Development Commission Special Meeting · 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

Approved minutes

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

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Recommendations & actions (3)

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

He asked Sloman to comment on the delay in providing Heim with the information she requested.
Schneider referred to Exhibit C-27 about timelines, and noted that another application, Westridge Townhomes (Polygon) was approved in July
At Schneider’s suggestion, the Commission agreed to hear the videotape of the meeting at which Sloman made her remarks (Land and Shore Committee, November 21, 2017) but asked Schneider to refrain from asking Sloman to…