what are the dates then the C 33 is

3:19:49 ↗ recorded on January 28 2018 d 33 is

3:20:01 ↗ executed 918 of 17 the copy that's

3:20:14 ↗ attached to the recorded C 33 is not

3:20:18 ↗ signed

3:20:26 ↗ okay well and I apologize it's late and

3:20:30 ↗ I am having a hard time making sense of

3:20:32 ↗ them but let me let me ask you where in

3:20:37 ↗ either agreement does it say anything

3:20:38 ↗ about testing to the regulations in the

3:20:44 ↗ Issaquah Highlands development agreement

3:20:51 ↗ it says anything about vesting to the

3:20:54 ↗ development regulations in the Issaquah

3:20:56 ↗ Highlands development agreement so it's

3:21:05 ↗ the it's the opinion of the city as

3:21:09 ↗ stated previously that section 7 r5 I

3:21:13 ↗ mean termination section 5 of exhibit 33

3:21:21 ↗ yes you have to explain that one to me

3:21:28 ↗ mister Niven I don't see any reference

3:21:29 ↗ in termination to either the Issaquah

3:21:33 ↗ Highlands development agreement or to

3:21:35 ↗ vesting so the construct of these

3:21:40 ↗ agreements was that polygons could build

3:21:44 ↗ out their properties under the existing

3:21:46 ↗ terms of the development agreement until

3:21:50 ↗ they finished as it's described in

3:21:54 ↗ section 5 termination well again I don't

3:22:01 ↗ see that anywhere in either agreement

3:22:05 ↗ though

3:22:10 ↗ how does the termination of this

3:22:12 ↗ agreement do any have anything to do

3:22:14 ↗ with vesting it I'm genuinely I simply

3:22:21 ↗ do not begin to understand so what is

3:22:25 ↗ the city's rationale for interpreting

3:22:27 ↗ section 5 as creating vested rights in a

3:22:30 ↗ development agreement that the city

3:22:32 ↗ terminated what was the city's I'm sorry

3:22:38 ↗ but the what was the city's intent

3:22:41 ↗ no what how does the city interpret

3:22:44 ↗ sorry it's late I'm trying to hear your

3:22:46 ↗ question and I apologize I have to me

3:22:48 ↗ like I'm shouting and apparently it's

3:22:50 ↗ not caring but can you explain one more

3:22:55 ↗ time how we get from termination to do

3:22:59 ↗ vesting so these these agreements which

3:23:05 ↗ were put together to obligate polygons

3:23:11 ↗ Northwest to provide a public benefit as

3:23:15 ↗ part of the build-out of their property

3:23:17 ↗ was put together in a way that ran with

3:23:23 ↗ the land until that benefit was provided

3:23:26 ↗ and so the termination piece is

3:23:29 ↗ addressing when basically they're their

3:23:38 ↗ rules would expire so the intent here

3:23:42 ↗ when we put this together and there can

3:23:44 ↗ be maybe a separate conversation about

3:23:46 ↗ whether it reads that way to everybody

3:23:49 ↗ or not but the way that this read to the

3:23:53 ↗ city and polygon was that this would

3:23:55 ↗ keep would allow them to fulfill their

3:23:58 ↗ obligation to provide those affordable

3:24:01 ↗ housing units under the terms of the

3:24:03 ↗ development agreement which was still in

3:24:07 ↗ effect when this dot these documents

3:24:09 ↗ were executed but Mr divin isn't it

3:24:12 ↗ correct that the replacement regulations

3:24:15 ↗ allowed polygons to go ahead and build

3:24:18 ↗ the affordable housing

3:24:20 ↗ I don't think that we ever evaluated

3:24:26 ↗ what polygons and the city agreed to

3:24:29 ↗ under the replacement regulations so I

3:24:31 ↗ can't I don't know the answer to that

3:24:32 ↗ question are you

3:24:42 ↗ you are aware their property is zoned

3:24:43 ↗ for residential correct I do okay so I

3:24:49 ↗ don't think I have any more questions

3:24:51 ↗ about the exhibit 33 in 34 but I in

3:24:59 ↗ lighted this testimony I do have a

3:25:02 ↗ couple of documents I want to submit

3:25:03 ↗ next time in rebuttal so that I would

3:25:09 ↗ suggest we terminate for tonight talk

3:25:11 ↗ about upcoming dates I just would like

3:25:13 ↗ to reserve the opportunity to submit

3:25:15 ↗ some additional evidence in response to

3:25:17 ↗ this no objection from the city mr.

3:25:20 ↗ chairman you may recall that the rules

3:25:22 ↗ of procedure for this proceeding

3:25:24 ↗ contemplated that the parties free to

3:25:26 ↗ submit documents and other evidence up

3:25:29 ↗ to the close of the hearings the city

3:25:30 ↗ does not object to mr. Snyder's proposal

3:25:33 ↗ excellent

3:25:36 ↗ so in light of the hour

3:25:40 ↗ I guess this meeting is now adjourned to

3:25:43 ↗ Tuesday January 15 2019 at 6:30 and the

3:25:48 ↗ meeting will be held in the council

3:25:50 ↗ chambers here and are we also confirmed

3:25:54 ↗ for the 16th and what it makes sense to

3:26:00 ↗ try about to talk about future dates as

3:26:03 ↗ well since we're not going to get done

3:26:05 ↗ those two nights sure

3:26:11 ↗ so I think it's a question of when the

3:26:14 ↗ commissioners willing to enable it me I

3:26:16 ↗ think the the way that has been most

3:26:17 ↗ effective is staff sends out dates that

3:26:22 ↗ are available to the Commission to check

3:26:24 ↗ on our availability and they'll work

3:26:25 ↗ back with with you mr. Schneider and

3:26:28 ↗ your team as well as the city's team to

3:26:30 ↗ make sure we can find some dates that

3:26:32 ↗ line up but recognizing we're trying to

3:26:34 ↗ accomplish the set that really is

3:26:35 ↗ convenience that we can accomplish we

3:26:38 ↗ would for all the reasons we've

3:26:39 ↗ discussed to be grateful as for as many

3:26:41 ↗ dates as soon as possible excellent so

3:26:44 ↗ with that I guess we are adjourned I

3:26:46 ↗ would like to wish everybody a wonderful

3:26:48 ↗ holiday and a prosperous exciting new

3:26:51 ↗ year thank you thank you thank you

3:26:56 ↗ [Applause]

3:27:05 ↗ you

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