Development Commission - Special Meeting - 16 A · Tuesday, April 16, 2019 · City Council Digest

1. CALL TO ORDER

Commission Membership

packet pp.5

Open packet at p.5 ↗

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…

2. APPROVAL OF MINUTES

Minutes of March 19, 2019

packet pp.7–9

▶ Watch from 1:19 Open packet at p.7 ↗

Staff report:

and identified them for ease in continued questioning of Heim. Lell continued his questioning, which included questions about Exhibit S-22; Shelter’s work with consultants on development opportunities for Shelter’s property in the Highlands; Shelter’s initial land use application packet (Exhibit C-9); any studies Shelter has commissioned on the effect of the replacement regulations on Shelter’s applications; and previous testimony given by Heim, including from her September 7, 2017 notes.

Minutes of March 20, 2019

packet pp.11–14

▶ Watch from 26:22 Open packet at p.11 ↗

Staff report:

APPROVAL OF MINUTES b) 03-20-19 Development Commission Minutes Page [0000]

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

packet pp.23

Topics: Land UseTransportation

▶ Watch from 51:24 Open packet at p.23 ↗

3245 segments .txt ↗

0:14 ↗ all right

0:16 ↗ good evening ladies and gentlemen I

0:18 ↗ think it is time for us to begin I'd

0:21 ↗ like to open call to order the

0:23 ↗ Commission meeting for the public

0:26 ↗ hearing on SK Highlands retail Issaquah

0:29 ↗ highlands medical office administrative

0:31 ↗ site development permit and Issaquah

0:33 ↗ highlands self storage administrative

0:35 ↗ site development permit before we get

0:37 ↗ too far into this we have a couple of

0:39 ↗ some business official business to

0:42 ↗ conduct and that's approving minutes

0:45 ↗ from our March 19th meeting and our

0:47 ↗ minutes from our March 20th 2019

0:51 ↗ meetings so I would entertain motions on

0:56 ↗ that mr. chair move we approve the

0:58 ↗ minutes of the March 19th 2019 meeting

1:01 ↗ okay okay emotions been made and

1:04 ↗ seconded to approve the march 19th

1:06 ↗ meetings any discussion all those in

1:10 ↗ favor of approving the minutes say aye

1:12 ↗ aye opposed okay motion carries now how

1:16 ↗ about the minutes of March 20th mr.

1:19 ↗ chair I move we approve the minutes on

1:20 ↗ March 20 2018 meeting second okay we

1:24 ↗ have a motion that's been made and

1:25 ↗ seconded any discussion on those

1:28 ↗ Corrections all those in favor of

1:32 ↗ approving the minutes of March 20th 2019

1:36 ↗ please say aye

1:37 ↗ so all opposed all right motions carried

1:41 ↗ so my understanding process wise we're

1:44 ↗ at the point where we're going to have

1:46 ↗ rebuttal by the city first and then

1:48 ↗ applicant will be able to do that so mr.

1:52 ↗ Lowell Thank You mr. chairman the city

1:54 ↗ has three rebuttal witnesses that we'd

1:57 ↗ like to call tonight the first is Jean

1:59 ↗ Lin

2:07 ↗ miss Lin has not yet been sworn

2:15 ↗ I do miss Lynn could you please identify

2:25 ↗ yourself for the record my name is Jean

2:28 ↗ Lynn and what is your current title and

2:31 ↗ position I'm a Senior Planner with the

2:34 ↗ city of Issaquah how long have you held

2:36 ↗ that position almost two years are you

2:39 ↗ an attorney I am NOT

2:41 ↗ have you received legal training I have

2:44 ↗ not for this proceeding involving IH IFC

2:48 ↗ have you had experience with

2:50 ↗ Washington's vested rights doctrine I

2:52 ↗ have not who at the city of Issaquah do

2:56 ↗ you directly report to Lucie Sloman and

2:59 ↗ how long have you been employed by the

3:01 ↗ city of Issaquah almost two years and

3:05 ↗ where did you work before you assumed

3:07 ↗ your position with the city in

3:09 ↗ California are you the city of Issaquah

3:13 ↗ planner was assigned to the preliminary

3:16 ↗ plan application filed by IH IFC shelter

3:19 ↗ Holdings for its project site in the

3:22 ↗ Issaquah Highlands yes I am you familiar

3:26 ↗ with the IH IFC preliminary plat

3:29 ↗ application that was filed in August of

3:31 ↗ 2017 I am IH IOC's August 2017 platinum

3:38 ↗ for intz not to my recollection did

3:43 ↗ depict buildings or structures at all no

3:46 ↗ the recollection did any of the

3:49 ↗ materials submitted by IH IFC in

3:51 ↗ conjunction with its August 2017 platen

3:55 ↗ depict buildings no I'd like to call

4:03 ↗ your attention to a document that was

4:06 ↗ previously introduced into the record

4:08 ↗ for this proceeding actually two

4:10 ↗ documents exhibits c11 and C 14 and my

4:15 ↗ colleague will hand copies of those to

4:16 ↗ you now

4:26 ↗ or your reference Miss Lin I believe

4:28 ↗ this has variously been described as a

4:30 ↗ quote supplement end quote to ih IFC's

4:34 ↗ August 2017 platen are you familiar with

4:38 ↗ these documents I am you please identify

4:44 ↗ these documents c11 is a record looks

4:52 ↗ like a record of files that were

4:54 ↗ uploaded as part of this application

4:58 ↗ c14 is a sheet labeled preliminary

5:06 ↗ engineering a review site plan that was

5:08 ↗ uploaded as part of this application in

5:12 ↗ December 2017 and could you please

5:15 ↗ describe what you mean by uploaded so in

5:20 ↗ order to submit documents to the city

5:23 ↗ the city uses a service called my

5:28 ↗ building permit dot-com and so - and as

5:32 ↗ part of that sim it'll the applicant

5:34 ↗ would upload files to my building

5:36 ↗ permits dot-com and then those files

5:38 ↗ would then get distributed to vary city

5:42 ↗ staff a review is my building permit com

5:46 ↗ specific to the city of Issaquah or is

5:49 ↗ it a service that is utilized by other

5:51 ↗ municipalities as well I believe it is

5:54 ↗ service utilized by other municipalities

5:56 ↗ as well and could you please describe in

6:00 ↗ as much detail as you'd like how about

6:05 ↗ my building permit comm system operates

6:09 ↗ for purposes of project submittals as I

6:14 ↗ mentioned the applicant would submit

6:17 ↗ project documents plans and any other

6:22 ↗ associated documents associated with the

6:24 ↗ application uploaded to my building

6:26 ↗ permit comm when it comes in our permit

6:30 ↗ technicians at our permit center

6:33 ↗ take a look at that and then route it to

6:35 ↗ the appropriate City staff for review

6:38 ↗ those an applicant require some type of

6:42 ↗ formal city permission or approval

6:45 ↗ before uploading a document to my

6:47 ↗ building permit calm no they don't they

6:50 ↗ just need an account and they don't just

6:52 ↗ to clarify do does an applicant need to

6:54 ↗ consult with the city at all or warn the

6:56 ↗ city or otherwise alert the city that a

6:59 ↗ particular submit all will be uploaded

7:02 ↗ no that would not that is not required

7:04 ↗ and what is your personal role in

7:09 ↗ relation to submittals that are filed by

7:11 ↗ project applicants using the my building

7:14 ↗ permit com portal I get routed plans and

7:25 ↗ application materials for my review

7:29 ↗ turning back to the December 2017

7:33 ↗ supplement that you were handed did you

7:35 ↗ request ih IFC to submit that document

7:38 ↗ or to upload it through my building

7:40 ↗ permit comm I did not did you or to your

7:44 ↗ knowledge any other city of Issaquah

7:46 ↗ staff member know that I H IFC was

7:51 ↗ intending to submit that document before

7:54 ↗ it was uploaded not to my knowledge your

7:58 ↗ knowledge did I H IFC discuss the

8:02 ↗ supplement with you or other staff

8:03 ↗ members before it was uploaded not to my

8:07 ↗ recollection could you please describe

8:09 ↗ how you became aware of that document I

8:12 ↗ believe the engineer emailed it to me

8:18 ↗ and then let me know that he had already

8:21 ↗ submitted it through my building permit

8:23 ↗ comm do you recall the identity of that

8:25 ↗ engineer

8:31 ↗ sorry I'm drawing a blank right now let

8:34 ↗ me rephrase the question

8:35 ↗ was it an engineer retained by IH IFC as

8:39 ↗ the project applicant or was it a city

8:41 ↗ engineering consultant or staff member

8:44 ↗ it was an engineer retained by the

8:46 ↗ applicant when this document was

8:49 ↗ uploaded in December of 2017 how was it

8:54 ↗ processed by you in the city I don't

8:59 ↗ know that it was processed what happened

9:02 ↗ once it was uploaded you became aware of

9:05 ↗ it and received your awareness from the

9:08 ↗ engineer that that document had been

9:10 ↗ uploaded I think I took a quick look at

9:12 ↗ it and could you describe the nature of

9:14 ↗ your review

9:17 ↗ it was very cursory I think I was

9:22 ↗ looking for changes any significant

9:26 ↗ changes from the original submittal I'm

9:30 ↗ gonna now hand you another document that

9:32 ↗ was previously introduced into the

9:34 ↗ record for this proceeding and

9:35 ↗ identified as Exhibit C 10

9:51 ↗ are you familiar with this document I am

9:53 ↗ you please identify this document this

9:57 ↗ is the cover sheet to the plant set that

10:00 ↗ was submitted in August 2017

10:02 ↗ could you please refer to the note in

10:09 ↗ the middle of the page that is circled

10:12 ↗ with I believe blue ink I don't know if

10:14 ↗ that's mechanical or handwritten that

10:17 ↗ it's note seven beginning with final

10:23 ↗ plat and building permits are vested

10:26 ↗ quote unquote yes do you please read

10:29 ↗ that no it allowed I'll try the prints

10:32 ↗ quite small final plat and building

10:36 ↗ permits are vested to the development

10:39 ↗ standards under that as a qual Highlands

10:41 ↗ development agreement the allowable

10:45 ↗ development shown on this plat has been

10:50 ↗ fully mitigated for the Issaquah

10:52 ↗ Highlands development agreement thank

10:57 ↗ you okay then you were to refer your

10:59 ↗ attention to the planning comment which

11:02 ↗ appears in its own box or window

11:05 ↗ immediately to the right of note seven

11:10 ↗ beginning with the words this statement

11:13 ↗ needs quote unquote

11:15 ↗ and could you please read that aloud

11:18 ↗ this statement needs to be revised or

11:21 ↗ deleted as some of the information is

11:24 ↗ not true and/or unclear for example it

11:27 ↗ is not possible to vest building permits

11:30 ↗ that have not been submitted / issued

11:34 ↗ additionally the use of the term fully

11:37 ↗ mitigated in quotes is not true if

11:40 ↗ mitigation is intended to include road /

11:44 ↗ frontage and utility improvements the

11:47 ↗ drafted that comment I did why would why

11:51 ↗ did you draft that comment and insert it

11:53 ↗ on the face of this document because I

11:57 ↗ was trying to draw attention to the fact

11:59 ↗ that this statement is not accurate

12:03 ↗ thank you

12:05 ↗ to refer your reference back to the

12:08 ↗ December 2017 supplement and hand you

12:13 ↗ another document entitled notice of

12:16 ↗ application and this was also previously

12:19 ↗ introduced into the record as exhibit s1

12:33 ↗ be familiar with this document miss lang

12:35 ↗ I am what's the date on that document

12:41 ↗ December 27th 2017

12:46 ↗ would you please identify that document

12:51 ↗ and why it was prepared by the city the

12:55 ↗ notice of application is a required

12:59 ↗ public notice to be sent out by the city

13:01 ↗ when we receive a certain planet land

13:06 ↗ use applications did you prepare this

13:08 ↗ document I did was the content of this

13:16 ↗ notice of application dated December 27

13:19 ↗ 2017 limited just to IH IFC's

13:23 ↗ preliminary plan application or did it

13:26 ↗ include and reference other applications

13:30 ↗ the notice of application package that

13:34 ↗ we sent out included a total of three

13:38 ↗ different projects so three different

13:40 ↗ notices of applications and do you

13:44 ↗ recall what the other notices of

13:45 ↗ application referenced in that document

13:48 ↗ were what projects they referred to yes

13:51 ↗ it was polygons

13:55 ↗ Westridge single-family north

13:58 ↗ preliminary plat and polygons

14:02 ↗ Westridge townhomes north site

14:07 ↗ development permit are all of those

14:10 ↗ proposed projects located in the same

14:13 ↗ general area they are and is that area

14:16 ↗ of the Issaquah Highlands it is where

14:20 ↗ all of those projects applications

14:23 ↗ submitted under the auspices of the

14:25 ↗ 1996's okhla highlands development

14:27 ↗ agreement I believe so

14:34 ↗ was this the first notice of application

14:36 ↗ that the city issued in relation to IH

14:40 ↗ IFC's preliminary plat application yes

14:43 ↗ it is and if I hif cease preliminary

14:48 ↗ plat application was originally

14:50 ↗ submitted in August of 2017

14:53 ↗ why did you wait until December 27th of

14:57 ↗ 2017 to issue a notice of application I

15:01 ↗ believe there were a couple of reasons

15:04 ↗ for that one we given the proximity of

15:09 ↗ the other two projects we wanted to

15:11 ↗ bundle the public notices so that the

15:16 ↗ public has a bigger picture idea of

15:19 ↗ what's going on in that area I was also

15:22 ↗ a fairly new planner with the city at

15:25 ↗ that time and learning the city's

15:31 ↗ processing requirement timelines and

15:34 ↗ requirements and then finally when I

15:38 ↗ first at that time we had a fairly high

15:42 ↗ number of complex applications that I

15:50 ↗ was working on so those factors caused

15:54 ↗ some delay in issuing the notice of

15:56 ↗ application IH IFC's December 2017

16:02 ↗ supplemental submittal to its plat

16:04 ↗ application have any bearing on the

16:06 ↗ timing of your issuance of the notice of

16:09 ↗ application no it did not

16:12 ↗ I'd like to call your attention to page

16:14 ↗ 2 of the December 27th notice of

16:17 ↗ application that you prepared

16:23 ↗ did you describe what is depicted on

16:25 ↗ that page this is the preliminary

16:30 ↗ engineering overview site plan that was

16:35 ↗ the Supplemental submittal uploaded by

16:39 ↗ the applicant in December 2017 okay so

16:42 ↗ just just for purposes of clarification

16:44 ↗ page 2 of the notice of application in

16:47 ↗ describing or depicting the the site

16:50 ↗ plan that was borrowed from the

16:54 ↗ applicants December 2017 submittal and

16:57 ↗ not from the applicants original August

17:01 ↗ 2017 flattop location that is correct

17:05 ↗ yes why did you use the December 2017

17:16 ↗ supplemental submittal rather than IH

17:20 ↗ IFC's original August 2017 preliminary

17:25 ↗ plication or purposes of age 2 of the

17:30 ↗ notice of application my recollection is

17:35 ↗ I I chose this sheet mainly because it

17:39 ↗ presented information in a way that's

17:44 ↗ most easily understandable by the

17:47 ↗ general public did you consult with

17:50 ↗ director Niven or miss Loman before

17:52 ↗ issuing the notice of decision I did not

17:54 ↗ did you consult with the city attorney

17:56 ↗ before issuing a notice of application I

17:59 ↗ did not to your understanding miss Lin

18:02 ↗ is a notice of application intended to

18:04 ↗ serve as an appealable decision under

18:07 ↗ the city of Issyk laws regulations that

18:09 ↗ is not my understanding was this notice

18:11 ↗ of application intended to serve as an

18:13 ↗ appealable decision it is not my

18:16 ↗ understanding that a notice of

18:17 ↗ application is intending to serve as an

18:21 ↗ appealable decision thank you I have no

18:24 ↗ further questions mr. chairman

18:29 ↗ isla and I'm Pat Schneider and I'm

18:31 ↗ representing the applicant IHI of C I do

18:34 ↗ have some follow-up questions for you

18:36 ↗ and I apologize given the structure of

18:40 ↗ this room that I may not always be

18:41 ↗ looking at you when I ask him questions

18:44 ↗ so forgive me for that as I understood

18:52 ↗ your testimony you said you weren't

18:54 ↗ familiar with Washington's vested rights

18:57 ↗ doctrine when you came to hiss applause

18:59 ↗ that fair that is fair yes and so when

19:03 ↗ you made the comment in that box on the

19:07 ↗ first page of the plat application

19:10 ↗ saying it needs to be revised or deleted

19:13 ↗ was that your opinion about vested

19:16 ↗ rights or were you channeling someone

19:18 ↗ else's opinion I believe I was relying

19:27 ↗ on my experience in making that

19:29 ↗ statement and so what is inaccurate in

19:32 ↗ this so what is inaccurate in the

19:43 ↗ statement is it is not possible for

19:49 ↗ there's not possible to the best

19:51 ↗ building permits that have not been

19:52 ↗ submitted or issued and I believe the

19:55 ↗ statement states that the building

19:58 ↗ permits are vested yes so the note on

20:10 ↗ the plants that states that final plat

20:15 ↗ and building permits are vested to the

20:18 ↗ development standards under the physical

20:21 ↗ Highlands development agreement that is

20:24 ↗ the first sentence of note 7 okay and

20:26 ↗ doesn't that is why Highlands

20:29 ↗ development is Green has agreement

20:32 ↗ provide for best vesting of both

20:34 ↗ building permit and plat applications I

20:37 ↗ don't know the answer to that

20:39 ↗ well but you just said you thought that

20:41 ↗ was inaccurate and isn't it simply

20:43 ↗ saying what testing is provided for in

20:47 ↗ the development agreement sorry I I

20:50 ↗ don't know what the development

20:54 ↗ agreement vests my understanding is that

20:58 ↗ if you have not submitted an permit

21:01 ↗ application

21:02 ↗ you can't vest it to the extent that

21:07 ↗ this language was intended to reflect

21:11 ↗ what's in the development agreement it's

21:13 ↗ fair to say then you don't have an

21:14 ↗ opinion of whether it's accurate or not

21:16 ↗ is that fair

21:17 ↗ I'm sorry can you rephrase that I didn't

21:20 ↗ I

21:22 ↗ I understood the language you just read

21:24 ↗ which I can't read because of the small

21:26 ↗ type but I understood the language that

21:28 ↗ you just read simply to paraphrase what

21:31 ↗ is provided for in the development

21:33 ↗ agreement and my understanding is you

21:37 ↗ don't know what's provided for in terms

21:39 ↗ of vesting in the development agreement

21:40 ↗ is that accurate

21:45 ↗ that's generally accurate I think okay

21:48 ↗ and is there anything else in that box

21:52 ↗ that you believe is inaccurate are you

21:58 ↗ talking about the box where I provided

22:01 ↗ the comment or are you talking about the

22:02 ↗ clouding the clouding that you said had

22:05 ↗ to be deleted or revised oh yes leave

22:11 ↗ there was something about mitigation oh

22:14 ↗ the allowable development sorry this is

22:18 ↗ a continuation of note seven on the

22:21 ↗ plans says the allowable development

22:24 ↗ shown on this plat has been fully

22:27 ↗ mitigated per that as a quant

22:30 ↗ development agreement and I believe I

22:33 ↗ asked for that statement to be clarified

22:42 ↗ and why did you think that was an

22:45 ↗ inaccurate statement or one that wasn't

22:47 ↗ clear because I didn't understand what

22:52 ↗ it meant

22:52 ↗ okay but I think you told us you didn't

22:56 ↗ understand what the development

22:58 ↗ agreement says about vesting is that

23:01 ↗ fair yes that's fair so if the

23:04 ↗ development agreement that includes

23:06 ↗ mitigation is something that went best -

23:09 ↗ you weren't aware of that at the time so

23:13 ↗ it wasn't clear to me what they meant by

23:16 ↗ mitigated okay and you have any further

23:28 ↗ conversations with the applicant about

23:30 ↗ your note I don't recall Oh mr. Lala's

23:39 ↗ asked you a number of questions about

23:41 ↗ the Cimber submittal as opposed to the

23:45 ↗ August first middle does it matter

23:51 ↗ in your understanding why does it matter

23:55 ↗ whether something was submitted in

23:56 ↗ December as opposed to a on August first

24:02 ↗ I'm sorry I don't think I understand the

24:05 ↗ question I'm trying to understand

24:07 ↗ whether you believe there's any

24:10 ↗ difference in terms of meaningfulness or

24:14 ↗ effect between the December submittal

24:17 ↗ and an August the middle

24:23 ↗ in terms of the date that it was

24:25 ↗ submitted or the content well in terms

24:28 ↗ of whether it has any effect on on what

24:32 ↗ you did as the planner who processed the

24:35 ↗ application no I believe the December

24:42 ↗ seminal had no impact on my processing

24:45 ↗ of the application and why not it I mean

24:51 ↗ we were still processing the application

24:54 ↗ largely based on the August submit all

24:56 ↗ in terms of providing comments

24:59 ↗ well you testified that you use the

25:03 ↗ December site plan because it provided

25:07 ↗ more useful information to the public

25:09 ↗ that is correct

25:10 ↗ Oh didn't it also provide more useful

25:13 ↗ information to the city marginally and

25:18 ↗ is the December submittal part of the

25:21 ↗ application that you one of the letter

25:24 ↗ better word been processing since then

25:32 ↗ to be honest I haven't really done a

25:35 ↗ whole lot of processing other than

25:37 ↗ provide comments back in March hey and

25:41 ↗ why is that if you were the planner

25:43 ↗ assigned to the project what happened

25:46 ↗ between August and March why did it take

25:52 ↗ so long to submit comments I think it

25:55 ↗ was the nature of this project I think

25:59 ↗ there were in terms of its complexity

26:02 ↗ and the issues that are involved and

26:07 ↗ what what was the complexity about the

26:11 ↗ plat application that you just referred

26:13 ↗ to there were several technical

26:18 ↗ complexities with respect to addressing

26:22 ↗ traffic and circulation design and can

26:27 ↗ you be more specific what were again

26:29 ↗ these technical complexities the

26:33 ↗ technical complexity had to do with

26:36 ↗ the plot is proposing to build out new

26:40 ↗ streets for which we had to determine

26:45 ↗ what the appropriate design for these

26:47 ↗ new streets would be and who was

26:51 ↗ responsible for determining the

26:53 ↗ appropriate was design I believe that it

26:58 ↗ is a effort between the applicant and

27:01 ↗ the city the applicant proposes a design

27:06 ↗ that they feel is appropriate and

27:11 ↗ submits it for the city's review and

27:13 ↗ then we work out what design elements

27:17 ↗ are appropriate so were you involved in

27:21 ↗ that process I was and so again what was

27:27 ↗ complicated that took so long was the

27:31 ↗ city waiting on the applicant to submit

27:33 ↗ something or was the city simply not

27:37 ↗ processing the information that it

27:39 ↗ received in 2017 the it was the

27:46 ↗ complexity of what we were reviewing

27:50 ↗ that took took a long time to provide

27:55 ↗ comments to the applicant

28:00 ↗ it was the technical complexity

28:09 ↗ I'd like to draw your attention Midland

28:12 ↗ to exhibit as 47 it should be in one of

28:21 ↗ the folders here but I have a page from

28:23 ↗ and I can simply hand you I'm sorry mr.

28:43 ↗ Schneider could you indicate what what

28:44 ↗ specific page of the exhibit that was

28:47 ↗ multi-page exhibit oh thank you are

29:03 ↗ these your comments on this exhibit

29:06 ↗ these are not my comments these are my

29:08 ↗ notes okay your excuse me your notes you

29:11 ↗ wrote them yes I did and what did you

29:14 ↗ say they're in the highlighted language

29:16 ↗ in the middle of the page under general

29:19 ↗ notes I said should be a fairly simple

29:22 ↗ plat is there anything on that page that

29:25 ↗ talks about complexity that would slow

29:29 ↗ the processing for six months before the

29:32 ↗ city provided comments to my client

29:45 ↗ possibly icy frontage improvements with

29:51 ↗ a question mark what did you mean by

29:55 ↗ that

29:55 ↗ I don't recall I think it's we need to

29:59 ↗ figure out what the frontage movements

30:01 ↗ are anything else that would demonstrate

30:05 ↗ the complexity you were testifying to

30:24 ↗ just on this sheet no I I do not see

30:26 ↗ anything else

30:38 ↗ are you aware muslin that there are

30:40 ↗ timelines for processing in the

30:43 ↗ development agreement I am aware was

30:47 ↗ there any effort made in the processing

30:49 ↗ of IH IFC's high-street collection of

30:54 ↗ division application to comply with

30:56 ↗ those timelines I'm sorry can you repeat

31:00 ↗ that question please yeah did the city

31:02 ↗ to your knowledge make any effort to

31:05 ↗ comply with the timelines in the

31:08 ↗ development agreement for processing the

31:10 ↗ plat application we strive to what did

31:13 ↗ what did the city do to strive to comply

31:16 ↗ with those timelines we reviewed the

31:23 ↗ project and to the best of our abilities

31:27 ↗ we tried to get back with to the

31:29 ↗ applicant with our comments I think you

31:32 ↗ testified in response to mr. lel's

31:35 ↗ questions and these are my notes I wrote

31:40 ↗ you said I don't know that it was

31:42 ↗ processed and then you said I took a

31:45 ↗ quick look at it very cursory what after

31:49 ↗ you took that cursory quick look what if

31:53 ↗ anything did you do until March with

32:00 ↗ respect to the December supplemental

32:02 ↗ submit all the respect to the plantation

32:06 ↗ including the August and December

32:08 ↗ submittals oh my recollection was that

32:13 ↗ there were a series of meetings between

32:16 ↗ myself our engineer and our traffic

32:20 ↗ engineer to try to work out the frontage

32:27 ↗ improvements in road design and who do

32:30 ↗ you remember being present at these

32:31 ↗ meetings may be different people at

32:39 ↗ different meetings but overall myself

32:46 ↗ do you want names or yes please oh okay

32:49 ↗ so myself the city's Project Engineer

32:55 ↗ which is Doug Schlup the city's traffic

32:58 ↗ engineer which is face shafy and then

33:01 ↗ I've also had conversations with my

33:02 ↗ supervisor Lucy Sluman and how many

33:06 ↗ meetings between August and March with

33:09 ↗ these folks do you specifically recall

33:12 ↗ having I don't specifically recall the

33:15 ↗ number more than two yes and where any

33:21 ↗ communications given to the applicant as

33:23 ↗ a result of any of these meetings before

33:26 ↗ March I don't recall

33:41 ↗ we're the March comments what were they

33:45 ↗ about

33:47 ↗ they're about the Platte application

33:51 ↗ specifically comments on the traffic

33:54 ↗ study as well as the plan set were there

34:00 ↗ those comments based on anything in the

34:03 ↗ code yes I believe so

34:09 ↗ and what road standards were applied to

34:15 ↗ the streets provided are proposed in the

34:19 ↗ Platte I'm sorry could you repeat your

34:22 ↗ question do you ask me to repeat

34:25 ↗ anything you don't understand if did the

34:27 ↗ city apply existing specific standards

34:31 ↗ to the plat application or did it create

34:36 ↗ standards that at these meetings that

34:38 ↗ were specific to this project mr.

34:40 ↗ chairman I'm gonna respectfully object

34:42 ↗ this line of questioning is is exceeding

34:46 ↗ the scope of my direct questioning of

34:48 ↗ Miss Lin and her answers by a fair

34:50 ↗ margin that same comment could have been

34:56 ↗ made about you know much this is a

34:58 ↗ two-way street much of the lessons that

35:00 ↗ were asked for the prior witnesses and

35:04 ↗ it's all about the processing of the

35:06 ↗ application which is the subject of MS

35:09 ↗ lens testimonies so to circumscribe you

35:13 ↗ know the process they have the

35:15 ↗ application to only a certain time

35:18 ↗ period I don't think it's appropriate

35:20 ↗ when we're talking about a plat

35:22 ↗ application that to this day has not

35:24 ↗ received a recommendation from the

35:27 ↗ department okay how does that how does

35:33 ↗ your questioning get us to that point to

35:36 ↗ your better understanding of the

35:39 ↗ processing well I'm trying to I think

35:43 ↗ this all goes back to miss Lin's comment

35:45 ↗ that she wasn't sure this was processed

35:48 ↗ I don't have any evidence of processing

35:50 ↗ other than a March

35:53 ↗ the middle and something a few months

35:56 ↗ ago so we have huge periods of time

35:59 ↗ where as far as I can tell nothing was

36:01 ↗ happening and I'm trying to explore if

36:03 ↗ something was happening that hasn't been

36:05 ↗ communicated to us and mr. Chairman I

36:08 ↗ believe that mr. Snyder's most recent

36:10 ↗ line of questioning actually concerned

36:12 ↗ the standards that the city was

36:13 ↗ purportedly using to evaluate the the

36:16 ↗ project at that time and that goes

36:17 ↗ beyond the issue of processing I agree

36:20 ↗ with that it doesn't seem to be

36:21 ↗ consistent with just trying to

36:23 ↗ understand the process that was going on

36:27 ↗ well it's related in the sense that our

36:31 ↗ client believes that the comments that

36:35 ↗ were made we're not based on anything in

36:37 ↗ the code and that the standards were ad

36:41 ↗ hoc standards that were created out of

36:42 ↗ whole cloth and I'm trying to pin down

36:45 ↗ whether that's one of the reasons for

36:47 ↗ the delay here I I can I can focus a

36:54 ↗ little bit more specifically on the why

36:56 ↗ it's taken so long

36:57 ↗ would you please thank you so ms Lin

37:00 ↗ again let's let's leap ahead to the

37:03 ↗ present other than those March comments

37:06 ↗ what comments has the city provided to

37:09 ↗ my client on the plat application since

37:16 ↗ the March comments I believe we were

37:18 ↗ waiting for the applicant to submit a

37:21 ↗ revised the middle and when did the

37:26 ↗ applicant in the applicant respond

37:30 ↗ shortly after the March comments from

37:32 ↗ the city requesting clarification in

37:35 ↗ part because as I was just saying they

37:37 ↗ didn't understand the standards that the

37:40 ↗ city was applying same objection mr.

37:43 ↗ chairman this is varying pretty far wide

37:45 ↗ of the mark as it relates to the

37:46 ↗ original line of questioning under a

37:48 ↗ directive directed examination I

37:52 ↗ understand the need to try to understand

37:54 ↗ the processing that was going on

37:55 ↗ so with that focus in mind would you

37:59 ↗ continue so again that the question was

38:03 ↗ didn't my client respond pretty quickly

38:06 ↗ asking to under

38:07 ↗ stand what the city's comments were

38:09 ↗ based on in terms of applicable

38:11 ↗ standards my recollection was yes there

38:17 ↗ were some emails correspondence back and

38:20 ↗ forth trying to get clarification and

38:24 ↗ how many months did it take the city to

38:26 ↗ respond to that request for

38:28 ↗ clarification I'm sorry I don't recall

38:31 ↗ and was there anything active going on

38:35 ↗ that you're aware of to process the

38:38 ↗ application after his hime submitted

38:44 ↗ those requests for clarification I'm

38:49 ↗ sorry can you clarify what you mean by

38:51 ↗ anything active

38:52 ↗ I'm trying to understand what you have

38:54 ↗ personal knowledge of in terms of what

38:56 ↗ was done that's all I'm asking is what

38:59 ↗ if anything did you do or did you

39:01 ↗ witness being done to respond to the

39:04 ↗ request for clarification I I believe I

39:11 ↗ drafted a response to portions of the

39:15 ↗ clarification to which I had some

39:20 ↗ knowledge and and then I forwarded that

39:25 ↗ to my supervisor

39:35 ↗ and you know when you participated in

39:38 ↗ drafting part of the response I'm sorry

39:42 ↗ I don't recall you know why the response

39:45 ↗ clarification submitted in April wasn't

39:48 ↗ responded to into sim until December I

39:50 ↗ do not know why you talked about the

39:58 ↗ fact that the notice of application that

40:02 ↗ was given for the Platt in December was

40:06 ↗ in fact combined with a notice of two

40:10 ↗ other projects by polygon in the same

40:13 ↗ area Breck

40:16 ↗ that is correct and what has happened to

40:21 ↗ those two other projects that were

40:23 ↗ noticed at the same time I'm afraid I'm

40:29 ↗ not the project manager for either of

40:31 ↗ those projects so I can't speak to their

40:34 ↗ current status do you know who the

40:42 ↗ project manager was yes I believe one of

40:49 ↗ the projects is my colleague Valerie

40:55 ↗ Porter who is the project manager and

40:58 ↗ then the other project I believe the

41:01 ↗ project managers Lucy Sluman

41:02 ↗ and you know which one the miss Loman

41:06 ↗ was the project manager for the other

41:07 ↗ two it was for the single-family

41:11 ↗ preliminary plat and you know when that

41:15 ↗ preliminary plat was approved I do not

41:18 ↗ and you know which procedures it was

41:22 ↗ reviewed and approved under I do not are

41:29 ↗ you still the project manager for the

41:32 ↗ high street collection LuAnn emeriti

41:34 ↗ plat I believe my supervisor Lucy Sloman

41:41 ↗ is is taking the lead on this project

41:43 ↗ and when did miss Loman take the lead

41:50 ↗ I'm sorry I don't recall it was it weeks

41:55 ↗ ago months ago um probably earlier this

41:58 ↗ year earlier this year yes

42:06 ↗ so does that mean you have at nope

42:10 ↗ personal involvement since early this

42:12 ↗ year except for tonight okay and when

42:20 ↗ the cement City submitted comments

42:22 ↗ clarifying comments back to my client in

42:25 ↗ December did you have in any involvement

42:27 ↗ after that date no I don't recall having

42:31 ↗ any involvement afterwards

42:52 ↗ so ms 'ln you testified in response to

42:56 ↗ mr. lile that when you said the notice

42:59 ↗ of application you didn't consult with

43:02 ↗ miss Loman or mr. Niven or the city

43:05 ↗ attorney before doing so would you have

43:08 ↗ normally have done any of those things

43:09 ↗ consulted with the city attorney for

43:11 ↗ example before sending out a notice of

43:14 ↗ application generally no

43:25 ↗ when the uploading to happened in

43:29 ↗ December what materials where other

43:34 ↗ materials uploaded in addition to those

43:36 ↗ that you've described in your testimony

43:38 ↗ tonight I believe there were a few

43:46 ↗ sheets so in addition to the preliminary

43:52 ↗ engineering overview site plan I believe

43:55 ↗ there was a more technical sheet that

43:59 ↗ showed proposed lot lines and were you

44:02 ↗ also involved in back in the period

44:06 ↗ between August and September and the

44:11 ↗ site development permit applications

44:13 ↗ that my client was working on are you

44:23 ↗ referring to August and September of

44:26 ↗ 2018 this would have been 2017 2017

44:31 ↗ during the same period of time in the

44:35 ↗ months between the August plats middle

44:38 ↗ and the December plots and middle I

44:40 ↗ believe I was involved with the

44:41 ↗ collaboration and the pre applications

44:44 ↗ for those applications and was the

44:49 ↗ what's your understanding of the

44:51 ↗ relationship between the site plan

44:54 ↗ submitted in December and those site

44:58 ↗ development permit applications for

45:02 ↗ example did building footprints in the

45:06 ↗ December submit all correspond to the

45:09 ↗ proposed buildings in the site

45:10 ↗ development permit applications I did

45:13 ↗ not review for that level of consistency

45:16 ↗ what what was your involvement then in

45:19 ↗ the site development permit applications

45:24 ↗ so it was the collaboration and

45:29 ↗ pre-application applications that I was

45:32 ↗ involved in the site development permit

45:35 ↗ application

45:37 ↗ which is a formal land use application I

45:40 ↗ was not involved in that process

45:42 ↗ okay so you've had no involvement in the

45:44 ↗ SPP applications after after the SDP

45:50 ↗ applications were submitted I haven't

45:52 ↗ I've had no involvement and who has been

45:55 ↗ the lead planner on those I believe that

45:58 ↗ would be Lucy Sloman is it was a typical

46:05 ↗ for you to be involved in the pre

46:07 ↗ application process and then not be the

46:09 ↗ planner once the application is

46:11 ↗ submitted I'm fairly new to the city at

46:16 ↗ that time I don't know what is typical

46:18 ↗ versus what is not okay I think we're

46:23 ↗ done

46:43 ↗ I understand that miss Loman has taken

46:46 ↗ over the processing of the application

46:48 ↗ but before that happened did you as the

46:52 ↗ lead planner for the plight application

46:54 ↗ consider the December submittal to be

46:57 ↗ part of the application to be honest I

47:02 ↗ didn't really give the December some

47:05 ↗ it'll much thought with respect to

47:07 ↗ whether or not it was part of the

47:08 ↗ application you explain that a little

47:16 ↗ bit like why didn't you give it any

47:18 ↗ thought is that because you weren't

47:19 ↗ processing application or you know it

47:23 ↗ was there did you draw a distinction

47:26 ↗ between it and the others application

47:28 ↗ materials or not

47:39 ↗ I don't recall what I was thinking at

47:41 ↗ that time I'm sorry

47:45 ↗ as the December's the middle ever been

47:48 ↗ part of the have you given any thought

47:55 ↗ since it was submitted and any for any

47:58 ↗ reason other than in preparation for

48:05 ↗ tonight no I have not given it any

48:07 ↗ thought okay thank you been silly and

48:09 ↗ that's all I have okay

48:14 ↗ mr. Chairman I have a few questions on

48:16 ↗ redirect if I have your permission to do

48:19 ↗ so please do thank you first of all miss

48:23 ↗ Lin is it common in your experience and

48:26 ↗ observation for plat applicants to state

48:30 ↗ or contend on the face of their plans

48:35 ↗ that they have some type of vested

48:37 ↗ rights it is not in my experience

48:48 ↗ but my experience processing a plat

48:51 ↗ application in Washington is limited to

48:55 ↗ non-existent prior to this application

49:09 ↗ like to refer you back to exhibit s 47

49:13 ↗ these were the think you referred to

49:15 ↗ them as your general notes on May 26

49:20 ↗ 2007 teen give a copy of that document

49:49 ↗ thank you

49:55 ↗ in front of you now I'm sorry you have

49:59 ↗ it in front of you no I do

50:00 ↗ thank you at the time this note was

50:06 ↗ drafted by you at IHI FC submitted its

50:10 ↗ entire platen they have not the date of

50:15 ↗ this document your notes was May 26 2017

50:19 ↗ so as I understand that this was at

50:22 ↗ least a few months before the August

50:25 ↗ 2017 date upon which I H I said mitad

50:30 ↗ its preliminary plat application is that

50:32 ↗ correct yes that is correct was the

50:36 ↗ August 2017 platinum it 'l a larger

50:41 ↗ packet of documents and a more complex

50:43 ↗ packet of documents yes it was thank you

50:47 ↗ no further questions do you have further

50:52 ↗ rebuttal witnesses I do mr. chairman I'd

50:55 ↗ like to the next call on mr. Niven but I

50:58 ↗ will just alert the Commission that my

51:01 ↗ questioning of him will be presumably

51:03 ↗ longer then my questioning for Miss Lin

51:06 ↗ and it might be appropriate to take a

51:07 ↗ break if that would be the preference of

51:09 ↗ the of the Commission but I'm happy to

51:11 ↗ continue if you prefer okay let's take a

51:14 ↗ five-minute break thank you thank you

51:30 ↗ you

58:55 ↗ okay we're back in session Thank You mr.

59:00 ↗ chairman the city's next rebuttal

59:02 ↗ witness is to recall mr. Nibin mr. Navin

59:07 ↗ would you please acknowledge that you

59:08 ↗ continue to be under oath from your

59:10 ↗ original testimony I am and have you

59:13 ↗ been present throughout these

59:14 ↗ proceedings I have been and if you

59:17 ↗ listen to the testimony of all the other

59:19 ↗ speakers and witnesses in this

59:21 ↗ proceeding yes thank you very briefly

59:26 ↗ just to return to the testimony that ms

59:29 ↗ Lin gave did you hear that testimony

59:32 ↗ this evening I did did you listen to her

59:40 ↗ answer in response to the question of

59:42 ↗ whether it was common for plat

59:45 ↗ applicants to state on their

59:49 ↗ applications that they are vested in

59:52 ↗ some manner or another I heard that line

59:56 ↗ of questioning and answer yes

59:58 ↗ in your experience mr. Nevin what is the

1:00:02 ↗ answer to that question is that a common

1:00:04 ↗ occurrence that's not a common

1:00:09 ↗ occurrence I think there are times when

1:00:12 ↗ on the face of a plat there may be some

1:00:17 ↗ a testament to either mitigations or

1:00:22 ↗ improvements constructed or things of

1:00:25 ↗ that sort I think that's what drew miss

1:00:27 ↗ Lynn to question that comment because of

1:00:30 ↗ the absoluteness of its kind of

1:00:34 ↗ statement and intent and because she was

1:00:37 ↗ unaware of the truthfulness of that she

1:00:42 ↗ brought it into question which was the

1:00:43 ↗ right decision for a plan reviewer to do

1:00:47 ↗ because if that stays on the plat and it

1:00:50 ↗ is not true

1:00:53 ↗ that could cause a problem later thank

1:00:55 ↗ you and to rehash I believe your

1:00:59 ↗ testimony from your original appearance

1:01:02 ↗ before this body how many years of

1:01:05 ↗ planning do you personally have

1:01:07 ↗ under your belt um sadly uh let's see I

1:01:12 ↗ have 30 plus years and approximately how

1:01:18 ↗ many applications have you reviewed

1:01:21 ↗ during that time period quite a few

1:01:24 ↗ almost all of my tenure in City Planning

1:01:27 ↗ has been in current planning for 8 years

1:01:31 ↗ I work for the City of Phoenix and

1:01:33 ↗ reviewed significant number of

1:01:36 ↗ subdivision plots then I worked for the

1:01:39 ↗ City of Auburn Washington reviewed plots

1:01:42 ↗ there as well and then as part of the

1:01:45 ↗ city's major development review team

1:01:47 ↗ reviewed almost all of the plats there

1:01:50 ↗ were a few that had been approved prior

1:01:53 ↗ to my coming to Issaquah but I set my

1:01:56 ↗ eyes on most of the plots for his equal

1:01:58 ↗ Highlands and talus and I just handed

1:02:00 ↗ you the same copy of exhibit 10 I'm

1:02:04 ↗ sorry it's a very small print but the

1:02:06 ↗ same copy that I had handed Ms Lynn and

1:02:08 ↗ I would refer your attention to the same

1:02:10 ↗ note that I questioned her about which

1:02:12 ↗ is note number seven and you read that

1:02:17 ↗ like mr. Snyder I am I could tell you

1:02:21 ↗ that on a good day sorry did you hear ms

1:02:40 ↗ Lin when she read that note number seven

1:02:44 ↗ aloud in the record I did listen to that

1:02:46 ↗ and in your experience and observation

1:02:50 ↗ and reviewing the number of plots you

1:02:51 ↗ have as a planner have you ever seen or

1:02:55 ↗ personally observed language like that

1:02:58 ↗ in a plat application it is not typical

1:03:01 ↗ under the general notes on a subdivision

1:03:03 ↗ plat to render a statement about vesting

1:03:07 ↗ and mitigations in my opinion thank you

1:03:10 ↗ with respect to interpreting the 1996

1:03:13 ↗ development agreement that is at issue

1:03:15 ↗ in these proceedings

1:03:16 ↗ how many combined years have you and

1:03:19 ↗ woman had in in strewing and or

1:03:23 ↗ administering that document so minds

1:03:27 ↗ looking a little Haggard at this point

1:03:28 ↗ I've had this binder since 1998 and Lucy

1:03:33 ↗ was working for this city prior to my

1:03:36 ↗ coming to the city so between the two of

1:03:39 ↗ us we have about 43 years give or take

1:03:43 ↗ in administering music waa Highlands two

1:03:47 ↗ and three party agreements are you aware

1:03:49 ↗ of any other individual that has more

1:03:51 ↗ experience than yourself in construing

1:03:54 ↗ and interpreting and administering that

1:03:56 ↗ document absolutely not did you listen

1:04:00 ↗ to miss Hines testimony regarding the

1:04:04 ↗ reported legal effect of the the

1:04:06 ↗ build-out period under the 1996

1:04:08 ↗ development agreement in relation to

1:04:10 ↗ vesting I did do you agree with her

1:04:14 ↗ conclusions or testimony on that point I

1:04:18 ↗ don't agree with it no you expound on

1:04:20 ↗ that please so this is I think the

1:04:23 ↗ primary place where the applicant in the

1:04:27 ↗ city have a difference of opinion on the

1:04:30 ↗ interpretation of this contract the city

1:04:34 ↗ believes that this was a contract

1:04:36 ↗ executed for a certain period of time

1:04:38 ↗ and once that termination hit that the

1:04:45 ↗ allowances that were given the developer

1:04:48 ↗ and the property owner under this

1:04:51 ↗ contract would expire thank you did you

1:04:57 ↗ hear miss Heim and mr. young testify

1:05:00 ↗ regarding the allegedly inconsistent

1:05:04 ↗ statements or position so that the city

1:05:06 ↗ made or took in relation to the vested

1:05:10 ↗ or non-vested status of IH IFC's various

1:05:13 ↗ project applications could you repeat

1:05:17 ↗ that sorry

1:05:18 ↗ did you hear Ms Heim and mr. young

1:05:20 ↗ testify to the effect that the city

1:05:23 ↗ staff had expressed over the the

1:05:25 ↗ relevant period inconsistent positions

1:05:28 ↗ regarding vesting and specifically the

1:05:30 ↗ vested status of their projects

1:05:33 ↗ I did hear that yes okay are you a land

1:05:35 ↗ use attorney I am NOT a land use

1:05:37 ↗ attorney in your personal and

1:05:39 ↗ professional experience mr. Niven is

1:05:41 ↗ vesting a common discussion topic

1:05:44 ↗ between city staff members and permit

1:05:46 ↗ applicants it is not this is only the

1:05:49 ↗ second time in my professional career

1:05:52 ↗ that vesting has been a subject matter

1:05:56 ↗ was your use of the term vesting during

1:06:00 ↗ the relevant period here always

1:06:02 ↗ consistent with the legal meaning of

1:06:04 ↗ that term as you now understand it what

1:06:10 ↗ I would say is the the use of the term

1:06:14 ↗ vesting as the city used it as it

1:06:17 ↗ relates to this development agreement is

1:06:19 ↗ not exactly consistent with state law

1:06:23 ↗ and how its defined in the vesting

1:06:27 ↗ doctrine in variously referring to IH

1:06:32 ↗ IFC's project applications as being

1:06:35 ↗ vested what did you mean by that term so

1:06:40 ↗ they were when they were when complete

1:06:44 ↗ applications were received by the city

1:06:46 ↗ and we said they were vested to the

1:06:49 ↗ development agreement my intent with

1:06:52 ↗ that was it was vested to the

1:06:54 ↗ development agreement to the contract in

1:06:56 ↗ the terms of this document which has now

1:06:59 ↗ expired okay so what did that vested

1:07:03 ↗ status then mean to you in the way that

1:07:05 ↗ you were intending to mean that meant

1:07:08 ↗ that there was particular provisions

1:07:14 ↗ within the development agreement which

1:07:16 ↗ did not allow the city to change the

1:07:18 ↗ rules unless there was public safety

1:07:22 ↗ issue or as it related to stormwater we

1:07:24 ↗ actually had the ability to do that

1:07:26 ↗ unilaterally otherwise amendments to

1:07:32 ↗ this were considered either major or

1:07:33 ↗ minor minor amendments would be

1:07:36 ↗ something worked out between the master

1:07:38 ↗ developer and the city major amendments

1:07:40 ↗ city as in city staff major amendments

1:07:43 ↗ had to go through the City Council and

1:07:46 ↗ so

1:07:47 ↗ for vested for me meant that the terms

1:07:50 ↗ in this agreement and the standards in

1:07:52 ↗ this agreement would govern that was the

1:07:56 ↗ predictability that was given to the

1:07:58 ↗ master developer through the execution

1:08:00 ↗ of this agreement for the term of this

1:08:02 ↗ agreement and there was certainty by

1:08:06 ↗ property owners that they could develop

1:08:08 ↗ under the terms of this agreement as

1:08:10 ↗ long as this agreement was effective and

1:08:13 ↗ under your understanding of that term

1:08:15 ↗ again and the effective of vesting as

1:08:18 ↗ you understood it in relation to the

1:08:19 ↗ agreement what would happen when the

1:08:21 ↗ agreement was finally terminated my

1:08:26 ↗ understanding is that vesting then

1:08:29 ↗ became subject to city code which is why

1:08:34 ↗ as part of the replacement regulations

1:08:37 ↗ we were suggesting the incorporation

1:08:40 ↗ vesting language to leave that to make

1:08:43 ↗ that outcome more predictable and less

1:08:49 ↗ subject to interpretation okay I'm gonna

1:08:52 ↗ have my colleague hand you a copy of

1:08:54 ↗ Exhibit C three okay I can probably find

1:09:02 ↗ it is it under the three tab let's get

1:09:05 ↗ that awesome okay just this document

1:09:09 ↗ before but could you please identify it

1:09:11 ↗ for the record again this was an email

1:09:14 ↗ exchange it ends see where it starts it

1:09:20 ↗ starts as an email from Miss hime to

1:09:24 ↗ myself dated November 21st and it ends

1:09:29 ↗ with an email from me to miss hime see

1:09:33 ↗ seeing mr. young mr. maleeni and miss

1:09:37 ↗ Loman it's titled vesting and that final

1:09:42 ↗ response was November 22nd 2017 and

1:09:46 ↗ could you read that response your final

1:09:49 ↗ response to this time yes okay it was MS

1:09:54 ↗ and that was in response to what

1:09:55 ↗ question of hers so her question so what

1:09:58 ↗ she states is

1:10:01 ↗ thanks Keith we have not received any

1:10:03 ↗ requests for additional information

1:10:06 ↗ I'm assuming that you mean that the

1:10:08 ↗ applications are complete and vested to

1:10:10 ↗ the development agreement as stated in

1:10:13 ↗ the email below and as we discussed in

1:10:15 ↗ our meeting with you today please

1:10:16 ↗ confirm what did you mean by the word

1:10:19 ↗ yes my intent for the word yes was her

1:10:24 ↗ question about are we vested to the

1:10:28 ↗ development agreement and my answer was

1:10:30 ↗ yes yeah and could I have you then turn

1:10:32 ↗ to exhibit c4 c4 and you've also

1:10:36 ↗ discussed this variously before but I

1:10:38 ↗ want to emphasize a particular point are

1:10:41 ↗ you familiar with this document yes this

1:10:44 ↗ and this is a continuation of the last

1:10:48 ↗ exhibit so it it unfolds from my

1:10:53 ↗ response to miss hime

1:10:54 ↗ on November 22nd to an email from Lucy

1:11:00 ↗ Sloman to me and then a response email

1:11:02 ↗ from me to her could you read her email

1:11:06 ↗ to you sure her may emailed to me sent

1:11:09 ↗ that same day says they aren't vested

1:11:15 ↗ unless the council agrees to the vesting

1:11:17 ↗ language I'm confused

1:11:19 ↗ do you agree with mr. Mullens statement

1:11:23 ↗ yes in the vesting language the the the

1:11:28 ↗ council would potentially approve what

1:11:31 ↗ was that in reference to that was the

1:11:34 ↗ vesting language that was part of the

1:11:35 ↗ replacement regulations and how did you

1:11:37 ↗ respond to miss Loman I responded that

1:11:40 ↗ same day they are vested at this moment

1:11:43 ↗ under the development agreement if the

1:11:45 ↗ council removes the proposed vesting

1:11:48 ↗ language they will lose their vested

1:11:50 ↗ status was IHI FC courtesy copied or

1:11:54 ↗ otherwise forwarded a copy of that

1:11:56 ↗ response from you no did you follow up

1:12:00 ↗ with IHI FC to clarify your statement or

1:12:03 ↗ your intent I don't think so

1:12:05 ↗ can you lean why you didn't follow up

1:12:08 ↗ well I thought they asked a very simple

1:12:10 ↗ question which I provided a very simple

1:12:13 ↗ answer I've

1:12:14 ↗ felt like if they didn't understand my

1:12:16 ↗ answer they should have asked for

1:12:17 ↗ clarification on what my intent was

1:12:20 ↗ thank you could you then turn to exhibit

1:12:24 ↗ C 30 already in the record okay and

1:12:31 ↗ could you please describe and identify

1:12:33 ↗ this document yes this document is a

1:12:39 ↗ memorandum from myself and Miss Sloman

1:12:43 ↗ to the City Council it's dated 12

1:12:46 ↗ December 2017 and it's titled end of das

1:12:52 ↗ or development agreements vesting and FA

1:12:54 ↗ are and what was the substance of this

1:13:00 ↗ document this memorandum this well the

1:13:06 ↗ substance and the purpose so this

1:13:08 ↗ memorandum was a document that was

1:13:13 ↗ trying to help the City Council

1:13:16 ↗ understand what issues were remaining

1:13:19 ↗ with this very complex topic of closing

1:13:23 ↗ out two decade-long development

1:13:27 ↗ agreements and the two issues that were

1:13:30 ↗ still being discussed heartily at

1:13:34 ↗ committee was vesting and the provision

1:13:39 ↗ of a minimum floor area ratio on the

1:13:43 ↗ remaining properties when was this

1:13:49 ↗ document made publicly available it's

1:13:54 ↗ dated 12 December 2017 I assume it was

1:13:58 ↗ made public on that day I do not know if

1:14:09 ↗ if they received a copy of this document

1:14:11 ↗ this document would have been a most

1:14:14 ↗ likely part of a council packet which

1:14:17 ↗ was available to the public they were

1:14:20 ↗ following along on the process I assumed

1:14:22 ↗ that they received a copy but I don't

1:14:24 ↗ know that for sure

1:14:26 ↗ can you please describe the the

1:14:27 ↗ referenced scenario one in this document

1:14:31 ↗ and in its relation to shelter or IH

1:14:35 ↗ IFC's projects and the vested or

1:14:38 ↗ non-vested status of them

1:15:21 ↗ I'll rephrase the question yeah it's so

1:15:23 ↗ there's two parts to scenario one

1:15:26 ↗ there's the vesting part and there's the

1:15:27 ↗ FA are part the vesting part is what I'm

1:15:29 ↗ curious about

1:15:30 ↗ so the vesting part I believe what this

1:15:37 ↗ is referring to is if the council were

1:15:42 ↗ to accept the initially proposed vesting

1:15:46 ↗ language by the administration which

1:15:49 ↗ would have vested shelters applications

1:15:54 ↗ due to them having complete applications

1:15:58 ↗ already submitted prior to the adoption

1:16:00 ↗ of the replacement regulations hif C say

1:16:11 ↗ or do anything that indicated that they

1:16:13 ↗ knew that the City Council was

1:16:14 ↗ considering various vesting options for

1:16:18 ↗ the replacement regulations my

1:16:21 ↗ recollection is yes they not only

1:16:24 ↗ testified at well testified the wrong

1:16:27 ↗ word provided public comment at City

1:16:31 ↗ Council land and Shore committee

1:16:33 ↗ meetings but they also provided a

1:16:37 ↗ written letter to the council on the

1:16:41 ↗ vesting provision and I also believe

1:16:46 ↗ based on testimony we heard through

1:16:49 ↗ these proceedings that they met with

1:16:50 ↗ certain council members to talk through

1:16:52 ↗ vesting with them and approximately what

1:16:55 ↗ was the time frame for those actions or

1:16:57 ↗ discussions I believe those were kind of

1:17:04 ↗ November December and then into the

1:17:07 ↗ first quarter of 2018 and I would ask

1:17:12 ↗ you to turn to Exhibit C 44 okay and

1:17:19 ↗ specifically the the meeting notes

1:17:22 ↗ prepared by miss hime in relation to the

1:17:25 ↗ March 21st 2017 meeting

1:17:33 ↗ this was a c-44 this was the bundle of

1:17:36 ↗ Tia Himes handwritten or typed notes

1:17:41 ↗ you said March that's March 21st 2017

1:17:47 ↗ February oh I'm in 16 sorry 11:16 3:21

1:17:57 ↗ 17 sweet okay

1:17:59 ↗ yes sir do you recall this meeting

1:18:21 ↗ yes I do okay did you look at the second

1:18:25 ↗ bullet point on the first page beginning

1:18:27 ↗ with city indicated that okay and read

1:18:32 ↗ that aloud for me the length of that

1:18:35 ↗ bullet point yes

1:18:37 ↗ City indicated that they would support a

1:18:40 ↗ plat to create the lots and that this

1:18:43 ↗ would be the simplest path Keith

1:18:45 ↗ acknowledged that a plat would vest for

1:18:47 ↗ five years and then five years from the

1:18:49 ↗ final plat date and added that we could

1:18:52 ↗ get vested for another three by filing a

1:18:55 ↗ site development plan after the final

1:18:59 ↗ pot what did you base your statement or

1:19:03 ↗ first of all is that an accurate

1:19:04 ↗ recollection of what you said at that

1:19:05 ↗ meeting I believe so what was your basis

1:19:09 ↗ for stating that IHI FC could obtain

1:19:13 ↗ vesting for five years I believe in

1:19:18 ↗ reference to the preliminary plat and

1:19:20 ↗ then five years for a final plat what

1:19:22 ↗ where did you obtain that information or

1:19:25 ↗ that that reference you know I not

1:19:32 ↗ prepared to answer that I don't I don't

1:19:34 ↗ recall you recall where the three-year

1:19:36 ↗ reference came from and so the three

1:19:38 ↗ years is in city code and basically says

1:19:44 ↗ that you know an approved land use

1:19:48 ↗ permit is basically is valid for three

1:19:54 ↗ years I want to call your attention to

1:19:59 ↗ the term that you just used the

1:20:00 ↗ reference I believe you just said was

1:20:02 ↗ that an approved permit for development

1:20:05 ↗ would your words vest the applicant for

1:20:09 ↗ three years is that what you you stated

1:20:11 ↗ yes okay thank you did you hear the

1:20:15 ↗ testimony of Miss Hyneman and mr. young

1:20:18 ↗ concerning the meetings that occurred

1:20:20 ↗ between city staff and polygon and or

1:20:22 ↗ shelter between 2013 and 2015

1:20:26 ↗ yes do you specifically recall the

1:20:30 ↗ testimony concerning the the land owners

1:20:33 ↗ suggestion or

1:20:34 ↗ proposal for an extension of the term of

1:20:37 ↗ the 1996 development agreement yes

1:20:40 ↗ can you describe in your own words how

1:20:42 ↗ this proposal came about and how it was

1:20:44 ↗ addressed sure

1:20:47 ↗ so my recollection of the way this story

1:20:51 ↗ started was polygon northwest shelter

1:20:56 ↗ Holdings didn't exist at that time to my

1:20:58 ↗ knowledge polygon Northwest purchased

1:21:01 ↗ the property from Microsoft and

1:21:04 ↗ approached the city and at the time I

1:21:07 ↗ was not the development services

1:21:09 ↗ director I was just the economic

1:21:13 ↗ development director approached the city

1:21:15 ↗ and asked for an extension on the

1:21:19 ↗ development agreement and my

1:21:22 ↗ recollection of that conversation was

1:21:24 ↗ that I told Gary and Derrick Strait that

1:21:30 ↗ the city would likely not support an

1:21:33 ↗ extension of the development agreement

1:21:35 ↗ because it was nearing 20 years old and

1:21:38 ↗ had twenty-year-old development

1:21:39 ↗ standards and that the council had

1:21:43 ↗ already heard that those standards were

1:21:45 ↗ probably not something that we would

1:21:47 ↗ support today I'm sorry mr. Nevin

1:21:50 ↗ just to clarify your response or your

1:21:53 ↗ your statement back to them was based on

1:21:57 ↗ their specific inquiry to you or their

1:22:00 ↗ question yes and the Gary that you

1:22:03 ↗ referring to that was mr. young thank

1:22:05 ↗ you yes it was mr. young and mr.

1:22:07 ↗ straight from polygon Northwest thank

1:22:10 ↗ you I'm sorry please continue

1:22:11 ↗ and so mr. young and mr. Strait had

1:22:15 ↗ requested an extension of the Highlands

1:22:17 ↗ development agreement they basically

1:22:20 ↗ indicated that they did not think they

1:22:22 ↗ could build out that property in such a

1:22:24 ↗ short period and needed more time to get

1:22:30 ↗ applicants and plans and tenants for

1:22:32 ↗ buildings together and my suggestion to

1:22:36 ↗ them was that I didn't think the council

1:22:38 ↗ would support an extension on a

1:22:39 ↗ development agreement that had pretty

1:22:43 ↗ much run its course and that likely

1:22:46 ↗ their best

1:22:48 ↗ course of action would be to pursue with

1:22:50 ↗ a new development agreement with the

1:22:51 ↗ city

1:23:00 ↗ and how was your suggestion regarding at

1:23:05 ↗ a new development agreement of that

1:23:07 ↗ proposal received by mr. young and mr.

1:23:11 ↗ straight I can give you my impression my

1:23:16 ↗ impression was I thought we were working

1:23:19 ↗ very collaboratively towards that

1:23:21 ↗ outcome I believe that mr. young and mr.

1:23:26 ↗ straight and at a certain point mr.

1:23:28 ↗ Evans joined the group and there was

1:23:34 ↗ there seemed to be a willingness to work

1:23:39 ↗ towards that as an outcome

1:23:41 ↗ probably my recollection was polygon

1:23:44 ↗ northwest I don't know if they had

1:23:46 ↗ actually transitioned to is a Kwanza

1:23:49 ↗ investment fund at this point or not

1:23:51 ↗ they we talked about if there was going

1:23:55 ↗ to be a new development agreement that

1:23:58 ↗ the city policy was that that was a

1:24:02 ↗ negotiated contract which needed to

1:24:05 ↗ provide benefits to both parties and you

1:24:09 ↗ know as we talked about that a little

1:24:10 ↗ bit further mr. young and mr. straight

1:24:15 ↗ kind of understood that there was going

1:24:17 ↗ to need to be something given by them to

1:24:20 ↗ the city or to the public if they were

1:24:23 ↗ going to be able to get a development

1:24:25 ↗ agreement with terms similar to what was

1:24:28 ↗ in the highlands agreement their initial

1:24:32 ↗ offer was a park and at the time the

1:24:39 ↗ general perception from the City Council

1:24:41 ↗ was that Issaquah Highlands had more

1:24:44 ↗ parks per capita than the rest of the

1:24:46 ↗ city and so I believe I told mr. young

1:24:51 ↗ and mr. stray that I didn't think that a

1:24:54 ↗ park was going to get them to the goal

1:24:57 ↗ line and to clarify your your testimony

1:25:01 ↗ mr. niven I believe that you said that

1:25:03 ↗ mr. young or and or mr. straight had

1:25:07 ↗ indicated that as of this point in time

1:25:10 ↗ there simply wasn't enough

1:25:12 ↗ opportunity or time before the scheduled

1:25:15 ↗ termination of the development agreement

1:25:17 ↗ to pursue their development plans is it

1:25:20 ↗ an accurate statement to build out to

1:25:22 ↗ completely build out the 1.2 million

1:25:25 ↗ square feet of entitlement they had

1:25:26 ↗ purchased from Microsoft and

1:25:28 ↗ approximately what time frame were these

1:25:30 ↗ discussions occurring these would have

1:25:32 ↗ been fourth quarter 2014 maybe first

1:25:37 ↗ quarter 2015 somewhere in excuse me in

1:25:40 ↗ that ballpark so and the the build-out

1:25:44 ↗ period under the development agreement

1:25:46 ↗ expired when or was scheduled to expire

1:25:48 ↗ when September 2017 this was at least

1:25:52 ↗ two years and possibly more time before

1:25:55 ↗ that expiration period I believe so did

1:26:00 ↗ you hear the testimony by miss Hyman mr.

1:26:02 ↗ yang regarding the meeting that occurred

1:26:04 ↗ I believe on September 9th of 2013 at

1:26:09 ↗ which the the city was informed by the

1:26:12 ↗ landowner that it would not be or they

1:26:15 ↗ were declining the the possibility of

1:26:18 ↗ reserving any property for a college

1:26:20 ↗ campus I remember I remember the

1:26:23 ↗ comments I don't remember the date so if

1:26:26 ↗ that was the date that was the date and

1:26:27 ↗ what what again was your title and

1:26:29 ↗ position of the city at the time of this

1:26:31 ↗ meeting at the time of this meeting it

1:26:33 ↗ would have been Economic Development

1:26:35 ↗ Director what in your recollection was

1:26:38 ↗ the tone and tenor of this meeting I

1:26:42 ↗ recall the meeting being between myself

1:26:46 ↗ Bob Harrison who is the city

1:26:48 ↗ administrator and Fred Butler who was

1:26:50 ↗ the mayor at the time with mr. young and

1:26:53 ↗ mr. Evans there had been a number of

1:26:57 ↗ back-and-forth discussions about what

1:27:02 ↗ potentially could be included in a

1:27:04 ↗ development agreement with polygons

1:27:07 ↗ northwest or Issaquah Highlands

1:27:09 ↗ investment fund that would be that

1:27:11 ↗ public benefit you know we had an

1:27:15 ↗ existing economic development strategic

1:27:18 ↗ plan that identified that one of the

1:27:21 ↗ weaknesses in Issaquah was not having a

1:27:24 ↗ place for higher education

1:27:25 ↗ and so when I suggested that as maybe

1:27:29 ↗ something that could be a win-win for

1:27:31 ↗ the city and for the property owner we

1:27:35 ↗ started talking about the terms for how

1:27:38 ↗ we could put that into a development

1:27:40 ↗ agreement and make that make sense for

1:27:43 ↗ both the city and the applicant when we

1:27:45 ↗ came to this meeting we were informed by

1:27:49 ↗ his qua Highlands investment fund that

1:27:52 ↗ they no longer were interested in

1:27:56 ↗ providing that amenity to the city and

1:28:03 ↗ so we stopped having conversations about

1:28:06 ↗ a development agreement at that point

1:28:08 ↗ and who which party first broached the

1:28:13 ↗ the possibility or concept of this

1:28:15 ↗ college campus as being part of the

1:28:20 ↗ future potential new development

1:28:23 ↗ agreement so that was a suggestion made

1:28:25 ↗ by myself I don't think that mr. young

1:28:29 ↗ mr. Evans or mr. Strait knew about the

1:28:34 ↗ city's desire to get a branch campus in

1:28:38 ↗ the city and so I put that on the table

1:28:41 ↗ as a suggestion that might that I could

1:28:46 ↗ see also could potentially benefit the

1:28:49 ↗ property owner in creating an activity

1:28:52 ↗ node for the balance of the property

1:28:55 ↗ what was the the quid pro quo the

1:28:58 ↗ consideration and in favor of the the

1:29:00 ↗ property owner just that it would then

1:29:04 ↗ have the opportunity to to build out and

1:29:06 ↗ utilize its its purchased entitlement

1:29:08 ↗ that was on the benefit that the

1:29:10 ↗ landowner would have obtained under that

1:29:12 ↗ contract well I don't think we got to

1:29:15 ↗ that level of detail I think what

1:29:19 ↗ happened at the meeting was that mr.

1:29:24 ↗ Young informed the city that they were

1:29:27 ↗ no longer interested in pursuing this

1:29:30 ↗ deal and I was I think I've been

1:29:34 ↗ described as being angry I think I would

1:29:37 ↗ say I was more confused

1:29:39 ↗ just by the turn of events and

1:29:42 ↗ ultimately mr. Evans when I said why why

1:29:46 ↗ are we why are we stopping this

1:29:49 ↗ conversation I was told that they could

1:29:53 ↗ make more money doing something else and

1:29:55 ↗ was the something else more residential

1:29:58 ↗ development on the site they were

1:30:00 ↗ unclear there was not really much

1:30:02 ↗ further conversation at that point it

1:30:05 ↗ just ended what was it was it your

1:30:07 ↗ intent in the city's intent as the

1:30:12 ↗ outcome of those discussions to ensure

1:30:15 ↗ some type of a win-win scenario for both

1:30:18 ↗ the city and the developer absolutely

1:30:20 ↗ and that was that the flavor of those

1:30:23 ↗ discussions that was the intent and why

1:30:25 ↗ why were you even broaching that what

1:30:27 ↗ was that even being discussed at that

1:30:29 ↗ point it was you know I think what we

1:30:32 ↗ were trying to do was we understood that

1:30:36 ↗ what polygons Northwest purchased was

1:30:41 ↗ generally not in the real house polygon

1:30:44 ↗ Northwest was a residential builder

1:30:48 ↗ through the process where we negotiating

1:30:52 ↗ the potential development agreement we

1:30:56 ↗ actually processed I believe it was a

1:30:59 ↗ short plat that allowed polygon and IH

1:31:02 ↗ IFC to split the property into basically

1:31:06 ↗ a residential piece and then the

1:31:08 ↗ commercial piece that is the subject of

1:31:12 ↗ the conversations we're having at

1:31:14 ↗ development Commission and when did that

1:31:16 ↗ occur that divide that split you know

1:31:21 ↗ I'm I I don't know those dates maybe

1:31:24 ↗ miss Loman might thank you and you

1:31:27 ↗ touched on this briefly but I'd like to

1:31:29 ↗ explore it a little further you

1:31:31 ↗ specifically recall the testimony from

1:31:34 ↗ Miss Haim and mr. young that you

1:31:36 ↗ allegedly became very angry during this

1:31:39 ↗ this meeting I do do you agree with that

1:31:42 ↗ characterization I do not did you please

1:31:46 ↗ describe the relevant events as you do

1:31:48 ↗ remember them in your own

1:31:50 ↗ sure I mean like I said we we were in

1:31:54 ↗ the process of working on a negotiated

1:32:00 ↗ outcome that could be incorporated into

1:32:03 ↗ a development agreement for IH IFC and

1:32:08 ↗ there were we were I think in my opinion

1:32:11 ↗ still negotiating the terms of how that

1:32:14 ↗ might work when we had a meeting

1:32:18 ↗ scheduled I think it was my

1:32:22 ↗ understanding as as well as mr. Harrison

1:32:26 ↗ and mr. Butler's that we were going to

1:32:27 ↗ continue that discussion and when mr.

1:32:32 ↗ Young and mr. Evans came in and

1:32:35 ↗ basically said they were not interested

1:32:37 ↗ in that I think it caught everyone by

1:32:39 ↗ surprise and so you know again I think

1:32:44 ↗ my reaction was more of surprise for if

1:32:47 ↗ you're if you don't want to want to

1:32:49 ↗ negotiate with me just tell me so and

1:32:51 ↗ don't set up a meeting with the mayor

1:32:53 ↗ and the city administrator to do that

1:32:55 ↗ and drop the bomb it just seemed a

1:32:57 ↗ little it was an interesting tactic I

1:33:01 ↗ thought but just to clarify were you

1:33:06 ↗ angry in the manner that has been

1:33:07 ↗ testified by mr. young and miss hime no

1:33:11 ↗ I was I was not angry I think there was

1:33:14 ↗ someone else in the room who might have

1:33:17 ↗ been angry that would have been the city

1:33:20 ↗ administrator at the time he was clearly

1:33:22 ↗ not happy with I think the position that

1:33:26 ↗ IH I've C took my might

1:33:30 ↗ who was that city administrator that was

1:33:32 ↗ Bob Harrison he was no longer employed

1:33:34 ↗ with the city he's no longer employed

1:33:36 ↗ with the city how did how did mr.

1:33:39 ↗ Harrison manifest his anger or

1:33:43 ↗ frustration or whatever term you used uh

1:33:46 ↗ well he he I don't recall what he said I

1:33:54 ↗ believe it was you know it was fairly

1:34:00 ↗ clear that he was unhappy with

1:34:02 ↗ the way that the meeting had gone so it

1:34:07 ↗ was verbal I don't I mean there was no

1:34:10 ↗ yelling there was no screaming there

1:34:12 ↗ were you know it was just it was kind of

1:34:14 ↗ a look on his face look like he was

1:34:16 ↗ angry but again I I don't know I never

1:34:19 ↗ talked to him about whether that made

1:34:20 ↗ him angry all I can speak to is my

1:34:26 ↗ reaction which was more just confusion

1:34:29 ↗ because it wasn't what I thought was

1:34:31 ↗ gonna happen in that meeting you yell

1:34:34 ↗ during that meeting oh no did you scream

1:34:36 ↗ no do you curse

1:34:38 ↗ no do you storm out of the meeting room

1:34:41 ↗ no did you slam your door no and Bob

1:34:48 ↗ Harrison do any of those things at the

1:34:50 ↗ meeting I not that I recall

1:34:51 ↗ and neither did the mirror did you ever

1:34:55 ↗ express anger to polygon or later to IH

1:34:58 ↗ IFC regarding the landowners decision to

1:35:01 ↗ decline the college campus proposal I

1:35:05 ↗ don't believe so

1:35:06 ↗ I mean I think what I'd like to say is

1:35:09 ↗ that I believe that even though maybe it

1:35:13 ↗ did not turn out the way that IHI FC

1:35:17 ↗ wanted I believe that we continued to

1:35:21 ↗ work with them to try and get them to

1:35:23 ↗ permits and development on their

1:35:25 ↗ property I think their vision for what

1:35:30 ↗ they wanted was inconsistent with the

1:35:33 ↗ entitlement that they had and they tried

1:35:36 ↗ to I think change that and you know as

1:35:42 ↗ you know as you know after a number of

1:35:49 ↗ meetings with myself and deputy City

1:35:52 ↗ Administrator moon Emily moon we

1:35:56 ↗ basically suggested that they needed to

1:35:58 ↗ get community support if they were going

1:36:00 ↗ to get the council swayed on that

1:36:02 ↗ basically change of Zoning so were there

1:36:06 ↗ any further discussions after that

1:36:09 ↗ meeting

1:36:09 ↗ regarding the college campus proposal

1:36:11 ↗ with IFC to your recollection no the

1:36:15 ↗ outcome of the landowners decision not

1:36:19 ↗ to pursue the college campus proposal in

1:36:22 ↗ any way affect or influence your

1:36:26 ↗ subsequent treatment of IHI of C's

1:36:29 ↗ various project applications no do you

1:36:34 ↗ ever state to IH IFC that the college

1:36:37 ↗ campus decision would impact your

1:36:39 ↗ treatment of IH IFC's product

1:36:41 ↗ applications no are you aware of any

1:36:44 ↗ action that you've taken or any

1:36:47 ↗ statement that you've made that could be

1:36:48 ↗ construed as indicating that the outcome

1:36:52 ↗ of that decision influenced you at all

1:36:54 ↗ in relation to IH IFC's project

1:36:57 ↗ applications no I hand you an exhibit

1:37:04 ↗ that's already in the we're going to

1:37:06 ↗ refer you to exhibit 2 free to exhibit s

1:37:09 ↗ 1:11 please this is already in the

1:37:12 ↗ record it's the very last exhibit

1:37:53 ↗ does this reflection

1:38:14 ↗ I'm gonna ask you specifically about the

1:38:17 ↗ the consistency or inconsistency of the

1:38:20 ↗ entitlement issue yes okay could you

1:38:22 ↗ expand on that please sure so what this

1:38:26 ↗ is is you know this is it starts off

1:38:33 ↗ with a email from Derrick straight to

1:38:35 ↗ myself with a copy - Gary yang dated

1:38:39 ↗ July 2nd 2013 and it talks about it says

1:38:44 ↗ attaches a rough draft for LOI which is

1:38:47 ↗ letter of intent for the modification to

1:38:50 ↗ the development agreement and in this

1:38:54 ↗ mr. Strait kind of starts by spelling

1:38:58 ↗ out what polygons would like to get out

1:39:02 ↗ of a modification to the development

1:39:07 ↗ agreement so the first the first numeric

1:39:11 ↗ point under that is we would like to

1:39:14 ↗ extend the term of the development

1:39:15 ↗ agreement for a period of eight years

1:39:20 ↗ and was the the quid-pro-quo under this

1:39:23 ↗ proposed arrangement more residential

1:39:26 ↗ development entitlement or the landowner

1:39:31 ↗ so

1:39:37 ↗ you know I don't I believe you know this

1:39:42 ↗ is obviously just shy of six years ago

1:39:47 ↗ you know so mr. straight identifies in

1:39:52 ↗ number two P so P B is poor Blakeley I

1:39:59 ↗ would like to be able to convert some of

1:40:00 ↗ its remaining commercial density to

1:40:03 ↗ residential for use on the site so the

1:40:08 ↗ development agreement you know back in

1:40:13 ↗ the day this was like the first

1:40:15 ↗ development agreements ever and it it

1:40:18 ↗ was it was pretty ambitious and so there

1:40:21 ↗ was a provision in the original

1:40:23 ↗ development agreement it had thirty two

1:40:25 ↗ hundred and fifty residential units and

1:40:28 ↗ it allowed the master developer to

1:40:31 ↗ convert up to seven hundred additional

1:40:35 ↗ residential units from commercial

1:40:38 ↗ so it basically envisioned this

1:40:41 ↗ flexibility with land use to go from

1:40:44 ↗ anywhere from thirty to fifty two thirty

1:40:45 ↗ nine fifty residential units and that

1:40:51 ↗ got all done before polygons purchased

1:40:55 ↗ this property what mister straight is

1:40:58 ↗ suggesting in his number two is that you

1:41:01 ↗ know there really could be some more

1:41:02 ↗ conversion happen to get some more

1:41:05 ↗ residential out of the remaining

1:41:06 ↗ commercial entitlement and so that's I

1:41:10 ↗ think what is intended by his number two

1:41:13 ↗ okay were you here in the the public

1:41:17 ↗ hearing for the public testimony portion

1:41:19 ↗ of this proceeding yes did you listen to

1:41:23 ↗ the testimony of mr. Nystrom and I hope

1:41:25 ↗ I'm pronouncing that correctly Fred nice

1:41:28 ↗ Jimmy sir yes I did did you hear his

1:41:31 ↗ comments to the effect that the city had

1:41:35 ↗ in this is a paraphrase lost its

1:41:38 ↗ integrity in reference to its the city's

1:41:41 ↗ treatment of IHI FC I did hear that are

1:41:45 ↗ you aware of any basis that the city

1:41:49 ↗ could be accused of acting with

1:41:51 ↗ integrity in relation to IH IFC I don't

1:41:55 ↗ don't I don't have you personally ever

1:41:59 ↗ acted without integrity and your

1:42:01 ↗ treatment of and dealings with IH IFC I

1:42:04 ↗ have not you aware of any of your staff

1:42:07 ↗ that has acted without integrity I I

1:42:11 ↗ would I am not aware of any of my staff

1:42:15 ↗ acting without integrity towards IH IFC

1:42:19 ↗ have you ever been accused of acting

1:42:22 ↗ without integrity by anyone except mr.

1:42:25 ↗ Nystrom in relation to this issue I

1:42:28 ↗ don't think he was personally talking

1:42:30 ↗ about me maybe he was no I have never

1:42:33 ↗ been accused of acting without integrity

1:42:35 ↗ actually being certified as both a

1:42:39 ↗ planner through American Institute of

1:42:40 ↗ Certified planners and as an economic

1:42:42 ↗ developer through the economic

1:42:46 ↗ development council I have ethics that

1:42:50 ↗ include integrity that I have to live by

1:42:52 ↗ and so I take that very seriously if you

1:42:55 ↗ live by those and adhered to those

1:42:57 ↗ ethical standards and your dealings with

1:42:59 ↗ IH IFC as with all applicants yes

1:43:04 ↗ did you hear ms hynes testimony

1:43:07 ↗ regarding your alleged opposition to IH

1:43:10 ↗ IFC's proposed development I did hear

1:43:14 ↗ that did you agree with her

1:43:17 ↗ characterization of your gentlemen no I

1:43:22 ↗ I there's a difference between being

1:43:31 ↗ opposed to something and liking it and

1:43:34 ↗ you know do I like it do I think it's

1:43:36 ↗ the greatest development proposal ever

1:43:38 ↗ no do I oppose it no did you ever

1:43:41 ↗ Express to IH IFC that you were opposed

1:43:44 ↗ to their proposed development I don't

1:43:47 ↗ think so I'd like to call your attention

1:43:50 ↗ to exhibits c5 and c6 which were

1:43:54 ↗ previously introduced into the record

1:43:57 ↗ to economist and refresh yourself with

1:43:59 ↗ respect to those documents okay you want

1:44:06 ↗ to start on five please I just would

1:44:08 ↗ like you do if you would please review

1:44:10 ↗ them

1:44:17 ↗ with respect to c5 I'm not as concerned

1:44:21 ↗ with the cover email dated November 17

1:44:25 ↗ 2017 and more referring to the attached

1:44:29 ↗ memorandum dated November 17 2017 okay

1:44:34 ↗ thank you

1:44:49 ↗ [Applause]

1:45:08 ↗ okay did you please identify exhibit c6

1:45:12 ↗ for the record

1:45:23 ↗ where do I find c6 should be right after

1:45:27 ↗ c5

1:45:28 ↗ oh I'm sorry I thought it was an

1:45:31 ↗ attachment to c5 sorry I got lost in the

1:45:34 ↗ shuffle

1:45:51 ↗ so c5

1:45:54 ↗ I mean c6 is listed as attachment for

1:46:01 ↗ I'm gonna assume that's attachment for -

1:46:07 ↗ maybe a council committee meeting maybe

1:46:12 ↗ I have no idea what attachment this is

1:46:15 ↗ I'm kind of I'm gonna need to phone a

1:46:20 ↗ friend if I if I were to figure out what

1:46:21 ↗ this is a I'm going with this mr. yes

1:46:24 ↗ I'm gonna I'd like to ask you does does

1:46:26 ↗ what is contained in the November 16

1:46:30 ↗ 2017 document yes it is identified as

1:46:35 ↗ Exhibit C six does that reflect staff's

1:46:38 ↗ proposed alternative or proposed option

1:46:41 ↗ for vesting in the replacement

1:46:44 ↗ regulations legislative process

1:46:56 ↗ so what I would say is what what this

1:47:03 ↗ attachment is attachment for dated 16

1:47:06 ↗ November 2017 spells out the three

1:47:10 ↗ choices for vesting that were provided

1:47:13 ↗ to the City Council for their

1:47:16 ↗ consideration you know option one was

1:47:20 ↗ what I said earlier we we didn't have to

1:47:23 ↗ include vesting language in the

1:47:25 ↗ replacement regulations and the reason

1:47:27 ↗ if you look at the summary section on

1:47:30 ↗ the back of that you know what we

1:47:33 ↗ identified was we thought there was an

1:47:35 ↗ advantage to including vesting language

1:47:39 ↗ because it would be a clear outcome for

1:47:41 ↗ all those that were affected and then

1:47:45 ↗ alternatives 2 & 3 were basically one

1:47:48 ↗ was the initially proposed vesting

1:47:52 ↗ language by the administration and then

1:47:56 ↗ option 3 was basically state statute

1:48:00 ↗ vesting so just for clarity what was

1:48:03 ↗ staffs recommended vesting alternative

1:48:05 ↗ option our initial vesting option was

1:48:11 ↗ consistent with what the council enacted

1:48:15 ↗ with temporary development moratorium

1:48:18 ↗ there was like 2016 and the reason why

1:48:23 ↗ we thought that made sense I'm sorry

1:48:28 ↗ what was the substance of their so

1:48:30 ↗ basically what what that said was if you

1:48:35 ↗ had a complete application in with the

1:48:37 ↗ city that your land use application was

1:48:41 ↗ vested and would that vesting protection

1:48:44 ↗ under that preferred option the staff

1:48:46 ↗ recommended option have included or

1:48:49 ↗ extended to site development

1:48:51 ↗ applications absolutely and if I could

1:48:54 ↗ refer you to page 7 of exhibit c5

1:49:01 ↗ the section heading Roman numeral four

1:49:04 ↗ get vesting yes you see that yes if you

1:49:10 ↗ please read aloud the recommendation

1:49:12 ↗ sure the recommendation under Section

1:49:15 ↗ four vesting says include the proposed

1:49:18 ↗ exiting language comma which has been

1:49:22 ↗ slightly edited for clarity see 1819 B

1:49:25 ↗ 364 proposed language and that was just

1:49:29 ↗ to clarify the the same staff

1:49:32 ↗ recommended vesting option that you just

1:49:36 ↗ described to me I believe so yes since

1:49:41 ↗ that attachment is attachment for to

1:49:45 ↗ this document were you directly involved

1:49:48 ↗ in the formulation and preparation of

1:49:50 ↗ this staff preferred option yes could

1:49:54 ↗ you describe your involvement I drafted

1:49:57 ↗ it did you have the assistance with from

1:50:00 ↗ your staff so you know I never give them

1:50:05 ↗ credit so I don't know I you know miss

1:50:09 ↗ Loman may have assisted I believe what

1:50:12 ↗ we did was again like I said the the

1:50:16 ↗ vesting language that was used for the

1:50:19 ↗ temporary development moratorium which

1:50:21 ↗ was worked on by myself and mr. Tanaka

1:50:25 ↗ with Ogden Murphy Wallace was basically

1:50:29 ↗ lifted and moved over to the initial

1:50:32 ↗ draft of the replacement regulations if

1:50:35 ↗ the preferred vesting option had been

1:50:37 ↗ adopted by the City Council what would

1:50:40 ↗ have the what would the effect have been

1:50:42 ↗ with respect to ia JFCS of various SDP

1:50:46 ↗ and ASDP applications that are at issue

1:50:48 ↗ in this hearing if the council would

1:50:51 ↗ have included the initial vesting

1:50:54 ↗ language in the replacement regulations

1:50:56 ↗ I believe that the applications that are

1:51:00 ↗ subject to the development Commission's

1:51:02 ↗ consideration at this time would have

1:51:05 ↗ been vested to the development agreement

1:51:07 ↗ and not the replacement regulations in

1:51:09 ↗ your understanding mr. Niven was staffs

1:51:12 ↗ preferred or recommended vesting option

1:51:14 ↗ more or less generous to project

1:51:17 ↗ applicants than the vesting protection

1:51:19 ↗ afforded under state law that's

1:51:21 ↗ significantly more generous were you

1:51:24 ↗ aware of this fact when you made your

1:51:25 ↗ recommendation to the City Council

1:51:27 ↗ absolutely did I H IFC publicly support

1:51:31 ↗ staffs recommendation for the preferred

1:51:33 ↗ vesting option that might be a

1:51:39 ↗ complicated answer I you know so this

1:51:42 ↗ was there were many meetings happening

1:51:44 ↗ at this time you know the the comments

1:51:49 ↗ that were coming from IH IFC at least my

1:51:54 ↗ recollection of them were not in support

1:51:58 ↗ of they weren't necessarily in support

1:52:01 ↗ of this language or not in support of

1:52:03 ↗ this language they were lobbying the

1:52:07 ↗ council to slow the process down who's

1:52:11 ↗ they ih I have C yes and what process he

1:52:14 ↗ referring to the process of adoption of

1:52:17 ↗ the replacement regulations so so so the

1:52:23 ↗ development agreement even though we'd

1:52:25 ↗ reached the build out the end of the

1:52:27 ↗ build-out period was still in effect

1:52:29 ↗ until the adoption of the replacement

1:52:32 ↗ regulations during the process to adopt

1:52:35 ↗ the replacement regulations ih IFC was

1:52:42 ↗ trying to in my opinion trying to get

1:52:45 ↗ the City Council to slow down in the

1:52:48 ↗ adoption of the replacement regulations

1:52:50 ↗ and so through that effort it would be

1:52:54 ↗ hard to answer the question that you

1:52:57 ↗ posed which was were they in support of

1:52:59 ↗ the vesting language that was initially

1:53:03 ↗ proposed by staff because that message

1:53:06 ↗ would have been lost in the bigger

1:53:07 ↗ message that they had which was this is

1:53:10 ↗ all not well-baked we've hired an

1:53:12 ↗ architect who thinks this is really

1:53:13 ↗ confusing we don't think that you should

1:53:16 ↗ adopt this at this time

1:53:17 ↗ and that's again all my opinion from

1:53:20 ↗ what I saw in the Testament in a public

1:53:23 ↗ comment that was provided by H IFC and

1:53:25 ↗ their attorney and

1:53:28 ↗ that public comment you're referring to

1:53:29 ↗ was in the context of city council

1:53:31 ↗ meeting or Landon Shore meetings or what

1:53:34 ↗ forum primarily land in Shore committee

1:53:36 ↗ meetings which is why I'm using the word

1:53:37 ↗ public comment and not testimony in this

1:53:40 ↗ the time frame for those comments and

1:53:43 ↗ that those positions being expressed was

1:53:45 ↗ approximately when kind of October

1:53:50 ↗ November of seventeen because we had

1:53:53 ↗ initially hope to get the replacement

1:53:55 ↗ regulations adopted by the City Council

1:53:58 ↗ in December of 17 when approximately

1:54:02 ↗ will staffs preferred option regarding

1:54:05 ↗ its vesting recommendation to the City

1:54:08 ↗ Council made public it would have been

1:54:11 ↗ in November December of 17 as of that

1:54:14 ↗ point had the the policy Direction

1:54:17 ↗ already been made to establish or at

1:54:20 ↗ least to propose a 1.0 minimum fa our

1:54:24 ↗ requirement and the requirement for

1:54:26 ↗ structured parking as part of the

1:54:28 ↗ replacement regulations

1:54:32 ↗ I believe the I believe the fa r was

1:54:36 ↗ with I'm not sure on the structured

1:54:40 ↗ parking so I don't I can't I I'm not I'm

1:54:45 ↗ not that cognizant on the dates so I'm

1:54:48 ↗ not sure when those things kind of were

1:54:51 ↗ added to the proposed documents do you

1:54:55 ↗ recall if the structured parking was

1:54:57 ↗ borrowed from the SIDS yes I can say

1:55:05 ↗ that the reason that the structured

1:55:13 ↗ parking provision in the draft

1:55:15 ↗ replacement regulations was included was

1:55:19 ↗ the city had just finished going through

1:55:22 ↗ as part of the moratorium one of the

1:55:25 ↗ work items was about density and parking

1:55:29 ↗ and there was new provisions put in

1:55:34 ↗ central Issaquah that included the

1:55:37 ↗ requirement for structured parking for

1:55:40 ↗ potential commercial and retail uses

1:55:42 ↗ does that factor recollection help

1:55:45 ↗ refresh your memory at all in that issue

1:55:47 ↗ I'm not good on dates so if you know all

1:55:51 ↗ I can tell you is factually that's what

1:55:53 ↗ happened if you need me to put some

1:55:55 ↗ months and and years to that I'm gonna

1:55:58 ↗ be struggling you're more just asking

1:56:00 ↗ whether it was roughly approximate in

1:56:03 ↗ time that the FA are and structured

1:56:06 ↗ parking requirements were normally

1:56:09 ↗ proposed as part of the replacement

1:56:10 ↗ regulations in relation to the the

1:56:14 ↗ preferred vesting alternative that that

1:56:16 ↗ staff had recommended that approximately

1:56:19 ↗ all the same time I can't answer that

1:56:25 ↗ what I can tell you is that those are

1:56:27 ↗ not hinged so the F they are the

1:56:30 ↗ structured parking is one thing vesting

1:56:33 ↗ is something different and they weren't

1:56:36 ↗ really connected in terms of the

1:56:38 ↗ rationale for why they were included in

1:56:40 ↗ the proposed code language did the City

1:56:43 ↗ Council ultimately accept staffs

1:56:44 ↗ recommendation for the preferred vesting

1:56:46 ↗ option no and what what option that the

1:56:50 ↗ council ultimately choose States

1:56:52 ↗ consistent with state statute and I

1:56:55 ↗ believed you cap your previous testimony

1:56:58 ↗ that the the state vesting framework was

1:57:03 ↗ less generous to applicants than the

1:57:06 ↗ staff preferred option is that correct

1:57:08 ↗ that's correct

1:57:08 ↗ do you know why the City Council made

1:57:11 ↗ that decision I do so it was a City

1:57:14 ↗ Council's position that they supported a

1:57:18 ↗ more generous vesting provision for the

1:57:23 ↗ moratorium because that was that was a

1:57:27 ↗ an emergency action that was taken

1:57:30 ↗ applicants had no forewarning that that

1:57:33 ↗ was coming and therefore if someone had

1:57:36 ↗ a complete application in but did not

1:57:38 ↗ have a vested permit they believe that

1:57:42 ↗ they should give them the leniency of

1:57:44 ↗ kind of the longer leash whereas for the

1:57:48 ↗ development agreements that build out

1:57:50 ↗ period was well known for

1:57:53 ↗ 20 years plus for his aquiline xand it

1:57:57 ↗ was 15 years plus for Tallis and

1:57:59 ↗ therefore they should have known the

1:58:02 ↗ council expressed that explanation or

1:58:05 ↗ position publicly I yes is that part of

1:58:09 ↗ the deliberations he would have been

1:58:11 ↗ part of deliberations but just to

1:58:13 ↗ clarify your earlier testimony staff

1:58:16 ↗ specifically including yourself had

1:58:19 ↗ publicly proposed and supported a

1:58:23 ↗ vesting option under which I H is a STP

1:58:27 ↗ and STP applications would be deemed

1:58:29 ↗ vested to the standards under the

1:58:31 ↗ development regulations are you shooting

1:58:33 ↗ the development agreement correct yes

1:58:40 ↗ like to turn your attention to exhibit s

1:58:44 ↗ 9 this is also a document that's been

1:58:46 ↗ previously submitted into the record I

1:58:50 ↗ have a copy for you if you'd like no I'm

1:58:52 ↗ good

1:58:53 ↗ wait no I'm not c99 yes yes time yep

1:59:17 ↗ the title of this document is a

1:59:19 ↗ commercial and multi-family building

1:59:21 ↗ permits and middle requirements I

1:59:23 ↗ believe that you either heard and/or

1:59:27 ↗ actually testified to this document and

1:59:31 ↗ its effect or you familiar with that yes

1:59:33 ↗ I I am familiar with this

1:59:36 ↗ did you hear miss Himes testimony

1:59:38 ↗ concerning this document yes okay and I

1:59:42 ↗ will kind of euphemistically refer to it

1:59:43 ↗ as the web document because I think that

1:59:45 ↗ was how it was characterized before to

1:59:48 ↗ your knowledge is this document

1:59:49 ↗ referenced anywhere in the 1996

1:59:52 ↗ development agreement no it is not to

1:59:55 ↗ your knowledge did you or any other city

1:59:58 ↗ staff members ever purport to enforce

2:00:01 ↗ the land use permit notice of decision

2:00:05 ↗ issuance were a provision on page 2 of

2:00:08 ↗ the web document against IHI FC I am

2:00:12 ↗ unaware of that do you personally do

2:00:14 ↗ that

2:00:15 ↗ no did to your knowledge did you or any

2:00:19 ↗ other staff member ever discuss this

2:00:21 ↗ document with IHI FC I have not I am

2:00:26 ↗ unaware that any of my staff have do you

2:00:30 ↗ recall the first time that IHI FC ever

2:00:33 ↗ referred to this document I the first

2:00:36 ↗ time the city the first time I heard

2:00:38 ↗ about this document being an issue was

2:00:42 ↗ during these proceedings during this

2:00:44 ↗ hearing before the Development

2:00:45 ↗ Commission yes sir so to your knowledge

2:00:48 ↗ IHI FC never referenced it to the city

2:00:51 ↗ or discussed it with the city prior to

2:00:54 ↗ these development Commission proceedings

2:00:56 ↗ I have not seen any written

2:00:58 ↗ documentation that would support that

2:01:04 ↗ your knowledge did you or any other city

2:01:07 ↗ staff members ever tell I H IFC that

2:01:10 ↗ they could not submit a building permit

2:01:12 ↗ application until after a land use

2:01:15 ↗ permit notice of decision had been

2:01:17 ↗ issued for their property I have not and

2:01:20 ↗ I would expect my staff would not have

2:01:23 ↗ either because it would being consistent

2:01:25 ↗ with city code

2:01:26 ↗ that IH IFC ever attempt to submit a

2:01:29 ↗ building permit application for its

2:01:31 ↗ Issaquah Highlands property to your

2:01:33 ↗ knowledge not to my knowledge to your

2:01:36 ↗ understanding mr. Niven could IH IFC

2:01:39 ↗ have submitted one or more building

2:01:41 ↗ permit applications for its property

2:01:43 ↗ without waiting for a land use permit

2:01:46 ↗ notice of decision yes you have any

2:01:52 ↗ understanding or belief or explanation

2:01:55 ↗ as to why I hif C did not submit a

2:01:59 ↗ building permit application other than

2:02:04 ↗ it is not a customary way for developers

2:02:08 ↗ to go through the permitting process

2:02:09 ↗ system it is it is a potential high-risk

2:02:15 ↗ way of going through the permitting

2:02:17 ↗ process system because changes that

2:02:22 ↗ would occur through a land-use review

2:02:24 ↗ could affect a building permit

2:02:29 ↗ application and the amount of money

2:02:31 ↗ invested in preparing those applications

2:02:35 ↗ is significant are those practical and

2:02:39 ↗ financial concerns or legal concerns to

2:02:42 ↗ your understanding practical so there

2:02:46 ↗ there may be some practical explanation

2:02:48 ↗ or financial explanation as to why I hif

2:02:52 ↗ C didn't submit a building permit

2:02:54 ↗ application is that correct correct but

2:02:57 ↗ you're not aware of any legal

2:02:59 ↗ prohibition on IH IFC submitting a

2:03:02 ↗ building permit application there is no

2:03:04 ↗ legal prohibition do you recall your

2:03:11 ↗ original testimony regarding the

2:03:13 ↗ provisions of I M C 1801 o v OC and

2:03:19 ↗ vesting provisions under that Negley do

2:03:24 ↗ I need to pull it up I can pull it up

2:03:27 ↗ good

2:03:29 ↗ sorry get too many things in front o IMC

2:03:33 ↗ 1801 o5o subsea

2:03:56 ↗ Oh 50c correct yes sir does that refresh

2:04:01 ↗ your recollection yes about your

2:04:04 ↗ testimony yes you still agree with the

2:04:08 ↗ testimony that you gave regarding this

2:04:10 ↗ provision and its application to IH IFC

2:04:13 ↗ situation yes Thank You mr. chairman

2:04:19 ↗ we've been going for over an hour and

2:04:21 ↗ I'm happy to continue if that's the

2:04:23 ↗ Commission's preference but it might be

2:04:25 ↗ appropriate to take a break as I'm about

2:04:26 ↗ to shift subjects yes let's take a

2:04:30 ↗ five-minute break thank you

2:04:48 ↗ you

2:14:28 ↗ okay we are back in session

2:14:31 ↗ please continue Thank You mr. chairman

2:14:34 ↗ mr. Nibin did you hear Ms Himes

2:14:36 ↗ testimony that one or more of I H IFC's

2:14:40 ↗ consultants had opined that complying

2:14:43 ↗ with the replacement regulations would

2:14:45 ↗ render development of IH IFC's property

2:14:48 ↗ as economically non-viable yes I heard

2:14:52 ↗ something to that effect yes do you

2:14:54 ↗ agree with that position

2:14:55 ↗ I don't did you explain the basis for

2:14:59 ↗ your disagreement well the property

2:15:03 ↗ nothing in the replacement regulations

2:15:06 ↗ make the property undeveloped able it

2:15:10 ↗ may change the character of what is

2:15:14 ↗ developed on the property in other words

2:15:18 ↗ it might need to be denser than what was

2:15:21 ↗ than what they were anticipating you

2:15:24 ↗ know it would need to have structured

2:15:26 ↗ parking where maybe they were

2:15:28 ↗ anticipating surface parking but that

2:15:32 ↗ the provisions in the replacement

2:15:35 ↗ regulations and I think we're

2:15:37 ↗ specifically at least what I'm talking

2:15:40 ↗ about is FA are in the structured

2:15:41 ↗ parking would not make it

2:15:43 ↗ unbuildable are you aware of any

2:15:47 ↗ economic or market studies indicating

2:15:50 ↗ that compliance with the FA are or

2:15:52 ↗ structured parking requirements

2:15:54 ↗ contained in the replacement regulations

2:15:57 ↗ would render development economically

2:15:59 ↗ unviable no I'm not as IH IFC ever

2:16:03 ↗ provided any such studies to the city I

2:16:05 ↗ not that I'm aware of are you aware of

2:16:10 ↗ other examples either in Issaquah or

2:16:12 ↗ elsewhere where economically viable

2:16:15 ↗ development has occurred under F AR and

2:16:17 ↗ or structured parking requirements

2:16:19 ↗ similar to those contained in the

2:16:21 ↗ replacement regulations so

2:16:29 ↗ when we were at the Planning Policy

2:16:30 ↗ Commission because the adoption of new

2:16:36 ↗ city code like the replacement

2:16:39 ↗ regulations the process that's in the

2:16:42 ↗ city code for how to do that goes

2:16:43 ↗ through the city's Planning Policy

2:16:45 ↗ Commission the same question came up at

2:16:48 ↗ Planning Policy Commission and there

2:16:51 ↗ were a number of examples that staff

2:16:55 ↗ provided to the Planning Policy

2:16:57 ↗ Commission of other projects that were

2:17:02 ↗ either at or above the proposed FA are

2:17:06 ↗ that was being proposed for the Issaquah

2:17:11 ↗ Highlands and Talas were those projects

2:17:14 ↗ in the city of Issaquah or just in the

2:17:16 ↗ region generally city of Issaquah so for

2:17:18 ↗ us it was I mean we could have gotten

2:17:21 ↗ examples from Seattle or elsewhere to

2:17:25 ↗ give the Commission an understanding of

2:17:27 ↗ what that meant to have a 1f AR

2:17:29 ↗ 1.2 f AR 0.5 f AR but projects that are

2:17:36 ↗ in either in existence in Issaquah now

2:17:40 ↗ or currently going through the

2:17:42 ↗ construction process so the Development

2:17:45 ↗ Commission is very familiar with

2:17:47 ↗ Costco's office building that's under

2:17:50 ↗ construction right now or just starting

2:17:52 ↗ construction that office building at six

2:17:57 ↗ hundred forty thousand square feet on

2:17:58 ↗ that parcel is 3.8 if they are the

2:18:03 ↗ Swedish medical office building up in

2:18:05 ↗ Issaquah Islands is 1.9 if they are

2:18:08 ↗ Gilman lofts which is under construction

2:18:10 ↗ next to what used to be PAGASA is 1.4 if

2:18:15 ↗ they are the spring-heeled Marriott its

2:18:19 ↗ 1.2 if they are on 12 and Issaquah

2:18:24 ↗ medical dental building in the Maple

2:18:26 ↗ Street office building or at point 8 so

2:18:29 ↗ all of those projects what they tell me

2:18:31 ↗ is that you know that the market can

2:18:35 ↗ support that level of density for

2:18:38 ↗ commercial development in Issaquah

2:18:42 ↗ there are zijn flows like any market

2:18:45 ↗ based on vacancies and other activities

2:18:50 ↗ going on so as things kind of go up and

2:18:54 ↗ down in their cycle the 1f AR was not

2:18:57 ↗ something that we believed was

2:18:59 ↗ unattainable for a minimum density on

2:19:03 ↗ the property with respect to the various

2:19:07 ↗ projects that you just referred to in

2:19:09 ↗ Issaquah that are developing at or

2:19:13 ↗ beyond a 1.0 f AR have the project

2:19:17 ↗ applicants ever expressed to you or the

2:19:20 ↗ city any concerns about economic

2:19:24 ↗ viability under that standard no

2:19:37 ↗ you describe what the term structured

2:19:39 ↗ parking means structured parking means

2:19:43 ↗ that the parking that's required by city

2:19:47 ↗ code and needs to be either in a parking

2:19:51 ↗ garage or tucked under a building so it

2:19:55 ↗ has to it can't be can't be surface

2:19:58 ↗ parking lot it was the policy rationale

2:20:02 ↗ for imposing a structured parking

2:20:04 ↗ requirement so the basis is and the

2:20:09 ↗ rationale is Issaquah is only eight

2:20:12 ↗ square miles we're relatively

2:20:14 ↗ geographically a small City as we

2:20:18 ↗ continue to densify and accommodate the

2:20:22 ↗ county growth targets that were given

2:20:25 ↗ through GMA we have to use our land more

2:20:29 ↗ efficiently and the whole premise of the

2:20:32 ↗ central Issaquah plan which is the sub

2:20:34 ↗ area plan for the valley floor outside

2:20:37 ↗ of Old Town is to anticipate and allow

2:20:42 ↗ for the redevelopment of lower density

2:20:47 ↗ suburban development into more higher

2:20:52 ↗ density mixed use and more vertical

2:20:55 ↗ development to allow for more efficient

2:20:57 ↗ use of the property is structured

2:21:01 ↗ parking typically associated with a

2:21:04 ↗ particular type or quality of

2:21:06 ↗ development and your observation and

2:21:08 ↗ experience as a planner yes so as you as

2:21:14 ↗ it relates to commercial development

2:21:18 ↗ structured parking is part of the

2:21:22 ↗ develop if you were building office

2:21:25 ↗ Class A office base has structured

2:21:27 ↗ parking and you know so there is a

2:21:32 ↗ certain amount of expectation of you

2:21:36 ↗ know if you were building office out it

2:21:39 ↗ would likely not have surface parking

2:21:42 ↗ unless it was Class B or C and you

2:21:46 ↗ described what is meant by the terms

2:21:49 ↗ Class A or Class

2:21:50 ↗ be your shorty in that so it was our

2:21:53 ↗ class a so without spending too much

2:21:56 ↗ time here class a is kind of what you'd

2:22:01 ↗ consider your higher quality

2:22:02 ↗ professional office buildings you know

2:22:06 ↗ when tenants come to lease those spaces

2:22:09 ↗ they expect assigned parking they expect

2:22:13 ↗ you know structured parking is and

2:22:15 ↗ expect a common expectation for that

2:22:18 ↗ type of office classification was it an

2:22:24 ↗ accurate characterization that

2:22:25 ↗ structured parking is typically

2:22:28 ↗ associated with higher quality

2:22:29 ↗ development yes it is are the FA are and

2:22:37 ↗ structured parking requirements

2:22:38 ↗ contained in the Issaquah Highland

2:22:40 ↗ replacement regulations identical to

2:22:43 ↗ those contained in the replacement

2:22:44 ↗ regulations for the Tallis area of the

2:22:46 ↗ city

2:22:47 ↗ identical yes you explain the reason for

2:22:52 ↗ that identical treatment it's the the

2:22:56 ↗ policy direction which drove the

2:23:00 ↗ inclusion of both the structured parking

2:23:02 ↗ requirements and the FA are are as valid

2:23:06 ↗ as they are in central is equai as they

2:23:09 ↗ are in the rest of the city which

2:23:10 ↗ includes Issaquah Highlands and talus so

2:23:12 ↗ it would not have been rational to not

2:23:16 ↗ apply the same standards to both of

2:23:19 ↗ those sub areas have any property owners

2:23:23 ↗ or project applicants in the talus area

2:23:25 ↗ ever contended that application of the

2:23:28 ↗ FA are structured parking standards

2:23:31 ↗ would render the development of their

2:23:33 ↗ property economically unviable

2:23:35 ↗ you know besides IH IFC have any

2:23:39 ↗ property owners or project applicants

2:23:42 ↗ within the Issaquah Highlands area to

2:23:44 ↗ your knowledge ever objected to the FA

2:23:48 ↗ are structured parking requirements as

2:23:50 ↗ leading to economically unviable

2:23:53 ↗ development options not to my knowledge

2:23:57 ↗ as the city of Issaquah itself owned

2:24:00 ↗ property within the talus area we do we

2:24:03 ↗ own retail

2:24:04 ↗ property in talus the remaining part of

2:24:07 ↗ the village square is owned by the city

2:24:10 ↗ and is basically zoned for lack of

2:24:15 ↗ better term for retail development is

2:24:17 ↗ that property currently developed no

2:24:19 ↗ it's not so if I understand you

2:24:22 ↗ correctly mr. Navin the exact same FA

2:24:25 ↗ our requirements and structured parking

2:24:27 ↗ requirements that IH IFC is objecting to

2:24:30 ↗ in this case are applicable to property

2:24:34 ↗ that the city itself owns yes and the

2:24:37 ↗ city imposed those requirements on its

2:24:40 ↗ talus property when approximately it's

2:24:44 ↗ it actually the talus replacement

2:24:46 ↗ regulations were adopted before is

2:24:50 ↗ acquire and so just slightly before do

2:24:56 ↗ you hear the testimony to the effect

2:24:57 ↗ that the FA are and structured parking

2:25:00 ↗ requirements contained in the

2:25:02 ↗ replacement regulations were targeted at

2:25:05 ↗ IH IFC I believe I heard something

2:25:08 ↗ similar to that yes do you agree with

2:25:10 ↗ that characterization no I think there

2:25:12 ↗ was the the reason for as I mentioned

2:25:14 ↗ the reason for their inclusion and the

2:25:16 ↗ replacement regulations was policy

2:25:19 ↗ direction from the city council as it

2:25:22 ↗ related to accommodating the growth

2:25:25 ↗ that's expected within our community

2:25:28 ↗ thank you did you hear the testimony

2:25:32 ↗ and/or argument regarding the length of

2:25:35 ↗ time the city has taken to evaluate and

2:25:37 ↗ process IH IFC's various project

2:25:40 ↗ proposals yes did the city process IH

2:25:44 ↗ IFC's applications within the time

2:25:46 ↗ frames contained in the 1996 development

2:25:49 ↗ agreement I know why not we were lacking

2:25:56 ↗ adequate staffing resources to be able

2:25:58 ↗ to move those applications at a quicker

2:26:01 ↗ pace could you attempt to move those

2:26:04 ↗ applications forward within a more

2:26:07 ↗ expeditious time frame given the

2:26:11 ↗ resources we had at the time and we

2:26:15 ↗ there's

2:26:16 ↗ then testimony about the city's staffing

2:26:20 ↗ resources and turnover of planning staff

2:26:24 ↗ and so all of that is in twined together

2:26:32 ↗ was there any deliberate intent to delay

2:26:36 ↗ I hif sees various project applications

2:26:40 ↗ and their processing to your knowledge

2:26:41 ↗ no were you aware of any intent to that

2:26:46 ↗ effect by any members of your staff no

2:26:50 ↗ to your understanding I mister Niven

2:26:53 ↗ does the 1996 development agreement

2:26:55 ↗ contain a remedy for when the city fails

2:26:58 ↗ to meet the processing time frames yes

2:27:00 ↗ in that document what is that remedy so

2:27:04 ↗ the development agreement is broken into

2:27:08 ↗ appendices an appendix L is titled

2:27:13 ↗ processing of land use and construction

2:27:15 ↗ permits and under section 9 which is

2:27:22 ↗ entitled remedies nine point five is

2:27:29 ↗ subtitled refund of fees for delay and

2:27:33 ↗ it reads if the city fails to act within

2:27:37 ↗ the time period specified in this

2:27:40 ↗ appendix L then fees shall be refunded

2:27:43 ↗ as provided here in the amount to be

2:27:46 ↗ refunded shall be calculated as follows

2:27:48 ↗ and it goes on it goes on from there

2:27:52 ↗ thank you I'm gonna my colleague hand

2:27:56 ↗ you and hand out to the Commission and

2:27:58 ↗ council a document that will be

2:28:01 ↗ introduced into the record as if it see

2:28:05 ↗ 50 reports of this may already be in the

2:28:09 ↗ record but I'm providing it for already

2:28:11 ↗ even if it is redundant thank you

2:28:34 ↗ mr. Navin are you familiar with this

2:28:36 ↗ document I'm gaining familiarity yes

2:28:42 ↗ this is an email exchange that begins

2:28:47 ↗ with MS Haim - MS Sloman the subject is

2:28:52 ↗ SDPs

2:28:53 ↗ it's dated October 26 2017 and it ends

2:28:59 ↗ with an email from myself

2:29:02 ↗ - MS Haim with CC's - miss Loman mr.

2:29:06 ↗ maleeni mr. Haney MS moon mr. Harrison

2:29:11 ↗ and mr. Shaw

2:29:13 ↗ dated November 1 2017 could you please

2:29:17 ↗ read the last paragraph of your November

2:29:22 ↗ 1st 2017 response to miss Haim sure loud

2:29:26 ↗ ok it states as for permit timing

2:29:32 ↗ pursuant to appendix al section nine

2:29:34 ↗ point seven the city is at risk for

2:29:37 ↗ returning MDRT permitting fees if

2:29:39 ↗ timelines are not met if you would like

2:29:42 ↗ to discuss how much of your MDRT fees

2:29:44 ↗ should be returned we can have that

2:29:47 ↗ conversation is reference to that

2:29:50 ↗ section of Appendix L the the remedy or

2:29:54 ↗ recourse that you were referring to in

2:29:55 ↗ your your prior testimony it is did you

2:30:02 ↗ and miss Higham

2:30:03 ↗ ever have that quote conversation

2:30:06 ↗ following your invitation in the

2:30:08 ↗ November 1st 2017 email I do not believe

2:30:12 ↗ I got a response back from this email is

2:30:15 ↗ it still your position that those permit

2:30:19 ↗ fees would be returnable to IHI FC upon

2:30:23 ↗ request if the permit processing time

2:30:26 ↗ frames within the agreement would have

2:30:29 ↗ not been met that's my reading of the

2:30:32 ↗ development agreement I would need to

2:30:34 ↗ confer with the city attorney but that's

2:30:35 ↗ my understanding of this section of the

2:30:38 ↗ development agreement thank you did you

2:30:41 ↗ hear the testimony from mr. Mulaney and

2:30:42 ↗ ms hi I'm regarding the issue of credit

2:30:44 ↗ for mitigation that had been provided

2:30:47 ↗ otherwise funded by previous owners of

2:30:49 ↗ IH IFC's property yes did you hear the

2:30:54 ↗ testimony that IH IFC provided an

2:30:56 ↗ evaluation of mitigation issues for the

2:30:59 ↗ city's consideration yes has the

2:31:02 ↗ mitigation issue been resolved to your

2:31:04 ↗ understanding it is not why not I

2:31:08 ↗ believe that the issue got hung up in

2:31:15 ↗ that you know the getting to an

2:31:24 ↗ agreeable outcome on this is is somewhat

2:31:27 ↗ complicated mr. maleeni had provided a

2:31:33 ↗ kind of an analysis if you will of what

2:31:37 ↗ I believe he believed his clients were

2:31:41 ↗ entitled to as I discussed that with the

2:31:45 ↗ city attorney the City Attorney's belief

2:31:50 ↗ was that you don't best a mitigation and

2:31:53 ↗ he wanted to have mr. Mulaney provide a

2:32:00 ↗ kind of a legal basis for the rationale

2:32:07 ↗ that was provided in the letter drafted

2:32:10 ↗ by mr. maleeni so so to my recollection

2:32:14 ↗ that conversation stopped there

2:32:17 ↗ and I don't I'm not a lawyer so it's not

2:32:21 ↗ my place to really weigh in it seemed

2:32:24 ↗ like that was more of a legal issue to

2:32:26 ↗ be worked out amongst the lawyers

2:32:43 ↗ you recall mr. Young's testimony that

2:32:46 ↗ you assured him that there would be no

2:32:48 ↗ or quote no gap in quote between the

2:32:51 ↗ development agreement and the city's new

2:32:53 ↗ zoning I I

2:32:59 ↗ I remember that yes did you tell mr.

2:33:02 ↗ young that so I I don't remember you

2:33:13 ↗ know my belief was that what we were

2:33:16 ↗ trying to do was to implement

2:33:18 ↗ replacement regulations that were

2:33:22 ↗ consistent with the development

2:33:24 ↗ agreement that's what we told all the

2:33:27 ↗ property owners in both of the villages

2:33:32 ↗ from a land you standpoint I think we

2:33:35 ↗ were successful in getting that outcome

2:33:38 ↗ in other words like land uses so zoning

2:33:42 ↗ you know is consistent with the

2:33:45 ↗ entitlement that was remaining on

2:33:48 ↗ parcels within both Issaquah Highlands

2:33:50 ↗ and talus things like I think primarily

2:33:55 ↗ the FA are and the structured parking

2:33:58 ↗ did not end up that way it was not

2:34:03 ↗ recommendations from the administration

2:34:05 ↗ to add those provisions within the

2:34:07 ↗ replacement regulations they that came

2:34:09 ↗ from the legislative process in the City

2:34:12 ↗ Council and so you know even though my

2:34:16 ↗ expectation to the property owners was

2:34:21 ↗ we were going to do our best to get an

2:34:24 ↗ equivalent in the replacement

2:34:26 ↗ regulations I think you could definitely

2:34:29 ↗ point to certain pieces that didn't end

2:34:31 ↗ up that way did you construe or intend

2:34:35 ↗ your response back to mr. Yeung to be

2:34:39 ↗ legal opinion of any sort no one did you

2:34:43 ↗ intend it to be a binding promise

2:34:45 ↗ regarding what the content and substance

2:34:48 ↗ of the replacement regulations would

2:34:50 ↗ ultimately be no because it's a

2:34:53 ↗ legislative action and I can't speak for

2:34:55 ↗ the City Council

2:34:56 ↗ I would not ever try to speak for the

2:34:58 ↗ City Council the best that I can do is

2:35:01 ↗ to try and provide recommendations to

2:35:05 ↗ the City Council and to help applicants

2:35:07 ↗ understand what I believe the City

2:35:09 ↗ Council's views are on certain policies

2:35:12 ↗ and provisions of code thank you you

2:35:17 ↗ recall the testimony concerning how long

2:35:21 ↗ these proceedings before the Development

2:35:22 ↗ Commission have taken in relation to

2:35:26 ↗ what your original estimate may have

2:35:28 ↗ been yes I'd like to call your attention

2:35:32 ↗ to exhibit s2 this is a document that's

2:35:35 ↗ already in the record

2:35:57 ↗ okay and can you please turn to page two

2:36:02 ↗ and read the second sentence of

2:36:05 ↗ paragraph eight

2:36:08 ↗ okay so paragraph a second sentence

2:36:16 ↗ starting with although not certain yes

2:36:19 ↗ okay although not certain I anticipate

2:36:23 ↗ that a final decision on IH IFC's SDP

2:36:27 ↗ and a SDP applications will be issued in

2:36:30 ↗ June or July and that a decision on IH

2:36:34 ↗ IFC's polymer e plat will be issued in

2:36:37 ↗ August or September of 2018 that

2:36:41 ↗ statement reflect your good faith

2:36:44 ↗ estimate of when decisions would be

2:36:46 ↗ issued on IH IFC's various applications

2:36:48 ↗ at that time I thought that those were

2:36:50 ↗ reasonable timelines for the permits

2:36:53 ↗ that were in city review yes can you

2:36:57 ↗ explain why those estimates have have

2:36:59 ↗ not been proven accurate you know no I

2:37:08 ↗ cannot I don't there's as you heard from

2:37:12 ↗ Miss Lin

2:37:14 ↗ there were complexities with the

2:37:16 ↗ applications that apparently needed to

2:37:18 ↗ be worked through but you know a normal

2:37:26 ↗ ASDP and SDP should have been able to

2:37:29 ↗ have been processed within that amount

2:37:31 ↗ of time in your observation and

2:37:35 ↗ professional experience mister Niven is

2:37:38 ↗ the volume of information and testimony

2:37:41 ↗ and evidence that has been submitted

2:37:44 ↗ into the record in this proceeding

2:37:48 ↗ roughly equivalent to that for a quote

2:37:52 ↗ unquote normal SDP or a STP oh no not no

2:37:56 ↗ not even I mean now to the how do those

2:37:59 ↗ two compare

2:38:01 ↗ so if if you had an appeal of an

2:38:06 ↗ administrative decision and I've had a

2:38:09 ↗ few there's you know there's typically

2:38:14 ↗ one day of testimony and you know maybe

2:38:19 ↗ 50 documents combined that might get

2:38:24 ↗ included in the record this is the most

2:38:27 ↗ I've ever seen and to clarify did you

2:38:33 ↗ anticipate this volume of testimony and

2:38:37 ↗ evidence when you made that statement in

2:38:41 ↗ exhibit s2 no I did not following the

2:38:49 ↗ adoption of the replacement regulations

2:38:51 ↗ for Issaquah Highlands did you ever

2:38:53 ↗ communicate to IHI FC that the city

2:38:55 ↗ would process IH IFC's s DP and ASTP

2:38:59 ↗ applications in a manner that did not

2:39:02 ↗ involve the Development Commission not

2:39:05 ↗ that I'm aware of following the adoption

2:39:08 ↗ of the replacement regulations did you

2:39:11 ↗ communicate with miss Loman and/or other

2:39:13 ↗ members of your staff regarding the

2:39:15 ↗ procedure that would be used to process

2:39:16 ↗ IH IFC's STP and ASDP applications yes

2:39:21 ↗ what did you communicate with them I

2:39:23 ↗ believe we discussed the process that it

2:39:27 ↗ would be reviewed under and you know

2:39:32 ↗ that yes so that so we just we talked

2:39:39 ↗ about the process and that's what we're

2:39:41 ↗ following was there a miscommunication

2:39:42 ↗ at some point between yourself and mr.

2:39:44 ↗ Loman yes I think there was definitely a

2:39:47 ↗ disconnect between myself and miss Loman

2:39:50 ↗ you know these these applications were

2:39:53 ↗ submitted under the development

2:39:56 ↗ agreement and I think she was initially

2:40:02 ↗ processing them that way and then the

2:40:05 ↗ replacement regulations were enacted and

2:40:07 ↗ what should have happened should have

2:40:09 ↗ been a pivot to the new process and I

2:40:13 ↗ think it she didn't

2:40:15 ↗ that that was to happen initially so

2:40:20 ↗ that was that was the discussion that we

2:40:22 ↗ had did you eventually have that that

2:40:24 ↗ conversation of the communication and

2:40:28 ↗ correct the processing issue yes you

2:40:39 ↗ recall roughly or approximately when

2:40:41 ↗ that communication occurred I don't that

2:40:44 ↗ I don't sorry thank you not gonna dates

2:40:46 ↗ was there any ever any intent on your

2:40:49 ↗ part to deliberately mislead IH IFC

2:40:53 ↗ regarding the procedure that would be

2:40:55 ↗ used to process it's a STP and STP

2:40:58 ↗ applications no I think you know just

2:41:01 ↗ just to be clear because I think it

2:41:03 ↗ needs to be said is this is we don't end

2:41:06 ↗ development agreements annually this is

2:41:10 ↗ the first time in city history that we

2:41:15 ↗ ended to long term development

2:41:17 ↗ agreements and put replacement

2:41:19 ↗ regulations in place and every time you

2:41:23 ↗ do something for the first time you're

2:41:26 ↗ likely to missed up a few times and I

2:41:29 ↗ would characterize some of the

2:41:32 ↗ miscommunications as missteps

2:41:37 ↗ potentially and not intentioned

2:41:40 ↗ deceiving on the city's part part from

2:41:46 ↗ IH IFC's a STP and STP applications were

2:41:50 ↗ there any other ASDP or STP applications

2:41:53 ↗ from other applicants in the Issaquah

2:41:55 ↗ Islands that had been submitted before

2:41:57 ↗ the development agreement was terminated

2:41:59 ↗ but we're still in process at that time

2:42:05 ↗ I'm gonna need you to defer that to miss

2:42:08 ↗ Loman

2:42:08 ↗ okay sorry I'll be happy to

2:42:15 ↗ following the adoption of the

2:42:17 ↗ replacement regulations has the city

2:42:19 ↗ processed any ASDP or SDP applications

2:42:22 ↗ in the Issaquah Highlands from other

2:42:25 ↗ applicants using a procedure different

2:42:27 ↗ than the one used for this proceeding

2:42:32 ↗ would you please state that one more

2:42:34 ↗ time

2:42:34 ↗ have there been any other applications

2:42:37 ↗ submitted for ASD peas or SD peas in the

2:42:42 ↗ Asuka Highlands since the replacement

2:42:45 ↗ regulations were adopted so the there

2:42:49 ↗ were applications running concurrently

2:42:54 ↗ with shelters applications those

2:42:59 ↗ applications were by polygon Northwest

2:43:05 ↗ for we've heard single-family there was

2:43:08 ↗ a single-family North Platte

2:43:10 ↗ there was also - there was a townhouse

2:43:13 ↗ north townhouse south and block for

2:43:18 ↗ multifamily project of theirs those have

2:43:22 ↗ received permits and those are in

2:43:26 ↗ different phases of construction for the

2:43:30 ↗ permits for those referenced

2:43:33 ↗ applications have already been issued

2:43:36 ↗ for indirect yes

2:43:43 ↗ you remember the testimony and argument

2:43:45 ↗ in this proceeding concerning IH IFC's

2:43:48 ↗ contention that the development

2:43:50 ↗ agreement lacked jurisdiction to conduct

2:43:52 ↗ these proceedings yes are you aware of

2:43:57 ↗ any attempt at appeals or legal

2:43:59 ↗ challenges by IH IFC regarding that

2:44:02 ↗ issue yes did you assist in the city's

2:44:05 ↗ legal defense of those appeal and legal

2:44:07 ↗ challenges yes ask my colleague to

2:44:24 ↗ distribute a document that will be

2:44:29 ↗ designated as Exhibit C 51

2:44:49 ↗ you please identify that document mr.

2:44:51 ↗ Navin yes this is a let me go through it

2:45:01 ↗ really quickly before I speak this is a

2:45:09 ↗ decision by the city's Hearing Examiner

2:45:12 ↗ on most it was it was it was an appeal

2:45:24 ↗ brought before the city's Hearing

2:45:26 ↗ Examiner till a vesting determination in

2:45:29 ↗ a letter from the city so this was their

2:45:33 ↗ attempt to appeal a decision that well

2:45:39 ↗ it was not a decision it was a letter

2:45:40 ↗ that I had written on vesting to the

2:45:44 ↗ city's Hearing Examiner and ultimately

2:45:46 ↗ this was dismissed by the Hearing

2:45:49 ↗ Examiner and this particular decision of

2:45:54 ↗ the Hearing Examiner was in relation to

2:45:58 ↗ an appeal of what document mr. Niven was

2:46:01 ↗ it a challenge to the September 2018

2:46:05 ↗ staff report that you prepared for

2:46:08 ↗ purposes of this proceeding unless I'm

2:46:13 ↗ misunderstanding I believe it's the

2:46:15 ↗ April 4th letter yeah I mean it filed an

2:46:24 ↗ appeal of a vesting determination in a

2:46:26 ↗ letter from the city dated April 4 2018

2:46:28 ↗ could you please turn to page 2 under

2:46:32 ↗ the heading current appeal oh yes sir

2:46:36 ↗ sorry it's late

2:46:49 ↗ yes so there's been multiple appeals to

2:46:53 ↗ the Hearing Examiner this what this

2:46:56 ↗ latest version the one that's listed

2:46:58 ↗ under current appeal on page 2 of 9

2:47:02 ↗ which begins on page two of nine was

2:47:06 ↗ regarding shelter Holdings request to

2:47:11 ↗ dismiss this from the purview of the

2:47:13 ↗ Development Commission thank you and

2:47:14 ↗ what was the outcome of the hearing

2:47:16 ↗ examiner's decision so the Hearing

2:47:18 ↗ Examiner granted the city's motion to

2:47:24 ↗ dismiss the appeal thank you do you know

2:47:26 ↗ if I hoc appealed that Hearing Examiner

2:47:29 ↗ decision to Superior Court I don't I

2:47:33 ↗ assume they did but I don't thank you

2:47:35 ↗ I'm gonna now have my colleague

2:47:37 ↗ distribute another document designated

2:47:41 ↗ as Exhibit C 52 do you please read the

2:47:50 ↗ heading of that document mr. Nevin so

2:47:54 ↗ this was a motion for reconsideration by

2:47:57 ↗ IH IH IFC of the city hearing examiner's

2:48:03 ↗ decision that we just discussed yes and

2:48:05 ↗ what was the outcome of that motion for

2:48:08 ↗ reconsider having considered the

2:48:11 ↗ applicants reconsideration request the

2:48:13 ↗ cities and the city's response the

2:48:15 ↗ request is denied are you aware of IH

2:48:20 ↗ IFC filing a lawsuit in King County

2:48:22 ↗ Superior Court attempting to seek a writ

2:48:26 ↗ of prohibition that would prevent these

2:48:29 ↗ development Commission proceedings I

2:48:31 ↗ believe that to be true although I leave

2:48:36 ↗ most of that to my legal counsel I hand

2:48:40 ↗ out another exhibit designated C 53

2:48:54 ↗ and can you please read the case number

2:48:56 ↗ and title of that document yes in this

2:49:04 ↗ this is in the Superior Court of the

2:49:06 ↗ state of Washington in in for King

2:49:08 ↗ County Porter regarding city of is

2:49:12 ↗ akua's motion to strike an order denying

2:49:15 ↗ application for writ of prohibition /

2:49:18 ↗ direct review and could you please into

2:49:24 ↗ the second page and read aloud the

2:49:33 ↗ ordered judged and decreed statement

2:49:36 ↗ immediately before the judges signature

2:49:38 ↗ block it says ordered a judged and

2:49:42 ↗ decreed that IHI fc's application for a

2:49:45 ↗ writ of prohibition and for direct

2:49:48 ↗ review shall be and is hereby denied

2:49:51 ↗ thank you finally mr. Nevin do you

2:49:56 ↗ recall the testimony previously

2:49:59 ↗ concerning the the meeting notes or

2:50:03 ↗ minutes as they were characterized the

2:50:05 ↗ miss Haim took during her various

2:50:07 ↗ meetings with Issaquah staff yes did

2:50:13 ↗ miss Haim or anyone else at IHI FC ever

2:50:15 ↗ provide you or city staff members with a

2:50:18 ↗ copy of those notes

2:50:20 ↗ prior to these proceedings I know the

2:50:23 ↗ first time I found out that there were

2:50:25 ↗ notes by Miss Haim that were alleged

2:50:30 ↗ meeting minutes were during these

2:50:32 ↗ proceedings didn't some this time did

2:50:36 ↗ not inform you that she was taking notes

2:50:39 ↗ during those meetings she did not inform

2:50:41 ↗ you no thank you no further questions

2:51:03 ↗ whether miss hime was taking notes or

2:51:05 ↗ not I don't recall if she probably was

2:51:09 ↗ mr. Mulaney was probably taking notes as

2:51:11 ↗ well hey so why did she need to tell you

2:51:15 ↗ that she was taking notes if she was

2:51:17 ↗ taking notes in front of you don't know

2:51:23 ↗ did you ever have to see those notes I

2:51:26 ↗ did not know what the purpose of those

2:51:29 ↗ notes were other than for her own

2:51:31 ↗ recollection in personal use did you

2:51:33 ↗ take any notes of your own about any of

2:51:36 ↗ those meetings I did not you referred at

2:51:39 ↗ the beginning of your testimony mr.

2:51:41 ↗ Niven about your old copy of the

2:51:46 ↗ development agreement that you have with

2:51:48 ↗ you tonight did I understand that

2:51:49 ↗ correctly I have my copy of the

2:51:51 ↗ development agreement yes sir okay and

2:51:53 ↗ does it have any notes in it I can look

2:51:59 ↗ do you want me to look through it I mean

2:52:02 ↗ I there might be something written in

2:52:04 ↗ the margin but it's that's what I'm

2:52:07 ↗ asking and if so I'm also wondering

2:52:09 ↗ whether you have provided that to us in

2:52:12 ↗ discovery I can't I have no idea what

2:52:18 ↗ was provided in discovery that was

2:52:21 ↗ handled by the city clerk

2:52:23 ↗ why don't you rather than look to the

2:52:26 ↗ whole thing why don't you turn to

2:52:27 ↗ section 3.2 regarding vesting and let's

2:52:32 ↗ see if you have any notes on that

2:52:33 ↗ section 3.2 no it's it is what it is

2:52:42 ↗ scribbled an arrow over here how about

2:52:48 ↗ the section is at five one three to

2:52:52 ↗ section about termination

2:53:05 ↗ five one three yeah absolutely

2:53:18 ↗ okay so in section five one three

2:53:21 ↗ mr. Niven in your copy you've

2:53:24 ↗ highlighted the last sentence I did read

2:53:27 ↗ that sentence to us please upon such

2:53:29 ↗ adoption this agreement shall terminate

2:53:31 ↗ and thereafter the uga portion of the

2:53:34 ↗ property capital P shall be governed by

2:53:37 ↗ the adopted city zoning and related

2:53:39 ↗ development regulations okay so that

2:53:45 ↗ sentence does it not says that after

2:53:48 ↗ adoption of the replacement regulations

2:53:51 ↗ which happened in March of last year are

2:53:55 ↗ correct yes that they're after the word

2:53:58 ↗ that sentence uses is thereafter correct

2:54:10 ↗ yes okay thereafter would mean after

2:54:16 ↗ March of 2018 correct yes but you're

2:54:22 ↗ saying we're not vested pursuant to

2:54:25 ↗ applications that you admitted were

2:54:27 ↗ complete that were submitted before then

2:54:29 ↗ correct I'm saying that your

2:54:35 ↗ applications your plaid application is

2:54:38 ↗ vested and your SDP and a SDP

2:54:41 ↗ applications are not vested because they

2:54:44 ↗ did not have a building permit or we're

2:54:49 ↗ part of a plat at the time of the

2:54:52 ↗ adoption of the replacement regulations

2:54:54 ↗ well the development agreement mr. Navin

2:54:56 ↗ allows one to vest to site development

2:54:59 ↗ permit applications does it not

2:55:09 ↗ the development agreement did allow

2:55:15 ↗ vesting to a complete application yes

2:55:18 ↗ a-and the language about termination

2:55:21 ↗ that we just read uses the word

2:55:23 ↗ thereafter to refer to the period of

2:55:26 ↗ time after adoption of the police

2:55:28 ↗ replacement of regulations correct

2:55:32 ↗ that's what it says yes you're denying

2:55:35 ↗ my clients vested rights to the SDV

2:55:38 ↗ application and ASDP application before

2:55:41 ↗ this commission even though they were

2:55:44 ↗ submitted and deemed complete before the

2:55:47 ↗ adoption of the replacement regulations

2:55:50 ↗ correct so my my is that correct

2:55:55 ↗ is that what you're doing my opinion is

2:55:57 ↗ that is that what you're doing mr. Niven

2:56:00 ↗ can I answer your question yes is that

2:56:03 ↗ what you're doing I'm going to answer my

2:56:05 ↗ opinion is that those permit

2:56:08 ↗ applications were vested to a contract

2:56:10 ↗ that expired mr. Newman I'm not asking

2:56:12 ↗ you for your rationale I'm asking you

2:56:14 ↗ what you're doing is it not true that

2:56:17 ↗ you are denying vested rights to my

2:56:20 ↗ client for the applications before this

2:56:22 ↗ commission even though they were

2:56:24 ↗ submitted and deemed complete before the

2:56:26 ↗ effective date of the new regulations

2:56:28 ↗ that's a yes or no answer then we'll go

2:56:32 ↗ into your explanation I'm you know I'm I

2:56:43 ↗ will answer it the way I'm comfortable

2:56:45 ↗ answering it or I won't I mean so if you

2:56:48 ↗ want my answer I'm going to give you my

2:56:50 ↗ answer and then if you would like to

2:56:52 ↗ redirect based on my answer we can do

2:56:54 ↗ that mr. Vaughn why can't you tell us

2:56:56 ↗ and acknowledge what you're doing I can

2:57:01 ↗ tell you what I believe I'm doing you're

2:57:03 ↗ you want to provide an explanation which

2:57:05 ↗ I'm going to engage with you on why

2:57:08 ↗ won't you admit that you are denying

2:57:11 ↗ vested rights to applications that you

2:57:14 ↗ personally deemed complete invested in

2:57:16 ↗ your o vembur email well before the

2:57:19 ↗ replacement regulations were adopted mr.

2:57:21 ↗ chairman I'm going to

2:57:22 ↗ they're fully object here this is

2:57:24 ↗ crossing the line into badgering I would

2:57:26 ↗ respectfully ask that the mr. Schneider

2:57:30 ↗ rephrase his question or respect the

2:57:33 ↗ witness's answer that it's been asked

2:57:35 ↗ multiple a witness who refuses to answer

2:57:38 ↗ a simple question and as a repeatedly

2:57:40 ↗ asked to answer that question and

2:57:42 ↗ refuses to do so is not being badgered

2:57:44 ↗ the witnesses the one who is behave

2:57:46 ↗ misbehaving and not the person asking

2:57:49 ↗ the questions it's a yes or no answer

2:57:52 ↗ and I'm entitled to it

2:57:53 ↗ I think you're characterizing my

2:57:58 ↗ position incorrectly because you're

2:58:02 ↗ leaving out certain words what we said

2:58:04 ↗ was that they were vested to the

2:58:07 ↗ development agreement so if you want to

2:58:08 ↗ add to the development agreement in your

2:58:11 ↗ question I'm happy to answer it because

2:58:14 ↗ that's what I think we were

2:58:16 ↗ understanding is they were vested to the

2:58:18 ↗ terms of the development agreement and

2:58:20 ↗ then that changed when the development

2:58:22 ↗ agreement expired okay

2:58:25 ↗ are you aware mr. Nevin or you were here

2:58:28 ↗ or throughout these proceedings

2:58:29 ↗ including for my opening statement

2:58:31 ↗ correct yes sir

2:58:33 ↗ and you saw we projected on the screen

2:58:37 ↗ the language from the recent decision of

2:58:40 ↗ division one to the Court of Appeals

2:58:42 ↗ that says new legislation cannot be

2:58:45 ↗ applied retroactively Lee if it is

2:58:49 ↗ inconsistent with vested rights do you

2:58:51 ↗ recall that generally okay so what

2:58:56 ↗ authority are you relying on that the

2:58:59 ↗ replacement regulations adopted in March

2:59:01 ↗ can retroactively Lee take away the

2:59:04 ↗ vested rights you acknowledged in

2:59:06 ↗ November because they were vested for a

2:59:10 ↗ limited period of time in our opinion

2:59:14 ↗ and I know that you disagree with that

2:59:16 ↗ that's fine but in our opinion that

2:59:19 ↗ there was vesting to a contract that

2:59:22 ↗ expired and then new regulations applied

2:59:25 ↗ the legislative process decided what the

2:59:28 ↗ vesting would be on remaining

2:59:31 ↗ applications within this geography so

2:59:35 ↗ my position is that we believe that the

2:59:40 ↗ vesting was there while the contract was

2:59:44 ↗ in place and then when the contract

2:59:46 ↗ expired it went away so the development

2:59:50 ↗ agreement that we're talking about

2:59:52 ↗ created the regulations that apply

2:59:56 ↗ applied for more than 20 years in

2:59:59 ↗ Issaquah Highlands correct yes sir and

3:00:02 ↗ so you're saying that the City Council

3:00:08 ↗ could deny or take away divest retro

3:00:14 ↗ actively remove rights that vested to

3:00:17 ↗ those development regulations correct

3:00:20 ↗ that were provided through a limited

3:00:22 ↗ contract yes and where does the contract

3:00:25 ↗ say that the rights that one vest to

3:00:30 ↗ terminate at the end of the contract it

3:00:34 ↗ says that the new regulations apply as

3:00:37 ↗ soon as they're adopted yes thereafter

3:00:40 ↗ the very word we've been talking about

3:00:41 ↗ correct but you're applying them retro

3:00:44 ↗ actively you're not applying them

3:00:46 ↗ thereafter to my client at least correct

3:00:50 ↗ I believe that we are applying them to

3:00:54 ↗ the non-vested permits whereas the plat

3:00:59 ↗ application is being vested to the

3:01:03 ↗ terminated document so I think there's I

3:01:06 ↗ think you have both things happening not

3:01:08 ↗ one or the other but we're gonna get to

3:01:10 ↗ the plow but right now I'd like to talk

3:01:12 ↗ about this site development permit the

3:01:15 ↗ SDPs and ASD peas you just said they

3:01:20 ↗ weren't bastard but you acknowledge they

3:01:22 ↗ were vested correct I said they were

3:01:25 ↗ vested to the development agreement

3:01:26 ↗ right and the development agreement says

3:01:28 ↗ that the new regulations apply

3:01:30 ↗ thereafter when replacement regulations

3:01:34 ↗ are adopted so I'm asking for your

3:01:36 ↗ authority either in the law or in the

3:01:39 ↗ language of the development agreement

3:01:40 ↗ itself that says rights that vested go

3:01:45 ↗ away when the development agreement

3:01:49 ↗ is replaced by the replacement

3:01:51 ↗ regulations even though the development

3:01:53 ↗ agreement itself uses the word

3:01:55 ↗ thereafter it's it's my understanding

3:01:59 ↗ and I believe the city's position that

3:02:01 ↗ all of the provisions in the development

3:02:03 ↗ agreement vesting the standards

3:02:06 ↗ everything disappeared went away at the

3:02:10 ↗ end of this contract and had to be

3:02:13 ↗ replaced by new code language which is

3:02:17 ↗ why there was a anticipation of

3:02:19 ↗ replacement regulations when this

3:02:22 ↗ document was adopted in 1996 well let's

3:02:26 ↗ talk for a moment about polygons

3:02:29 ↗ applications mr. Nevin have you applied

3:02:32 ↗ this same theory that you've articulated

3:02:35 ↗ here tonight two polygons applications

3:02:38 ↗ so we talked about this before polygons

3:02:41 ↗ applications are covered through a

3:02:42 ↗ separate development agreement it's

3:02:44 ↗ let's switch over to Platts for a moment

3:02:46 ↗ mr. Navin polygons single-family

3:02:49 ↗ Westridge single-family north platte is

3:02:52 ↗ a plat that was submitted in July of

3:02:58 ↗ 2017 and was noticed along with my

3:03:04 ↗ clients plat in December of that year

3:03:06 ↗ correct I don't know the answer to that

3:03:10 ↗ I was not responsible for the review and

3:03:12 ↗ the processing of that Plateau plication

3:03:14 ↗ that would be miss Loman all right I'm

3:03:18 ↗ gonna pull up the exhibits in a moment

3:03:21 ↗ mr. Navin but before I do that are you

3:03:23 ↗ aware that miss Loman has written a

3:03:25 ↗ letter to my client telling my client

3:03:30 ↗ that it's plat application is going to

3:03:32 ↗ be processed under the procedures and

3:03:36 ↗ the replacement regulations I am I know

3:03:41 ↗ that miss Loman issued a letter to IH

3:03:45 ↗ IFC regarding the plat processing I have

3:03:48 ↗ not had an opportunity to read that and

3:03:50 ↗ consider that application or that letter

3:03:53 ↗ so I know it exists I don't know the

3:03:56 ↗ contents of it okay so you're not aware

3:03:58 ↗ that she is telling my client that it's

3:04:01 ↗ process is going to

3:04:02 ↗ the replacement regulation process and

3:04:05 ↗ not the process in the development

3:04:08 ↗ agreement I I can review that letter if

3:04:12 ↗ we want to add it in as an exhibit I

3:04:14 ↗ don't have it I haven't reviewed it well

3:04:17 ↗ I'm not asking not whether you've

3:04:19 ↗ reviewed it I'm asking you whether

3:04:21 ↗ you're aware that that's what it says

3:04:23 ↗ I'm not aware that that's what that says

3:04:25 ↗ she didn't consult with you before

3:04:26 ↗ sending that out I don't recall

3:04:41 ↗ so we'll mark this is

3:04:58 ↗ what's our next s number

3:05:09 ↗ [Applause]

3:05:24 ↗ Oh

3:05:40 ↗ [Applause]

3:06:27 ↗ let me know when you're done

3:07:57 ↗ okay

3:08:02 ↗ do you agree with miss Loman that my

3:08:07 ↗ client is not vested to the process in

3:08:09 ↗ the development agreement so I'm gonna

3:08:15 ↗ assume that miss Loman conferred with

3:08:18 ↗ the city attorney on the issuance of

3:08:20 ↗ this letter assuming that she did then I

3:08:24 ↗ would support the contents of this

3:08:27 ↗ letter yes

3:08:28 ↗ that's I don't think that's responsive

3:08:31 ↗ to my question mr. Niven do you agree

3:08:34 ↗ that my client is not vested to the

3:08:37 ↗ procedures in the development agreement

3:08:39 ↗ for its plat application if again I

3:08:45 ↗ believe if miss Loman conferred with the

3:08:49 ↗ city attorney on this then I concur with

3:08:52 ↗ what this says which is that the process

3:08:56 ↗ of the plat is not vested the substance

3:09:01 ↗ of the plat is is what I believe this to

3:09:04 ↗ say so the difference would be that the

3:09:09 ↗ plat would be processed similar to

3:09:11 ↗ Platts well it would be whatever the

3:09:13 ↗ process was identified in the

3:09:15 ↗ replacement regulations didn't your

3:09:18 ↗ department process polygons

3:09:21 ↗ single-family north flap noticed at the

3:09:24 ↗ same time as my clients plat under the

3:09:27 ↗ procedures in the development agreement

3:09:30 ↗ I don't I can't answer questions about

3:09:33 ↗ the polygon plat I wasn't part of that

3:09:35 ↗ process before you read this letter and

3:09:40 ↗ made assumptions about Miss sloman

3:09:42 ↗ communicating with the city attorney was

3:09:46 ↗ it your opinion that the procedures and

3:09:51 ↗ the development agreement were not

3:09:52 ↗ something that we were best to do we had

3:09:56 ↗ talked about that with your client from

3:09:59 ↗ time to time about changes with the

3:10:02 ↗ replacement regulations I think I

3:10:04 ↗ believe that part of the testimony from

3:10:06 ↗ Miss hime was identifying that we had

3:10:09 ↗ identified that maybe for example the

3:10:11 ↗ plat might come to Development

3:10:13 ↗ Commission

3:10:14 ↗ in lieu of the urban village Development

3:10:16 ↗ Commission depending on whether it was

3:10:18 ↗ after the replacement regulations were

3:10:20 ↗ adopted so I believe that shouldn't come

3:10:27 ↗ as too much of a shock but maybe it does

3:10:29 ↗ it seems like we had at least broached

3:10:32 ↗ that subject with your client in the

3:10:34 ↗ past mr. Navin my question goes to your

3:10:38 ↗ opinion as the official responsible for

3:10:42 ↗ vesting determinations was it your

3:10:45 ↗ opinion before you saw this letter that

3:10:48 ↗ my client was vested to the procedures

3:10:50 ↗ in the development agreement for the

3:10:52 ↗ plat application so my opinion on

3:10:56 ↗ vesting is in collaboration with consult

3:11:00 ↗ from the city attorney pursuant to the

3:11:02 ↗ city code so I would want to discuss

3:11:07 ↗ this with counsel before providing a

3:11:09 ↗ position on that if that's what you're

3:11:10 ↗ looking for okay do you have a copy of

3:11:12 ↗ the transcripts of the prior earrings

3:11:14 ↗ that are mr. dibbens I don't believe so

3:11:17 ↗ we're handing what up did you turn

3:11:20 ↗ please to the October 24 2018 hearing

3:11:25 ↗ before this commission okay and they

3:11:29 ↗ turn to page 23

3:11:38 ↗ [Applause]

3:11:41 ↗ okay these are questions and answers

3:11:44 ↗ between you and me so I'm actually going

3:11:46 ↗ to start I'm going to read the question

3:11:49 ↗ I'd like you to read the answer you gave

3:11:51 ↗ in October in front of this Commission I

3:11:54 ↗ don't have I don't have questions and

3:11:57 ↗ answers I have I have something

3:12:00 ↗ different

3:12:00 ↗ am I in the wrong place I'm sorry okay

3:12:06 ↗ 20:23 okay sorry about that okay I'm

3:12:23 ↗ gonna start actually on the last line of

3:12:25 ↗ page 22 question okay when one vest does

3:12:29 ↗ one vest - well let's let's let me

3:12:31 ↗ rephrase the question so we have the

3:12:33 ↗ development agreement you refer to it as

3:12:36 ↗ a contract state law refers to it as a

3:12:39 ↗ development exercise of the police power

3:12:41 ↗ so if one vest - the development

3:12:44 ↗ agreement including exhibit L which is

3:12:47 ↗ the process part of the development

3:12:49 ↗ agreement correct your answer my answer

3:12:54 ↗ was that's my recollection yes question

3:12:57 ↗ okay then your department in fact has

3:12:59 ↗ treated people who have vested to the

3:13:02 ↗ development agreement as vested to the

3:13:04 ↗ process in Appendix L correct my answer

3:13:07 ↗ was yes question and you have done that

3:13:09 ↗ for multiple polygons projects for

3:13:12 ↗ example my answer was yes hey so in

3:13:16 ↗ October you testified under oath in

3:13:19 ↗ front of this commission that one does

3:13:21 ↗ best to the process in the development

3:13:23 ↗ agreement correct exhibit L in

3:13:26 ↗ particular

3:13:43 ↗ could you replay restate your question

3:13:45 ↗ please I was asking you to confirm that

3:13:48 ↗ in October you testified under oath that

3:13:51 ↗ one does best to Appendix L the process

3:13:56 ↗ part of the development agreement if one

3:13:57 ↗ ves to the development agreement correct

3:14:00 ↗ yes

3:14:01 ↗ and the city has treated polygon is

3:14:04 ↗ vested to the process in the development

3:14:06 ↗ agreement correct we have in the past

3:14:09 ↗ yes and including on on the plat that

3:14:12 ↗ was noticed the same day again you

3:14:15 ↗ haven't seen that so let's pull out that

3:14:17 ↗ exhibit which is

3:14:31 ↗ [Applause]

3:14:45 ↗ the exhibit 101's 101 if you have that

3:14:58 ↗ and miss lin testified about this she

3:15:02 ↗ testified about the three notices that

3:15:04 ↗ went out simultaneous simultaneously and

3:15:08 ↗ i suggest you that exhibit 101 that's

3:15:11 ↗ what i want are those three notices but

3:15:13 ↗ I'd like you to confirm it yes those are

3:15:25 ↗ there's two polygons notice of

3:15:27 ↗ applications okay and the one of the

3:15:34 ↗ polygon applications is for the West

3:15:37 ↗ Ridge North single-family plat correct

3:15:39 ↗ yes it is that's the first one are you

3:15:43 ↗ saying you don't know whether your

3:15:45 ↗ department process that plat under the

3:15:47 ↗ procedures in the development agreement

3:15:48 ↗ I did I do not know how what what

3:15:52 ↗ methodology was followed for that

3:15:54 ↗ plateau plication I did not follow it

3:16:03 ↗ you will agree the notices were sent out

3:16:06 ↗ on the same day correct December 27th of

3:16:11 ↗ 2017 for all three of them yes I do

3:16:16 ↗ so what is vesting mean to you mr. Navin

3:16:27 ↗ give us your definition

3:16:29 ↗ okay so besting the way I understand it

3:16:41 ↗ provides surety to a property owner

3:16:45 ↗ developer about the basically the rules

3:16:48 ↗ under which they can develop their

3:16:51 ↗ property and to be vested means that you

3:16:57 ↗ the city or whatever jurisdiction county

3:17:01 ↗ whatever cannot change the rules unless

3:17:05 ↗ it's for public safety that would then

3:17:08 ↗ take away any ability or rights for a

3:17:13 ↗ property owner to develop that's what

3:17:17 ↗ you're doing here isn't it well so you

3:17:22 ↗ know I'm not a lawyer never said I was

3:17:26 ↗ maybe I'm one of the few people that

3:17:28 ↗ aren't lawyers in this room you know

3:17:30 ↗ maybe the word vesting that we used was

3:17:34 ↗ not the right terminology we we believed

3:17:38 ↗ that rules would not be changed under

3:17:44 ↗ the development agreement as long as the

3:17:45 ↗ development agreement was in force and

3:17:47 ↗ we used the word vesting to convey that

3:17:51 ↗ message to IHI FC is that the same

3:17:57 ↗ vesting as is defined in the state's

3:18:00 ↗ vesting doctrine I don't think so

3:18:05 ↗ it was vesting to a contract that had a

3:18:11 ↗ certain lifespan

3:18:13 ↗ and whether or not we were right in that

3:18:16 ↗ interpretation or not I that I think

3:18:18 ↗ that's what all of this is about and

3:18:20 ↗ we're going to find out at some point

3:18:21 ↗ but I don't think I don't think we were

3:18:27 ↗ taking away vested rights as its defined

3:18:29 ↗ in state statute because of the

3:18:32 ↗ development agreement so I maybe I

3:18:38 ↗ misunderstood mr. Niven but I thought

3:18:40 ↗ you included by saying the opposite of

3:18:43 ↗ what you'd said earlier in your talk I

3:18:45 ↗ thought you said that your

3:18:48 ↗ interpretation of vesting may not be the

3:18:51 ↗ same as the state law interpretation of

3:18:54 ↗ vesting I misunderstand when you said

3:18:57 ↗ that what I think I said was that the

3:19:01 ↗ the way that staff were using the term

3:19:03 ↗ vesting in as part of the development

3:19:05 ↗ agreement is is I think consistent with

3:19:12 ↗ state statutes and intent of this the

3:19:16 ↗ vesting doctrine but what we saw it was

3:19:21 ↗ was consistent as long as the

3:19:23 ↗ development agreement was in effect and

3:19:26 ↗ then when the development agreement was

3:19:28 ↗ terminated and the replacement

3:19:30 ↗ regulations were adopted our belief was

3:19:34 ↗ whatever was considered vested to that

3:19:38 ↗ agreement expired with that agreement

3:19:40 ↗ okay so your belief is that vested

3:19:44 ↗ rights would not survive with the

3:19:49 ↗ replacement regulations correct my

3:19:54 ↗ belief is the vesting to the development

3:19:56 ↗ agreement did not survive the

3:19:58 ↗ termination of the development agreement

3:20:00 ↗ okay well the development agreement was

3:20:01 ↗ were the only regulations that one could

3:20:03 ↗ best you in the is about Highlands

3:20:05 ↗ correct yes so for what period of time

3:20:10 ↗ then did the development agreement apply

3:20:14 ↗ to property owners such as my client in

3:20:17 ↗ the Issaquah Highlands but they couldn't

3:20:19 ↗ vest because the city council could take

3:20:23 ↗ away

3:20:25 ↗ they're vesting when the development

3:20:27 ↗ agreement expired so the development

3:20:30 ↗ agreement was clear that that couldn't

3:20:31 ↗ happen until after September of 2017

3:20:35 ↗ so there was a time frame from when the

3:20:39 ↗ agreement was adopted in 1996 to 2017

3:20:43 ↗ that the surety and the predictability

3:20:47 ↗ afforded to the property owner was solid

3:20:54 ↗ so it's your opinion that between

3:20:58 ↗ September and whenever the City Council

3:21:01 ↗ adopted the replacement regulations

3:21:04 ↗ property owners could not vest correct

3:21:09 ↗ so from the end of the build-out period

3:21:12 ↗ in September of 2017 to the enactment of

3:21:17 ↗ the replacement regulations in March of

3:21:19 ↗ 18 you could still vest because there

3:21:24 ↗ because the development agreement was

3:21:25 ↗ still enforced after the build out

3:21:27 ↗ period because the replacement

3:21:29 ↗ regulations had not been enacted

3:21:32 ↗ mr. Nevin you just told us the City

3:21:34 ↗ Council could take away those rights so

3:21:39 ↗ are you defining vested rights as rights

3:21:42 ↗ the City Council can take away whenever

3:21:44 ↗ it enacts replacement regulations I

3:21:47 ↗ believe that any rights given through a

3:21:50 ↗ development agreement with a termination

3:21:53 ↗ day can then be taken away after the

3:21:56 ↗ termination date a and so they're not

3:21:58 ↗ vested rights as they can be taken away

3:22:00 ↗ correct well that gets back to my

3:22:02 ↗ comment earlier that maybe I was using

3:22:04 ↗ the word vesting differently than you

3:22:08 ↗ use the word vesting Wendy when did you

3:22:10 ↗ first publicly communicate your opinion

3:22:14 ↗ that vested rights could be taken away

3:22:17 ↗ by the City Council when they enacted

3:22:20 ↗ the replacement regulations I don't

3:22:24 ↗ remember the date it was you know we had

3:22:27 ↗ conversation with on the property owners

3:22:32 ↗ that we were proposing vesting language

3:22:39 ↗ the replacement regulations and that was

3:22:43 ↗ you know that was with basically the

3:22:45 ↗ first draft of the replacement

3:22:48 ↗ regulations came with proposed vesting

3:22:51 ↗ language that ultimately didn't survive

3:22:53 ↗ the legislative process it got changed

3:22:55 ↗ I'm not talking about the replacement

3:22:58 ↗ what the replacement regulations do or

3:23:01 ↗ do not say mr. Navin my question is when

3:23:04 ↗ did you first communicate let's make it

3:23:08 ↗ in writing when did you first

3:23:09 ↗ communicate in writing revoke the

3:23:13 ↗ opinion you're expressing to this

3:23:14 ↗ commission that rights that vested to

3:23:18 ↗ the development agreement would be taken

3:23:20 ↗ away when the City Council enacted the

3:23:23 ↗ replacement regulations I don't know the

3:23:26 ↗ date I don't know when that was did you

3:23:29 ↗ express that in writing at any time

3:23:31 ↗ before the replacement regulations were

3:23:34 ↗ adopted yes because it was deliberated

3:23:39 ↗ by the City Council the different

3:23:40 ↗ alternatives to vesting and it was made

3:23:43 ↗ clear to them that under one alternative

3:23:47 ↗ it would impact permit applications that

3:23:52 ↗ were in process well the alternative

3:23:55 ↗ adopted by the City Council provides for

3:23:58 ↗ vesting pursuant to development

3:24:00 ↗ agreements correct it does and state law

3:24:03 ↗ says that development agreements one of

3:24:06 ↗ their purposes is to provide for vesting

3:24:08 ↗ correct correct

3:24:09 ↗ so why would anyone who understood what

3:24:14 ↗ vesting means under state law think that

3:24:19 ↗ the adoption of replacement regulations

3:24:22 ↗ that's expressly say one confessed to a

3:24:25 ↗ development agreement why would anyone

3:24:27 ↗ think that that meant you can't vest

3:24:30 ↗ there's to this development agreement

3:24:32 ↗ because the city interprets you is not

3:24:35 ↗ being either interprets the agreement

3:24:37 ↗ it's something you can't pass to mr.

3:24:39 ↗ chairman I'm going to respectfully

3:24:40 ↗ object to the multiple grounds that said

3:24:42 ↗ it obviously requests a legal conclusion

3:24:45 ↗ it's very sprawling and unclear and it's

3:24:49 ↗ not fair for the

3:24:51 ↗ witness to expect him to answer that

3:24:53 ↗ question of that type I certainly agree

3:24:55 ↗ it was a long and complicated question

3:24:57 ↗ that's because it's late and I this is

3:25:00 ↗ gonna go on for a long time so it might

3:25:02 ↗ be a good point to break and I can ask a

3:25:05 ↗ simpler clearer question next time I

3:25:07 ↗ expect I have at least another hour of

3:25:10 ↗ cross-examination no objection mr.

3:25:12 ↗ chairman okay if your purposes of

3:25:15 ↗ logistics I assume that we're going to

3:25:17 ↗ have approximately an hour to an hour

3:25:20 ↗ and a half of direct rebuttal testimony

3:25:23 ↗ by miss Loman who will be our the city's

3:25:25 ↗ final rebuttal witness so if that

3:25:28 ↗ assists in the planning that's an FYI

3:25:31 ↗ for the Commission okay thank you so I

3:25:35 ↗ appreciate your consideration of maybe

3:25:37 ↗ making your question a little simpler it

3:25:40 ↗ was my worst question of the night and

3:25:42 ↗ so it was good I appreciate that but you

3:25:46 ↗ know given given that we're very close

3:25:48 ↗ to the hour that we reached agreement

3:25:49 ↗ upon to adjourn

3:25:51 ↗ tonight's meeting we'll be continuing

3:25:52 ↗ the public hearing on tonight's agenda

3:25:55 ↗ to April 30th and I understand that all

3:25:58 ↗ the commissioners are available on April

3:26:00 ↗ 30th including mr. Commissioner we

3:26:03 ↗ appreciate that change in schedule thank

3:26:08 ↗ you very much do the part and we've

3:26:10 ↗ discussed a little bit the estimate of

3:26:12 ↗ whether they'll be able to wrap up all

3:26:14 ↗ their Witnesses on April 30th or whether

3:26:16 ↗ we might need to schedule another

3:26:18 ↗ meeting do I think we need to schedule

3:26:23 ↗ another meeting we'll do our best to

3:26:24 ↗ finish on the 30th but I'm skeptical at

3:26:27 ↗ the moment I did if we go for another

3:26:36 ↗ hour with mr. Nevin an hour and a half

3:26:38 ↗ with miss Loma and a comparable

3:26:40 ↗ cross-examination then we're into the

3:26:41 ↗ next night I could be wrong we will have

3:26:44 ↗ a couple of rebuttal witnesses only if

3:26:46 ↗ additional dates are necessary to

3:26:47 ↗ conclude the hearing I understand that

3:26:49 ↗ the parties would be able to meet next

3:26:51 ↗ on May 7th is that correct

3:26:59 ↗ yes

3:27:06 ↗ Michener's need kind of a yeah okay so

3:27:17 ↗ that sounds great and the public hearing

3:27:20 ↗ on tonight's agenda will be continued

3:27:22 ↗ with special meeting of the Commission

3:27:23 ↗ on April 30th the council chambers at

3:27:26 ↗ 6:30 the meeting is now adjourned so

3:27:30 ↗ thank you

3:27:42 ↗ you

Approved minutes

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

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Attendance

Council / Members (17)

Administration/Staff: Richard Sowa

Keith Niven

Econ. & Dev. Srcs. Dir. Mel Morgan

Lucy Sloman

Land Development Mgr. Michael Brennan Jean Lin

Senior Planner Kevin Price Richard Sanford Others Present: Jeffrey Dunbar

City Attorney’s Office Commissioners Not Present (Excused): Tia Heim

Shelter Holdings Randolph Harrison Zachary Lell

City Attorney’s Office Jasmina Mihova Ray Liaw

Van Ness Feldman

LLP Mark Rigos

Alternate Jackie Quarré

Foster Pepper PLLC Ryan Roeter

Alternate Patrick Schneider

Foster Pepper PLLC Nischitha Venkatesh

Alternate Gary Young

Shelter Holdings [audience] 1