Development Commission - Special Meeting - 16 J · Wednesday, January 16, 2019 · 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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0:19 ↗ Oh evening lien gentlemen were on the

0:27 ↗ air so it's time for us to start I'd

0:30 ↗ like to welcome everybody to the what

0:33 ↗ identified on the agenda is a special

0:36 ↗ meeting but the truth is this night is a

0:37 ↗ regularly scheduled meeting for the

0:39 ↗ development Commission so it's a regular

0:41 ↗ irregular meeting of the Coppa

0:44 ↗ Development Commission and as such it

0:47 ↗ gives us the opportunity to modify our

0:50 ↗ agenda and what I would like to do is to

0:53 ↗ bring up the notion of the approval of

0:57 ↗ the minutes from last night and move

0:59 ↗ that forward so if people are willing to

1:03 ↗ modify the agenda I don't need a motion

1:05 ↗ to do that we move to modify the agenda

1:08 ↗ to include approval minutes okay second

1:11 ↗ any opposed

1:15 ↗ all in favor say aye aye

1:18 ↗ motion passed and so we have on the

1:20 ↗ agenda now the notion of approving the

1:22 ↗ minutes and so as I asked last night I

1:25 ↗ hope you have all had the opportunity to

1:27 ↗ read those minutes mm-hmm

1:30 ↗ anybody have any Corrections or changes

1:32 ↗ would mr. chairman I'd like to propose

1:36 ↗ that in the light of the fact that these

1:39 ↗ are unusual meetings for the council

1:41 ↗ both in terms of scope in the amount of

1:43 ↗ detail being presented by both sides

1:45 ↗ that it might be appropriate to

1:47 ↗ reference or make reference to the full

1:50 ↗ transcript as well and I'd like to

1:54 ↗ suggest some wording possibly to amend

1:56 ↗ the minutes to be revised as the

2:01 ↗ Commission sees appropriate have some

2:05 ↗ candidate wording if that's appropriate

2:07 ↗ okay

2:10 ↗ I'd like to suggest these minutes are

2:12 ↗ provided as a written record of the

2:14 ↗ meeting pursuant to IMC 18 point oh

2:17 ↗ three point 100 see a video recording of

2:20 ↗ the meeting and a full transcript of the

2:22 ↗ proceeding all so exists as public

2:24 ↗ records

2:28 ↗ maybe that is emotion yes and the

2:32 ↗ suggestion is that that be placed as a

2:34 ↗ footnote on the first page of all of

2:37 ↗ these minutes footnote 2 the title or

2:40 ↗ immediately following the title of all

2:41 ↗ the minutes so with that motion we would

2:46 ↗ be introducing the transcript as part of

2:48 ↗ the record which wasn't I mean it was

2:52 ↗ sounds like a suggestion from the

2:56 ↗ applicant to have a transcript in the

2:58 ↗ city but it wasn't initially going to be

3:00 ↗ considered as part of the record so

3:01 ↗ we're making that decision instead of

3:03 ↗ counsel making that recommendation I

3:05 ↗ don't that matters question if I might

3:12 ↗ interject I know you had a question come

3:15 ↗ last night about some of the legal

3:17 ↗ obligations with respect to Development

3:19 ↗ Commission and if you'd like I'm

3:21 ↗ prepared to to respond I think to the

3:24 ↗ question that had been asked a lot last

3:27 ↗ night is part of the discussion for this

3:28 ↗ motion I think that would be appropriate

3:30 ↗ okay yeah okay

3:32 ↗ so thank you for giving me an evening to

3:37 ↗ review your code a little bit more in

3:39 ↗ depth to make sure that I understood the

3:41 ↗ scope of both your meeting obligations

3:44 ↗ as well as the hearing so there are two

3:49 ↗ legal obligations with respect to the

3:51 ↗ Development Commission and minute

3:54 ↗ keeping purposes so one is under the

3:56 ↗ open public meetings act the there is a

3:59 ↗ section of that statute 42.3 0.035 that

4:05 ↗ does require that the minutes of all

4:07 ↗ regular and special meetings executive

4:10 ↗ accept executive session be promptly

4:13 ↗ recorded and such record shall be open

4:16 ↗ to public inspection so that's state law

4:18 ↗ and then as required by code as was

4:24 ↗ exactly a paraphrase the Commission

4:29 ↗ shall keep a written record of its

4:30 ↗ proceedings so there is a that

4:32 ↗ obligation as a practical matter I

4:37 ↗ understand and this is when I

4:39 ↗ want to just confirm with you all that

4:40 ↗ typically has been your practice to

4:43 ↗ approve minutes at the conclude at the

4:45 ↗ next meeting so minutes from tonight and

4:49 ↗ theory would be approved at the next

4:52 ↗ scheduled meeting for the development

4:53 ↗ Commission generally the practice but

4:56 ↗ there are the instances where there may

4:58 ↗ be some reasons that delay the minutes

4:59 ↗ preparations they may get pushed out a

5:01 ↗ couple meetings but it is in close

5:03 ↗ proximity as reasonable okay okay

5:07 ↗ and then I thought this would be helpful

5:10 ↗ for you all to understand there are some

5:12 ↗ additional definitions within the city

5:15 ↗ code that have to do with public

5:17 ↗ hearings and records in for purposes of

5:21 ↗ appeal so this is separate from meeting

5:23 ↗ minutes obligations okay so this is the

5:28 ↗ definition and the definition of public

5:30 ↗ hearing under IMC 18.0 2.18 0 a hearing

5:38 ↗ with advanced and pro find is a hearing

5:40 ↗ with advanced public notice where the

5:41 ↗ public is given the opportunity to

5:43 ↗ provide written and oral testimony and

5:45 ↗ the testimony is made part of the

5:47 ↗ official project record the hearing

5:49 ↗ conducted by a single hearing body or

5:51 ↗ officer authorized by the city to

5:53 ↗ conduct such hearings that creates the

5:55 ↗ city's record through testimony and

5:57 ↗ submission of evidence and information

5:59 ↗ okay so that's the definition of a

6:01 ↗ public hearing as has been discussed in

6:04 ↗ this proceeding from this public hearing

6:07 ↗ if the parties choose to appeal that

6:10 ↗ would go to a closed record hearing a

6:12 ↗ closed record hearing under IMC 18 point

6:16 ↗ O two point O 3 zero is defined as an

6:19 ↗ administrative appeal on the record to

6:21 ↗ the city including the City Council

6:23 ↗ following an open record hearing on a

6:25 ↗ project permit application when the

6:27 ↗ appeal is on the record with no or

6:30 ↗ limited new evidence or information

6:31 ↗ allowed to be submitted and only appeal

6:34 ↗ argument allowed okay so those are the

6:35 ↗ two definitions so we're in the public

6:37 ↗ hearing phase afterward there would be a

6:39 ↗ closed record appeal and that was the

6:42 ↗ definition so for the purposes of that

6:44 ↗ closed record appeal the code does

6:47 ↗ include or specify what constitutes the

6:52 ↗ appeal record and I think this is

6:54 ↗ probably the provision most relevant for

6:55 ↗ this evening the appeal records shall

6:57 ↗ include written findings and conclusions

7:00 ↗ he taped or written transcript and all

7:04 ↗ exhibits entered into the record and

7:08 ↗ then finally I just wanted to note for

7:10 ↗ you out the Hearing Examiner rules even

7:12 ↗ though this is this is really gets

7:14 ↗ beyond the development Commission scope

7:17 ↗ but at least because it's been raised in

7:18 ↗ the context of an objection to your

7:20 ↗ meeting minutes with respect to what

7:22 ↗ record would go up on appeal the Hearing

7:25 ↗ Examiner Rule 2.1 2.1 states that

7:30 ↗ pursuant to IMC 18.04 0.25 0 F that's a

7:37 ↗ profess provision I just read the record

7:40 ↗ of an appeal shall include the

7:41 ↗ application or petition the departmental

7:44 ↗ staff reports all evidence received

7:47 ↗ which shall include oral testimony given

7:49 ↗ at the hearing all exhibits and other

7:51 ↗ materials submitted as evidence all

7:54 ↗ statement of all matters excuse me a

7:57 ↗ statement of all matters officially

7:58 ↗ noticed a decision or recommended

8:00 ↗ decision containing the findings and

8:03 ↗ conclusions of the Hearing Examiner

8:05 ↗ recordings made on electronic equipment

8:08 ↗ and an environmental determination may

8:10 ↗ pursuant to SEPA if applicable so that

8:14 ↗ was a lot of information but the bottom

8:16 ↗ line is is that there is for the

8:18 ↗ purposes of appeal a definition of what

8:20 ↗ constitutes the record it does not

8:24 ↗ include references the Development

8:25 ↗ Commission meeting minutes if the

8:28 ↗ parties choose to offer that as per the

8:31 ↗ Hearing Examiner rule as you know

8:35 ↗ additional evidence that they think

8:36 ↗ falls into one of those categories they

8:39 ↗ may do so but in terms of what

8:41 ↗ constitutes the record it would be your

8:43 ↗ written findings and conclusions which

8:45 ↗ would be made at the conclusion of this

8:47 ↗ hearing the the transcript which has

8:50 ↗ been referenced as well as the exhibits

8:51 ↗ that are entered into the record so the

8:53 ↗ question of bringing into evidence the

8:57 ↗ transcript then if we are were to admit

8:59 ↗ it to the record that would you know it

9:01 ↗ would be either an exhibit or it already

9:02 ↗ would be a

9:03 ↗ part of it to the extent that the co

9:05 ↗ provides for that okay that's helpful

9:07 ↗ thank you yep so with the transcript

9:11 ↗ it's already included in the record

9:13 ↗ regarding appeal probably our reference

9:16 ↗ to it here might be superfluous as that

9:18 ↗ rain it's already you find as a part of

9:20 ↗ the appeal record in the code so I think

9:23 ↗ the distinction here is that you're

9:26 ↗ meeting minutes that are a part of the

9:28 ↗ agenda being asked for adoption those in

9:30 ↗ my mind are not clearly part of the

9:33 ↗ record as specified it may become a part

9:35 ↗ of the record if the parties advocate

9:37 ↗ for that beyond this proceeding but at

9:39 ↗ least in terms of what your record is

9:41 ↗ that constitutes the basis for your

9:43 ↗ decision that is that is not the meeting

9:47 ↗ minutes are not a part of that and as if

9:49 ↗ I understand correctly you often make

9:51 ↗ decisions before your meeting minutes

9:53 ↗ are are entered into the adopted by the

9:57 ↗ right by the Commission so and and if I

10:02 ↗ understood you correctly the rules for

10:06 ↗ the Commission require that we prepare

10:08 ↗ and adopt meeting minutes that is

10:11 ↗ correct

10:12 ↗ so my question would be it historically

10:17 ↗ at least in my experience we have never

10:19 ↗ had a transcript included in as part of

10:22 ↗ the public record we've always had

10:24 ↗ minutes so it's a consequence of that

10:28 ↗ I'm wondering if if we don't have to

10:31 ↗ make some comment to let people know

10:32 ↗ that there's a minutes video and

10:37 ↗ transcript well I don't know that does

10:40 ↗ any harm to do that but remember that

10:43 ↗ all of our meetings are recorded with

10:45 ↗ video and audio so that could that would

10:47 ↗ be part of the record that would go to

10:48 ↗ appeal if if the decision was appealed

10:52 ↗ in this particular instance they're

10:54 ↗ doing a written transcript as well so

10:56 ↗ actually to actually a written recording

11:00 ↗ and a video recording exists for this

11:02 ↗ proceeding one question be if the

11:08 ↗ reference that Richard had the language

11:13 ↗ in that does that make it part of the

11:14 ↗ record to just stay

11:16 ↗ that there are there is a written

11:19 ↗ transcript being taken does that make it

11:23 ↗ part of the record if it's just

11:25 ↗ referenced in the minutes if the minutes

11:27 ↗ become part of the record and at this

11:30 ↗ point they're not it's correct

11:33 ↗ even if approved they're not correct the

11:38 ↗ transcript itself would become part of

11:40 ↗ an appeals record correct that's

11:41 ↗ according to the code yeah so it's my

11:44 ↗ understanding that possibly this

11:45 ↗ reference would be redundant but as

11:49 ↗ commissioner Brennan says probably not

11:51 ↗ harmful and the intent of this was to

11:54 ↗ address the objection during last

11:55 ↗ meeting and to provide it as additional

11:57 ↗ information another level of detail

11:59 ↗ that's available as part of the public

12:01 ↗ record simply to state that we are

12:03 ↗ acknowledging its existence and we do so

12:06 ↗ at the beginning of all meet all minutes

12:08 ↗ that refer to these meetings so we have

12:14 ↗ a motion is that you've made that

12:15 ↗ request or that their addition to the

12:19 ↗ minutes as a motion correct would we

12:22 ↗ have to move to approve minutes and then

12:25 ↗ add that as a condition the motion was

12:32 ↗ made here a second just for legal

12:34 ↗ purposes but Danny the motion

12:36 ↗ essentially it says to add that to the

12:38 ↗ record add that to the minutes the

12:40 ↗ motion to the right so if there wasn't I

12:43 ↗ don't officially had a second or but if

12:45 ↗ not second the motion

12:48 ↗ excuse me I can hear you kept I'm sorry

12:52 ↗ so if there wasn't a second to that

12:53 ↗ motion I don't know if I heard one or

12:55 ↗ not but all second to motion and we've

12:59 ↗ had a fairly significant discussion is

13:02 ↗ there additional discussion that needs

13:03 ↗ to be made good could you reread the

13:06 ↗ right well this is candidate wording you

13:09 ↗ know obviously for revision has required

13:11 ↗ these minutes are provided as a written

13:13 ↗ record of the meeting pursuant to IMC

13:16 ↗ 1803 dot 100 see a video recording of

13:20 ↗ the meeting and a full transcript of the

13:22 ↗ proceeding all so exist as public

13:24 ↗ records guess that phrase as public

13:28 ↗ records

13:29 ↗ in terms of can we state that a that a

13:32 ↗ transcript is a is a public record

13:35 ↗ that's an interesting question that's

13:38 ↗ actually related to the question I asked

13:40 ↗ last evening the transcript is being

13:43 ↗ prepared by the applicant I'm not aware

13:46 ↗ if it's been submitted to the city until

13:48 ↗ it becomes a document used or retained

13:51 ↗ by the city it is not a public record

13:54 ↗ and we haven't reviewed the transcript

13:58 ↗ to say if we're not approving the

14:01 ↗ transcript point is not a part of public

14:07 ↗ record even in terms of our development

14:09 ↗ commission meetings I'm I'm not prepared

14:12 ↗ to say whether it is or it isn't just

14:14 ↗ cuz I don't know the retention but I I

14:16 ↗ mean I do think it's correct that the

14:17 ↗ recording exists as a record and that

14:20 ↗ there may be a transcript available I

14:23 ↗ don't know that it's accurate or not to

14:26 ↗ say that that yet it's a public record

14:27 ↗ so if we if we cut off the as part of

14:30 ↗ public record well additionally

14:31 ↗ originally it was to be and may be

14:34 ↗ reviewed for further detail instead of

14:37 ↗ the public record statement in other

14:39 ↗ words and a full transcript of the

14:40 ↗ proceeding all so exist and may be

14:42 ↗ reviewed for further detail or may be

14:46 ↗ consulted for detail or whatever or if

14:48 ↗ we just said also exists peers to exist

14:50 ↗ period somebody to be notified of it

14:54 ↗ we're not approving it

15:00 ↗ do we think meaning it's acknowledging

15:05 ↗ that something exists that we know

15:07 ↗ exists so I don't know that there's

15:08 ↗ anything of the comment about that I

15:10 ↗ understand the question about whether

15:12 ↗ it's a public record or not that's not

15:13 ↗ something that we need to debate here I

15:15 ↗ think we could just state that a video

15:17 ↗ and a written transcript exist of the

15:19 ↗ proceedings and leave it at that would

15:22 ↗ be my suggestion and again the idea was

15:25 ↗ to address the objection that we

15:27 ↗ encountered earlier regarding transcript

15:29 ↗ versus minutes yeah this is a way of at

15:32 ↗ least acknowledging the transcripts

15:34 ↗ existence yeah so would you reread the

15:38 ↗ proposal as you announced propose then

15:40 ↗ these minutes are provided as a written

15:43 ↗ record of the meeting pursuant to IMC

15:45 ↗ 1803 100c a video recording of the

15:49 ↗ meeting and a full transcript of the

15:51 ↗ proceedings also exists so for without

16:01 ↗ further discussion are all those in

16:02 ↗ favor of adding that to the minutes

16:05 ↗ would you please say aye

16:06 ↗ aye opposed so we've added that now we

16:11 ↗ have to make a have a motion on whether

16:13 ↗ we approve the minutes mr. chair I move

16:16 ↗ we approve the minutes of the September

16:18 ↗ 26 2018 development Commission meeting a

16:22 ↗ seconds that do I have to say as amended

16:24 ↗ will say as as amended yes

16:29 ↗ second any discussion Corrections all

16:36 ↗ those in favor say aye aye

16:38 ↗ opposed so those minutes are approved

16:42 ↗ it's your turn mr. chair I move the

16:47 ↗ adoption of the meeting minutes from

16:48 ↗ October 24th 2018 as amended second

16:56 ↗ and get everybody involved here any any

16:59 ↗ discussion all those in favor of

17:02 ↗ approving the minutes October mid 24th

17:04 ↗ minutes please say aye

17:05 ↗ aye opposed it's included mr. chair I

17:11 ↗ move that we approve the minutes of the

17:13 ↗ Commission meeting on November 29th 2018

17:16 ↗ as amended

17:19 ↗ second there any discussion Corrections

17:25 ↗ all those in favor please say aye

17:27 ↗ aye opposed ran out of commissioners mr.

17:38 ↗ chairman I move that we approve the

17:41 ↗ minutes of December 5th 2018 as amended

17:45 ↗ second is there any discussion all those

17:49 ↗ in Polk those in favor please say aye

17:52 ↗ aye opposed motion carries

17:56 ↗ so we've approved the minutes that we

17:58 ↗ have in front of us

17:59 ↗ will now proceed with the public hearing

18:04 ↗ thank mr. Schneider you were examining

18:09 ↗ your witness

18:18 ↗ yo I do need to make it clear I'm not

18:22 ↗ waiving the objection I stated last

18:24 ↗ night at a separate meeting to the forum

18:28 ↗ of the minutes that you are adopting I

18:29 ↗ appreciate mr. Sanford's amendment I

18:33 ↗ think it was a step in the right

18:34 ↗ direction but the the fundamental

18:36 ↗ problem is that the issue we're

18:39 ↗ litigating the one of i HAF sees vested

18:42 ↗ rights is one that this commission does

18:45 ↗ not have jurisdiction over you have

18:48 ↗ jurisdiction over the staff reports and

18:50 ↗ the recommendation in the staff reports

18:52 ↗ but the city has successfully defended

18:55 ↗ in front of the Hearing Examiner its

18:57 ↗ position that the vesting determination

19:01 ↗ embedded in those staff reports cannot

19:04 ↗ be separately appealed and it's clear

19:06 ↗ you do not have appellate jurisdiction

19:07 ↗ over that issue so the meeting minutes

19:11 ↗ that you've adopted are an opinion about

19:16 ↗ the evidence they're not evidence itself

19:18 ↗ and you know we do not agree with

19:22 ↗ everything that is expressed by way of

19:24 ↗ an opinion in those minutes they are

19:26 ↗ inaccurate the easiest way to

19:29 ↗ demonstrate that is is that the first

19:32 ↗ for evening minutes do not refer to ms

19:35 ↗ Carey as being present even though she

19:37 ↗ was present all four times so again it's

19:41 ↗ it's just complicating the record on

19:43 ↗ appeal and I I'm saying this again just

19:45 ↗ to make it clear not we're not waiving

19:47 ↗ our objection and we do not think it

19:49 ↗ they should be part of the record

19:50 ↗ reviewed by the Hearing Examiner or a

19:52 ↗ reviewing court so thank you for letting

19:56 ↗ me make that record we are asking your

20:01 ↗ indulgence tonight to interrupt the

20:04 ↗ testimony of Ms Heim and instead call

20:08 ↗ Patrick Mulaney he's not available in

20:11 ↗ the next two nights that we've scheduled

20:13 ↗ for this and we would like to get him on

20:16 ↗ and off tonight and we alerted the

20:18 ↗ city's council last night that we would

20:19 ↗ be calling him this evening so with your

20:22 ↗ permission we would like to proceed with

20:24 ↗ mr. maleeni mr. shermin the city has no

20:27 ↗ objection to the

20:28 ↗ a procedure thank you and I would I

20:30 ↗ would ask for your indulgence for most

20:33 ↗ of us this can get a little tedious and

20:36 ↗ not that it's not one of the most

20:37 ↗ exciting things we've ever done but the

20:39 ↗ reality is if we could try to limit our

20:42 ↗ focus for about an hour and then take a

20:44 ↗ five minute break and then go for

20:46 ↗ another hour if you could just kind of

20:47 ↗ be a little sensitive to that that would

20:49 ↗ be really helpful to us like we would be

20:52 ↗ grateful too yeah yeah so it's it's 6:53

20:55 ↗ right now so we'll try to wrap up in

20:57 ↗ about an hour from now and take a break

20:59 ↗ if that works for you

21:00 ↗ excellent thank you so our first witness

21:05 ↗ tonight is Patrick Patrick Mulaney

21:18 ↗ good evening you please swear him in

21:30 ↗ I do Patrick we know each other but for

21:36 ↗ the record I'm Jackie Carey

21:38 ↗ Patrick do you mind if I call you

21:39 ↗ Patrick while we're taking your

21:41 ↗ testimony that's fine thank you and we

21:45 ↗ speak into the mic just one more time

21:46 ↗ make sure it's on yes perfect thank you

21:50 ↗ so Patrick for starters this evening can

21:54 ↗ you describe just at a high level your

21:56 ↗ experience in the land use and legal

22:00 ↗ arenas yes I was admitted as an attorney

22:04 ↗ in Washington in 1992 and I practiced

22:09 ↗ land use and property law since that

22:11 ↗ time since 1997 I've been an attorney at

22:15 ↗ the firm of foster pepper I've done my

22:20 ↗ practice principally involves land use

22:22 ↗ matters and in your old buster pepper or

22:28 ↗ other places in the past have you done

22:31 ↗ any work in the city of Issaquah yes

22:33 ↗ I've been working in a city of Issaquah

22:35 ↗ since approximately 2005 I believe was

22:38 ↗ the first project that I worked here one

22:42 ↗ of the clients I represent is Costco and

22:44 ↗ so I've done several land use projects

22:48 ↗ associated with their corporate

22:49 ↗ headquarters including working with city

22:53 ↗ staff on the drafting and implementation

22:57 ↗ of the Costco development agreement did

23:02 ↗ you have any other projects in Issaquah

23:04 ↗ besides the Costco projects yes I worked

23:07 ↗ on the office buildings I believe it was

23:11 ↗ over by this that used to be called the

23:13 ↗ Siemens site on Issaquah Creek there was

23:18 ↗ emergency permits that had to be

23:20 ↗ obtained one year when the creek took a

23:23 ↗ big chunk of the bank out I had worked

23:26 ↗ on a with the former city attorney Wayne

23:30 ↗ Tanaka on an age restrictive covenant

23:33 ↗ that was associated with some properties

23:36 ↗ on Front Street as I said I worked on

23:40 ↗ what was the master site plan for the

23:44 ↗ Issaquah campus that included Costco

23:48 ↗ there was additional property brought in

23:51 ↗ to that mitigation property and then

23:54 ↗ there were some wetland and other issues

23:57 ↗ associated with some of the expansion

23:59 ↗ that Costco did on that property how

24:03 ↗ long have you been working on shelter's

24:04 ↗ projects I began working for shelter in

24:08 ↗ the fall of 2016 and are you familiar

24:14 ↗ with the development agreement the Asuka

24:16 ↗ Highlands development agreement that

24:18 ↗ we've been talking about in this area

24:19 ↗ yes over the course of my representation

24:23 ↗ of shelter I obviously reviewed it but

24:26 ↗ previously when I was working on the

24:30 ↗ Costco development agreement I reviewed

24:32 ↗ all of the development agreements that

24:35 ↗ the city had had entered into up to that

24:39 ↗ time that was in 2015 and if we could

24:43 ↗ turn to what was marked last night as

24:46 ↗ s25 it's a copy of the development

24:49 ↗ agreement give me just a second here

24:53 ↗ I'll pull it up on the screen for

24:54 ↗ everyone as well

25:06 ↗ so is this a copy of the development

25:09 ↗ agreement that we were just talking

25:10 ↗ about

25:10 ↗ it's a portion of it yes and so it looks

25:13 ↗ like the first portion of the

25:18 ↗ development agreement and then appendix

25:20 ↗ L attached to that is that yes so B I

25:23 ↗ would call it the main body and appendix

25:25 ↗ L of course are several other appendices

25:29 ↗ before and after appendix L that

25:31 ↗ compromised the entire agreement plus

25:33 ↗ there were subsequent amendments to it

25:35 ↗ as well and what how did the development

25:40 ↗ standards play into this development

25:43 ↗ agreement how what did the development

25:44 ↗ greement enact exactly well the

25:49 ↗ development agreement created and the

25:53 ↗ way I view it is it created a bucket of

25:56 ↗ allowable development there was

26:00 ↗ commercial residential retail

26:02 ↗ development rights certain square

26:04 ↗ footages were created and there was an

26:09 ↗ analysis of impacts of that development

26:14 ↗ and the creation of mitigation and

26:18 ↗ credits that were designed to offset the

26:22 ↗ impacts of the development some of that

26:24 ↗ spelled out in sections 3.2 and 3.18 of

26:29 ↗ the agreement so and before well let's

26:32 ↗ turn to those sections in a minute but

26:34 ↗ before we do that the development

26:36 ↗ standards under this development

26:38 ↗ agreement what what purpose did they

26:39 ↗ serve in the Issaquah Highlands so the

26:42 ↗ appendices to the agreement have

26:47 ↗ specific development standards that

26:49 ↗ govern every aspect of the allowed

26:51 ↗ development including the process that

26:55 ↗ various permits went through

26:57 ↗ that's appendix L and then there were

27:00 ↗ everything from Road standards to

27:03 ↗ setbacks

27:04 ↗ [Applause]

27:05 ↗ you know platting standards all that

27:08 ↗ kind of stuff is in there and then there

27:11 ↗ was a SEPA analysis of various impacts

27:15 ↗ for instance traffic impacts and things

27:17 ↗ like that

27:18 ↗ the idea was that if you purchased a

27:22 ↗ property in there it came with that

27:23 ↗ whatever development rights the master

27:26 ↗ developer had allocated to that property

27:28 ↗ and then the offsetting mitigation also

27:32 ↗ accompany that that purchase are you

27:36 ↗ aware of any other development

27:37 ↗ regulations besides the development

27:39 ↗ standards in this development agreement

27:41 ↗ that were in place for the Asuka

27:43 ↗ Highlands while the development

27:44 ↗ agreement was in place no development in

27:48 ↗ Issaquah Highlands was governed by the

27:50 ↗ development agreement except that if for

27:54 ↗ instance there was some something that

27:56 ↗ wasn't covered by the development

27:58 ↗ agreement there's a hierarchy of that

28:01 ↗ defaults down to the regular code if

28:04 ↗ something wasn't covered but almost

28:06 ↗ everything is covered by the agreement

28:11 ↗ we could turn in this document to

28:14 ↗ section three point two three give me a

28:19 ↗ second okay that's entitled vesting of

28:27 ↗ development standards and mitigation yes

28:30 ↗ and I'm working to pull it up on the

28:31 ↗ screen for everybody else here to slowly

28:33 ↗ but surely

28:49 ↗ okay so we have it up on the screen now

28:51 ↗ what does this section require go back

29:00 ↗ to it here so this states that all

29:07 ↗ development within the UGA portion of

29:11 ↗ the Issaquah highlands shall be governed

29:15 ↗ by the development standards and those

29:19 ↗ standards are implemented through a

29:20 ↗ number of various permits and land use

29:24 ↗ approval as you can see it it has short

29:26 ↗ Platts binding site plans Platts site

29:30 ↗ development permits building permits and

29:32 ↗ other permits and approvals and then

29:35 ↗ those are all bundled in the term

29:37 ↗ implementing approval the development

29:41 ↗ standards you can see that's a

29:42 ↗ capitalized term and under Section six

29:47 ↗ of the definitions which begins on page

29:50 ↗ 29 of the agreement and it's actually on

29:53 ↗ page 30 the definition of that says it

29:57 ↗ means collectively the project elements

30:00 ↗ development standards mitigation

30:02 ↗ measures and other conditions of

30:04 ↗ development set forth in this agreement

30:07 ↗ the exhibits and appendices thereto so

30:10 ↗ the idea was that all of the standards

30:16 ↗ that are set forth in the agreement are

30:20 ↗ applied to a specific project through

30:24 ↗ these various implementing approvals

30:26 ↗ that are discussed in Section 3.23 in

30:34 ↗ that definition development standards it

30:36 ↗ says mitigation measures so is it your

30:39 ↗ understanding that the mitigation

30:40 ↗ measures are included as part of that

30:42 ↗ yes that's my understanding

30:44 ↗ there are several sections of the

30:48 ↗ development agreement that specifically

30:50 ↗ talk about things like traffic fire

30:54 ↗ police government services

30:57 ↗ stormwater those are ones that come to

31:00 ↗ mind anyways if we could turn back to

31:03 ↗ that section 3.23

31:07 ↗ investing of developing standards and

31:09 ↗ mitigation we go down to 3.2 3.2 after

31:20 ↗ build-out as the title of the paragraph

31:22 ↗ okay 3.2 oh I should just point out that

31:29 ↗ where I was talking about the hierarchy

31:30 ↗ of in the first part of 3.2 3 it says to

31:36 ↗ the extent this agreement does not

31:37 ↗ establish development standards covering

31:39 ↗ a certain subject element or condition

31:41 ↗ then the project is governed by city

31:43 ↗ codes and standards in effect upon the

31:45 ↗ date of this agreement except and then

31:47 ↗ it goes into a bunch of exceptions so

31:49 ↗ that's a hierarchy I was speaking about

31:52 ↗ are you aware of any other development

31:54 ↗ regulations that were in existence for

31:56 ↗ these two columns besides these

31:57 ↗ development standards no not I mean like

32:01 ↗ I said virtually everything is in the

32:03 ↗ development agreement that was just the

32:05 ↗ default provision in case there was

32:07 ↗ something that was happened to be

32:09 ↗ outside then going down to 3.2 3.2 after

32:15 ↗ build-out what does this provision

32:17 ↗ provide for so the agreement was set up

32:19 ↗ with an original period of 20 years

32:23 ↗ I think that's discussed in Section

32:29 ↗ let's see where's that yes in in the

32:34 ↗ first part of section 3 point 2 3 it

32:37 ↗ says a build-out period of 20 years

32:39 ↗ following and that was triggered by the

32:41 ↗ first final plat approval and so the

32:45 ↗ agreement contemplated a 20-year

32:47 ↗ build-out period then the agreement

32:51 ↗ didn't terminate after that 20 years

32:53 ↗ expired it could go on indefinitely

32:58 ↗ after that period and so there was this

33:03 ↗ provision called after build-out and

33:05 ↗ that provides that the development

33:08 ↗ standards shall continue to apply

33:10 ↗ to all applications for implementing

33:12 ↗ approval submitted after the expiration

33:14 ↗ of the build-out period except either

33:17 ↗ party may terminate this agreement and

33:19 ↗ the zoning and development regulations

33:21 ↗ may be modified as provided in Section

33:23 ↗ five point one three and that section

33:26 ↗ deals with how you transition out of the

33:30 ↗ development agreement and into

33:32 ↗ replacement regulations so let's turn to

33:35 ↗ that section five point one three

33:52 ↗ okay that's entitled term

34:06 ↗ what does this provision provide so it

34:09 ↗ discusses the term of the agreement

34:12 ↗ which it says as at a minimum through

34:16 ↗ the build-out period and then it

34:18 ↗ continues after the build-out period

34:20 ↗ unless and until either the city or the

34:24 ↗ partnership or the master developer

34:27 ↗ provides notice of termination and then

34:30 ↗ it establishes a procedure for how

34:35 ↗ termination is to occur and that's down

34:38 ↗ towards the bottom where it says no

34:40 ↗ sooner than six months after the notice

34:42 ↗ of termination the city shall hold

34:44 ↗ public hearings and shall adopt zoning

34:46 ↗ and related development standards for

34:49 ↗ the ug a portion of the property or

34:51 ↗ portions thereof is determined

34:53 ↗ appropriate by the city it's a section

34:56 ↗ say anything about vested rights no

35:04 ↗ do you read this section as as allowing

35:06 ↗ for divesting of vested rights no have

35:14 ↗ you ever heard of the term permanent

35:16 ↗ vesting before no and to go back to your

35:20 ↗ other question in fact if you look at

35:22 ↗ the last line of this it says upon such

35:25 ↗ adoption so that's adoption of their

35:27 ↗ placement regulations this agreement

35:30 ↗ shall terminate and thereafter so that's

35:32 ↗ like forward-looking the UGA portion of

35:35 ↗ the property shall be governed by the

35:38 ↗ adopted city zoning and related

35:40 ↗ development regulations so that's

35:42 ↗ typical of whenever land use regulations

35:46 ↗ would occur after the date of the new

35:50 ↗ regulations would be adopted then they

35:53 ↗ would they would be the governing

35:55 ↗ regulations going forward from that date

35:57 ↗ unless a project had vested to the prior

36:01 ↗ set of regulations so if a project had

36:04 ↗ vested to the prior set of regulations

36:06 ↗ what would happen to that project after

36:08 ↗ new regulations were adopted it would

36:10 ↗ continue to be analyzed under the prior

36:13 ↗ regulations than it vested to so going

36:17 ↗ back to this concept of permanent

36:19 ↗ vesting have you ever heard of that

36:21 ↗ before

36:21 ↗ no that's not a term that's used in the

36:25 ↗ case law of vesting is it a term that

36:30 ↗ you've heard use just in practice or in

36:32 ↗ general before no I have not

36:34 ↗ investing is vesting it's kind of like

36:37 ↗ an on/off switch once you have it you

36:40 ↗ have it that that's the whole point of

36:42 ↗ it so how about divesting have you ever

36:45 ↗ heard of somebody being divested of

36:46 ↗ their vested rights no and my

36:49 ↗ understanding of the case law is that

36:51 ↗ vested rights are property rights and

36:53 ↗ the cases specifically say that you

36:57 ↗ can't enact subsequent regulations that

37:01 ↗ retroactively least rip those property

37:03 ↗ rights that would be a taking

37:16 ↗ so I'd like to turn to some of the the

37:20 ↗ meetings and interactions that you had

37:22 ↗ with the city over time and one of the

37:24 ↗ things that we were using last night

37:27 ↗ during this Himes testimony was a set of

37:30 ↗ meeting notes that she had taken during

37:32 ↗ different meetings are you familiar with

37:35 ↗ these notes yes for all of the meetings

37:39 ↗ that I attended I the the notes were

37:44 ↗ first prepared contemporaneously and

37:47 ↗ then I reviewed them against my notes

37:50 ↗ for accuracy and and so I'm familiar

37:54 ↗ with them and and how they were prepared

37:57 ↗ so and it's from what you just said it

37:59 ↗ sounds like you reviewed them at the

38:01 ↗ time that they were prepared so

38:02 ↗ immediately after those meetings that's

38:03 ↗ correct they were usually prepared the

38:06 ↗ day of or the day after the meeting did

38:09 ↗ you review them in preparation for this

38:11 ↗ hearing as well I did and so there's a

38:15 ↗ binder in front of you they hold meeting

38:20 ↗ notes counsel this is the same binder

38:23 ↗ that we had out last night so you have

38:24 ↗ copies of the documents in there so if

38:30 ↗ you could turn to the meeting notes for

38:35 ↗ a meeting that took place on September

38:36 ↗ 21st of 2016

38:42 ↗ that room here

39:11 ↗ okay I have them okay so um last night

39:18 ↗ miss hime was talking about this meeting

39:20 ↗ and she mentioned that you were one of

39:21 ↗ the attendees at that meeting were you

39:23 ↗ president this meeting yes I was I'm

39:25 ↗ listed there as a meeting attendee do

39:29 ↗ you recall and just in general what the

39:31 ↗ purpose of this meeting was this was the

39:34 ↗ first meeting that I had attended with

39:38 ↗ shelter and my recollection of the

39:42 ↗ purpose was to discuss various possible

39:48 ↗ options for the future development of

39:51 ↗ shelters property turning down to the

39:59 ↗ bottom of that first page there it's a

40:01 ↗ very last bullet point what a director

40:04 ↗ niven have to say about the development

40:06 ↗ agreement at that time well one of the

40:13 ↗ things that shelter was investigating

40:15 ↗ was the possibility of maybe extending

40:19 ↗ the current development agreement or

40:21 ↗ amending the development agreement and

40:24 ↗ so that was being discussed and at that

40:28 ↗ time mr. Nevin indicated that the city

40:32 ↗ was considering terminating the

40:37 ↗ development agreements in part because

40:39 ↗ of the regulatory burden of having you

40:45 ↗ know five or six different development

40:47 ↗ agreements in the city that required

40:50 ↗ staff to go look at at each development

40:53 ↗ agreement to determine the applicable

40:54 ↗ standards that would apply to certain

40:57 ↗ properties

41:03 ↗ and actually wait on that point I'd like

41:06 ↗ to turn back to the development

41:07 ↗ agreement for just a second I'll pull it

41:11 ↗ up once more here because you'd

41:13 ↗ mentioned the different standards that

41:14 ↗ apply under different development

41:15 ↗ agreements are there processes for

41:18 ↗ review under the Asuka Highlands

41:21 ↗ development agreement that are part of

41:22 ↗ those standards the permit application

41:25 ↗ giammy yes yes

41:27 ↗ so that's appendix L which I believe was

41:30 ↗ attached here

41:43 ↗ and in particular there are a couple of

41:46 ↗ tables at the beginning of Appendix L

41:50 ↗ yeah so it's entitled processing of land

41:53 ↗ use and construction permits and like if

41:58 ↗ you look at appendix L part one which is

42:02 ↗ on page L three I think there it is

42:05 ↗ you'll see that this set out various for

42:13 ↗ each different type of approvals

42:16 ↗ like for instance plat is over in the

42:18 ↗ far preliminary plots and under the City

42:20 ↗ Council box on the far right hand side

42:23 ↗ and site development permit is on the in

42:29 ↗ the box under administrative on the

42:30 ↗ left-hand side and then if you go down

42:33 ↗ you can see the timelines that were

42:36 ↗ supposed to occur for the processing and

42:41 ↗ approval of the various permits at issue

42:45 ↗ this time talked about walked us through

42:47 ↗ those timelines yesterday did the city

42:52 ↗ follow these timelines and processing

42:54 ↗ filters applications no as the

42:59 ↗ communications will make clear that was

43:01 ↗ a big issue because they did not follow

43:05 ↗ the timelines they didn't even come

43:08 ↗ close to meeting them and so there's

43:12 ↗ there's a number of different

43:14 ↗ applications that Shelter has pending

43:16 ↗ right now we heard from this time

43:18 ↗ yesterday that there's the preliminary

43:20 ↗ plot and then there's a number of SDP

43:22 ↗ and ASDP applications as well for any of

43:26 ↗ those you know based on on this chart is

43:30 ↗ a free application or collaboration

43:33 ↗ meeting required no if you look at for

43:40 ↗ instance a site development permit which

43:42 ↗ is the middle column it's a submit

43:46 ↗ preliminary application and then it's it

43:48 ↗ says optional after it and that that

43:53 ↗ doesn't even occur for the

43:54 ↗ administrative site development

43:57 ↗ or it's not on the plat box either the

44:02 ↗ city require collaboration meetings and

44:05 ↗ preliminary application meetings for

44:06 ↗ shelters an application yes they did and

44:09 ↗ they required information to be provided

44:13 ↗ in advance and then the meetings

44:16 ↗ sometimes scheduling of the meetings was

44:18 ↗ six weeks or more out so there was a

44:23 ↗ very lengthy and onerous process that

44:26 ↗ was implemented that was not consistent

44:29 ↗ with Appendix L in your experience what

44:32 ↗ are the preliminary applications for s

44:34 ↗ DPS or the preliminary plat look like

44:38 ↗ well in every other jurisdiction that

44:41 ↗ I've practiced in besides this a qua

44:43 ↗ when you talk about a preliminary

44:46 ↗ application it's almost a back of an

44:48 ↗ envelope or maybe just a site plan where

44:52 ↗ a developer comes in and says this is

44:55 ↗ what I'm thinking about doing with my

44:57 ↗ property and the city usually responds

45:01 ↗ with you know you should be aware that

45:04 ↗ this this road might be deficient or if

45:09 ↗ you're going to do that you know you

45:11 ↗ should consider these things so it's

45:14 ↗ just an I it's really it goes towards

45:18 ↗ project feasibility and identification

45:21 ↗ of issues that an applicant might want

45:25 ↗ to address when they make a formal

45:27 ↗ application so in Issaquah how do those

45:33 ↗ compare the Issaquah process the pre

45:37 ↗ application process is like a permit

45:39 ↗ process it there's a formal checklist

45:43 ↗ that requires things like a site survey

45:47 ↗ and input from design consultants and so

45:53 ↗ it's it would take I would say two

45:59 ↗ months maybe to pull together all the

46:01 ↗ information and also an investment of

46:05 ↗ several tens of thousands of dollars in

46:08 ↗ order to

46:09 ↗ the packet that then the city requires

46:14 ↗ you to upload and then the city if it

46:17 ↗ deems it complete then it will allow you

46:21 ↗ to schedule the meeting so it's as I

46:25 ↗ said it's unlike any other pre

46:27 ↗ application process I'm familiar with

46:29 ↗ and then the collaboration meeting that

46:32 ↗ I mentioned was that required to take

46:34 ↗ place even ahead of the preliminary

46:36 ↗ application meeting that's correct

46:38 ↗ and what goes into that meeting so I

46:43 ↗ don't recall the specifics for the

46:46 ↗ collaboration meeting I I think that in

46:48 ↗ general it's more like what other

46:51 ↗ jurisdictions would call the

46:52 ↗ pre-application meeting let's turn back

46:57 ↗ now to the September 21st meeting that

47:01 ↗ we were talking about so you should have

47:05 ↗ the meeting minutes if you'd like to

47:07 ↗ refer to those I do you turn to the

47:13 ↗ second page of those notes five bullet

47:18 ↗ points down the page what did director

47:21 ↗ Niven have to say about mitigation when

47:24 ↗ the development agreement terminated

47:28 ↗ well this this occurred before there

47:33 ↗ were any permit applications that would

47:39 ↗ vest and for an implementing approval

47:42 ↗ that would vest the project particular

47:45 ↗ development project to the development

47:47 ↗ standards and so I believe this

47:51 ↗ discussion was in the context of if the

47:58 ↗ development agreement terminated without

48:03 ↗ vested development the question was what

48:07 ↗ would happen to the mitigation that had

48:10 ↗ been created to allow development on the

48:14 ↗ properties and he indicated that

48:21 ↗ the mitigation could evaporate and

48:24 ↗ disappear B in this case we was talking

48:27 ↗ about traffic but he also acknowledged

48:32 ↗ that it would be unfair for the city to

48:37 ↗ require a developer to essentially pay

48:41 ↗ twice to mitigate the same impact

48:43 ↗ sometimes that's referred to as double

48:46 ↗ dipping and so he talked about the idea

48:49 ↗ of possibly having mitigation credits or

48:53 ↗ some mechanism that would recognize the

48:58 ↗ some of the value for the infrastructure

49:02 ↗ that had been constructed as part of the

49:04 ↗ development agreement so a minute ago

49:07 ↗ you said this was before any

49:08 ↗ applications were in so as of the date

49:11 ↗ of this meeting shelter didn't have any

49:13 ↗ land use applications that could have

49:15 ↗ been vested at that point that's correct

49:17 ↗ we were just generally talking about

49:20 ↗ what could be what were the possible

49:24 ↗ development options for the property and

49:26 ↗ so is it fair to say that you were kind

49:29 ↗ of talking about it in two separate

49:31 ↗ buckets that there's vested mitigate

49:33 ↗ mitigation under permit applications and

49:36 ↗ then there's mitigation for the

49:38 ↗ remaining allowable development that

49:39 ↗ might not yet be connected to a permit

49:41 ↗ application yes I don't remember the

49:44 ↗ specific amount of square footage that

49:47 ↗ was allocated to shelters property I

49:51 ↗ think it was about 1.8 million square

49:54 ↗ feet of commercial development and then

49:56 ↗ they also purchased some retail

49:59 ↗ entitlement from the master Development

50:01 ↗ developer and they even had three

50:04 ↗ residential units and so the idea was if

50:09 ↗ that wasn't all utilized at once how

50:15 ↗ would that be treated when the city

50:17 ↗ transitioned from the development

50:19 ↗ agreement to their new regulations

50:21 ↗ that's what that discussion was about

50:23 ↗ was there any question in your mind that

50:27 ↗ vested permit applications would include

50:30 ↗ vesting to the mitigation under the

50:31 ↗ development agreement No

50:33 ↗ I'm was certain that it would because

50:36 ↗ the provisions of the development

50:39 ↗ agreement and the definition of

50:42 ↗ development standards expressly includes

50:46 ↗ the mitigation measures that were laid

50:49 ↗ out in the development agreement you

50:52 ↗ turn to page 3 of those notes I'm

50:57 ↗ looking about halfway down the page five

51:01 ↗ bullet points down what a director Nibin

51:05 ↗ have to say about what might happen to

51:09 ↗ shelters property in the future

51:19 ↗ well the this was in the context of

51:24 ↗ whether the council would be willing to

51:30 ↗ consider modifying the allowed uses on

51:34 ↗ shelters property to allow for mixed-use

51:38 ↗ development that would include a larger

51:40 ↗ residential component and mr. Nevin

51:45 ↗ expressed the opinion that the City

51:47 ↗ Council was invested in the idea that

51:52 ↗ shelters property was supposed to be

51:55 ↗ commercial and that the City Council

51:58 ↗ members were willing to essentially let

52:02 ↗ the property sit undeveloped until a

52:06 ↗ commercial user might come along

52:08 ↗ sometime in the future going down the

52:16 ↗ page just a little bit further what was

52:20 ↗ what did director Nevin have to say

52:22 ↗ about the mixed-use development proposal

52:26 ↗ and I'll back up and out a little bit of

52:27 ↗ context last night we heard Ms hi I'm

52:30 ↗ testifying about the mixed-use proposal

52:32 ↗ that shelter had pursued for a period of

52:34 ↗ time with the city how did that come up

52:38 ↗ in the context of this meeting well the

52:46 ↗ there was a discussion about the city's

52:49 ↗ willingness to consider as I said the

52:52 ↗ idea of more residential and a mixed-use

52:54 ↗ proposal and mr. Nevins said that

52:59 ↗ essentially that the city was not

53:03 ↗ willing to do that he got rather

53:11 ↗ exercised about it and indicated that

53:14 ↗ things might have been different if in

53:18 ↗ the past shelter had allowed the city to

53:23 ↗ option part of shelters property while

53:27 ↗ the city looked

53:29 ↗ to find an institutional or educational

53:32 ↗ use for the property did you say

53:36 ↗ anything about how things would have

53:37 ↗ turned out if shelter had provided that

53:39 ↗ option

53:40 ↗ yeah the note here is consistent with my

53:43 ↗ recollection and it says Keith mentioned

53:46 ↗ that had shelter made a different

53:48 ↗ decision the five year period would all

53:50 ↗ have almost run by now and staff might

53:53 ↗ have looked more favorably on shelters

53:56 ↗ proposal by a different decision he's

53:59 ↗ referencing that decision to not allow a

54:01 ↗ five year option or gift the property

54:03 ↗ that's correct if you could turn to the

54:10 ↗ fourth page of those notes three bullet

54:15 ↗ points down the notes mentioned your

54:20 ↗ name

54:22 ↗ did you ask director Niven about what

54:25 ↗ would happen to projects vested under

54:28 ↗ the development agreement when the

54:29 ↗ development agreement terminated yes so

54:31 ↗ this goes back to that prior discussion

54:33 ↗ I was talking about the one bucket was

54:38 ↗ mitigation for square footage that

54:40 ↗ wasn't subject to a development permit

54:43 ↗ that would be vested under the agreement

54:45 ↗ and so this question was okay how does

54:49 ↗ the city treat projects that would be

54:53 ↗ vested under the development agreement

54:55 ↗ and mr. Nevins said that if a project

54:59 ↗ was vested under the development

55:01 ↗ agreement it would remain vested for the

55:03 ↗ term of the vesting permit and then miss

55:10 ↗ sloman indicated that once a zoning

55:14 ↗ change occurred after a permit had been

55:18 ↗ run so say for instance an applicant had

55:20 ↗ asked for an extension on a permit under

55:23 ↗ the city's regulations the city is not

55:27 ↗ required to provide an extension and

55:33 ↗ they can require that in order to give

55:37 ↗ the extension that any the permit be

55:40 ↗ conditions be modified

55:42 ↗ to comply with the law that has been

55:45 ↗ changed so in other words a permit would

55:50 ↗ vest for the term of the permit which is

55:52 ↗ consistent with my understanding of

55:53 ↗ vesting law but if a person asks for an

55:56 ↗ extension beyond that the city could

56:00 ↗ impose additional conditions

56:09 ↗ let's turn next to our the November 14th

56:15 ↗ 2016 meeting with the city okay

56:27 ↗ and miss hime testified last night that

56:29 ↗ you were one of the people present at

56:31 ↗ this meeting do you recall being at that

56:33 ↗ meeting yes I do and what in general was

56:38 ↗ the purpose of that meeting your

56:40 ↗ recollection this was a continuation of

56:48 ↗ the previous meeting

56:49 ↗ [Music]

56:50 ↗ shelter had gone back and and taken the

56:54 ↗ input from the city and was again

56:58 ↗ looking to determine what the future

57:02 ↗ development options would be for the

57:05 ↗ property one of the ideas that was being

57:09 ↗ explored was the city was concerned or

57:13 ↗ mr. Nevins indicated that the city was

57:18 ↗ concerned that if residential was

57:20 ↗ allowed the residential would be built

57:22 ↗ but the commercial part of a mixed-use

57:26 ↗ project might not be built so there was

57:29 ↗ discussion around whether you could

57:32 ↗ build the commercial first and then

57:34 ↗ obtain a certain allocation of

57:38 ↗ residential based on the amount of

57:39 ↗ commercial that had been constructed or

57:42 ↗ it could there be a cap on different

57:46 ↗ phases of the residential that kind of

57:48 ↗ thing they were discussing essentially

57:51 ↗ that mixed-use proposal and how that

57:53 ↗ might take shape correct if you look

57:55 ↗ down at the bullet point down there what

58:00 ↗ did director Niven have to say about the

58:03 ↗ vesting available under the Issaquah

58:05 ↗ Highlands development agreement well

58:09 ↗ this was and a question of what would

58:16 ↗ happen there was some discussion also

58:18 ↗ about the moratorium even though it

58:20 ↗ didn't apply to the to the development

58:23 ↗ agreement properties but the the

58:26 ↗ question was how will the vesting like

58:34 ↗ what the vesting coverage was between

58:39 ↗ the time that the city was going to

58:42 ↗ terminate the development agreement and

58:44 ↗ the new adoption of the new regulations

58:47 ↗ and mr. Nevins said that the vesting

58:51 ↗ available under the current development

58:53 ↗ agreement there would not be a gap

58:55 ↗ between the development agreement and

58:58 ↗ new zoning so which is consistent with

59:02 ↗ the way the that section 2 point there

59:06 ↗ I'm sorry 3.2 3.2 the after build-out

59:10 ↗ section is written down in the notes

59:15 ↗ just a little bit and what did director

59:19 ↗ Nevin have to say about the vesting date

59:23 ↗ under the development agreement so we

59:27 ↗ were the city this issue came up because

59:31 ↗ the development agreement the appendix L

59:34 ↗ that we were looking at before it talks

59:36 ↗ about the site development permits as an

59:39 ↗ implementing approval but under the

59:42 ↗ city's current procedure the the city

59:48 ↗ was recognizing pre applications as

59:52 ↗ vesting permits and the reason it was

59:55 ↗ doing that was because if it the

1:00:02 ↗ pre-application and site development

1:00:05 ↗ permit process was very lengthy for

1:00:09 ↗ instance a site development permit

1:00:11 ↗ decision sometimes had as many or more

1:00:14 ↗ conditions that as a preliminary plat

1:00:16 ↗ and it could take a year or even two

1:00:19 ↗ years to go through that process and the

1:00:23 ↗ way the city's permits are set up you

1:00:28 ↗ can't apply for a building permit until

1:00:32 ↗ you have not only applied for a site

1:00:37 ↗ development permit a land use permit you

1:00:41 ↗ actually had to obtain a decision on

1:00:43 ↗ that permit as a prerequisite to

1:00:45 ↗ applying for the building permit

1:00:47 ↗ and if the city didn't recognize the

1:00:52 ↗ vesting at that earlier stage their

1:00:55 ↗ regulations would have run afoul of a

1:00:59 ↗ famous vesting case called West Main

1:01:02 ↗ versus city of Bellevue that essentially

1:01:05 ↗ says a municipality can't place hurdles

1:01:10 ↗ in front of an applicant's ability to

1:01:14 ↗ obtain it's vested rights and we'll turn

1:01:20 ↗ to this a little bit more later but did

1:01:22 ↗ the city acknowledge to you or publicly

1:01:24 ↗ that it had a West Main problem it did

1:01:27 ↗ and well it said that by recognize

1:01:35 ↗ recognizing that pre-applications vested

1:01:37 ↗ it did not have a West Main problem mr.

1:01:41 ↗ Devon in his November 20

1:01:45 ↗ believe it was November 27 2017 memo

1:01:49 ↗ indicated that both city staff and the

1:01:54 ↗ city attorney had recognized that if

1:01:58 ↗ they did not allow vesting of pre

1:02:00 ↗ applications they would have a West Main

1:02:02 ↗ problem for the reasons that I just

1:02:04 ↗ articulated as we can turn back to that

1:02:07 ↗ memo in a little bit more detail in a

1:02:08 ↗ minute

1:02:18 ↗ if you turn - there are no page numbers

1:02:22 ↗ on this but if you turn to page three

1:02:26 ↗ and then five bullet points down the

1:02:30 ↗ page yes what a director Niven have to

1:02:37 ↗ say about the fate of shelters

1:02:40 ↗ residential units of entitlement so this

1:02:44 ↗ was in the context of the discussion of

1:02:47 ↗ the new replacement regulations the city

1:02:51 ↗ as a general proposition had been saying

1:02:55 ↗ that it was trying to do like for like

1:02:58 ↗ or that in other words if an area had

1:03:04 ↗ been developed as a single-family

1:03:06 ↗ residential development it would assign

1:03:09 ↗ zoning to that that was similar so that

1:03:16 ↗ the development that had occurred would

1:03:19 ↗ be conforming with the new zoning I'm

1:03:22 ↗ sorry the new regulations that were

1:03:23 ↗ placed on it except that with the three

1:03:29 ↗ residential units that shelter had he

1:03:33 ↗ was proposing that those would be

1:03:34 ↗ converted to commercial because he

1:03:39 ↗ didn't want continued residential zoning

1:03:42 ↗ designation on sheltered property

1:04:01 ↗ we're gonna turn to a different exhibit

1:04:04 ↗ I need just a second to look up the

1:04:05 ↗ numbering from last night

1:04:30 ↗ let's turn to exhibit s14 and I'll grab

1:04:35 ↗ a copy for you from over here okay

1:04:49 ↗ and for the Development Commission I

1:04:51 ↗ believe we provided a copy of this one

1:04:53 ↗ last night as well there we have a few

1:04:54 ↗ extras this evening that we can hand out

1:05:17 ↗ you please describe what exhibit US 14

1:05:21 ↗ is yes this is a December 1st 2016 memo

1:05:30 ↗ from Miss sloman to the Nick Abner and

1:05:40 ↗ Gary Young so that would be polygons and

1:05:44 ↗ shelter and what it addresses is what I

1:05:48 ↗ was referring to before the allowed

1:05:51 ↗ development in the development agreement

1:05:54 ↗ so it talks about the amount of square

1:05:59 ↗ footing for instance if you flip it up

1:06:01 ↗ just a little bit more you can see

1:06:05 ↗ there's you know three hundred and

1:06:08 ↗ ninety four thousand six hundred and

1:06:09 ↗ thirty-two square feet of commercial

1:06:11 ↗ there's retail there's the three units

1:06:14 ↗ of residential that's on an e ru basis

1:06:18 ↗ and then the commercial of 1 million two

1:06:20 ↗ hundred and thirty-eight thousand seven

1:06:23 ↗ hundred and five so basically this memo

1:06:26 ↗ talked about the polygon property and

1:06:30 ↗ the shelter property and the development

1:06:34 ↗ capacity that had been allocated to each

1:06:37 ↗ of those properties looking at that

1:06:40 ↗ first paragraph in this memo and this

1:06:48 ↗ was from this memo was from mrs. Lowman

1:06:49 ↗ what did miss Loman have to say about a

1:06:53 ↗ vesting determination yes so there was a

1:06:59 ↗ vesting issue that was raised and miss

1:07:02 ↗ Loman indicated

1:07:04 ↗ that director Nevin would address that

1:07:07 ↗ in a separate interpretation which was

1:07:11 ↗ ultimately done I believe on March 27

1:07:15 ↗ 2017 so let's turn and look at that

1:07:25 ↗ March 27 2017 interpretation which is

1:07:30 ↗ exhibit s 13

1:07:45 ↗ I'll put this ones up on the screen as

1:07:47 ↗ well is is this the interpretation that

1:07:52 ↗ you were just referring to yes so this

1:07:56 ↗ is addressed to mr. Abdul an hour and it

1:08:01 ↗ looks like he's affiliated with the

1:08:02 ↗ Issaquah Highlands investment by an LLC

1:08:07 ↗ what what projects was was he involved

1:08:10 ↗ with well miss thyme can talk about the

1:08:15 ↗ relationship a little bit better than me

1:08:19 ↗ but my understanding was that at one

1:08:23 ↗ time

1:08:24 ↗ mr. have an hour and mr. Young were

1:08:27 ↗ business partners and polygon and then

1:08:31 ↗ polygon split off and part of it was

1:08:37 ↗ residential development and part of it

1:08:40 ↗ was another development it gets a little

1:08:44 ↗ bit confusing because there was

1:08:46 ↗ Highlands investment fund and then

1:08:47 ↗ Issaquah Highlands Investment Fund

1:08:49 ↗ commercial but the bottom line was that

1:08:52 ↗ both what I'll refer to as polygons and

1:08:56 ↗ shelter had rights in adjoining parts of

1:09:00 ↗ property that was located in area 4

1:09:05 ↗ under the development agreement and so

1:09:09 ↗ in conversations with the city up to

1:09:12 ↗ this memo had city staff in addressing

1:09:15 ↗ the polygon projects that the

1:09:18 ↗ residential projects that you were

1:09:19 ↗ mentioning in kind of unison with IHI

1:09:23 ↗ fc's commercial projects yes I'm trying

1:09:26 ↗ to find the I think I lost it already

1:09:30 ↗ that's exactly what was occurring on the

1:09:33 ↗ December 1st 2016 memo for Miss sloman

1:09:36 ↗ and I think yeah if you look at page 4

1:09:45 ↗ of that memo it shows you the properties

1:09:50 ↗ I think it's figure 1

1:09:57 ↗ there you go

1:09:58 ↗ so I think it's correct that what is now

1:10:03 ↗ the shelter property is be for the most

1:10:07 ↗ part and polygon property is a is that

1:10:10 ↗ correct eeeh okay so so yeah the point

1:10:17 ↗ is they were both in the same area and

1:10:19 ↗ you can see well even from this page

1:10:23 ↗ they're discussing the various

1:10:26 ↗ mitigation aspects of the agreement as

1:10:29 ↗ they apply to both properties so when

1:10:32 ↗ you received this letter was it your

1:10:36 ↗ understanding that this was an

1:10:38 ↗ interpretation that was applying to both

1:10:39 ↗ the polygon and the shelter properties

1:10:41 ↗ yes and I mean it makes sense that it

1:10:44 ↗ does because they're both subject to the

1:10:47 ↗ same development agreement and they were

1:10:49 ↗ both seeking the same type of permits

1:10:51 ↗ primarily preliminary plant permits and

1:10:55 ↗ site development permits so turning to

1:10:59 ↗ the second page the last page of that

1:11:01 ↗ letter and that top paragraph on the

1:11:07 ↗ page is also the last paragraph of the

1:11:09 ↗ letter

1:11:11 ↗ what is this paragraph provide so what

1:11:17 ↗ it says is that if you meet the

1:11:21 ↗ requirements of the code for a complete

1:11:23 ↗ application and that was set forth in

1:11:26 ↗ 18.0 105 oh then that application would

1:11:33 ↗ be vested and as it says there and would

1:11:36 ↗ be unaffected by any future changes in

1:11:38 ↗ zoning or development race regulations

1:11:41 ↗ so long as the application remains

1:11:43 ↗ active this would include any changes as

1:11:47 ↗ a result of termination of the Issaquah

1:11:49 ↗ highlands development agreement and I

1:11:51 ↗ think if you go back to the front page

1:11:54 ↗ you see that that conclusion

1:11:59 ↗ was set forth for both in the first

1:12:03 ↗ paragraph there it was set forth for the

1:12:05 ↗ single family preliminary plat and it

1:12:08 ↗ was set forth in the second paragraph

1:12:10 ↗ for a site development permit those ones

1:12:15 ↗ were already in process and then it

1:12:19 ↗ discusses the same conclusions for the

1:12:22 ↗ proposed preliminary plat and site

1:12:25 ↗ development permit for the West Ridge

1:12:28 ↗ single-family North Platte and the West

1:12:31 ↗ townhome north site development permit

1:12:35 ↗ so we're the the plat and the SDP

1:12:39 ↗ applications that are discussed in this

1:12:41 ↗ letter with respect to polygons projects

1:12:43 ↗ are those the same types of permits that

1:12:45 ↗ Shelter is also pursuing yes just for

1:12:50 ↗ different types of development

1:12:51 ↗ residential versus commercial that's

1:12:54 ↗ correct I mean the the preliminary plan

1:12:56 ↗ was to create 83 residential lots and

1:13:01 ↗ then the site development permit was for

1:13:06 ↗ that for townhome development but the

1:13:12 ↗ plat the permit processes are exactly

1:13:15 ↗ the same

1:13:31 ↗ I think the next couple lines of

1:13:33 ↗ questioning might take a little bit of

1:13:34 ↗ time to get through and it's 746 I

1:13:36 ↗ wanted to be respectful of your one hour

1:13:38 ↗ ish timeframe either can go for another

1:13:41 ↗ 10 minutes or so or we can take our

1:13:43 ↗ break now

1:13:44 ↗ okay we'll do all right so this the

1:13:51 ↗ letter that we've been talking about was

1:13:52 ↗ in March of 2017 I'd like to jump back

1:13:55 ↗ in time just a little bit to January of

1:13:56 ↗ 2017 it's the the next meeting in

1:14:01 ↗ chronology that you were present for

1:14:03 ↗ with the city it's my understanding you

1:14:06 ↗ could turn to the point in the meeting

1:14:10 ↗ minutes that talked about that meeting

1:14:14 ↗ that's January 17th is that the one

1:14:17 ↗ January just a second I want to make

1:14:22 ↗ sure I get the date right January 17th

1:14:29 ↗ of 2017

1:14:36 ↗ okay so mistime had testified yesterday

1:14:39 ↗ that you were one of the people that was

1:14:41 ↗ present at this meeting you at this

1:14:45 ↗ meeting yes and if you go down to

1:14:52 ↗ seventh bullet point down the page it's

1:14:55 ↗ a little over halfway down the page did

1:15:02 ↗ director did the director Nibin ask you

1:15:05 ↗ to take a look at anything with respect

1:15:08 ↗ to vesting in the development agreement

1:15:11 ↗ yes as the note reflects here it says

1:15:18 ↗ mr. Nevin indicated that he was hoping

1:15:21 ↗ that shelter would have me take a look

1:15:24 ↗ at identifying what was vested from the

1:15:28 ↗ development agreement and needs to be

1:15:30 ↗ incorporated in new zoning and I believe

1:15:33 ↗ that that discussion was in the context

1:15:35 ↗ of mitigate the mitigation as we were

1:15:39 ↗ discussing before so did you follow up

1:15:43 ↗ to this he said it says in the notes

1:15:46 ↗ that you were going to take the first

1:15:47 ↗ crack at identifying what's best it to

1:15:49 ↗ the DA and what needs to be incorporated

1:15:51 ↗ new zoning did you follow up to that yes

1:15:54 ↗ well there were additional discussions

1:15:58 ↗ about it that occurred I believe in

1:16:00 ↗ March and then ultimately in the

1:16:03 ↗ beginning of May we provided mr. Nevin

1:16:07 ↗ with a detailed matrix that went through

1:16:09 ↗ all of the appendices that I was

1:16:12 ↗ discussing and laid out the various

1:16:16 ↗ mitigations that had been provided for

1:16:18 ↗ the allowed development and let's turn

1:16:22 ↗ to that so this would be exhibit s 29

1:16:28 ↗ it's a new exhibit in our record

1:17:02 ↗ okay

1:17:15 ↗ okay I have it up here on the screen as

1:17:18 ↗ well is this the the May 12th letter

1:17:21 ↗ that you were referring to a moment ago

1:17:22 ↗ yes and we don't need to go through line

1:17:27 ↗ by line but we describe just kind of in

1:17:31 ↗ general what you did in this letter

1:17:32 ↗ yeah well as you can see by the first

1:17:35 ↗ sentence it says I'm following up on the

1:17:37 ↗ city's invitation to prepare our

1:17:40 ↗ mitigation summary regarding offsets and

1:17:42 ↗ credits that should carry forward

1:17:45 ↗ following the city's termination of the

1:17:47 ↗ development agreement and so then if you

1:17:51 ↗ look at the spreadsheet if you go to the

1:17:55 ↗ next page this went through each

1:18:00 ↗ provision of the development agreement

1:18:02 ↗ and laid out all of the various

1:18:07 ↗ mitigations that I discussed earlier for

1:18:11 ↗ parks and water and sewer and police

1:18:14 ↗ fire concurrency Public Works what else

1:18:22 ↗ is in here

1:18:23 ↗ stormwater design SEPA compliance and so

1:18:27 ↗ it summarizes where you would find that

1:18:31 ↗ in the development agreement and then

1:18:34 ↗ also what shelters the what shelter

1:18:41 ↗ either in some cases ask for city

1:18:43 ↗ confirmation or in others suggested what

1:18:47 ↗ it believed would be the appropriate way

1:18:51 ↗ to handle the mitigation and that's if

1:18:54 ↗ you go back again to that other page you

1:18:56 ↗ see it just that's the part that's set

1:18:58 ↗ forth in bold so at the time that this

1:19:02 ↗ was prepared in May of 2017

1:19:05 ↗ was this still in that time frame where

1:19:07 ↗ shelter didn't have any applications

1:19:10 ↗ pending

1:19:11 ↗ yes shelter had met I can't believe

1:19:15 ↗ there had been at least a collaboration

1:19:17 ↗ meeting on the preliminary plat I

1:19:18 ↗ believe that occurred in on March 21st

1:19:21 ↗ of 2017

1:19:24 ↗ it hadn't formally applied yet and we

1:19:28 ↗ still had the issue of depending on how

1:19:32 ↗ much mitigation was allocated to vested

1:19:35 ↗ development how would you handle the

1:19:36 ↗ rest of it so that's what this was

1:19:38 ↗ addressing and so that's the what I

1:19:40 ↗ characterized as the two buckets earlier

1:19:43 ↗ so correct

1:19:44 ↗ so it was this memo geared towards the

1:19:47 ↗ the latter bucket of allowable

1:19:49 ↗ development that might not be tied yet

1:19:50 ↗ to a permit application that's right so

1:19:54 ↗ did it in any way change what you had

1:19:57 ↗ said earlier about mitigation being

1:19:59 ↗ vested by nature of a vested permit

1:20:02 ↗ application no that mitigation because

1:20:05 ↗ it's expressly defined as I said as a

1:20:07 ↗ development standard would be vested per

1:20:11 ↗ section three point two three of the

1:20:14 ↗ agreement for any implementing approval

1:20:17 ↗ which included preliminary plots and

1:20:19 ↗ site development permits let's go back

1:20:26 ↗ to the January 17 meeting earlier when

1:20:34 ↗ we were talking about the development

1:20:37 ↗ agreement you'd mention that one of the

1:20:38 ↗ implementing approvals is a binding site

1:20:40 ↗ plan can you describe what a binding

1:20:43 ↗ site plan is yes it's an alternative

1:20:48 ↗ method for it depending on what

1:20:51 ↗ jurisdiction you're in either dividing

1:20:56 ↗ commercial properties subject to some

1:21:00 ↗ type of common plan or in other

1:21:04 ↗ jurisdictions it's used just to create

1:21:09 ↗ building pads that can be used for

1:21:11 ↗ commercial development so it's typically

1:21:16 ↗ what you do is you have lots or you

1:21:22 ↗ establish the building pads or lots and

1:21:24 ↗ then there's common infrastructure and

1:21:27 ↗ there's legal requirements for how

1:21:30 ↗ that's supposed to work together like

1:21:32 ↗ parking or common storm drains things

1:21:35 ↗ like that

1:21:36 ↗ did you discuss binding site plans with

1:21:39 ↗ respect to shelters property in this

1:21:41 ↗ meeting we did because that was one of

1:21:43 ↗ the implementing approvals that was

1:21:45 ↗ mentioned in the development agreement

1:21:48 ↗ and since shelter was considering doing

1:21:53 ↗ a mix of commercial and retail we

1:21:57 ↗ thought that might be a possible way of

1:22:01 ↗ segregating their large parcel in order

1:22:04 ↗ to accomplish those uses at this time

1:22:08 ↗ did director Niven think that a binding

1:22:11 ↗ site plan was an option under the

1:22:13 ↗ development agreement no he wasn't aware

1:22:16 ↗ of that it was included in the

1:22:18 ↗ definition of implementing approval in

1:22:21 ↗ the development agreement so he

1:22:23 ↗ originally said it wasn't allowed but

1:22:25 ↗ then we pointed out that it was allowed

1:22:27 ↗ and so then we had a different

1:22:29 ↗ conversation

1:22:38 ↗ I'm sorry I'm under

1:23:02 ↗ so if you turn to the back page of those

1:23:06 ↗ meeting minutes the second to last

1:23:12 ↗ bullet point down says next steps can

1:23:17 ↗ you describe what those next steps and

1:23:20 ↗ yes the first one says that I would

1:23:23 ↗ follow up with a response to legal

1:23:27 ↗ standing for request to extend mr. Niven

1:23:33 ↗ had questioned whether shelter could ask

1:23:40 ↗ for an extension of the development

1:23:42 ↗ agreement because in his mind shelter

1:23:47 ↗ wasn't the master developer which was

1:23:49 ↗ port Blakely and we pointed out that

1:23:53 ↗ there had been an assignment of rights

1:23:56 ↗ through what's called a designated

1:23:58 ↗ successor which was it went from Port

1:24:03 ↗ Blakely to Microsoft to I hif and then

1:24:08 ↗ to IH IFC and also there was an

1:24:12 ↗ assignment by virtue of shelters

1:24:17 ↗ purchase of its property and later on I

1:24:21 ↗ can't remember exactly when port Blakely

1:24:24 ↗ sent a letter confirming that that was

1:24:26 ↗ the case but that's what that it

1:24:28 ↗ referred to so you had to go through

1:24:32 ↗ additional time and back and forth to

1:24:35 ↗ just to try to demonstrate that you did

1:24:37 ↗ have rights under the development

1:24:38 ↗ agreement yes that we were allowed to

1:24:40 ↗ ask for an extension or or ask that the

1:24:46 ↗ terms of it the city consider altering

1:24:49 ↗ the terms of it and then also I was

1:24:54 ↗ requested to work on the memorandum that

1:24:56 ↗ we just discussed that I provided on May

1:25:00 ↗ 12th regarding which mitigation credits

1:25:03 ↗ survived that it says survive the DA but

1:25:06 ↗ it meant survived the termination of the

1:25:08 ↗ DA and what about this and the

1:25:11 ↗ bullet point they're sheltered to son

1:25:13 ↗ Keith proposed some middle requirements

1:25:14 ↗ via email is that referring to the

1:25:17 ↗ binding site plan yes one of the issues

1:25:20 ↗ was the city didn't have a very

1:25:24 ↗ established process for what documents

1:25:30 ↗ you would need for a binding site plan

1:25:32 ↗ so staff suggested that shelter review

1:25:38 ↗ the preliminary plat application

1:25:40 ↗ materials and the binding I'm sorry the

1:25:44 ↗ site development permit materials and

1:25:47 ↗ kind of create their own list of

1:25:52 ↗ documents that they thought would be

1:25:54 ↗ appropriate to submit if one were going

1:25:57 ↗ to submit for a binding site plan so

1:25:59 ↗ that's what that referred to so at that

1:26:01 ↗ time director Niven was asking you to

1:26:03 ↗ create the permitting process he was

1:26:06 ↗ asking us to create the documents that

1:26:09 ↗ would be required for a complete

1:26:11 ↗ application create the list of what what

1:26:15 ↗ we thought those documents should be for

1:26:17 ↗ a binding site land correct

1:26:24 ↗ let's turn next to the March 21st 2017

1:26:28 ↗ email and before I start there I've hit

1:26:30 ↗ the 8 o'clock mark I'm happy to keep

1:26:32 ↗ going

1:26:33 ↗ why don't we take a break why don't we

1:26:35 ↗ take a 10-minute break okay thank you

1:26:53 ↗ you

1:39:17 ↗ right into the residential memo I've

1:39:20 ↗ been 36 I just said I'm close to okay

1:39:23 ↗ thank you we were back on the air and

1:39:27 ↗ we'll call the meeting back to order and

1:39:28 ↗ appreciate the indulgence there and

1:39:30 ↗ we're all refreshed and ready to go for

1:39:32 ↗ another three or four hours so at least

1:39:36 ↗ an hour's it's open

1:39:59 ↗ we're back thank you okay so we left off

1:40:08 ↗ before the break about to talk about the

1:40:10 ↗ March 21st 2017 meeting will you please

1:40:15 ↗ flip to the notes for that meeting in

1:40:17 ↗ your binder year yes but it looks like

1:40:31 ↗ there's a list of attendees here at the

1:40:33 ↗ top who attended this meeting mr. Navin

1:40:37 ↗ miss Loman mr. Irvin who I believe is

1:40:41 ↗ the city's traffic engineer Gary Young

1:40:45 ↗ from shelter myself mark valdi dave

1:40:50 ↗ clayton Katyn and tia Heim and I believe

1:40:54 ↗ mr. Baldi and Katyn were consultants for

1:40:58 ↗ shelter and what was the purpose of this

1:41:03 ↗ meeting this was a collaboration meeting

1:41:06 ↗ for the binding site plan slash

1:41:10 ↗ preliminary plat application that

1:41:13 ↗ shelter ultimately went with the

1:41:16 ↗ preliminary plat as the method for its

1:41:22 ↗ land use approval director Niven or miss

1:41:28 ↗ Loman have anything to say about

1:41:31 ↗ investing under a plat yes we will

1:41:35 ↗ actually we discussed the vesting regime

1:41:40 ↗ in total and I believe that's in the

1:41:43 ↗ notes and I'm actually looking at the

1:41:47 ↗ first page the notes the second bullet

1:41:49 ↗ point

1:41:56 ↗ you know there we go

1:41:58 ↗ so the as I mentioned before there was a

1:42:02 ↗ discussion of whether we should have a

1:42:03 ↗ BSP or a plat and mr. Nevin suggested

1:42:08 ↗ that since the city was more familiar

1:42:10 ↗ with the plat process that they would be

1:42:13 ↗ supportive for using that instead of the

1:42:17 ↗ BSP and so that's what we decided and

1:42:23 ↗ then we discussed what the vesting would

1:42:28 ↗ look like for that

1:42:30 ↗ and mr. Nevin indicated which was

1:42:35 ↗ consistent with my understanding of the

1:42:36 ↗ law that a preliminary plat would vest

1:42:39 ↗ for five years

1:42:40 ↗ a final plat would best for an

1:42:43 ↗ additional five years and then site

1:42:47 ↗ development permit would vest for three

1:42:49 ↗ years so that that would be the sequence

1:42:55 ↗ of of vesting the development to the

1:42:59 ↗ development to the development standards

1:43:01 ↗ in the development agreement yesterday

1:43:04 ↗ evening and this hiam talked a little

1:43:06 ↗ bit about the plat investing under the

1:43:09 ↗ plat what's the importance of plat

1:43:12 ↗ vesting for shelters projects how does

1:43:14 ↗ that tie together with their SDP and

1:43:16 ↗ ASDP applications well my understanding

1:43:21 ↗ of Washington law it's based on a case

1:43:23 ↗ called noble manner and noble manner

1:43:28 ↗ essentially says that a plat application

1:43:34 ↗ vests a a an applicant to the attributes

1:43:42 ↗ of the development that are shown on the

1:43:47 ↗ plat application materials so for

1:43:50 ↗ instance if uses are shown or building

1:43:54 ↗ envelopes are shown that additional

1:43:56 ↗ level of detail would vest the

1:44:00 ↗ development regulations associated with

1:44:02 ↗ those details

1:44:05 ↗ shelters show building footprints and

1:44:07 ↗ it's

1:44:07 ↗ application yes originally it was

1:44:12 ↗ submitted with a narrative and the

1:44:16 ↗ reason for that was that under the the

1:44:21 ↗ timing of the appendix L shelter had

1:44:25 ↗ anticipated that its site development

1:44:27 ↗ permits and administrative site

1:44:29 ↗ development permits would have been

1:44:31 ↗ processed by the city but because of the

1:44:36 ↗ delay that was caused by the

1:44:38 ↗ requirements we talked about that were

1:44:41 ↗ outside appendix L for pre-application

1:44:44 ↗ submittals and pre-application meetings

1:44:47 ↗ those permit applications were delayed

1:44:51 ↗ and so after it submitted its initial

1:44:58 ↗ application it was supplemented with the

1:45:03 ↗ the allocated development and the

1:45:05 ↗ building footprints that we talked about

1:45:09 ↗ and then ultimately that was the the

1:45:14 ↗ version of the plat that was sent out by

1:45:16 ↗ the city in the public notices for the

1:45:19 ↗ plat version that had the building

1:45:22 ↗ footprints on it that's correct

1:45:28 ↗ and then moving a little bit further

1:45:31 ↗ down the page in your notes they're

1:45:37 ↗ looking at the eighth bullet point down

1:45:46 ↗ what did director Niven miss slobin say

1:45:50 ↗ about Platt Festing in this meeting

1:45:52 ↗ aside from just that the time frames on

1:45:54 ↗ it what what was it going to follow a

1:45:58 ↗ certain process how did that work under

1:46:01 ↗ the development agreement yes so the

1:46:05 ↗ note is consistent with my recollection

1:46:08 ↗ and it says that mr. Niven and miss

1:46:11 ↗ Loman confirmed that the preliminary

1:46:13 ↗ plat would follow the process in the

1:46:16 ↗ development agreement that's appendix L

1:46:18 ↗ and mr. Niven added that if the

1:46:22 ↗ development agreement was terminated

1:46:23 ↗ while we were in the process that we

1:46:25 ↗ were vested with one caveat and that had

1:46:29 ↗ to do with the fact that the city might

1:46:35 ↗ no longer have a urban village

1:46:38 ↗ development commission since the urban

1:46:42 ↗ village Development Commission was

1:46:43 ↗ associated with the development

1:46:44 ↗ agreements and so it might go away in

1:46:47 ↗ which case another commission might be

1:46:50 ↗ substituted and for instance like

1:46:53 ↗ yourselves would that change the process

1:46:56 ↗ at all or was it just a substitution of

1:46:58 ↗ bodies no it's just a substitution of

1:47:01 ↗ the body that would ultimately perform

1:47:04 ↗ the functions that Appendix L had

1:47:07 ↗ assigned to the UV DC

1:47:25 ↗ we're going to turn to a new exhibit

1:47:27 ↗ which is going to be s30

1:47:54 ↗ you

1:48:02 ↗ you describe what document s30 is yes so

1:48:09 ↗ this is a letter from mr. Navin dated

1:48:13 ↗ April 4th 2018 and it's to mr. Schneider

1:48:20 ↗ this letter was the city's response to a

1:48:26 ↗ letter that had been provided to the

1:48:29 ↗ city by mr. Schneider

1:48:32 ↗ I don't recall off the top of my head

1:48:35 ↗ which provision of the development

1:48:38 ↗ agreement calls for it but as part of

1:48:41 ↗ the dispute resolution provisions of the

1:48:44 ↗ development agreement there was

1:48:46 ↗ something called a notice of default

1:48:48 ↗ where one party formally notified the

1:48:51 ↗ other party that it believed that it was

1:48:54 ↗ in default so mr. Schneider had sent a

1:48:57 ↗ letter to mr. Niven indicating that

1:49:00 ↗ shelter believed the city was in default

1:49:02 ↗ of its obligations and this was the

1:49:04 ↗ city's response we turn to section 5 of

1:49:08 ↗ this I think it be a 5

1:49:45 ↗ did did director Niven have anything to

1:49:49 ↗ say in this letter about the Platt

1:49:50 ↗ vesting that we were talking about yes

1:49:53 ↗ in fact he cites to the noble manner

1:49:57 ↗ case that I just talked about he can see

1:50:01 ↗ it and he indicated that we're a plant

1:50:07 ↗ application actually identifies specific

1:50:10 ↗ development plan her concepts such as

1:50:13 ↗ building footprint setbacks etc and then

1:50:16 ↗ he quotes from the case to say what is

1:50:19 ↗ vested is what is sought in the

1:50:20 ↗ application for a plant so which is

1:50:24 ↗ consistent with my understanding of

1:50:26 ↗ vesting law

1:50:33 ↗ is that your understanding that the SDP

1:50:36 ↗ and ASDP applications that shelter has

1:50:40 ↗ submitted are consistent with the

1:50:42 ↗ building footprints and other

1:50:43 ↗ information that are shown on the plat

1:50:45 ↗ yes they are consistent that was the

1:50:50 ↗ idea was that the plat would create the

1:50:55 ↗ the lots and then the site development

1:51:00 ↗ permits would provide the details for

1:51:03 ↗ the development and then the general

1:51:06 ↗ that that building footprints and things

1:51:08 ↗ were were shown on the the plat

1:51:10 ↗ submission that was provided and I can't

1:51:13 ↗ recall exactly when it was certainly

1:51:17 ↗ when the development agreement was still

1:51:18 ↗ in effect sometime in the fall of 2017

1:51:35 ↗ so following this March 21st 2017

1:51:40 ↗ meeting that we were just talking about

1:51:41 ↗ and actually there's I think there's one

1:51:43 ↗ more point that I'd like to talk about

1:51:45 ↗ in that meeting before we move on if you

1:51:49 ↗ turn to the second page of the notes did

1:51:54 ↗ did miss Loman provide any guidance on

1:51:56 ↗ the plat process I'm looking about

1:51:58 ↗ halfway down the page and the notes yes

1:52:04 ↗ she indicated that it would take about

1:52:07 ↗ six months from start to finish and she

1:52:13 ↗ discussed generally the various steps

1:52:16 ↗ that would be that would be required did

1:52:21 ↗ those steps include collaboration

1:52:23 ↗ meeting they did that was the meaning

1:52:26 ↗ that we were attending on March 21st how

1:52:29 ↗ about a pre-op meeting yes they were

1:52:32 ↗ they were the city was requiring a

1:52:34 ↗ pre-op meeting and despite the fact that

1:52:37 ↗ appendix L did not require that the six

1:52:41 ↗ months start to finish

1:52:42 ↗ do you recall when shelters submitted

1:52:44 ↗ its plat application I believe it was

1:52:49 ↗ August 11th of 2017 but I could be a

1:52:55 ↗ little bit off on that early August

1:52:56 ↗ timeframe roughly and so so six months

1:53:00 ↗ from them from that date start to finish

1:53:03 ↗ did that happen no as my understanding

1:53:06 ↗ is that the plat is still hasn't been

1:53:09 ↗ reviewed and approved so after this

1:53:16 ↗ March 21st meeting we talked about the

1:53:19 ↗ May 2017 letter that you submitted

1:53:23 ↗ already was there any follow-up in the

1:53:27 ↗ following months from the city regarding

1:53:29 ↗ that letter that you sent the May 12th

1:53:31 ↗ letter yes I I tried to follow up I

1:53:36 ↗ believe in July excuse me and then again

1:53:42 ↗ in August

1:53:44 ↗ at that time mr. Niven I think first

1:53:48 ↗ said that he was very busy and then he

1:53:50 ↗ said that he had to discuss the

1:53:55 ↗ mitigation with the city city's attorney

1:53:58 ↗ mr. Haney but we never heard back

1:54:02 ↗ regarding you know the analysis that had

1:54:06 ↗ been discussed at those prior meetings

1:54:26 ↗ and I guess to elaborate a little bit

1:54:30 ↗ more on that when we had been talking in

1:54:34 ↗ the earlier meetings and through the

1:54:37 ↗ spring of 2017

1:54:39 ↗ mr. Niven was talking about the concept

1:54:43 ↗ of what he called a mitigation

1:54:45 ↗ certificate which would recognize some

1:54:51 ↗ way of providing credit for the

1:54:56 ↗ mitigation that had been constructed and

1:54:59 ↗ then later on as it evolved

1:55:05 ↗ he told shelter that mr. Haney had

1:55:09 ↗ determined that the mitigation would

1:55:12 ↗ simply evaporate on at the end of the

1:55:17 ↗ development agreement and that no

1:55:21 ↗ mitigation credit would be provided

1:55:23 ↗ which was a position that shelter

1:55:27 ↗ strongly objected to because it didn't

1:55:31 ↗ seem consistent with the applicable law

1:55:35 ↗ turning to a new exhibit s31

1:55:51 ↗ we please describe what this documented

1:55:56 ↗ s31 is yes this is a letter dated

1:56:00 ↗ October 25th 2017 that I wrote to the

1:56:06 ↗ city attorney mr. Haney and the gist of

1:56:12 ↗ it is that it discusses the West Main

1:56:18 ↗ problem that we that I testified to

1:56:21 ↗ before and it talks in detail about the

1:56:29 ↗ requirements of the city's

1:56:30 ↗ pre-application process and the

1:56:37 ↗ timelines that were involved in that

1:56:40 ↗ process and how a permit process of that

1:56:46 ↗ complexity in length created vesting

1:56:50 ↗ concerns under the West Main case and

1:56:53 ↗ then in addition that the process that

1:56:58 ↗ shelter was being subject to was

1:57:01 ↗ inconsistent with the appendix l

1:57:04 ↗ procedural requirements under the

1:57:06 ↗ development agreement

1:57:12 ↗ thank you more about this quest main

1:57:14 ↗ problem I like to pull up Exhibit C six

1:57:30 ↗ Patrick this was an exhibit previously

1:57:34 ↗ submitted by the city and we'll get you

1:57:38 ↗ a copy here in just a second recognize

1:57:46 ↗ this document at c6 yes I think I may

1:57:50 ↗ have erroneously stated this was a

1:57:52 ↗ November 21st memo and it's November

1:57:55 ↗ 16th memo from mr. Nevin I believe it

1:57:59 ↗ was discussed at a meeting on the 21st

1:58:02 ↗ but mr. Nevin prepared this memorandum

1:58:12 ↗ in association with the vesting language

1:58:17 ↗ that was being proposed for the

1:58:18 ↗ replacement regulations and he laid out

1:58:23 ↗ three possible options for how those

1:58:27 ↗ regulations could address project

1:58:30 ↗ vesting at that time staff was

1:58:34 ↗ recommending option number two which

1:58:37 ↗ would recognize the vesting of a SDP and

1:58:43 ↗ SDP permits that permits that had

1:58:47 ↗ complete applications under the

1:58:49 ↗ development agreement would remain

1:58:50 ↗ vested after the termination of the

1:58:53 ↗ development agreement for a period of

1:58:57 ↗ three years from the date of issuance

1:59:00 ↗ and on the second page I don't know if

1:59:05 ↗ you can read it very well there mr.

1:59:09 ↗ Nevins stated it is the administration

1:59:13 ↗ supports alternative two as it is

1:59:17 ↗ consistent with the vested rights

1:59:18 ↗ doctrine and the decision of West Main V

1:59:21 ↗ Bellevue since the administration

1:59:24 ↗ requires a land use permit to be issued

1:59:26 ↗ prior to the submittals of a building

1:59:28 ↗ permit a complete land use permit app

1:59:32 ↗ has been viewed by the administration

1:59:35 ↗ and city attorney as part of the

1:59:37 ↗ building permit process

1:59:39 ↗ so again that goes to the fact that they

1:59:43 ↗ have this very lengthy a SDP SDP process

1:59:47 ↗ and that a notice of decision is

1:59:53 ↗ required before an applicant could even

1:59:56 ↗ apply for a building permit and that

1:59:59 ↗ would create inordinate delay that would

2:00:03 ↗ block applicants vested rights that

2:00:07 ↗ would be contrary to what is required

2:00:10 ↗ under the West Main case based on this

2:00:13 ↗ this memo did you understand that to be

2:00:15 ↗ the position of both the administration

2:00:18 ↗ so director Nivens administration and

2:00:20 ↗ the city attorney at this time yes and I

2:00:23 ↗ believed it was consistent with the West

2:00:25 ↗ Main case so I believed it was

2:00:27 ↗ consistent with Washington law in

2:00:29 ↗ general next let's look at Exhibit s9

2:00:59 ↗ Patrick we please describe what exhibit

2:01:02 ↗ s9 is

2:01:05 ↗ [Applause]

2:01:12 ↗ yes so this is the city's application

2:01:21 ↗ requirements for someone who is seeking

2:01:24 ↗ a commercial or multi-family building

2:01:27 ↗ permit and it's very hard to read but I

2:01:30 ↗ believe this is a version that was

2:01:34 ↗ updated as of September looks like

2:01:38 ↗ around the 20th of 2017 but so as you

2:01:45 ↗ can see from going through that there

2:01:48 ↗ are a number of requirements the

2:01:52 ↗ supporting documents you know such as

2:01:58 ↗ sediment control plans and topographical

2:02:01 ↗ surveys and geotechnical design reports

2:02:04 ↗ copies of recorded easements that kind

2:02:07 ↗ of thing but the issue that we've been

2:02:15 ↗ talking about is right there under pre

2:02:17 ↗ submitter requirements number one land

2:02:21 ↗ use permit notice of decision has been

2:02:23 ↗ issued so that means that an SDP or a

2:02:27 ↗ SDP decision has been issued so you

2:02:32 ↗ would be you would have to have an SDP

2:02:35 ↗ or a SDP decision in hand before you

2:02:40 ↗ could even start the building permit

2:02:41 ↗ process and that notice of decision just

2:02:46 ↗ for clarity that's the end of the

2:02:48 ↗ process that's not just a complete

2:02:50 ↗ application but that's the actual

2:02:51 ↗ decision on the application is that

2:02:53 ↗ right that's correct the ones that I

2:02:55 ↗ have reviewed for the Issaquah Highlands

2:02:58 ↗ I saw one that had 60 conditions

2:03:02 ↗ associated with it and it includes an

2:03:06 ↗ analysis of every appendix in the

2:03:09 ↗ development agreement so it was a very

2:03:11 ↗ lengthy document over 40 or 50 pages so

2:03:18 ↗ is this checklist the city's checklist

2:03:20 ↗ for building permits the middle is this

2:03:22 ↗ consistent with the west main problem

2:03:25 ↗ the administration and the city attorney

2:03:27 ↗ described in that memo yes if they

2:03:29 ↗ didn't recognize vesting of the land use

2:03:32 ↗ permits that would create a - up to

2:03:36 ↗ probably a two year gap from the time

2:03:39 ↗ that you would start a process to get to

2:03:43 ↗ a building permit till you would be

2:03:45 ↗ allowed to even apply to one so that is

2:03:49 ↗ absolutely inconsistent with West Main

2:03:52 ↗ if that was allowed to stand what's

2:03:55 ↗ what's the problem with that that delay

2:03:56 ↗ why is that such a big issue because

2:03:59 ↗ under Washington's vesting law the city

2:04:04 ↗ or local government gets to establish

2:04:08 ↗ the requirements of a complete

2:04:09 ↗ application but a development applicant

2:04:16 ↗ having met that requirement is entitled

2:04:19 ↗ to vest its development to the

2:04:23 ↗ regulations that are in place on the

2:04:26 ↗ date it submitted a complete application

2:04:28 ↗ so if the what happened in West Main was

2:04:35 ↗ the city had created roadblocks that

2:04:41 ↗ delayed the ability of an applicant to

2:04:45 ↗ get a permit and the concern there is

2:04:49 ↗ that the city could change its

2:04:53 ↗ regulations while you're going through

2:04:55 ↗ this lengthy process and that's not

2:04:58 ↗ consistent with the concept that

2:05:00 ↗ Washington adheres to that a developer

2:05:04 ↗ is entitled to vest their rights on a

2:05:05 ↗ date certain upon submission of a

2:05:08 ↗ complete application

2:05:44 ↗ the turn next to s 32

2:06:13 ↗ Patrick what is the document at s32

2:06:17 ↗ this is a December 4th 2017 letter that

2:06:22 ↗ was written by me to the Issaquah City

2:06:26 ↗ Council at in November of 2017 shelter

2:06:32 ↗ had met with mr. Niven and he had

2:06:36 ↗ requested that shelter publicly support

2:06:39 ↗ the administration's efforts to have the

2:06:45 ↗ city adopt alternative to that we were

2:06:47 ↗ just discussing in his November 16th

2:06:50 ↗ memo and so shelter did do that they

2:06:54 ↗ appeared at some land and Shore

2:06:57 ↗ committee meetings and also at I believe

2:07:01 ↗ it was December 4th was the council

2:07:04 ↗ meeting as well and so they appeared at

2:07:09 ↗ those public meetings and testified in

2:07:14 ↗ support and this letter was supporting

2:07:20 ↗ mr. nevan's analysis in his vesting memo

2:07:26 ↗ regarding the West Main issue that we

2:07:30 ↗ were just discussing this was December

2:07:34 ↗ 4th this was a period of time after that

2:07:37 ↗ November memo came out do you recall had

2:07:41 ↗ director Niven changed his opinion at

2:07:43 ↗ any time publicly or to you about this

2:07:45 ↗ West main problem no as you can see this

2:07:50 ↗ letter on paragraph 2 discusses the

2:07:56 ↗ November I have at the data 17 so that

2:07:59 ↗ was wrong it was November 16 staff

2:08:01 ↗ memorandum and you know and and states

2:08:07 ↗ that alternative to is consistent with

2:08:10 ↗ the state's vested right doctrine an

2:08:12 ↗ apple book case law because it prevents

2:08:15 ↗ the creation of an unlawful hurt or a

2:08:17 ↗ hurdle that would delay allowed vesting

2:08:20 ↗ to a building permit so that was

2:08:24 ↗ consistent with what mr. Nevin

2:08:26 ↗ stated in his testimony and in his memo

2:09:18 ↗ okay so this next exhibit is s33

2:09:42 ↗ Patrick what is the document it exhibit

2:09:45 ↗ s33 so this is a November 9 2017 letter

2:09:52 ↗ from myself to mr. Niven that discusses

2:09:57 ↗ the mitigation under the development

2:10:02 ↗ agreement

2:10:03 ↗ why did you provide this letter well the

2:10:06 ↗ first part of the letter goes to that

2:10:09 ↗ issue that we were talking about before

2:10:12 ↗ which is whether shelter had the legal

2:10:17 ↗ right to enforce the development

2:10:21 ↗ agreement or act in the stead of the

2:10:26 ↗ master developer under it and it details

2:10:30 ↗ the the designated successor if you look

2:10:34 ↗ on page 2 I think right there talks

2:10:37 ↗ about the assignments that occurred

2:10:40 ↗ under the designated successor and then

2:10:47 ↗ it discusses paragraph 3 point 18 of the

2:10:52 ↗ development agreement which is write

2:10:55 ↗ quoted right there which essentially

2:10:59 ↗ says that the parties have spent

2:11:02 ↗ considerable time and effort to

2:11:05 ↗ calculate the impacts and they

2:11:08 ↗ acknowledge that the mitigation and fees

2:11:10 ↗ that were obtained by the city are

2:11:15 ↗ reasonably related to and are a direct

2:11:17 ↗ result of the impacts of the the

2:11:19 ↗ proposed development and so what that

2:11:23 ↗ was going to was that there had been a

2:11:29 ↗ express acknowledgment by the master

2:11:32 ↗ developer and the city that there was a

2:11:36 ↗ reasonable and rational relationship

2:11:38 ↗ between the development that was

2:11:42 ↗ provided and the mitigation that was

2:11:45 ↗ required for that development

2:11:52 ↗ and so the remainder of the letter then

2:11:56 ↗ just goes on to discuss why the idea

2:12:00 ↗ that the mitigation would quote unquote

2:12:02 ↗ evaporate at the end of the development

2:12:05 ↗ agreement would be inconsistent with

2:12:11 ↗ Washington law and particularly in

2:12:14 ↗ particular the constitutional

2:12:16 ↗ limitations on takings and RCW 82 o2o

2:12:22 ↗ which is another statute that requires

2:12:25 ↗ what's called Nexus and proportionality

2:12:29 ↗ between proposed mitigation and a

2:12:33 ↗ specific impact of a development

2:12:50 ↗ okay we have two new exhibits that go

2:12:54 ↗ together a 34 and 35

2:13:19 ↗ so what is it s34 what's that document

2:13:24 ↗ this is an email to mr. Niven that I

2:13:29 ↗ sent transmitting a copy of the letter

2:13:34 ↗ that excuse me is s is exhibit s 35 the

2:13:39 ↗ email is time-stamped 11:15 2017 at 1111

2:13:46 ↗ oh 9 a.m. and the letters of that same

2:13:50 ↗ date so why did you provide this

2:13:58 ↗ November 15th letter because the

2:14:06 ↗ shelter's position was consistent with

2:14:12 ↗ section three point two three vesting

2:14:14 ↗ which we discussed and three point two

2:14:17 ↗ three to that shelter had vested to the

2:14:27 ↗ provisions of the Grand Ridge

2:14:29 ↗ development agreement that is the

2:14:31 ↗ development standards and mitigation by

2:14:35 ↗ virtue of its completed preliminary plan

2:14:38 ↗ application and its site development

2:14:40 ↗ permit preliminary applications both of

2:14:43 ↗ which were implementing approvals under

2:14:46 ↗ the development agreement section three

2:14:49 ↗ point two three and so shelter was

2:14:53 ↗ seeking confirmation from the city that

2:14:56 ↗ the city was acknowledging those vested

2:15:00 ↗ rights and was going to process shelters

2:15:05 ↗ development permits under the

2:15:09 ↗ regulations in the development agreement

2:15:14 ↗ it's the same or similar is to asking

2:15:17 ↗ for an interpretation yes and

2:15:21 ↗ it was I would say more in the nature of

2:15:24 ↗ a confirmation because we had been told

2:15:28 ↗ we had already gotten an interpretation

2:15:29 ↗ in March 27 mr. Nevins March 27 letter

2:15:34 ↗ that that was how the city interpreted

2:15:37 ↗ vesting under the development agreement

2:15:39 ↗ and we had no and we had no reason to

2:15:45 ↗ believe that they were going to act

2:15:47 ↗ inconsistently turning back to your

2:15:55 ↗ binder of meeting minutes there I'd like

2:15:57 ↗ to talk about the November 21st 2017

2:16:00 ↗ meeting

2:16:18 ↗ okay who were the people that were

2:16:24 ↗ present at this meeting that was mr.

2:16:27 ↗ Niven myself mr. young and miss hime

2:16:32 ↗ what was the purpose of this meeting so

2:16:35 ↗ under the development agreement there's

2:16:38 ↗ a dispute resolution provision that

2:16:41 ↗ required if a party invoked that

2:16:44 ↗ provision that the other party was to

2:16:50 ↗ schedule a meeting within seven days to

2:16:53 ↗ discuss the concerns and so the November

2:16:58 ↗ 21st 2007 meeting was in response to the

2:17:03 ↗ November 15 2007 letter invoking the

2:17:09 ↗ dispute resolution provisions of the

2:17:11 ↗ development agreement what did director

2:17:15 ↗ Neven have to say about your vested

2:17:17 ↗ rights at that time well one of the

2:17:23 ↗ concerns was that that we had raised was

2:17:29 ↗ this issue of not the city not meeting

2:17:33 ↗ the appendix el timelines and the city

2:17:38 ↗ acknowledged that they weren't meeting

2:17:41 ↗ them but mr. Nevin indicated that his

2:17:48 ↗ position was that the SDP preliminary

2:17:52 ↗ applications did vest to the development

2:17:55 ↗ agreement did he put that in writing yes

2:18:02 ↗ he did put it in writing not that I

2:18:04 ↗ believe it was a on in December 8 I may

2:18:09 ↗ be wrong a little bit wrong on that date

2:18:10 ↗ but I believe he wrote an email to miss

2:18:13 ↗ hime where he confirmed that shelters

2:18:18 ↗ ASDP and SDP preliminary applications

2:18:21 ↗ were vested if you look at

2:18:24 ↗ two of the notes halfway well there's a

2:18:29 ↗ section that's labeled appendix l and

2:18:31 ↗ then a little bit further down can you

2:18:34 ↗ read what it says about an email to kN

2:18:41 ↗ yes it's a send email to KN based on

2:18:45 ↗ appendix L have these application have

2:18:48 ↗ these apps submitted on these dates

2:18:50 ↗ deemed complete who is KN so that would

2:18:55 ↗ be mr. Nevin is that the communication

2:18:57 ↗ here referring to a minute ago that was

2:19:01 ↗ the communication from miss hime that

2:19:05 ↗ initiated the response from mr. Nevin

2:19:08 ↗ that indicated that shelters pre

2:19:11 ↗ applications were vested to the

2:19:13 ↗ development agreement let's turn to

2:19:15 ↗ Exhibit C for

2:19:38 ↗ [Applause]

2:19:43 ↗ he described what exhibit c4 is and this

2:19:47 ↗ was a exhibit previously submitted by

2:19:49 ↗ the city I'm actually and I'll represent

2:20:00 ↗ that this is an email chain and I'm

2:20:01 ↗ gonna start back at the very first email

2:20:03 ↗ in the chain so on November 21st 2017

2:20:07 ↗ yes so if you look at the back page that

2:20:13 ↗ is the communication from Miss Haim to

2:20:16 ↗ mr. Niven that lays out the permits the

2:20:22 ↗ preliminary plat and then the

2:20:25 ↗ preliminary application for the medical

2:20:27 ↗ office building sdp the preliminary

2:20:31 ↗ application for the retail sdp and the

2:20:34 ↗ preliminary application for the office

2:20:36 ↗ sdp and miss hime so this is following

2:20:43 ↗ up on the meeting that occurred that in

2:20:45 ↗ the morning and she said we would like

2:20:48 ↗ the city confirm our understanding that

2:20:51 ↗ the following land use permits have been

2:20:53 ↗ deemed complete per Section 9.1 of

2:20:57 ↗ appendix lter the development agreement

2:20:59 ↗ and are therefore vested to the

2:21:01 ↗ development standards in the development

2:21:03 ↗ agreement and so if you go up a little

2:21:08 ↗ bit

2:21:09 ↗ mr. Niven wrote back a little bit of a

2:21:13 ↗ cryptic response that said unless you

2:21:16 ↗ received requests from cities city staff

2:21:18 ↗ for additional information these

2:21:21 ↗ applications are viewed as complete per

2:21:23 ↗ the terms of the development agreement

2:21:25 ↗ and then if you go up a little bit from

2:21:28 ↗ that miss hime replies we have not

2:21:33 ↗ received any requests for additional

2:21:36 ↗ information and she said I am assuming

2:21:39 ↗ that you mean the applications are

2:21:41 ↗ complete and vested to the development

2:21:43 ↗ agreement has stated in the email below

2:21:45 ↗ and as we discussed in our meeting with

2:21:48 ↗ you today

2:21:48 ↗ and she asked for confirmation and so

2:21:52 ↗ then mr. Nevin replies with a one-word

2:21:55 ↗ email and says yes so our understanding

2:22:01 ↗ from that was that mr. Nevin was

2:22:04 ↗ confirming that our SDP applications in

2:22:08 ↗ our our plaid application we had already

2:22:11 ↗ gotten a letter a completeness on but

2:22:13 ↗ particularly for the SDP applications

2:22:16 ↗ the city was confirming they were

2:22:19 ↗ complete invested to the development

2:22:21 ↗ agreement so if you move further up the

2:22:24 ↗ chain then there's another email

2:22:26 ↗ follow-up email that the cities

2:22:28 ↗ submitted from Miss lemon to mr. Niven

2:22:32 ↗ yeah and so shelter never saw the rest

2:22:35 ↗ of this email chain until after this

2:22:38 ↗ litigation started so what you see on

2:22:41 ↗ this first page is a communication

2:22:47 ↗ between miss Loman and mr. Niven

2:22:50 ↗ regarding the answer that he had

2:22:53 ↗ provided to miss hime earlier and so

2:23:00 ↗ miss Loman says they aren't vested

2:23:03 ↗ unless the council agrees to the vesting

2:23:05 ↗ language I'm confused and then mr. Niven

2:23:12 ↗ says they are vested at this moment

2:23:14 ↗ under the DA if the council removes the

2:23:18 ↗ proposed vesting language they will lose

2:23:20 ↗ their vested status and then miss Loman

2:23:24 ↗ says shouldn't that be clear in the

2:23:26 ↗ response so this interpretation or

2:23:35 ↗ understanding of the city was only

2:23:40 ↗ shared between miss Loman and miss Neven

2:23:42 ↗ and was never communicated to shelter

2:23:46 ↗ mr. Nevins statement there if the

2:23:48 ↗ council removes the proposed vesting

2:23:50 ↗ language they will lose their vested

2:23:51 ↗ status is that consistent with what the

2:23:53 ↗ development agreement provides for no

2:23:55 ↗ and it's not consistent with Washington

2:23:57 ↗ law

2:24:20 ↗ so this next exhibit will be s 36

2:24:40 ↗ after can you please describe what's at

2:24:44 ↗ exhibit s 36 yes this is a March 15

2:24:50 ↗ 2018 letter from myself to miss Loman

2:24:55 ↗ and even though shelter had obtained

2:25:01 ↗ confirmation from the city that it was

2:25:05 ↗ vested to the development agreement

2:25:06 ↗ because of its SDP pre-applications it

2:25:11 ↗ was also trying to obtain confirmation

2:25:17 ↗ that it's SDP applications themselves

2:25:21 ↗ were also deemed complete and vested and

2:25:27 ↗ the we got caught up in kind of a

2:25:29 ↗ circular loop because the city miss

2:25:36 ↗ Loman kept rejecting the applications as

2:25:40 ↗ incomplete because she said that shelter

2:25:48 ↗ she couldn't deem our the SDP

2:25:51 ↗ applications complete because the

2:25:53 ↗ preliminary plat had not been finalized

2:25:56 ↗ in some of the rejection letters she

2:26:00 ↗ said that final plant had to be obtained

2:26:02 ↗ which would have been an event that

2:26:06 ↗ wouldn't have happened until you know

2:26:08 ↗ five or more years into the future and

2:26:11 ↗ so what she was doing was saying that

2:26:16 ↗ she couldn't analyze the SDPs

2:26:20 ↗ because the preliminary plat had not

2:26:24 ↗ been approved which was a position that

2:26:28 ↗ was absolutely contrary to how the city

2:26:32 ↗ had handled the polygon sdp applications

2:26:37 ↗ in one case they had actually approved

2:26:41 ↗ the SDP before the preliminary plant had

2:26:46 ↗ ever had even been applied for so it it

2:26:51 ↗ was

2:26:51 ↗ an inconsistent treatment of similarly

2:26:54 ↗ situated applicants the letter itself

2:26:59 ↗ was an agreement basically that said we

2:27:06 ↗ object to the way the city handled the

2:27:10 ↗ permits under appendix L but going

2:27:13 ↗ forward if the city accepts the

2:27:17 ↗ applications is complete will allow the

2:27:20 ↗ city to focus on processing the

2:27:24 ↗ preliminary plat before it then turns to

2:27:28 ↗ the SDPs and so that's the paragraph

2:27:31 ↗ four it's a little bit off the page yeah

2:27:35 ↗ and then the city had set a goal of four

2:27:41 ↗ to six months for its ASDP review and

2:27:45 ↗ six to nine months for its SDP review

2:27:48 ↗ and then if you go down to this at the

2:27:54 ↗ bottom the agreement was signed it

2:27:58 ↗ actually I I received a copy of it on I

2:28:03 ↗ believe it was Sunday March 18th even

2:28:07 ↗ though the letter was dated the 15th

2:28:09 ↗ which was the day before the City

2:28:15 ↗ Council then moved to adopt the

2:28:20 ↗ replacement regulations it's turned to

2:28:25 ↗ exhibit s 37 it is a copy of the

2:28:31 ↗ transcript from our design

2:28:39 ↗ you turn to page 80 in that transcript

2:28:44 ↗ please

2:29:04 ↗ okay

2:29:07 ↗ looking at page 80 there there's some

2:29:11 ↗ this is a questioning of miss Loman and

2:29:17 ↗ she's I'll represent that earlier in

2:29:20 ↗ this testimony starting on 79 and

2:29:23 ↗ possibly before she's talking about this

2:29:25 ↗ March letter that we were just

2:29:27 ↗ discussing the March 15th letter down

2:29:31 ↗ there at line 11 on page 80 can you read

2:29:37 ↗ what it says from line 11 through 18

2:29:40 ↗ please it says question thank you did

2:29:45 ↗ the city ever comma quote refused comma

2:29:50 ↗ end quote to process IH IH IFC's s DP or

2:29:56 ↗ ASDP applications answer I would not use

2:30:01 ↗ that word we were trying to get

2:30:03 ↗ applications that were complete so we

2:30:05 ↗ could continue our review and then we

2:30:07 ↗ hit the road block of not having them

2:30:10 ↗ updated to the replacement regulations

2:30:14 ↗ in your view is is this accurate no I'm

2:30:19 ↗ the for instance the medical office

2:30:23 ↗ building sdp application was rejected I

2:30:26 ↗ believe three times from the city for at

2:30:31 ↗ least two of those times the only reason

2:30:35 ↗ it was rejected was because the

2:30:38 ↗ preliminary plat application hadn't been

2:30:41 ↗ processed by the city again that was

2:30:46 ↗ inconsistent with how they treated

2:30:47 ↗ polygons and had they acted within the

2:30:51 ↗ time frames of Appendix L it wouldn't

2:30:54 ↗ have been an issue and so well I would

2:30:58 ↗ agree with Miss Loman that the parties

2:31:02 ↗ worked to try to to address the issue so

2:31:07 ↗ that we could obtain complete

2:31:09 ↗ applications from shelters I side of the

2:31:15 ↗ equation

2:31:16 ↗ I would say that there was repeated

2:31:19 ↗ refusal to process the applications as

2:31:22 ↗ was required by the development

2:31:24 ↗ agreement

2:31:43 ↗ this next exhibit is s38

2:31:56 ↗ Patrick we please describe what s38 is

2:31:59 ↗ the document there yes this is an email

2:32:03 ↗ to mr. Niven that I wrote on March 16

2:32:09 ↗ 2008 een mr. Niven had made a proposal

2:32:19 ↗ to provide shelter with some type of

2:32:27 ↗ partial traffic impact feed credit for

2:32:32 ↗ the mitigation that had been provided as

2:32:35 ↗ as part of the development agreement

2:32:38 ↗ infrastructure construction and I wrote

2:32:44 ↗ a letter to him that said that shelters

2:32:48 ↗ position was that the mitigation had

2:32:53 ↗ been allocated through the preliminary

2:32:55 ↗ plat and s DPS and that that the shelter

2:33:03 ↗ did not believe that that mr. Nivens

2:33:08 ↗ suggestion for a resolution was

2:33:11 ↗ appropriate based on the fact that

2:33:13 ↗ shelter had the vested applications that

2:33:15 ↗ it did and so then mr. Nevin wrote back

2:33:21 ↗ and said that he assumed that is shelter

2:33:28 ↗ essentially didn't want to have a

2:33:29 ↗ conversation with the city and I said no

2:33:33 ↗ that's not correct

2:33:34 ↗ we're always willing to discuss the

2:33:37 ↗ mitigation and remain you know willing

2:33:39 ↗ to do so and then kind of recited the

2:33:44 ↗ past history of the parties discussions

2:33:49 ↗ of the mitigation

2:33:54 ↗ so next exhibit is gonna because before

2:33:57 ↗ we start that could we acknowledge about

2:33:59 ↗ an hour and take a short break

2:34:02 ↗ sure I can I can keep going and finish

2:34:05 ↗ up actually pretty quick here I'm not

2:34:07 ↗ that far off from finishing his

2:34:08 ↗ testimony okay

2:34:11 ↗ thank you Thanks this is s39 which is a

2:34:17 ↗ copy of the transcript from our October

2:34:19 ↗ 24th series mr. chairman can I ask how

2:34:25 ↗ much longer the applicant intends to

2:34:28 ↗ spend with this witness just for

2:34:29 ↗ purposes of logistical planning on our

2:34:31 ↗ side not more than 10 minutes with

2:34:35 ↗ respect mr. chairman we would request

2:34:38 ↗ when the direct examination of mr.

2:34:40 ↗ maleeni is completed at least a five or

2:34:43 ↗ ten minute break to consult with our

2:34:44 ↗ client prior to beginning our

2:34:46 ↗ cross-examination okay exhibit and as we

2:34:54 ↗ mentioned we're looking at the October

2:34:56 ↗ 24th transcript if you could turn to

2:34:58 ↗ page 17 of the transcript please okay

2:35:04 ↗ and actually it's a it starts there's a

2:35:07 ↗ discussion about mitigation that's

2:35:09 ↗ starting on page 16 and maybe before and

2:35:12 ↗ starts to run into 17 did you start on

2:35:20 ↗ page 16 at line 23 and read through 17

2:35:27 ↗ at line 10 please sure you said 22 or

2:35:32 ↗ 2016 at 23 there's a question I'm sorry

2:35:36 ↗ one wrong spot there okay question okay

2:35:42 ↗ did you ever inform IHI FC categorically

2:35:46 ↗ that their project applications their

2:35:49 ↗ SDP and ASDP applications would receive

2:35:52 ↗ absolutely no credit for previous

2:35:55 ↗ mitigation measures answer no to the

2:35:58 ↗ contrary I actually tried to initiate a

2:36:02 ↗ conversation with foster pepper to the

2:36:04 ↗ contrary to actually try and have

2:36:07 ↗ that conversation about credits question

2:36:11 ↗ and what was the response when you tried

2:36:13 ↗ to initiate that conversation answer the

2:36:17 ↗ initially the response I interpret the

2:36:19 ↗ response that they did not want to have

2:36:21 ↗ the cut that conversation they later

2:36:24 ↗ clarified that they did and but we have

2:36:27 ↗ never had that conversation you want to

2:36:31 ↗ keep going so you can stop there

2:36:33 ↗ so where did conversations leave off on

2:36:34 ↗ the mitigation issue I believe that they

2:36:38 ↗ left off with this three 16 2018

2:36:42 ↗ response the city followed up with you

2:36:44 ↗ about mitigation no I guess I should

2:36:55 ↗ amend that a little bit because we

2:36:58 ↗ talked about the meeting that was coming

2:37:01 ↗ up and I think that was a notice of

2:37:03 ↗ default meeting but there wasn't any

2:37:08 ↗ other substantive conversation about it

2:37:11 ↗ and I believe mister Niven addressed it

2:37:17 ↗ to some degree in his April 4th letter

2:37:20 ↗ but again it wasn't a negotiation of

2:37:24 ↗ what the credit should be or how it

2:37:27 ↗ should be assessed the position my

2:37:32 ↗ understanding of the city's position was

2:37:34 ↗ that they contended that mitigation

2:37:37 ↗ evaporated upon termination of the

2:37:40 ↗ development agreement

2:37:48 ↗ starting to exhibit us 40

2:38:04 ↗ and this is backtracking in date just a

2:38:09 ↗ moment it actually has to do with this

2:38:10 ↗ email it looks like that we just talked

2:38:12 ↗ about can you describe what this exhibit

2:38:15 ↗ is @s 40 yes this is the letter that I

2:38:19 ↗ just testified to it's a letter from

2:38:21 ↗ myself to mr. Nevin responding to his

2:38:26 ↗ proposal about deeply discounted traffic

2:38:30 ↗ impact fee credit and it reiterates what

2:38:35 ↗ I just testified to that shelter

2:38:40 ↗ by virtue of its preliminary plan

2:38:43 ↗ application allocated the available

2:38:46 ↗ development density to its planted

2:38:48 ↗ blocks and that and its complete

2:38:51 ↗ applications for its SDPs are vested to

2:38:56 ↗ the the development agreement and that

2:38:58 ↗ vesting includes mitigation so it just

2:39:03 ↗ set forth the position that shelter

2:39:08 ↗ believes is consistent with Washington

2:39:09 ↗ law of investing thank you and then this

2:39:14 ↗ next exhibit is going to be asked 41

2:39:26 ↗ what's the document @s 41 this is a

2:39:30 ↗ March 5th 2018 letter from mr. Schneider

2:39:34 ↗ - mr. Niven and I believe it formally

2:39:40 ↗ invokes the development agreements

2:39:43 ↗ notice of default provision and it sets

2:39:48 ↗ forth the defaults that shelter believes

2:39:55 ↗ the that the city is in violation of

2:39:58 ↗ various provisions of the development

2:40:00 ↗ agreement did you have a follow-up

2:40:04 ↗ meeting in response to that letter there

2:40:06 ↗ was a meeting I believe it was sometime

2:40:12 ↗ in late March I don't maybe it was March

2:40:14 ↗ 21st but I'm not positive of the date

2:40:16 ↗ would it be helpful to have notes to

2:40:18 ↗ refresh your recollection certainly

2:40:20 ↗ would and these are meeting minutes that

2:40:25 ↗ are

2:40:44 ↗ Patrick what happened at this dispute

2:40:48 ↗ resolution meeting the mr. Niven was

2:40:53 ↗ there mr. Lowell was there for the city

2:40:58 ↗ representing the the city and mr.

2:41:02 ↗ Schneider attended this I believe was

2:41:05 ↗ the first time that he had attended a

2:41:07 ↗ meeting with the city because things had

2:41:14 ↗ had kind of broken down and and it

2:41:17 ↗ looked like litigation was going to be

2:41:20 ↗ more likely how did mr. Niven react to

2:41:26 ↗ the conversation that you were having he

2:41:31 ↗ got very angry and at one point in the

2:41:36 ↗ meeting grabbed his materials and

2:41:40 ↗ indicated that he was going to walk out

2:41:43 ↗ as it says the note says that 205 KN

2:41:49 ↗ jumped in to state that he needed needed

2:41:52 ↗ to leave for another meeting KN was

2:41:56 ↗ agitated and getting angry and then he

2:42:02 ↗ threatened to leave the meeting but

2:42:03 ↗ ultimately he sat back down and stayed

2:42:08 ↗ you'd mentioned a moment ago that the

2:42:11 ↗ mitigation conversation may have

2:42:12 ↗ continued at this time if you turn to

2:42:15 ↗ the second to last and last pages of the

2:42:18 ↗ notes what conversation did you have

2:42:22 ↗ about mitigation in this meeting

2:43:03 ↗ there was a discussion about whether the

2:43:10 ↗ the city would recognize shelters vested

2:43:15 ↗ rights or whether they were contending

2:43:18 ↗ that the those rights had been somehow

2:43:23 ↗ divested or divested and then mr. Niven

2:43:32 ↗ talked about possible mitigation and

2:43:40 ↗ indicated that our letter on vesting

2:43:43 ↗ that tied our mitigation to our vested

2:43:45 ↗ rights didn't feel like a resolution and

2:43:49 ↗ that mr. Nevin felt that the city had a

2:43:52 ↗ good reason to charge us new fees for

2:43:56 ↗ example for non-motorized impact fees

2:43:59 ↗ and parks for non-residential

2:44:00 ↗ development which had not been charged

2:44:04 ↗ under the development agreement did you

2:44:06 ↗ ask for a response regarding this

2:44:09 ↗ mitigation issue from director Niven yes

2:44:14 ↗ I believe that there was a discussion

2:44:18 ↗ that the city would get back to us I'm

2:44:20 ↗ trying to find that though - I'm looking

2:44:23 ↗ at the last page third bullet point yes

2:44:29 ↗ so that's right mr. Schneider said it

2:44:33 ↗ would be helpful if the city would

2:44:36 ↗ provide a response on the mitigation

2:44:37 ↗ issue within 30 days and to include in

2:44:42 ↗ that response how mitigation fits in

2:44:44 ↗ with vesting and he indicated that he

2:44:51 ↗ hoped that the city would respond in

2:44:53 ↗ less than 30 days to hopefully allow for

2:44:58 ↗ a quick and simple resolution short of

2:45:00 ↗ litigation did you get a response from

2:45:03 ↗ director Nitin no

2:45:09 ↗ did you ask director Niven about for any

2:45:14 ↗ details in terms of the Platte fasting

2:45:15 ↗ and what that would mean in this meeting

2:45:17 ↗ and I talked about both the site

2:45:22 ↗ development permits and the plat and mr.

2:45:27 ↗ Nevin confirmed that the plat is vested

2:45:29 ↗ and will be reviewed based on the

2:45:32 ↗ standards in the development agreement

2:45:34 ↗ and then I pointed out that those

2:45:38 ↗ development standards expressly include

2:45:41 ↗ the mitigation component and he mister

2:45:45 ↗ Niven said that was an issue and that he

2:45:48 ↗ would get back to shelter on it and he

2:45:53 ↗ tried to equate the mitigation that had

2:45:56 ↗ already been bought and paid for to

2:45:58 ↗ impact fees that are typically paid at a

2:46:02 ↗ building permit which is a different

2:46:05 ↗ situation but he indicated there was

2:46:08 ↗ room for conversation and possible

2:46:12 ↗ credit but again we've never heard

2:46:15 ↗ anything about them since that time will

2:46:18 ↗ you please read the last three bullet

2:46:19 ↗ points of these notes p.m. that's me I

2:46:24 ↗ asked if it was a city's position that

2:46:27 ↗ even if we had a complete application

2:46:29 ↗ the replacement regulations could wreak

2:46:32 ↗ retro actively unvested application the

2:46:36 ↗ next bullet point is KN mr. Nevin

2:46:38 ↗ offered to give p.m. his opinion but ZL

2:46:42 ↗ that's mr. Lowe cut him off and said

2:46:44 ↗ they would they'd get back to us the

2:46:48 ↗ final bullet point is patch Nider said

2:46:50 ↗ it would be helpful to have the city's

2:46:51 ↗ official position p.m. that's me pointed

2:46:55 ↗ out that we don't have any answers and

2:46:58 ↗ that these are 30 million dollar

2:47:00 ↗ questions and the clock is ticking are

2:47:04 ↗ those bullet point summaries consistent

2:47:05 ↗ of your memory of how that meeting ended

2:47:07 ↗ yeah absolutely was the April 4th letter

2:47:11 ↗ that we discussed earlier was that the

2:47:12 ↗ next communication that you received

2:47:14 ↗ from the city or shelter received I

2:47:16 ↗ believe so at that point mr. Schneider

2:47:19 ↗ was getting a lot of the communication

2:47:21 ↗ but that that is my recollection thank

2:47:24 ↗ you no further questions

2:47:30 ↗ so at the request of the City Council

2:47:33 ↗ would like to take a 10-minute 10

2:47:35 ↗ minutes and adequate be cognizant of the

2:47:39 ↗ bewitching hour we'll take a 10-minute

2:47:47 ↗ break

2:47:57 ↗ you

3:02:06 ↗ all right we're back in session I guess

3:02:09 ↗ the first question I have for Council is

3:02:11 ↗ what kind of timeline do you think this

3:02:13 ↗ will take for your cross-examination

3:02:17 ↗ Locke but if it's the council's

3:02:19 ↗ preference early the Commission's

3:02:21 ↗ preference I know that it's late and I'd

3:02:23 ↗ be happy to defer this to a future date

3:02:25 ↗ if that's if you really think you can

3:02:28 ↗ get through by 10 o'clock we're willing

3:02:31 ↗ to we're willing to flex a little bit so

3:02:32 ↗ attack we won't die none of it well one

3:02:34 ↗ of us might turn into a pumpkin I'm not

3:02:36 ↗ sure I think we can go forward is we

3:02:40 ↗ have some other things that we want to

3:02:41 ↗ talk about at the end of this so please

3:02:43 ↗ proceed I appreciate your patience thank

3:02:45 ↗ you mr. maleeni you referred variously

3:02:51 ↗ during your testimony in a direct

3:02:55 ↗ examination and I believe you quoted

3:02:57 ↗ from mr. Miz Himes prior meeting notes

3:03:00 ↗ from her various meetings with city of

3:03:02 ↗ Issaquah staff is that correct that's

3:03:05 ↗ correct

3:03:06 ↗ did you prepare any notes of your own

3:03:09 ↗ regarding these meetings some of them

3:03:14 ↗ I'm sure that I did have you retained

3:03:17 ↗ any of those notes I don't recall if I

3:03:22 ↗ have them or not you have them with you

3:03:24 ↗ tonight no I don't thank you

3:03:26 ↗ I believe you indicated that you had

3:03:30 ↗ been practicing land use law in some

3:03:33 ↗ fashion or another since 1992 is that

3:03:37 ↗ correct that's great from law school in

3:03:39 ↗ 1992 and I started at Foster pepper in

3:03:43 ↗ 1997 but even in my prior firm I did

3:03:47 ↗ several land-use and property type cases

3:03:51 ↗ and I believe that you testified that

3:03:54 ↗ you had been representing private

3:03:56 ↗ clients in the city of Issaquah or

3:03:59 ↗ approximately five or six years longer

3:04:02 ↗ than now I think from 2005 and did you

3:04:05 ↗ deal with a miss hime receiving miss

3:04:08 ↗ miss Loman and

3:04:10 ↗ mr. Niven during that period I did and

3:04:13 ↗ other staff members as well

3:04:16 ↗ yes mr. favor I recall and the city SEPA

3:04:23 ↗ official whose name is escaping me right

3:04:26 ↗ now but could you describe your rapport

3:04:29 ↗ with staff of Issaquah during that

3:04:32 ↗ period what do you mean by reporter did

3:04:35 ↗ you have an amicable cooperative

3:04:36 ↗ relationship with cities permitting and

3:04:39 ↗ Development Services staff or was it

3:04:42 ↗ antagonistic I would I would say for the

3:04:46 ↗ most I mean we certainly had

3:04:48 ↗ disagreements and particularly during

3:04:51 ↗ the negotiations on the Costco

3:04:54 ↗ development agreement that took a year

3:04:56 ↗ and a half and there were times when we

3:04:59 ↗ butted heads but there were also times

3:05:01 ↗ when they help solve problems and get

3:05:07 ↗ things done characterize your rapport

3:05:10 ↗ with staff and your relationship with

3:05:12 ↗ staff during that period as professional

3:05:15 ↗ yes I would say so thank you

3:05:18 ↗ during your meetings with Issaquah staff

3:05:20 ↗ members and particularly miss Loman and

3:05:23 ↗ mr. Niven that were referenced during

3:05:25 ↗ your testimony concerning the shelter

3:05:28 ↗ application process were you

3:05:34 ↗ representing shelter in 2016 yes and the

3:05:44 ↗ fall of 2016 I believe I attended my

3:05:49 ↗ first meeting with the city for shelter

3:05:53 ↗ did some of those meetings with staff

3:05:57 ↗ involve face to face meetings without

3:06:00 ↗ the presence of the city attorney yes

3:06:04 ↗ they did

3:06:05 ↗ approximately how many meetings did you

3:06:07 ↗ meet with city staff without the city

3:06:09 ↗ attorney being physically present I

3:06:11 ↗ don't know I couldn't give you a number

3:06:15 ↗ did you subsequently meet with the city

3:06:18 ↗ attorney or have discussions with the

3:06:20 ↗ city attorney regarding

3:06:21 ↗ the shelter matter yes I had discussions

3:06:25 ↗ with mr. Haney and then as you know I

3:06:28 ↗ was attended the meeting that you

3:06:29 ↗ attended as well did the city attorney

3:06:33 ↗ during those meetings excluding myself

3:06:37 ↗ convey a position regarding the effect

3:06:40 ↗ of the development agreement termination

3:06:43 ↗ on your clients development rights I'm

3:06:49 ↗ trying to remember I I want to say that

3:06:54 ↗ mr. Haney only physically attended one

3:06:57 ↗ meeting towards the end of the process I

3:07:00 ↗ don't recall him being in any of the the

3:07:04 ↗ prior meetings did mr. Haney expressed

3:07:11 ↗ to you during those communications or

3:07:13 ↗ that meeting what his position was

3:07:17 ↗ concerning the effect of the the term of

3:07:20 ↗ the pending termination of the

3:07:21 ↗ development agreement

3:07:22 ↗ I don't recall exactly what he said in

3:07:28 ↗ that meeting you have a copy of miss

3:07:33 ↗ Hines meeting notes with you I do not

3:07:37 ↗ but I can get a copy there particular or

3:07:39 ↗ maybe I do I do there on the bottom here

3:07:42 ↗ what meeting are you interest was the

3:07:46 ↗ February 6th 2018 meeting and according

3:07:50 ↗ to miss Hines meeting narration the

3:07:54 ↗ attendees included mr. Haney Lucy Sloman

3:07:57 ↗ Keith Nevin Tia Haim and yourself

3:08:00 ↗ this is toward the very end of the

3:08:02 ↗ packet okay hold on

3:08:20 ↗ yes that are you talking about the

3:08:23 ↗ February 6 2018 meeting it's correct yes

3:08:26 ↗ so that was a dispute resolution meeting

3:08:29 ↗ and I believe that's the one that mister

3:08:31 ↗ that may have been I'm not positive

3:08:33 ↗ about the first one that he attended can

3:08:36 ↗ I ask you to turn to the second page of

3:08:38 ↗ that letter for that meeting notes

3:08:40 ↗ please the second page okay I got it

3:08:46 ↗ and the third dark bullet point up from

3:08:50 ↗ the bottom of the page beginning with

3:08:52 ↗ Patrick asked and direct your attention

3:08:54 ↗ to that

3:09:08 ↗ yes okay could you please read the

3:09:12 ↗ statement attributed to mr. Haney

3:09:14 ↗ immediately following that yes

3:09:18 ↗ Haney said that after termination

3:09:20 ↗ neither side is bound so if there are

3:09:23 ↗ permanent applications after termination

3:09:25 ↗ then new mitigation should be provided

3:09:28 ↗ if you are still bound to the mitigation

3:09:31 ↗ after the termination then what would be

3:09:33 ↗ the purpose of the termination I think

3:09:36 ↗ you did that reflect your recollection

3:09:39 ↗ of mr. Haney comments at the meeting my

3:09:43 ↗ recollection was that his position was

3:09:49 ↗ that the mitigation evaporated so that

3:09:53 ↗ would be consistent with what what is

3:09:57 ↗ written here would be consistent with

3:09:58 ↗ that can I ask you to then turn to the

3:10:01 ↗ first page of the meeting notes for the

3:10:03 ↗ February 6 2018 meeting okay and

3:10:08 ↗ beginning about a third of the way down

3:10:12 ↗ the page

3:10:12 ↗ beginning with the bullet point sentence

3:10:15 ↗ Patrick asked about the city's position

3:10:18 ↗ yes and could you please read that and

3:10:21 ↗ mr. Cheney's response

3:10:28 ↗ so Patrick asked about the city's

3:10:34 ↗ position that pre-ops vest in order to

3:10:36 ↗ avoid a problem with the West Main case

3:10:38 ↗ and asked for the reason that the

3:10:39 ↗ administration would treat urban

3:10:41 ↗ villages different from the rest of the

3:10:43 ↗ city lucy responded by saying that pre

3:10:46 ↗ apps weren't required for out

3:10:49 ↗ applications she claims that we pointed

3:10:53 ↗ out that the DA didn't require them and

3:10:55 ↗ the city agreed Tia disagreed with this

3:10:58 ↗ assertion and said the city did require

3:11:00 ↗ them and asked why we would have had

3:11:03 ↗ them if they were not required lisa's

3:11:06 ↗ response was that because they were so

3:11:08 ↗ helpful and a great tool for us we

3:11:10 ↗ agreed to disagree on this Lucy says we

3:11:13 ↗ have different memories and then the

3:11:16 ↗ next bullet point is Heaney pointed out

3:11:18 ↗ that everyone agrees that there are only

3:11:21 ↗ certain things that vest under state law

3:11:23 ↗ so where would we possibly get the idea

3:11:27 ↗ that SDP is vest he also pulled out the

3:11:30 ↗ IMC which says nothing is required prior

3:11:33 ↗ to building permit thank you does that

3:11:35 ↗ reflect your recollection of the

3:11:38 ↗ discussion by mr. Haney at that meeting

3:11:42 ↗ yes and I think if you look down further

3:11:45 ↗ then it says I read the memo that staff

3:11:48 ↗ had written regarding that issue with

3:11:50 ↗ and that's referring to the 16 November

3:11:54 ↗ letter from memo from mr. Niven and the

3:11:58 ↗ point was that even though the city code

3:12:01 ↗ does say that there shouldn't be

3:12:03 ↗ anything in front of a building permit

3:12:05 ↗ that in fact is not the city's practice

3:12:08 ↗ and what was mr. Haney's response to

3:12:10 ↗ that as indicated in the next bullet

3:12:13 ↗ point says he Haney laughed it off and

3:12:16 ↗ said he was going to give Wayne that I

3:12:18 ↗ am sue means mr. Tanaka his partner held

3:12:22 ↗ for that although he Nia was actually

3:12:25 ↗ the city attorney at the time of the

3:12:27 ↗ memo thank you

3:12:29 ↗ are you familiar with section 80 no 105

3:12:34 ↗ OC of the Sukhois Municipal Code I

3:12:38 ↗ believe that I am though

3:12:40 ↗ don't have it through Bey time in front

3:12:43 ↗ of me is that the one on vesting that's

3:12:49 ↗ correct

3:13:03 ↗ okay

3:13:05 ↗ I don't need you to read that mr. Malina

3:13:08 ↗ that's already been read into the record

3:13:09 ↗ earlier in this proceeding or I just

3:13:12 ↗ want to clarify are you familiar with

3:13:13 ↗ that yes in fact that's what we were

3:13:17 ↗ discussing that staffs practice wasn't

3:13:20 ↗ consistent with this provision and

3:13:22 ↗ calling your attention back to exhibit

3:13:25 ↗ s9 provided by the applicant this is the

3:13:29 ↗ submit all required so that I believe

3:13:32 ↗ were retrieved from the the city's

3:13:34 ↗ website if I'm not mistaken by the

3:13:36 ↗ applicant in preparation for this

3:13:38 ↗ proceeding yes is it your understanding

3:13:44 ↗ mr. maleeni that that submittal

3:13:47 ↗ requirement document supersedes or

3:13:50 ↗ otherwise trumps the language of the

3:13:51 ↗ city's code as expressed in I am C 1801

3:13:55 ↗ o 5oc well my understanding is that

3:14:01 ↗ staff was requiring that as a

3:14:05 ↗ prerequisite to being able to apply for

3:14:08 ↗ a building permit that an applicant was

3:14:10 ↗ required to have a completed SDP notice

3:14:14 ↗ of decision or a SDP notice of decision

3:14:17 ↗ whether or not that's consistent with

3:14:20 ↗ the law as written in the code that's a

3:14:23 ↗ different issue and I think my question

3:14:25 ↗ though is if there is a conflict between

3:14:28 ↗ the two between a codified provision of

3:14:31 ↗ the IMC that directly governs a

3:14:34 ↗ particular issue and an informal

3:14:36 ↗ guidance document on the city's website

3:14:38 ↗ which would control well this isn't an

3:14:42 ↗ informal guidance document it's the

3:14:44 ↗ application requirements to obtain a

3:14:46 ↗ permit but that document is not codified

3:14:49 ↗ if I understand correctly no but it's

3:14:52 ↗ the result of the city codes directive

3:14:58 ↗ that the city should determine the

3:15:01 ↗ application requirements for the various

3:15:04 ↗ permits that the city allows or in which

3:15:11 ↗ code requirement is that mr. maleeni

3:15:13 ↗ you know take me a minute to find it but

3:15:18 ↗ it's there it's the requirements section

3:15:22 ↗ for obtaining a permit so what

3:15:27 ↗ constitutes a complete application

3:15:43 ↗ now I'm sensitive of the Commission's

3:15:46 ↗ time I I will not make you look up that

3:15:50 ↗ provision okay I just wanted to call

3:15:52 ↗ your attention and specifically ask you

3:15:56 ↗ about the interplay between I IMC 1801

3:16:00 ↗ o5o C and the actual guidance document

3:16:03 ↗ that was referenced and and cited by the

3:16:06 ↗ applicant at exhibit s9 mm-hmm I'd now

3:16:10 ↗ like to ask you a few questions

3:16:12 ↗ regarding the plat application I believe

3:16:15 ↗ that your testimony was that the IHI FC

3:16:19 ↗ or shelter plat application and I think

3:16:22 ↗ you used the word clearly did show

3:16:24 ↗ building footprints is that your

3:16:26 ↗ position that's correct yeah I'm going

3:16:29 ↗ to hand you a copy of my colleague will

3:16:33 ↗ hand you a copy of city's exhibit c9 yes

3:16:49 ↗ the record this is the land use

3:16:52 ↗ application for the High Street

3:16:53 ↗ collection plat submitted by your client

3:16:56 ↗ do you recognize it as such yes you look

3:17:05 ↗ at the bottom of the first page and

3:17:07 ↗ state this the date submitted reference

3:17:09 ↗ yes this was 8 1 2017 are you aware of

3:17:14 ↗ anything in this assemblage of materials

3:17:16 ↗ that shows building footprints as part

3:17:19 ↗ of your clients plat application yeah as

3:17:21 ↗ I testified in my direct this app this

3:17:26 ↗ application included a written narrative

3:17:29 ↗ that discussed the SDPs and then

3:17:34 ↗ subsequently the and amended plat was

3:17:44 ↗ what I call it not a site plan but let

3:17:48 ↗ me see what's called exactly

3:17:58 ↗ yeah well it's just labeled as a

3:18:01 ↗ preliminary plat but there was a

3:18:06 ↗ supplemental submission that included

3:18:08 ↗ the building footprints okay you know

3:18:10 ↗ I'll get to the Supplemental submission

3:18:12 ↗ in it but I'm attempting to get your

3:18:15 ↗ response concerning my question of

3:18:17 ↗ whether or not that assemblage of

3:18:19 ↗ materials that was submitted under the

3:18:22 ↗ application form on August 1st 2017

3:18:26 ↗ depicted building footprints this one

3:18:30 ↗ does not thank you could you please turn

3:18:33 ↗ to exhibit c12 identified as the high

3:18:40 ↗ street collection at yes aqua highlands

3:18:42 ↗ plat project narrative dated July 15

3:18:47 ↗ 2017 mm-hmm

3:18:49 ↗ was also submitted concurrently with or

3:18:53 ↗ in conjunction with your clients plat

3:18:56 ↗ application you recognize it as such I

3:18:58 ↗ do you please turn to page 2 of that

3:19:02 ↗ document okay and at the very bottom of

3:19:07 ↗ that page the last sentence beginning

3:19:11 ↗ with the word the plat could you please

3:19:13 ↗ read that for me the plat does not

3:19:21 ↗ propose construction of any structures

3:19:23 ↗ rather the allocation of allowable

3:19:26 ↗ development included in the path will be

3:19:28 ↗ implemented by future specific

3:19:30 ↗ development proposals the applicants

3:19:33 ↗ anticipate the future development on

3:19:34 ↗ Lots created by this plan could include

3:19:37 ↗ buildings reaching up to eight storey

3:19:39 ↗ heights some of which may include

3:19:41 ↗ ground-level retail with parking

3:19:43 ↗ provided either on grade below grade or

3:19:45 ↗ in a parking structure applicant intends

3:19:49 ↗ the future build-out of the property

3:19:50 ↗ will be integrated into the existing

3:19:52 ↗ Issaquah Highlands community and will

3:19:54 ↗ comply with the development standards

3:19:56 ↗ set forth in the development agreement

3:19:58 ↗ thank you could you please turn to City

3:20:02 ↗ exhibit C 14

3:20:06 ↗ c14 okay all right this is a submit

3:20:17 ↗ already high-street collection at aqua

3:20:20 ↗ Highlands filed under the city's my

3:20:23 ↗ building permit dot-com portal and

3:20:27 ↗ indicating a submission date and time of

3:20:30 ↗ December 15 2017 yes you recognize it as

3:20:34 ↗ such yes I said where it says that did I

3:20:37 ↗ ask you to turn in a second page of that

3:20:39 ↗ document yes could you describe this

3:20:42 ↗ document from me mr. Malina yeah so this

3:20:47 ↗ is the updated application materials

3:20:51 ↗ that I alluded to in my testimony and it

3:20:55 ↗ shows the building footprints that were

3:20:59 ↗ included for the various that were

3:21:04 ↗ assigned to the various blocks

3:21:06 ↗ consistent with the SDP applications

3:21:09 ↗ that were being prepared thank you and

3:21:11 ↗ to clarify your testimony as I

3:21:13 ↗ understand it building footprints of

3:21:15 ↗ this type were not included in the

3:21:17 ↗ submittal for the plat application by

3:21:20 ↗ your client in August or as part of the

3:21:22 ↗ August 2017 submission packet is that

3:21:26 ↗ correct well I guess I struggled to

3:21:29 ↗ understand the relevance of the question

3:21:31 ↗ that's I would respectfully ask you to

3:21:34 ↗ answer the question there is despite

3:21:35 ↗ whether you feel it's relevant or not

3:21:37 ↗ well both the original submission and

3:21:44 ↗ this submission were submitted during

3:21:46 ↗ the time the development agreement was

3:21:48 ↗ in place and this submission was

3:21:52 ↗ accepted by the city it was it was both

3:21:55 ↗ uploaded and sent to the planner and

3:21:58 ↗ ultimately used in the notice that the

3:22:00 ↗ city sent out on the planet so thank you

3:22:02 ↗ again my question again yes

3:22:04 ↗ chronologically you're correct but I

3:22:07 ↗ just as I said I don't know the

3:22:09 ↗ relevance of that but just to clarify I

3:22:11 ↗ believe what you said there at the end

3:22:13 ↗ of that answer this material these

3:22:16 ↗ depictions of building footprints were

3:22:18 ↗ not included in the August 2017

3:22:20 ↗ submittal and were instead submitted

3:22:22 ↗ several months later in December of 2017

3:22:26 ↗ is that correct that's correct

3:22:27 ↗ thank you by the time that this document

3:22:30 ↗ was submitted in December of 2017 had

3:22:34 ↗ the build-out period under the Issaquah

3:22:37 ↗ Highlands development agreement already

3:22:38 ↗ expired

3:22:39 ↗ I believe the build-out period expired

3:22:44 ↗ in September of 2017 so yes thank you by

3:22:50 ↗ the time that your client had submitted

3:22:52 ↗ this December 2017 supplement had the

3:22:57 ↗ city council in discussing the

3:23:00 ↗ replacement regulations vetted the

3:23:03 ↗ potential to include state law vesting

3:23:06 ↗ in those replacement regulations

3:23:07 ↗ publicly

3:23:08 ↗ I don't recall exactly when the City

3:23:12 ↗ Council discussed that there was a

3:23:17 ↗ period of time in November when there

3:23:24 ↗ were no right no there was no vesting

3:23:26 ↗ language I'm sorry in October then there

3:23:31 ↗ was a notation and the replacement

3:23:33 ↗ regulations that the vesting language is

3:23:35 ↗ under review by the city attorney my

3:23:38 ↗ recollection was that the vesting

3:23:41 ↗ language that ultimately ended up in the

3:23:43 ↗ regulations was not pop made public

3:23:47 ↗ until February eighth of 2018

3:23:52 ↗ by the time that the December 2017

3:23:57 ↗ supplement to your clients plat

3:23:59 ↗ application was filed had your client

3:24:02 ↗ already submitted its SDP and ASDP

3:24:05 ↗ applications that are at issue in this

3:24:07 ↗ proceeding I'm without having the

3:24:14 ↗ chronology right in front of me I can't

3:24:16 ↗ say I believe that some of them had been

3:24:18 ↗ submitted but I

3:24:20 ↗ don't quote me on fair enough thank you

3:24:22 ↗ I asked why your client submitted this

3:24:26 ↗ document in December 2015 and

3:24:29 ↗ specifically did the did the city

3:24:31 ↗ request the submittal of this document

3:24:34 ↗ as I turn 17 pardon me as I testified to

3:24:38 ↗ my understanding was that shelter had

3:24:43 ↗ anticipated that its SDPs would have

3:24:47 ↗ been accepted by the city long before

3:24:52 ↗ this time period had the city complied

3:24:55 ↗ with the appendix L time requirements

3:24:58 ↗ and that the idea was consistent with

3:25:03 ↗ what the platen eret have said that the

3:25:06 ↗ the plat was and with the discussions

3:25:10 ↗ that we had with mr. Niven all along the

3:25:13 ↗ plat was the first step in implementing

3:25:18 ↗ the development that required both the

3:25:21 ↗ plat and the SDP s consistent with his

3:25:26 ↗ direction in the March 27th email our

3:25:30 ↗ letter regarding how the city would

3:25:33 ↗ treat applications that would be vested

3:25:35 ↗ to the development agreement so to

3:25:39 ↗ answer your question the reason that

3:25:43 ↗ they that the building envelopes I think

3:25:46 ↗ were shown was because that was

3:25:49 ↗ consistent with the SDP applications

3:25:52 ↗ that either had been submitted or were

3:25:55 ↗ in the pre-op process again I'm not

3:25:59 ↗ exactly sure where they were and so it

3:26:02 ↗ was consistent with how we had discussed

3:26:06 ↗ the development unfolding with staff as

3:26:10 ↗ early back as the early part of 2017

3:26:15 ↗ okay thank you I'd like to call your

3:26:18 ↗ attention now to a few of the references

3:26:20 ↗ in the the various meetings that were

3:26:23 ↗ cited in your original direct testimony

3:26:26 ↗ first

3:26:29 ↗ they could have you look at the meeting

3:26:31 ↗ notes from September 21st 2016 September

3:26:40 ↗ 21st hold on 2016 I believe so yes

3:26:44 ↗ September 21st 2016 this is about half

3:26:49 ↗ an inch through the from the top of the

3:26:51 ↗ packet

3:27:07 ↗ and you said September 21st okay I have

3:27:10 ↗ it okay could you please turn to the

3:27:11 ↗ second page of that document okay okay

3:27:22 ↗ that's specifically the fifth bullet

3:27:25 ↗ point beginning with Keith said that all

3:27:29 ↗ and then quote your mitigation will

3:27:32 ↗ evaporate and disappear end quote

3:27:35 ↗ yes and that exists however you ignored

3:27:38 ↗ yes yes could you please read the second

3:27:40 ↗ sentence beginning with however however

3:27:43 ↗ he acknowledged that the city can't make

3:27:45 ↗ landowners pay again something that the

3:27:48 ↗ landowner had already paid for so there

3:27:50 ↗ might be some number of trips vested in

3:27:52 ↗ the overlay but they may be directional

3:27:55 ↗ only how did you construe this statement

3:27:58 ↗ from mr. Miller so again referring back

3:28:02 ↗ to my direct testimony at this point in

3:28:05 ↗ time there were no permit applications

3:28:09 ↗ or that had vested to the development

3:28:11 ↗ standards and so the discussion was if

3:28:16 ↗ the city was going to terminate the

3:28:21 ↗ development agreement how would this

3:28:24 ↗ infrastructure that had been constructed

3:28:27 ↗ be credited to the properties that

3:28:32 ↗ hadn't been built out yet under the

3:28:35 ↗ agreement and so I my understanding of

3:28:40 ↗ this was mr. Niven was saying we have a

3:28:43 ↗ different system now in the city for how

3:28:49 ↗ we look at concurrency and it's and so

3:28:56 ↗ there's a difference between the

3:28:58 ↗ development agreement system and our new

3:29:00 ↗ system but that he recognized that the

3:29:04 ↗ city couldn't make developer mitigate

3:29:10 ↗ twice for the same impact then the last

3:29:15 ↗ reference is they may be directional

3:29:17 ↗ only I believe that referred to the fact

3:29:20 ↗ that commercial trips might have a

3:29:26 ↗ different directional component than a

3:29:29 ↗ residential trip so a commercial trip

3:29:32 ↗ might be coming in in the morning and

3:29:34 ↗ going

3:29:34 ↗ the afternoon where the residential

3:29:36 ↗ might be switched thank you and with

3:29:39 ↗ specific respect to mr. Nevins qualifier

3:29:42 ↗ that the city or acknowledgement that

3:29:45 ↗ the city can't make landowners pay again

3:29:47 ↗ something that the landowner has already

3:29:48 ↗ paid for

3:29:49 ↗ just to clarify that that addresses your

3:29:51 ↗ double-dipping concern if I'm not

3:29:53 ↗ mistaken that's right that would be

3:29:55 ↗ consistent with my understanding of both

3:30:00 ↗ the constitutional nexus and

3:30:02 ↗ proportionality requirement and RCW 82

3:30:06 ↗ Oh - OH - oh thank you next like you to

3:30:09 ↗ briefly look at the meeting notes from

3:30:13 ↗ the November 14th 2016 meeting this

3:30:17 ↗ apparently involved according to the

3:30:20 ↗ meeting notation eath Gary Patrick and

3:30:24 ↗ TIA okay I got that in the first bullet

3:30:31 ↗ point on the first page beginning with

3:30:33 ↗ Gary started off there is a reference in

3:30:37 ↗ the second sentence beginning with we

3:30:40 ↗ are not tied to could you please read

3:30:42 ↗ that sentence please we are not tied to

3:30:46 ↗ any specific plan and want to poke focus

3:30:49 ↗ on a positive working relationship with

3:30:51 ↗ the city we have heard their message

3:30:54 ↗ that they don't want more residential

3:30:56 ↗ and are willing to set that aside for

3:30:58 ↗ now and work on commercial thank you and

3:31:01 ↗ if I could now have you turn to the

3:31:03 ↗ second page of that document beginning

3:31:05 ↗ with the second bullet point and Patrick

3:31:09 ↗ asked about yes do you please quote that

3:31:14 ↗ paragraph you want all four bullet

3:31:18 ↗ points or welcome to summarize if that

3:31:20 ↗ would be easier and more expeditious how

3:31:23 ↗ did how do you construe this and is this

3:31:25 ↗ your consistent with your recollection

3:31:27 ↗ of what actually was stated at the

3:31:29 ↗ meeting

3:31:35 ↗ yes so again this goes to the discussion

3:31:38 ↗ of that first bucket of unvested

3:31:41 ↗ mitigation and I was asking him about

3:31:49 ↗ how it might be addressed in the

3:31:51 ↗ termination process down the road and

3:31:57 ↗ mr. Nevin was indicating that some types

3:32:01 ↗ of mitigation might be easy and others

3:32:04 ↗ might be hard for example there were

3:32:09 ↗ issues with local and regional water

3:32:12 ↗ charges because those had a nother

3:32:16 ↗ purveyor involved in them and so

3:32:20 ↗ possibly the local charges might not

3:32:22 ↗ apply because there was an

3:32:24 ↗ acknowledgement that water

3:32:26 ↗ infrastructure had been built as part of

3:32:29 ↗ the development agreement mitigation and

3:32:33 ↗ then there's a discussion about

3:32:34 ↗ government service fees and fire fees

3:32:38 ↗ acknowledging that a fire station was

3:32:41 ↗ constructed in Issaquah Highlands as

3:32:44 ↗ mitigation so there might be an

3:32:47 ↗ exemption from fire impact fees and then

3:32:51 ↗ there's a discussion about traffic and

3:32:54 ↗ how that would be addressed thank you

3:32:56 ↗ and to clarify is that your

3:32:58 ↗ understanding that those statements by

3:33:00 ↗ mr. Nevin indicated the city's potential

3:33:03 ↗ willingness to credit some of the

3:33:05 ↗ previously paid mitigation for the Asuka

3:33:07 ↗ Highlands area yes at that point in time

3:33:11 ↗ I mean it the the provision says he is

3:33:14 ↗ open to hell it said traffic is the most

3:33:19 ↗ difficult to address but Microsoft and I

3:33:24 ↗ think that's what MSFT stands for would

3:33:27 ↗ have had some amount of trips so the

3:33:29 ↗ city could assume that we would have

3:33:31 ↗ some amount of vested trips he is open

3:33:34 ↗ to help with this argument that we

3:33:35 ↗ should be fully mitigated up to a

3:33:37 ↗ certain number of trips and that you

3:33:39 ↗ could draw on that trip bank as you

3:33:41 ↗ build thank you

3:33:44 ↗ and I mean I think I'm not sure if I

3:33:46 ↗ believe it's the March meeting there was

3:33:50 ↗ a discussion of possibly issuing a

3:33:53 ↗ mitigation certificate that Mister and

3:33:58 ↗ that was an idea that mr. Nevin put

3:34:00 ↗ forth thank you - now turn your

3:34:04 ↗ attention very briefly to your direct

3:34:06 ↗ testimony regarding appendix L of the

3:34:10 ↗ Issaquah Highlands development agreement

3:34:13 ↗ this I believe was already in the record

3:34:14 ↗ as a city exhibit that I will cite it as

3:34:17 ↗ it was most recently introduced or

3:34:20 ↗ reintroduced by the applicant at exhibit

3:34:23 ↗ s 25 yes and this is a Exhibit L part

3:34:27 ↗ one the Andes flow chart you testified

3:34:33 ↗ about the timing of processing of

3:34:37 ↗ shelters various project permits under

3:34:40 ↗ this chart do you recall that testimony

3:34:42 ↗ yes may I please direct your attention

3:34:44 ↗ to the top of the page after the word

3:34:48 ↗ chart in parenthesis do you see that yes

3:34:51 ↗ do you see the asterisks after that word

3:34:54 ↗ yes you please then look at the

3:34:57 ↗ asterisks in the footnote to that page

3:35:00 ↗ beginning with the word assumes yes it

3:35:03 ↗ says assumes adequate staffing levels

3:35:05 ↗ are determined by the city time shown in

3:35:08 ↗ brackets are maximum elapsed time from

3:35:10 ↗ the preceding step so my understanding

3:35:13 ↗ of that would be that it should take 10

3:35:16 ↗ days or less for instance to go from

3:35:22 ↗ application submitted to complete

3:35:24 ↗ application decision thank you

3:35:27 ↗ then turn your attention to exhibit s 36

3:35:33 ↗ this also was previously introduced by

3:35:37 ↗ the city as an appendix to the staff

3:35:40 ↗ reports underlying this hearing that

3:35:42 ↗ most recently reintroduced by the

3:35:45 ↗ applicant as s 36 okay

3:35:49 ↗ second okay I got that one you please

3:35:56 ↗ turn to page two section six yes and

3:36:03 ↗ read the last sentence of that section

3:36:08 ↗ beginning with therefore therefore both

3:36:15 ↗ parties reserved all legal and equitable

3:36:17 ↗ rights positions and remedies and

3:36:20 ↗ execution of this letter agreement shall

3:36:22 ↗ not be construed a waiver of either

3:36:24 ↗ party's respective legal rights

3:36:25 ↗ positions in remedy including without

3:36:28 ↗ limitation the legal requirements of the

3:36:31 ↗ development agreement the effect of the

3:36:33 ↗ replacement regulations or vesting

3:36:35 ↗ sounds like a lawyer wrote that thank

3:36:39 ↗ you I'm gonna be introducing city

3:36:44 ↗ exhibit c42

3:36:48 ↗ thank you

3:37:00 ↗ the record this is an email exchange

3:37:03 ↗ between Luci Sloman and yourself and I

3:37:07 ↗ believe that it spans the period between

3:37:13 ↗ January 12 2018 and January 17th 2018

3:37:19 ↗ are you familiar with this document yes

3:37:22 ↗ I recall it and I apologize for what may

3:37:25 ↗ be a little bit difficult to glean with

3:37:31 ↗ the different-colored inner inter

3:37:33 ↗ lineage

3:37:34 ↗ where miss miss Sloman has inserted text

3:37:38 ↗ into your original email for purposes of

3:37:42 ↗ a reply but do you see where she has

3:37:43 ↗ done that yes okay could I please turn

3:37:47 ↗ your attention to the Friday January

3:37:49 ↗ 12th email in which responses have been

3:37:53 ↗ interlinear the fourth bullet point on

3:38:00 ↗ the second page okay got it

3:38:06 ↗ did you please read your statement to

3:38:09 ↗ Miss sloman beginning with the city the

3:38:15 ↗ city well it looks like there's a word

3:38:20 ↗ missing but it says the city would that

3:38:22 ↗ I have seized preliminary plat I suppose

3:38:26 ↗ it would should have said would agree

3:38:27 ↗ that I have seized preliminary plat and

3:38:30 ↗ s DP pre applications are currently

3:38:32 ↗ considered complete and vested to the

3:38:35 ↗ development and then she wrote based on

3:38:38 ↗ the current draft of the replacement

3:38:40 ↗ regulations if those changed

3:38:43 ↗ significantly we'd have to revisit this

3:38:45 ↗ we all need that caveat I see you have

3:38:49 ↗ that below so you and your client were

3:38:53 ↗ aware if I understand it from this

3:38:55 ↗ response what the city's position was

3:38:58 ↗ regarding the potential for the vesting

3:39:01 ↗ language under the replacement

3:39:03 ↗ regulations draft to change is that

3:39:05 ↗ correct so in November

3:39:09 ↗ I believe starting around November 15th

3:39:12 ↗ was when we had the meeting with mr.

3:39:16 ↗ Niven that's where he encouraged shelter

3:39:20 ↗ to publicly he indicated what the

3:39:23 ↗ administration was going to propose that

3:39:24 ↗ was the alternative to in his November

3:39:28 ↗ 16th memo and he encouraged shelter to

3:39:32 ↗ support that publicly which shelter did

3:39:36 ↗ and the reason it did was that it

3:39:39 ↗ believed that that interpret that that

3:39:42 ↗ alternative was consistent with

3:39:44 ↗ Washington vesting law and I'm sorry mr.

3:39:48 ↗ Connolly could you please just answer

3:39:49 ↗ the specific question that I asked yeah

3:39:53 ↗ that's what I'm trying to do the and

3:39:58 ↗ then but it's important for you to

3:40:01 ↗ understand that and then in on December

3:40:03 ↗ 8th shelter got the confirmation from

3:40:07 ↗ mr. Niven that its preliminary sdp

3:40:10 ↗ applications were vested to the

3:40:12 ↗ development agreement so it was in that

3:40:15 ↗ background as I indicated before the

3:40:20 ↗ city didn't publicly disclose it was

3:40:23 ↗ changing its vesting the vesting

3:40:25 ↗ regulations in the replacement

3:40:26 ↗ regulations until February 8 2018 so

3:40:32 ↗ during this timeframe the current draft

3:40:38 ↗ regulations had acknowledged they

3:40:42 ↗ continued vesting of SDPs

3:40:45 ↗ okay but my question is did this

3:40:50 ↗ response by miss Loman

3:40:52 ↗ Invader your client the end to you on

3:40:56 ↗ behalf of your client that the city's

3:40:59 ↗ position on vesting as it related to the

3:41:02 ↗ replacement regulations was potentially

3:41:04 ↗ subject to change or contingent on the

3:41:07 ↗ the ultimate outcome of the city's

3:41:09 ↗ legislative process

3:41:16 ↗ well I wouldn't agree with that

3:41:18 ↗ characterization but I I mean I'm

3:41:21 ↗ looking to see where she talks about

3:41:23 ↗ later on

3:41:29 ↗ well I'm specifically asking you about

3:41:31 ↗ the language of bullet point number five

3:41:34 ↗ yeah what she says is I see that you

3:41:37 ↗ have that below and so I'm trying to

3:41:39 ↗ find where it says that below what what

3:41:41 ↗ she's talking about there

3:41:56 ↗ yeah so if you look at the second to

3:41:59 ↗ last bullet point it says the letter

3:42:02 ↗ agreement would be contingent and

3:42:04 ↗ include a reservation of Rights whereby

3:42:07 ↗ the agreement would terminate and IHI F

3:42:10 ↗ would be free to pursue all available

3:42:12 ↗ remedies and appeals in the event that

3:42:15 ↗ there are material changes to the

3:42:17 ↗ vesting provision in the proposed post

3:42:19 ↗ development agreement zoning regulations

3:42:21 ↗ as the current staff proposed vesting

3:42:24 ↗ language is consistent with the city's

3:42:26 ↗ existing vesting regulations and IHI FS

3:42:30 ↗ understanding of vesting law so in that

3:42:32 ↗ reservation of Rights mr. maleeni is the

3:42:35 ↗ provision that you quoted from exhibit s

3:42:38 ↗ 36 from the letter agreement dated in

3:42:41 ↗ March 15th is that correct no but what I

3:42:43 ↗ just quoted to you was from Exhibit C 42

3:42:48 ↗ which is the the second bullet the the

3:42:55 ↗ first bullet point on the last page

3:42:58 ↗ which is what the language that you were

3:43:02 ↗ talking to me about where she says we

3:43:06 ↗ all need that caveat I see that you have

3:43:08 ↗ that below that's what that refers to

3:43:10 ↗ the language that is actually in the

3:43:13 ↗ March 15th letter is a bilateral so it's

3:43:18 ↗ different than this language but thank

3:43:21 ↗ you no further questions okay just one

3:43:24 ↗ quick administrative point of

3:43:25 ↗ clarification I actually had a seat I

3:43:27 ↗ think Exhibit C 42 already for the city

3:43:29 ↗ so by my count that last email should be

3:43:33 ↗ C 43

3:43:40 ↗ I only had one just clarifying question

3:43:43 ↗ to ask event Patrick a minute ago you

3:43:46 ↗ were testifying and you mentioned that

3:43:48 ↗ there was a December 8 verification from

3:43:51 ↗ afternoon with the opposite fasted

3:43:54 ↗ yesterday get the date wrong a chance

3:43:58 ↗ that in November there's a meeting on

3:43:59 ↗ November 21st it's the one that we

3:44:07 ↗ talked about before that where mr. Niven

3:44:11 ↗ has the one-word answer yes and I could

3:44:14 ↗ find it somewhere oh here we go

3:44:17 ↗ yes here correct I'm sorry I had the

3:44:19 ↗ date wrong so it was an email from mr.

3:44:25 ↗ Niven to miss hime that was sent

3:44:28 ↗ Wednesday November 22nd 2017 at 7:25

3:44:33 ↗ a.m. C for completed just to circle back

3:44:45 ↗ with mr. maleeni briefly to the bullet

3:44:48 ↗ point if I could just get your answer to

3:44:50 ↗ the question what in your view does this

3:44:54 ↗ mean the the response that was entered

3:44:57 ↗ in or lineatus sloman in the fourth

3:45:00 ↗ bullet point specifically referring to

3:45:03 ↗ the text based on the current draft of

3:45:06 ↗ the replacement regulations if those

3:45:08 ↗ change significantly

3:45:10 ↗ we'd have to revisit this so I don't

3:45:13 ↗ mean to draw this out but I do need to

3:45:15 ↗ object because we had talked about the

3:45:16 ↗ scope of cross and redirect and this is

3:45:18 ↗ outside of the scope of anything that I

3:45:20 ↗ just redirected I would would

3:45:22 ↗ respectfully disagree with that this is

3:45:24 ↗ within the scope of what mr. maleeni

3:45:28 ↗ testified in relation to the city's

3:45:31 ↗ position on the replacement regulations

3:45:32 ↗ and communications to and from city

3:45:36 ↗ staff on this issue and whether whether

3:45:38 ↗ under what extent staff had indicated

3:45:39 ↗ that they would be vested going forward

3:45:42 ↗ irrespective of the the ultimate outcome

3:45:44 ↗ of the city's legislative process and

3:45:46 ↗ and all that I asked for was a

3:45:48 ↗ correction on the date not for any more

3:45:50 ↗ substantive content

3:45:51 ↗ I think we've heard enough

3:45:59 ↗ thank you think we've heard enough so

3:46:02 ↗ appreciate your time we need to do a

3:46:04 ↗ couple of things the first thing is to

3:46:06 ↗ agree on next meetings and I think we

3:46:11 ↗ currently have proposed February fifth

3:46:13 ↗ and sixth the fifth would be a special

3:46:16 ↗ meeting the six would probably be a

3:46:18 ↗ regular meeting and would give us some

3:46:20 ↗ flexibility agenda wise starting at 6:30

3:46:23 ↗ and ending around 10:00 if that's

3:46:25 ↗ agreeable okay I understand there was

3:46:33 ↗ concern about who was going to maintain

3:46:36 ↗ the record and so we've identified

3:46:39 ↗ another public or another city employee

3:46:42 ↗ Carla Zabriskie who is willing to hold

3:46:46 ↗ that record and so I'll be delivering

3:46:48 ↗ that to her in the morning and then I

3:46:53 ↗ need some insight or information on if

3:46:57 ↗ both if you're going to if you need both

3:47:00 ↗ February dates if you think that the the

3:47:03 ↗ witness of testimony and

3:47:05 ↗ cross-examination is going to require

3:47:07 ↗ both of those nights because we have an

3:47:09 ↗ obligation to inform the public of when

3:47:11 ↗ it would be reasonable for them to be

3:47:13 ↗ able to provide comment so if your sense

3:47:16 ↗ is that the proceedings will require all

3:47:21 ↗ the time then we'll need to extend out

3:47:22 ↗ when the the public may be able to make

3:47:25 ↗ their comments and it's just an

3:47:26 ↗ administrative thing we want to make

3:47:27 ↗ sure they know when that's appropriate

3:47:29 ↗ so I just ask you to take your best

3:47:32 ↗ guess and would offer legal time usually

3:47:39 ↗ is not necessarily consistent with

3:47:41 ↗ chronological time yes just saying well

3:47:49 ↗ in terms of estimating length we don't

3:47:53 ↗ know what kind of cross or read we'll

3:47:56 ↗ have to hear from the city about what

3:47:57 ↗ they intend to do when we're finished

3:48:00 ↗ we're going to call miss hime and then

3:48:03 ↗ we're gonna call mr. young and I would

3:48:06 ↗ imagine the direct would fill up the

3:48:08 ↗ next meeting between the two of them and

3:48:11 ↗ then it'll be up to whatever the city

3:48:13 ↗ intends to do with its witnesses after

3:48:15 ↗ that but on the issue of the public

3:48:18 ↗ comment again I I understand that's

3:48:20 ↗ typical for your your meetings but again

3:48:23 ↗ I I do not think that's an appropriate

3:48:25 ↗ part of a quasi-judicial proceeding

3:48:27 ↗ where you have two adverse parties who

3:48:30 ↗ are calling witnesses and so the that

3:48:32 ↗ what you hear ought to be limited to the

3:48:34 ↗ testimony of the witnesses called by

3:48:36 ↗ either party

3:48:37 ↗ I agree but we we still have a

3:48:41 ↗ responsibility of providing the

3:48:43 ↗ opportunity for the public to provide

3:48:45 ↗ input and so we we need a best guess so

3:48:49 ↗ it sounds like your sense is that you

3:48:51 ↗ will be finished with your witness

3:48:54 ↗ examinations the in the further on v but

3:48:57 ↗ that depends on how I think on how much

3:49:00 ↗ cross there would be miss hime before we

3:49:03 ↗ get to mr. young

3:49:05 ↗ so if not taking into account any cross

3:49:09 ↗ I think we could just about fill up the

3:49:12 ↗ one evening with the two of them and

3:49:15 ↗ it's very likely the city will have a

3:49:17 ↗ lengthy cross-examination of miss hein

3:49:19 ↗ so I think in mind I believe for the

3:49:24 ↗ procedures that the the Commission

3:49:27 ↗ adopts at the beginning of this

3:49:28 ↗ proceeding that the rebuttal testimony

3:49:31 ↗ from both parties would occur after the

3:49:33 ↗ public had an opportunity to speak my

3:49:36 ↗ strong assumption is that we would need

3:49:40 ↗ at least one and possibly two more dates

3:49:42 ↗ after the February fifth and six dates

3:49:48 ↗ so do we have enough information to be

3:49:53 ↗ able to schedule okay we'll figure it

3:49:55 ↗ out I let me just say it so I mean

3:49:58 ↗ thanks for the indulgence of staying a

3:50:00 ↗ little longer than we would have chosen

3:50:02 ↗ but it's been absolutely thrilling so

3:50:06 ↗ I will adjourn the meeting

3:50:20 ↗ you

Approved minutes

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

Open PDF

Attendance

Council / Members (1)

Administration/

Staff (1)

Richard Sowa, Chair Keith Niven, Econ. & Dev. Srvc. Dir. Mel Morgan, Vice Chair Lucy Sloman, Land Development Mgr. Michael Brennan Kevin Price Others Present: Richard Sanford Jeffrey Dunbar, City Attorney’s Office Commissioners Not Present (Excused): Tia Heim, Shelter Holdings Randy Harrison Zachary Lell, City Attorney’s Office Jasmina Mihova Ray Liaw, Van Ness Feldman, LLP Mark Rigos, Alternate Patrick Mullaney, Foster Pepper PLLC Ryan Roeter, Alternate Jackie Quarré, Foster Pepper PLLC Nischitha Venkatesh, Alternate Patrick Schneider, Foster Pepper PLLC