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Development Commission - Special Meeting - 30 A Auto captions

Tuesday, April 30, 2019

3h 31m
Topic tracked across meetings:
Purpose: This is a special meeting of the City Council to allow Councilmembers the opportunity to attend the Mayor's State of the City Address hosted by the the Greater Issaquah Chamber of Commerce 5/32
City Council Special Meeting · Jun 10, 2017 City Council Special Meeting · Mar 19, 2018 City Council Special Meeting · Jan 7, 2019 City Council Special Meeting · Apr 15, 2019 Development Commission · Apr 30, 2019 City Council Special Meeting · Jul 25, 2019 City Council Special Meeting · Nov 26, 2019 City Council Special Meeting · Dec 10, 2019 City Council Special Meeting · Apr 20, 2020 City Council Special Meeting · May 4, 2020 City Council Special Meeting · Jun 11, 2020 City Council Special Meeting · Jun 23, 2020 City Council Special Meeting · Jun 29, 2020 City Council Special Meeting · Jul 13, 2020 City Council Special Meeting · Oct 5, 2020 City Council Special Meeting · Oct 26, 2020 City Council Special Meeting · Nov 16, 2020 Human Services Commission · Jan 28, 2021 Human Services Commission · Feb 4, 2021 City Council Special Meeting · Feb 23, 2021 City Council Special Meeting · Mar 8, 2021 City Council Special Meeting · Mar 29, 2021 Environmental Board · Jul 28, 2021 City Council Special Meeting · Dec 6, 2021 City Council Special Meeting · Jan 11, 2022 City Council Special Meeting · Jan 27, 2022 City Council Special Meeting · Mar 15, 2022 City Council Special Meeting · Dec 12, 2022 City Council Special Meeting · Mar 13, 2023 City Council Special Meeting · May 22, 2023 City Council Special Meeting · Sep 11, 2023 City Council Special Meeting · Jan 30, 2024
Section
Topic
1. CALL TO ORDER
1a
Commission Membership
packet pp.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
2a
Minutes of April 16, 2019
packet pp.7–10
Staff report:
APPROVAL OF MINUTES a) 04-16-19 Development Commission Minutes Page [0000]
2a
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
MEMBERS OF THE PUBLIC ARE
b
---------------------------------- As part of the public hearings, the Development Commission may accept testimony and other evidence, discuss, ask questions of staff, witnesses and other persons, deliberate and take final action on any or all of the above matter(s), including without limitation any procedural votes, at the special meeting. Without limitation of the foregoing, the Commission may entertain, deliberate upon and/or take final action with respect to any motions made by parties to the hearings that relate to the hearings. The Commission may call one or more executive sessions and/or discuss other City business at the special meeting, but no final disposition regarding any matter will occur at the meeting except as indicated in this notice
Topics: Arts & Culture
0:17 all right good evening ladies and
0:20 gentlemen I'd like to welcome you all to
0:22 the continued public meeting from April
0:24 16th
0:25 concerning the Issaquah Highlands retail
0:27 site development permit the Issaquah
0:30 highlands medical office administrative
0:32 site development permit and the Issaquah
0:34 highlands self storage administrative
0:36 site development permit you know before
0:39 we get started with continued
0:43 cross-examination of mr. Niven we have
0:46 some administrative things are doing we
0:47 have administrative minutes from April
0:50 16th the minute so they may April 16th
0:56 meeting second motion has been made and
1:00 seconded to approve the minutes any
1:02 discussion all those in favor of
1:06 approving the mid say aye aye opposed
1:09 and its motion carries so thank you mr.
1:13 Snyder we'll turn the time over to you
1:17 mr. Navin would you acknowledge please
1:19 that you're still under oath
1:21 I remain under oath
1:28 and as your microphones been going I
1:30 believe it is can you hear me okay
1:33 mr. Navin I think at the conclusion or
1:35 near the conclusion of the hearing last
1:38 time I had introduced exhibit s 112
1:42 which was ms Sloman z' letter - yeah I'm
1:47 telling H I have see that there plat
1:50 would be processed under the procedures
1:53 and the replacement regulations you
1:55 recall that I generally yes okay
1:59 and I'm going to introduce a new exhibit
2:02 now that there's a follow of
2:05 communication between TR I'm and Lucy
2:09 sloman on that issue exhibit s 113 I
2:13 believe thank you
2:30 [Applause]
2:33 I just give away our country
2:41 so mr. Nevin the first part there are
2:48 actually two documents as part of
2:49 exhibit 113 the first part of it is a
2:53 subsequent email exchange between Jia hi
2:58 in which she protests to miss Loman that
3:03 in fact the city has already
3:05 acknowledged H IFC is vested to the
3:08 development agreement and then miss
3:10 Sloman responds with an email saying you
3:14 know here's our response you see that
3:22 yes I do
3:23 okay so I really want to turn then to
3:26 the response which is the letter dated
3:29 April 15th to TIA hi I'm Lucy sloman and
3:36 you are copied on that letter have you
3:40 reviewed this letter previously I have
3:43 not
3:44 so in this letter miss you can take as
3:48 much time as you want to review it but I
3:50 think it's a fair summary to say that
3:51 miss Loman basically says at some length
3:56 and cites some case law who defend her
3:59 position that I hif sees plat is not
4:03 vested to the procedures in the
4:05 development agreement if you haven't
4:09 seen this letter did you consult with
4:12 Miss slummin before she sent it I did
4:15 not
4:21 you are aware are you not that polygons
4:26 plat its single-family flat that was
4:31 noticed at the same time as hif sees
4:36 plat was processed under the regulations
4:40 in the development agreement correct as
4:46 far as I'm aware I believe it followed
4:49 appendix out yes and in fact the they
4:54 went to they he not to this commission
4:59 but to the other Commissioner ever been
5:01 Village Development Commission and they
5:04 in fact granted or recommended to the
5:06 City Council that the preliminary plat
5:08 be approved more than a year ago under
5:11 the procedures in appendix L correct I'm
5:15 unaware of the timing of that I assume
5:17 that their recommendation was for
5:19 support since that was the decision
5:21 ultimately rendered by the City Council
5:23 I was not involved in that process
5:31 directly you you were the one who
5:36 affirmed that polygon was vested to the
5:41 procedures in the development agreement
5:43 correct did you want to reference a
5:48 specific letter or email well yes I can
5:51 provide that to you but don't you recall
5:55 that you are the person who is Sloman
5:59 deferred to on vesting for their
6:02 plantation so vesting to the development
6:09 agreement and ultimately those
6:10 conversations were deferred to myself
6:12 yes as it relates specifically to
6:15 polygon single-family north platte I
6:18 don't recall if I was specifically
6:21 consulted on that determination okay I
6:25 have a couple of emails okay to show you
6:27 then I think these are s 114 and s 115
6:56 14:15
7:13 [Applause]
7:19 so mister given at the top of the
7:26 exhibit s 114 there's an email exchange
7:29 between miss Loman and Nick Abdul an
7:32 hour of polygon correct yes and it's in
7:39 response to questions about from mr.
7:42 Abdel an hour about the pending
7:46 applications including the single-family
7:48 north preliminary plat rec yes and what
7:58 is what is miss Loman say about you
8:02 investing in her email so this reads
8:05 Nick thanks for this schedule
8:08 exclamation point Keith is the king of
8:11 vesting so please ask him for the memo
8:13 on vesting and have you been referred to
8:18 in other circumstances is the king of
8:21 vesting I don't know that I've ever been
8:24 referred to as the king of vesting other
8:25 than through this email okay and then if
8:29 you could turn to s 115 please again
8:35 it's the it's the concluding email that
8:38 I want to draw your attention to if you
8:40 want to look at the appreciating ones
8:41 that's fine but s 115 was written
8:46 Eugene Lynn from David Avenel at polygon
8:50 about a month after exhibit s 114 one in
8:54 July and one maybe five weeks later in
8:57 August yes okay and what is what is well
9:04 what is the relationship between mr.
9:05 Avenel and mr. Abdul our mister Avenel
9:12 used to work for polygon Northwest so he
9:17 would have been an an employee of Nick
9:20 Abdul Mauer okay and then so what is the
9:25 portion of the email is the first couple
9:28 of sentences are addressed to Gene land
9:30 and then what does he say to you
9:31 if you could read that
9:33 please I'm sorry I'm reading the Jean
9:39 Lin email - no I don't mean to be
9:42 confused sorry oh just a topic okay the
9:45 paragraph that begins Keith okay so this
9:49 is from David Avenel to Jean Lin and it
9:55 says Keith I understand you were
9:56 currently out of the office however upon
9:59 your return I would appreciate your
10:01 confirmation that this Westridge
10:03 single-family north project is deemed
10:06 complete and vested to the user co
10:08 Highlands development agreement based
10:10 off previous clarification from Lucy
10:12 comma it appears you are the city staff
10:15 member to provide this vesting
10:17 confirmation for us thank you for your
10:19 help and so polygons looked to you to
10:25 confirm that they were vested to the
10:28 procedures in the Issaquah Highlands
10:30 development agreement for their apply
10:32 tap location correct
10:38 well it doesn't specifically say
10:40 procedures it says we look we would like
10:44 to understand if we're deemed complete
10:46 invested to the Highlands development
10:47 agreement that in fact so this is
10:51 basically both process and substance
10:53 correct it doesn't specify that in fact
10:59 the the plat polygons single-family
11:02 North Platte was processed according to
11:06 both the substance and the procedures in
11:08 the development agreement correct that
11:11 would be a question for Miss Lomond I
11:12 believe okay well I'm going to hand out
11:14 a copy of it exhibit that's already in
11:16 the record it's s4 thank you I believe
11:26 you I'm sure it's in one of those
11:27 binders
11:39 what is this document mr. Devon so this
11:43 document would be the formal
11:46 recommendation from the urban village
11:48 Development Commission to the City
11:51 Council and it's dated the 10th of May
11:55 2018 okay and if you look at the last
12:00 page you are copied on this I appear to
12:04 be copied yes sir okay and why don't you
12:06 read the first whereas Klaus forest
12:08 please whereas even though the user kua
12:13 Highlands development agreement was
12:14 terminated on March 28 2018 and
12:18 replacement regulations have been
12:20 enacted this application was vested to
12:22 the now terminated development agreement
12:25 and was reviewed under those regulations
12:28 I apologize there's like weird audible
12:31 feedback from her device that's really
12:34 distracting I don't know if anybody else
12:36 can hear it but I can
12:40 yeah it's that's better thank you
12:44 sorry so again after polygons asked for
12:53 confirmation from you that they were
12:56 vested they ended up being processed
12:58 under both the substance and the
13:00 procedures of the development agreement
13:01 correct for their single-family north
13:04 platte that was noticed on the same day
13:07 as IH IFC as planned so I really can't
13:10 answer that question I really do believe
13:12 that's a better question from its Lowman
13:14 in terms of she was the staff person who
13:17 performed the permit review for that
13:20 application
13:21 well mr. Nevin you will agree that the
13:25 recommendation from the Development
13:28 Commission exhibit s4 to the City
13:30 Council says it was reviewed under the
13:34 vested development agreement correct it
13:37 does say that yes okay so now we have
13:41 the
13:42 exhibit that I offered a little while
13:46 ago which has miss Loman telling my
13:50 client IHI of C that is going to be
13:53 processed under the replacement
13:56 regulations s 113 yes okay so explain to
14:03 us please why few Platt applications
14:10 that word noticed on the same day they
14:13 were both applied for before the end of
14:18 the build-out period why one of them was
14:21 processed under the development
14:25 agreement and received approval a year
14:29 ago and the other one hasn't even
14:33 received a staff report to a commission
14:36 and is being processed under the
14:38 replacement regulations explain why one
14:43 flat application is being treated
14:46 fundamentally different than the other
14:49 so I was not part of drafting this April
14:57 15th 2019 letter so I don't I don't
15:01 think I'm the best person to ask that
15:02 question of since I wasn't part of
15:05 making a specific determination on
15:07 processing so again I think I would
15:12 suggest that be asked of miss Loman mr.
15:18 I I will ask miss Loman about this mr.
15:20 Nevin but again you as the development
15:23 director are responsible for vesting
15:25 determinations correctly in consultation
15:28 with the city attorney
15:29 that's what city code says so you are
15:31 responsible whether miss Loman talked to
15:33 you or not or her determination that my
15:37 client is not vested to the procedures
15:39 in the development agreement correct I'm
15:42 responsible for that decision yes so can
15:45 you provide any explanation for why your
15:49 department is discriminating against
15:51 if's
15:51 ih IFC and treating them
15:54 differently than polygon
15:57 not right here right now if that is
16:00 something that your client would like a
16:01 response to I'm more than happy to work
16:04 with the city attorney to draft one for
16:06 you because in tight mr. Dave and I'd
16:14 like to go back to zip it C for there's
16:20 already in the record and again I have a
16:24 I only have one extra copy right now
16:50 you remember this document I do and mr.
16:56 L will ask you questions about it at the
16:58 last hearing which is why I'm doing so
17:00 so this is the there are actually two
17:03 email exchanges here just to refresh
17:06 everyone's recollection the first email
17:08 exchange starting at the bottom of the
17:13 third page and working backwards to the
17:15 front is an email exchange between you
17:22 and Tia Haim about whether IHI have C's
17:28 applications we're now talking about the
17:30 SDP and ASDP applications are vested
17:34 correct
17:36 we started with an understanding the
17:40 discussion originally started with where
17:41 the applications complete yes and then
17:44 they migrated towards besting to the
17:47 development agreement right and in
17:50 response to Miz I am pressing you on
17:54 that and asking for please confirm
17:58 whether my client is vested or not your
18:01 response was the word and word answer
18:03 yes yes and then the last two email our
18:09 last three email exchanges in exhibit c4
18:12 are not with my client but with miss
18:14 Loman correct yes and miss Loman tells
18:18 you basically does she not that your yes
18:24 is misleading because it's the position
18:27 of you and miss Loman that my client is
18:30 not vested unless the council agrees
18:32 correct she indicated that she was
18:35 confused by my response and thought it
18:38 could be clearer and so what when she
18:42 expressed confusion what was your answer
18:45 my answer was they are vested at this
18:50 moment under the development agreement
18:52 if the council removes the propose
18:54 vesting language they will lose their
18:56 vested status so I read that as saying
18:59 you
19:00 acknowledge to miss Loman that IH IFC
19:03 was not vested based on the definition
19:08 of vesting that you explained to us in
19:12 your testimony of the last hearing if
19:17 invest in it I don't want to compound my
19:21 question go ahead and answer the one I
19:23 just asked please so again the the term
19:29 vesting under the development agreement
19:32 you know I think we've talked about that
19:35 whether that was a correct use of that
19:38 terminology based on state statute you
19:42 know my my use of the word vesting in
19:44 this response to miss Loman was at the
19:48 time the development agreement was still
19:51 in force that they could build her the
19:57 terms of that agreement and so that was
20:00 the intent of my response to miss Loman
20:03 and Inc I acknowledged last time the use
20:07 of the word vested may not have been the
20:10 correct terminology from myself through
20:13 this exchange
20:14 well mr. Nevin you knew at my client
20:23 understood very well the meaning of the
20:26 word vested didn't you at this time
20:36 which was November of 17 we were having
20:40 conversations with your client about
20:43 vesting and the draft language that was
20:47 being proposed in the replacement
20:49 regulations so from that I would assume
20:53 yes vesting was important to them I
20:57 don't know how much they understood
20:59 about vesting I assume they understood
21:01 the terminology and how it's used well
21:04 my client
21:07 isn't it fair to say understood the word
21:10 vesting the way state law describes
21:13 vesting and way and the way the cases
21:15 describe vesting since your client is an
21:22 attorney I would assume yes okay and so
21:25 you were at mine to understand that you
21:27 were using the vest that were invested
21:29 in some different meaning that only you
21:35 and miss Loman understood no we were
21:40 using the term vested as we had
21:43 discussed it with the city attorney well
21:46 a so what did you and the city attorney
21:53 discuss about best attorney-client
22:02 privileged information well I would note
22:04 that the city's Witnesses have
22:08 repeatedly referred to conversations
22:11 with the city attorney and mr. Leal has
22:13 actually specifically asked questions
22:15 about conversations with the city
22:17 attorney and is without doubt in my mind
22:22 that the any attorney-client privilege
22:24 has been waived by the repeated
22:26 testimony about those conversations but
22:29 I don't expect you all to make a
22:30 decision on that so if mr. Niven doesn't
22:34 want to answer a question about his
22:35 conversation with the city attorney I
22:37 won't press it but I'm not pressing it
22:38 only because I think it is a legal issue
22:40 that I'm not expecting you to resolve
22:43 but I think any assertion of
22:45 attorney-client privilege has been
22:46 waived repeatedly in this hearing thank
22:49 you
22:49 so mr. Nibin I'll let you decide whether
22:52 you're going to respond to that question
22:53 or not
22:54 so I'll defer to the city attorney on
22:58 whether they think I should respond to
23:00 that question mr. douben if the content
23:02 of that discussion has already been de
23:04 lighted in this proceeding I don't have
23:05 a problem there should not be a problem
23:07 with you referring to it again in your
23:09 your response to mr. Schneider
23:13 however if if answering his question
23:16 candidly would require you to divulge
23:17 information that has not been
23:19 a publicly disclosed I would advise you
23:21 against doing that and I would just I
23:24 don't want to create any
23:25 misunderstandings I don't think the city
23:27 can selectively decide what
23:31 attorney-client privilege communications
23:33 it's going to waive in which it's not
23:35 and if you if there's a waiver and a
23:38 discussion it applies to all
23:40 communications on the same issue and
23:42 that that question basically invites
23:45 selective decisions tactically about
23:47 what they're gonna reveal and what
23:49 they're not and that is improper and mr.
23:52 chairman it's not the city's intent to
23:54 engage any type of a selective waiver my
23:57 point in in advising mr. Niven is that
24:00 obviously the the city staff as all city
24:03 staff to you has confidential
24:05 communications with its city attorney
24:07 and those are distinct from
24:08 communications which are deliberately
24:10 daylight the city's knowledge there has
24:12 not been any deliberate waiver of the
24:14 attorney-client privilege with respect
24:16 to communications that were intended to
24:20 remain confidential as between the
24:22 attorney and staff let me rephrase my
24:25 question I get I think mr. lull and I
24:27 have a fundamental and profound
24:28 disagreement about the waiver issue here
24:31 but mr. Nevin I don't want you to answer
24:35 my question if you're going to tell me
24:37 only some of what the city attorney told
24:39 you I want you to either tell me
24:41 everything or nothing at all I don't
24:43 want you to be selective and choose and
24:46 if I could briefly address the witness
24:49 mr. chairman he's mr. Nevin feel free to
24:52 answer that question if you can do that
24:54 without waiving the attorney-client
24:55 privileges because it relates to
24:57 information that has not been publicly
24:59 delighted that information has not been
25:02 publicly delighted as part of these
25:04 proceedings that I can recall okay so
25:07 mr. Nevin going back then to Exhibit C
25:10 for this email exchange between MS Haim
25:15 and you was the follow-up on a meeting
25:17 the previous day correct
25:25 yes in fact at that meeting this I'm
25:31 specifically asked you to confirm that I
25:34 is Yves ih IFC's applications were
25:37 vested and you told her to put it in an
25:40 email and you would confirm correct so
25:48 specifically what she's asking for in
25:51 her email is we would like the city to
25:54 confirm our understanding that the
25:55 following land use permit applications
25:57 have been deemed complete 49.1 of
26:00 Appendix L to the development agreement
26:03 so I answered that part of the question
26:05 and said unless you have received a
26:07 request from city staff for additional
26:09 information these applications our
26:11 applications are viewed as quote
26:14 complete unquote for the terms of the
26:17 development agreement which is why I
26:19 believe she followed up with her
26:21 subsequent email because she wanted a
26:23 response to the second half of her
26:25 question which was about vesting correct
26:27 and you answered yes she asked
26:30 specifically if we are vested to the
26:36 development agreement and I said yes
26:38 okay and then you have a private
26:41 internal within the city exchange with
26:44 Miss Loma not with my client in which
26:46 you basically agree with miss Loman that
26:50 were not vested it's up to the City
26:52 Council correct I had an exchange with
26:56 one of my staff who thought my email was
26:59 unclear yes and why don't you
27:06 specifically read miss Loehmann's
27:09 language to you from November 22 at 929
27:16 that one November 22 at 10:30 a.m. so
27:21 that one and it's the title of this
27:24 email exchange between Lucy and myself
27:26 is vesting and her email which was
27:32 probably sent from her iPhone
27:35 says shouldn't that be clear in the
27:37 response question mark yes and you
27:39 didn't respond to that I did not and you
27:43 didn't make it clear to IH IFC that by
27:47 saying they were vested you really meant
27:49 it was up to the City Council did you
27:51 I believed my email exchange with Miss
27:54 hime was clear yes you told them they
27:57 were vested to the realm to the
27:59 development agreement which is what the
28:00 question was yes so and internally with
28:06 miss Loman you you take a different
28:10 position I don't believe I did I believe
28:14 I clarified what I said to miss hime
28:18 okay you said to miss Loman they are
28:21 vested at this moment under the
28:24 development agreement if the council
28:26 removes the proposed vesting language
28:28 they will lose their vested status
28:30 correct that is what I said yes okay and
28:33 is this part of your private
28:35 understanding of vesting that you didn't
28:38 share with my client so we're circling
28:44 back to the same question that mr. L
28:47 objected to right yeah I don't know are
28:51 we seems like it I wasn't aware I was
28:54 asking for an attorney-client privilege
28:56 communication I was asking you why you
29:00 didn't tell my client why she told miss
29:03 Loman that they're not vested it depends
29:05 on what the city council decides
29:29 was there a question there I'm sorry if
29:31 there was I missed it yes there was a
29:34 question mr. Nevin
29:39 why didn't you tell my client clearly
29:45 what you told miss Loman that vesting
29:48 depended on what the City Council did in
29:50 the future because I believe that my
29:54 email to miss hime was clear and if she
29:58 had confusion about my response I would
30:02 have expected she would have emailed me
30:04 back as I'm asked you following up on a
30:10 meeting whether the applications were
30:14 vested and you said yes what is lacking
30:18 in clarity about that I didn't say her
30:27 email to me was unclear I said that if
30:31 she was unclear about my response my
30:38 one-word response or Patrick who was
30:41 also cc'd on the email for Gary any of
30:44 them could have emailed me back to say
30:46 is this what you mean because it's a
30:48 very short response but I didn't get any
30:52 follow-up emails other than from my
30:54 staff that was confused about this issue
30:56 so what is ambiguous or unclear about
31:00 the word yes you said yes you are vested
31:06 what is unclear about that mr. Nibin
31:08 what requires clarification so the
31:13 question was are we vested to the
31:17 development agreement the answer was yes
31:18 there could have been a follow-up
31:20 question about mitigation about process
31:24 about all sorts of things that I think
31:27 your client had questions about well the
31:30 development agreement says you best to
31:33 both mitigation and process doesn't it
31:36 that's what you believe yes mr. Navin
31:40 are you denying that there
31:42 language in the development agreement
31:44 that says that what one vests to is both
31:47 mitigation and process during the term
31:50 of the agreement yes mr. Navin you you
31:57 were asked last time about whether
31:59 you've always acted with integrity in
32:01 this matter do you recall that I believe
32:04 so yes and you referred specifically to
32:06 the AICP code of ethics and professional
32:10 conduct and IEDC code of ethics 116
32:31 I had a copy of the
33:15 you recognize this document I do is this
33:19 the code of ethics and professional
33:21 conduct one of the codes you referred to
33:23 last time yes it is okay I'd like you to
33:26 turn to section B please called our
33:29 rules of conduct yes and would you read
33:35 the introductory paragraph and then rule
33:38 number one please sure we adhere to the
33:43 following rules of conduct and we
33:45 understand that our Institute will
33:47 enforce compliance with them if we fail
33:50 to adhere to these rules we could
33:51 receive sanctions the ultimate being the
33:54 loss of our certification number one
33:56 underneath that we shall not
33:59 deliberately or with reckless
34:00 indifference fail to provide adequate
34:02 timely clear or accurate information on
34:06 planning issues I think that was and
34:08 accurate rather than or accurate but yes
34:12 so let's let's compare rule of conduct
34:15 number one with exhibit C for please the
34:18 email exchange with miss hime and with
34:21 miss Loman that we've been talking about
34:25 you think in light of your email
34:28 exchange with miss Loman that what you
34:30 told Tia hime was an adequate answer to
34:35 her question I do and you think it was a
34:41 timely answer to her question in the
34:43 sense that we are in the middle of my
34:48 client doing its very best to get
34:51 confirmation from the city that it's
34:52 vested and you've now told them that
34:55 they are i think the exchange was timely
35:00 yes if that was your question was it
35:02 clear and accurate in light of your
35:05 communication with miss Loman who told
35:07 you it wasn't I believed it was clear I
35:10 didn't agree with with my employee on
35:13 this issue okay so you thought it was
35:15 perfectly consistent with rule 1 of the
35:19 rule of conduct to tell my client who
35:21 was vested when you admitted to miss
35:23 Loman that you meant something else and
35:26 you didn't follow up with my client
35:28 I believe that I was I believe that my
35:33 actions were compliant with subsection B
35:37 one of the AICP code of ethics yes so
35:41 let's turn then if we could please to
35:44 rule 20 rule 20 would you read that for
35:54 us please sure 20 says we shall not
35:57 unlawfully discriminate against another
35:59 person okay so isn't that what your
36:03 department is doing between my client
36:06 and polygon in the treatment of the plat
36:08 applications treating one as vested the
36:12 other not I do not believe I do not
36:16 believe so no so why is it not
36:20 discriminating against my client to
36:23 process their application under the
36:25 replacement regulations when you process
36:27 polygons under the development of
36:30 regulations so I'm assuming that because
36:34 the processing of the preliminary plat
36:37 letter response dated April 15th was
36:41 drafted by miss Loman in conjunction
36:43 with the city attorney I believe it's
36:46 lawful I would hope the city attorney is
36:49 not giving us unlawful recommendations
36:52 well I'm not asking first of all you
36:54 once again asserted your conduct is
36:58 based on communications that you won't
36:59 tell us about what the city attorney but
37:02 I'm not asking for the rationale now I
37:04 am asking you to admit that regardless
37:08 of the rationale you're treating one
37:10 applicant differently and worse than the
37:13 other even though there's no lawful
37:16 grounds to choose to treat them
37:19 differently well I think I thought you
37:22 asked me if I believed we were
37:23 consistent with rule 20 and I believe
37:28 that because it talks about unlawfully
37:30 discriminating I believe we are
37:33 compliant with rule 20 given the fact
37:35 that we're sending out information in
37:39 concert with consult from the city
37:41 so so if the city attorney advises you
37:45 to discriminate that makes it lawful an
37:50 objective that I'm not a lawyer -
37:52 chairman that's well I'm trying to
37:54 understand your question or your answer
37:56 mister heaven my answer is that the city
38:02 contracts with a law firm to give us
38:05 legal advice and recommendations on our
38:10 administration of city code so I'm
38:13 assuming that we're doing that in this
38:15 case alright so again - to bring this to
38:18 a conclusion correct me if I'm wrong
38:19 what you're telling us is you can't
38:22 provide any grounds for discriminating
38:25 the way your your department is doing
38:28 other than the city attorney must have
38:31 located I'm suggesting that that's
38:35 probably a better question for miss
38:37 Loman well I'm asking you if you have I
38:40 I personally do not know
39:11 mr. Nevin I I still struggle to
39:13 understand what you mean by vesting you
39:20 apparently means something different
39:21 than the then people outside the city
39:26 mean by the term so exactly how do you
39:32 you are you saying vesting means you
39:35 vested until the regulations change or
39:38 what no the way that that I understood
39:44 vesting was that there was vesting
39:50 during the build-out period and there
39:54 was vesting that survived the end of the
39:58 build-out period through the term of the
40:01 development agreement at that time then
40:04 if you were vested to that contract and
40:08 that contract was terminated then you
40:12 were no longer vested to that contract
40:14 that's what I understood okay so your
40:17 are you again I'm asking a question
40:19 because I really don't understand the
40:22 answer are you saying then that testing
40:27 meant one thing before the end of the
40:29 build-out period and something less
40:31 different in the lessor after the end of
40:34 the build-out period after the end of
40:36 the term not the build-out period
40:38 because the agreement survived the end
40:41 of the build-out period until
40:42 replacement regulations were enacted
40:44 okay well since again then that just
40:47 added to my confusion since you hold my
40:51 client it was vested and then later
40:54 countersigned a letter in March
40:56 acknowledging that they had submitted
40:58 complete applications and you're now
41:02 saying they could vest until the
41:05 effective date of the replacement
41:07 regulations why aren't you treating them
41:09 as vested
41:14 I think we I thought I answered this
41:19 already
41:20 they were vested to the development
41:22 agreement so long as the development
41:23 agreement was in force when it was
41:27 terminated their vesting status
41:30 terminated with it
41:31 okay so again your your understanding of
41:35 vesting that it lasts only so long as
41:39 the regulations aren't changed by the
41:41 City Council vesting as it related to
41:47 the development agreement specifically
41:50 vesting under state statute is different
41:54 and again the development agreement
41:57 comprised the only regulations in place
42:00 in the Issaquah Highlands correct
42:03 at that time yes so mister Nibin where
42:07 did you come up with this where and when
42:10 did you decide that vesting ended when
42:16 the development agreement ended you went
42:19 back to the same place I'm sorry so this
42:22 is we're back to this I'm asking now
42:25 when when did you decide that so that
42:27 was part of conversations between myself
42:32 and the city attorney and when did those
42:35 conversations take place I can't recall
42:39 the date well can you tell us the month
42:41 I can't recall the month you tell us the
42:45 year I it was most likely 2017 okay so
42:51 in 2017 before you had the email
42:56 exchange with Miss hime in which you
42:58 acknowledge we were vested you had a
43:02 conversation with the city attorney and
43:03 you decided that vesting ended when the
43:06 development agreement ended I could
43:09 briefly interject mr. chairman I would
43:11 reiterate my prior statements and
43:14 objections and he actually went back to
43:18 the same place I think you I think you
43:22 keep asking for what was that
43:23 conversation between myself and the city
43:25 attorney no
43:26 I'm asking you to tell us when you
43:28 decided that vesting means what you and
43:32 miss Loman indicated it meant in the
43:35 letter exchange on November whatever see
43:46 Ford's date is I copy of November 2017
43:51 there you go
43:52 so obviously the conversation you're
43:55 referring to happen before that correct
43:57 yes
43:58 so you never in fact communicated your
44:04 new understanding of vesting to my
44:07 client until your April 4th letter to me
44:12 correct I don't I don't know the answer
44:21 to that can you identify any document in
44:27 which you said that I cannot and you
44:33 counter signed a letter with mr. Mulaney
44:36 the day before the council adopted the
44:39 replacement regulations correct I did
44:41 acknowledging that my client had
44:45 submitted complete applications for its
44:48 SDP and ASD Peas correct that's my
44:51 recollection yes okay so don't you think
44:57 you were misleading my client into
44:59 thinking you had yet again confirmed
45:01 their vested status by acknowledging
45:03 they had complete applications I I do
45:11 not the the genesis of that letter that
45:14 letter was begun many months before it
45:19 was signed you know at the end of the
45:23 day when I signed it it was at the
45:26 direction of the city attorney who was
45:28 working with your firm to get that
45:30 document signed so I don't believe that
45:34 I signed it with
45:37 intent of misrepresentation of their
45:42 status
45:43 well you confirmed that they had
45:48 submitted complete applications what
45:51 other reason would any applicant want
45:54 confirmation that their application was
45:57 complete other than to know that it was
45:59 vested in the city would process it well
46:02 I think until the City Council passed
46:06 the replacement regulations they had
46:08 already deferred the decision once we
46:14 initially had I think moved forward a
46:17 process to get it approved in December
46:20 and the City Council because there were
46:23 still unresolved issues they pushed it
46:28 to March there was the same issues that
46:32 were unresolved in December were still
46:36 unresolved in March as far as I can
46:39 remember there were issues that your
46:41 client was concerned about and so was I
46:46 certain that the council was gonna pass
46:48 the replacement regulations no mister
46:52 never and I'm not asking you about what
46:54 you thought the council would do I'm
46:55 asking you what possible reason you know
47:03 well let me rephrase the question
47:04 you knew that my client was seeking
47:08 confirmation that its applications were
47:11 complete because that would be another
47:14 assurance by you that they were vested
47:16 correct
47:17 i I don't know that I would connect
47:24 those two pieces they they clearly saw
47:27 value in getting the city's confirmation
47:31 that they had complete applications
47:33 absolutely what that means at the end of
47:36 the day I don't I don't know the city
47:39 never processed my clients applications
47:42 in any way under the regulations in the
47:47 development agreement
47:48 I have no idea you have no knowledge
47:55 that it ever spent a single hour
47:57 processing the applications is that fair
47:59 I did not have any idea mr. Devon does
48:13 the city have a West Main problem or not
48:15 sorry mr. chairman that's a direct legal
48:19 question calling for a legal conclusion
48:21 we've been over at this ground before
48:22 and I would respectfully object to that
48:26 line of questioning for the same reason
48:27 that I have previously and I find that
48:30 amazing objection considering that mr.
48:33 Lall has asked this client about the
48:35 West Main issue and mr. Nibin has
48:38 testified in public and in writing about
48:40 the West Main issue and to say that he
48:42 can't be questioned about his public
48:45 statements and about his prior testimony
48:48 that is this hearing because West Main
48:51 is a legal issue is simply not an
48:54 objection mr. chairman West Main versus
48:56 City of Bellevue is a precedent-setting
48:58 of legal case from I believe the
49:01 Washington Supreme Court it is
49:02 completely unrealistic and inappropriate
49:05 to expect a layperson to answer a
49:07 question like that and again mr. Nevin
49:11 told the City Council that the city had
49:14 a West Main problem I'm entitled to ask
49:16 him about that and mr. Nevin went in to
49:19 the west main issue in his testimony
49:22 this is cut is simply an attempt to cut
49:25 off a 100% legitimate line of
49:28 questioning
49:32 if mr. Newman has already made public
49:35 comments on the West Main I think he
49:38 probably should validate or acknowledge
49:42 the comments that he made mr. chair
49:44 don't weigh in on this one a little bit
49:46 you know I think the question was pretty
49:47 broad asking whether or not he had a a
49:50 legal issue with the Midwest Maine case
49:53 that is a fairly broad in general
49:55 question I think if the question was
49:56 more specific it might be more
49:58 appropriate
49:59 I believe Mike Witt I believe my
50:02 question was whether the city has a West
50:04 Main problem or not it's right and I
50:06 asked that question because I believe
50:08 we've heard testimony both ways on that
50:10 issue but I'm happy to start again with
50:12 a moral a new line of questioning we'll
50:16 start with an exhibit
50:26 and it's an exhibit that's already in
50:28 the record c6
50:29 city itself offered the exhibit
50:44 [Applause]
50:54 [Applause]
50:55 now mr. Navin correct me am I wrong but
50:58 my recollection is that you testified
51:00 that you and miss Loman both had a hand
51:03 in writing this memo that was given to
51:09 the City Council and that you wrote the
51:12 vesting portion of it is is that
51:14 accurate
51:15 I believe that's accurate yes okay and
51:22 you recall what this is an attachment to
51:29 I don't mean to be mysterious it's an
51:33 exhibit c5 let me just hand that up to
51:36 you
51:36 I have c5
51:50 what is Exhibit C 5 so C 5 would be a
51:55 staff memo to the City Council and in
52:00 short committee dated November 17 of
52:03 2017 okay and I think specifically it
52:14 was dealing with those issues that were
52:18 still being discussed by the council and
52:22 the public as it related to the
52:24 replacement regulations right and so I
52:26 want to if you would turn to the memo
52:28 which is the attachment and then turn to
52:31 page 7 of the memo there's Roman numeral
52:38 four called vesting yes and it says the
52:45 attachment for yes and exhibit c6 is
52:50 attachment 4 correct it is and so why
52:54 don't you turn to the second page of the
52:57 memo and the third paragraph from the
53:02 bottom dealing with vesting one of the
53:04 paragraphs you wrote would you read that
53:06 to us please yes it says it is the
53:10 administration okay that's bad English
53:15 sorry
53:15 it is the administration supports
53:18 alternative to as it is consistent with
53:22 the vested rights doctrine and the
53:24 decision of West Main the Bellevue since
53:27 the administration requires a land use
53:29 permit to be issued prior to submit all
53:32 of a building permit complete land use
53:35 permit has been viewed by the city by
53:37 the administration and city attorney as
53:39 part of the building permit process okay
53:41 so you're telling the City Council and
53:44 the interested parties to whom is
53:46 Sloman is communicating that both you
53:51 the administration and the city attorney
53:54 agree the city has a West Main problem
53:57 correct so that's what this says and
53:59 this is inaccurate
54:01 and how and when did you correct the
54:04 inaccuracy in this mr. Nevin it would
54:10 have been corrected maybe in a few
54:13 different ways one with the applicant in
54:16 letting them know that a pre-application
54:18 was not a necessary part of the permit
54:21 process
54:24 the what happened with this is so in
54:31 November of 17 as we were deliberating
54:36 on these remaining issues there was a
54:41 separate memo on vesting and then when
54:45 we moved into January of 18 the proposed
54:51 vesting language in the replacement
54:53 regulations changed and we never went
55:02 back to this attachment for
55:04 clarification or correction as far as I
55:07 can remember correct me if I'm wrong mr.
55:11 douben but the only thing I heard you
55:12 say about actually telling anyone that
55:17 you think this would today was you told
55:21 the applicant my client that it didn't
55:25 need to go through the land use process
55:30 before applying for a building permit is
55:32 that what you said I said we they did
55:35 not need to go through a pre application
55:37 process to start the land use permit
55:40 process that conversation happened I
55:42 don't believe we ever had the
55:45 conversation with shelter Holdings on
55:47 whether a land use permit was necessary
55:51 prior to the submission of a building
55:53 permit and so what does this sentence
55:58 have anything to do with pre apps so my
56:04 understanding of West Main be Bellevue
56:08 was that Bellevue made pre-application
56:13 meetings part of the process so the
56:16 decision and again I'm not a lawyer this
56:17 is my laypersons understanding of this
56:20 is that as an entity if a city makes
56:26 requirements step requirements part of a
56:29 process before you get to state vesting
56:33 all of those pieces then you become part
56:36 of that process and so if if ultimately
56:39 you require a land use permit and prior
56:41 to that a pre appt a complete
56:43 application of a pre app then
56:46 constitutes a vested permit under West
56:49 Main that's my understanding and the
56:55 city requires applicants to actually not
57:00 just go through a pre app but to
57:02 actually obtain a land use approval
57:05 before it can apply for a building
57:07 permit correct no we don't know that's
57:10 what your own website tells applicants
57:13 correct that's what the checklist states
57:17 right and so the the checklist which I'm
57:21 a citizen I want to know what I have to
57:23 do to submit a building permit I go to
57:25 the city's website I find a checklist
57:28 and now I'm referring to exhibit s 9
57:33 which is one of two exhibits from
57:36 different years that have the same
57:37 information and it tells me that I need
57:40 a land use permit notice of decision has
57:43 been issued before I can even apply for
57:47 a building permit correct
58:08 sorry too many microphones it actually
58:12 doesn't say that it so there's a there's
58:14 a box that says land use permit notice
58:18 of decision has been issued so part of a
58:21 checklist is you basically our
58:24 expectation is an applicant will check
58:28 the items on the checklist that they
58:32 include with their application it does
58:36 not say you have to have that land use
58:39 decision it's just a box on a checklist
58:41 okay mister Nevin let's turn to exhibit
58:47 s9 YUM I'm in this night why don't you
58:55 read the second sentence of the
58:57 introductory language before the
58:59 checklist begins under Roman numeral I
59:01 application checklist
59:03 starting with for the second sentence
59:08 starting with for-4 know starting with
59:10 the word please note Oh third sentence
59:16 please note that permit applications
59:19 missing one or more of the listed one or
59:23 more items listed are considered
59:25 incomplete and will delay the permit
59:26 review process okay and then the very
59:29 first box is called presa middle
59:31 requirements yes and one of the priests
59:34 of middle requirements for building
59:38 permit for a commercial or multifamily
59:40 project is land use permit notice of
59:45 decision has been issued that's what it
59:49 says correct that is what it says and
59:54 you're telling this commission as you
59:56 told it previously is this information
1:00:03 is incorrect I'm saying that this
1:00:05 information is advisory to an applicant
1:00:09 and we had a conversation earlier about
1:00:14 whether or not you could submit straight
1:00:16 for a building permit
1:00:18 and we can go back to the land use code
1:00:20 if we need to well yeah let's let's
1:00:22 let's do that mr. Navin and there's a
1:00:25 section of the language code that you
1:00:28 haven't talked about yet that I have
1:00:29 copies of let me put it up on the screen
1:00:35 I know I'm looking for my hard copy of
1:01:06 right
1:01:11 which section do you know I will know in
1:01:17 a moment
1:01:19 so mr. chairman I apologize since it's
1:01:22 been an hour maybe a short break and
1:01:24 I'll find this exhibit we can resume no
1:01:27 objection all right let's take a
1:01:30 five-minute break
1:09:25 all right we're back in session
1:09:53 so next exhibit is this 117 mr. never
1:10:08 and I'm handing you s 117 which is a
1:10:12 printout of two code sections
1:10:34 do you read 1804 own I know yes please
1:10:40 1804 own I know concurrent building
1:10:43 permit review option all development
1:10:46 proposals including the optional
1:10:49 consolidated permit review process are
1:10:51 subject to project permit approval prior
1:10:54 to building permit application unless
1:10:56 otherwise allowed by the building
1:10:57 official who's the building official his
1:11:01 name is Harry Hinton
1:11:03 so this says does it not that the
1:11:07 checklist is accurate that you do have
1:11:11 to get your project permit approval
1:11:18 prior to building permit application
1:11:21 unless Harry Hinton tells you otherwise
1:11:23 correct
1:11:29 [Music]
1:11:40 so it's can I have a moment with our
1:11:48 code sure thank you
1:12:32 [Applause]
1:13:21 so my answer is going to be that 1804 Oh
1:13:25 90 in 1804 160 say different things to
1:13:30 me I would agree that what 1804 Oh 90
1:13:36 says is that that the project permit
1:13:44 approval is required prior to building
1:13:46 permit application but that's not
1:13:48 consistent with this part of code so I
1:13:58 guess so Mike my response is going to be
1:14:01 I believe we have conflicting code
1:14:03 sections and to my knowledge we have not
1:14:07 been asked for an interpretation on
1:14:09 those conflicts as of yet yes sir
1:14:20 yeah I know go ahead I can I can listen
1:14:23 in Oh
1:14:25 do I understand you to agree that oon I
1:14:29 know is entirely consistent with
1:14:34 webpages that tell applicants citizens
1:14:38 what the requirements are for submitting
1:14:40 a commercial and multi-family building
1:14:42 permit application own I know is
1:14:47 consistent with the permit checklist and
1:14:52 so on I know and the permit checklist
1:14:57 Vivid s9 and there's another exhibit an
1:15:03 earlier version of that those documents
1:15:06 are consistent with the city having a
1:15:09 West Main problem correct no I don't
1:15:16 think that's correct
1:15:17 hey oh you don't think the city has the
1:15:21 West the West Main problem that you hold
1:15:24 the City Council the city had in your
1:15:27 November 2017 memo if the city doesn't
1:15:32 let someone apply for a building permit
1:15:34 until they have obtained land use
1:15:36 approval from you and miss Loman I'm
1:15:39 saying I don't believe that the way that
1:15:41 the city is administering the code is to
1:15:44 require a land use permit approval prior
1:15:46 to the submission of a building permit
1:15:48 as was evidenced by the Vale application
1:15:51 who submitted their building permit
1:15:53 prior to their land use approval due to
1:15:57 concerns over the moratorium so I think
1:16:00 in practice were not applying own I know
1:16:04 I believe we're applying 140 if that was
1:16:08 the number like my grades off of it so
1:16:11 which application are you referring to
1:16:13 Vale it's a multi-family apartment
1:16:16 complex on 7th that locust have you I
1:16:22 did not because is it the first time
1:16:25 it's come up so you're you're telling us
1:16:28 that the evidence that you have that
1:16:31 allows people to disregard the checklist
1:16:33 and 18:04 own Ayano is a specific
1:16:38 applicant one specific application to my
1:16:41 knowledge okay I might be others how
1:16:43 about the hundreds of other applicants
1:16:45 who you have required to go through the
1:16:47 process objective that is I'm not aware
1:16:51 that mr. Niven testified to that it
1:16:53 presupposes that conclusion and it goes
1:16:56 beyond the the scope of this rebuttal
1:16:58 testimony I would respectfully object
1:17:01 well mr. Nevin it tell us more about
1:17:06 this project that you think demonstrates
1:17:09 the city is acting consistently or
1:17:11 inconsistently with own I know and the
1:17:15 checklist
1:17:15 what's the can you spell the name of the
1:17:17 applicant please I don't I believe the
1:17:21 applicant is American family I don't
1:17:24 know that for sure the project name is
1:17:26 veil v-a-l-e it's on seventh and Locust
1:17:31 and it's my understanding again I don't
1:17:34 have concrete evidence it's my
1:17:36 understanding that they submitted their
1:17:38 building permit prior to their land use
1:17:40 permit being complete and you mentioned
1:17:44 the moratorium yes but what did the
1:17:48 moratorium have to do with it so the
1:17:51 city was in the process of considering a
1:17:56 development moratorium for the valley
1:17:58 floor and 7th and Locust is on the
1:18:02 valley floor so they would have been
1:18:04 potentially impacted by the moratorium
1:18:14 any other examples mr. Nevin there might
1:18:18 be I don't have any to share tonight
1:18:21 you heard the testimony from his time
1:18:27 that the city in fact did require my
1:18:33 client to go through both the pre
1:18:36 application process and its land use
1:18:41 approvals before it could apply for a
1:18:43 building permit I believe that we told
1:18:48 shelter Holdings they had to have a
1:18:50 pre-application meeting I also believe
1:18:53 that we clarified that that was not a
1:18:55 requirement of the permit process later
1:18:59 on and how did you clarify that I it was
1:19:05 either in a memo or it was I think it
1:19:07 was one of these exhibits I did it's in
1:19:10 writing somewhere
1:19:13 [Applause]
1:19:30 I apologize I'm looking for a new
1:19:32 exhibit that
1:19:42 OKs 1:18
1:20:17 mr. Navin this document is obviously
1:20:23 well it's called city orientation
1:20:26 meeting Mehmet's minutes on letterhead
1:20:28 of Clark Design Group PLLC yes you you
1:20:33 recognize this document I've never seen
1:20:35 it before
1:20:36 okay it's a what our meeting minutes
1:20:41 that are provided to the city such as
1:20:43 these I have no idea okay well
1:21:06 this is this is a eating minutes it
1:21:13 attended by a number of city employees
1:21:15 including miss Loman and Doug slap
1:21:17 correct hey it's what it says I okay no
1:21:20 idea if that occurred okay I'm just a I
1:21:22 understand you've never seen this
1:21:24 document before it's just another set of
1:21:29 minutes reflecting communications by the
1:21:33 city on this issue I'd like you to turn
1:21:36 to the second page please entry two
1:21:39 point five and there's an entry there LS
1:21:44 noted and I submit that Ellis is Miss
1:21:47 sloman because she's the only person
1:21:49 with the initials of L and s in the
1:21:53 meeting attendees so what did LS note at
1:21:56 this meeting what this says under two
1:21:59 point five which says dual-track ASDP
1:22:04 and building permit LS noted that the
1:22:07 city does not typically allow a
1:22:10 dual-track between the ASDP and building
1:22:13 permits the building permit may be
1:22:15 submitted once the ASDP is approved Hey
1:22:19 so is that entry consistent with
1:22:25 eighteen oh four oh nine oh no why not
1:22:33 because of the word typically would
1:22:36 indicate to me that sometimes it is
1:22:41 allowed well it sometimes means when the
1:22:44 city decides it's allowed correct I have
1:22:48 no idea well your apartment mr. Nevin
1:22:51 when does the city allow people to apply
1:22:54 for building permits when they haven't
1:22:56 issued when the city hasn't issued a
1:22:59 notice of decision on a land use
1:23:00 application any anytime anytime and the
1:23:05 example you've given of that is the
1:23:07 American family project I did okay
1:23:15 so mr. naman going back again to the
1:23:18 checklist on the website you think that
1:23:24 clearly communicates to members of the
1:23:26 public what the city's position is that
1:23:28 in fact according to I understand you
1:23:31 are telling us that an applicant amend
1:23:34 and apply for a building permit without
1:23:38 getting a land use decision so I that
1:23:44 was a compound question is it your
1:23:46 testimony that an applicant can decide
1:23:49 on the applicant's own whether you get a
1:23:53 land use decision or simply go straight
1:23:56 to a building permit
1:23:58 yes and is that what the city's
1:24:02 checklist that's available to someone
1:24:06 coming to the city and trying to see
1:24:08 what the process is informs the person
1:24:14 that's not what this says no okay and
1:24:18 that document that checklist has been on
1:24:23 the city's website for years correct I
1:24:25 have no idea I just became just became
1:24:31 aware of it and saw it through these
1:24:32 proceedings okay well you just have to
1:24:36 fight again correct me if I'm wrong that
1:24:37 it doesn't accurately explain the city's
1:24:40 position correct so this is a 12 page
1:24:44 document right I mean it's 12 pages it's
1:24:48 I didn't count the number of boxes the
1:24:51 intent is that an applicant would use
1:24:55 this document to guide them through the
1:24:57 application process is it the intent
1:25:00 that all of the boxes are checked even
1:25:04 though that's what it says at the
1:25:05 beginning I would say no but that's what
1:25:09 it says so how long have you been in
1:25:14 your current position mr. Niven it's
1:25:16 since 2015 and I think you just said
1:25:20 again that that checklist
1:25:22 mmm is not accurate and is misleading to
1:25:25 a member of the public because the city
1:25:27 allows people to come in if they want
1:25:29 and apply for a building permit without
1:25:31 getting a land use decision correct I
1:25:33 think this is a tool that we use to try
1:25:36 and help applicants I didn't say it was
1:25:38 misleading well you just said that the
1:25:43 city doesn't require what that checklist
1:25:48 says the city required isn't that
1:25:50 accurate I did say that
1:25:52 I did say that okay and how is that
1:25:55 consistent with be one of the rules of
1:25:59 professional conduct it requires you to
1:26:02 provide adequate timely clear and
1:26:04 accurate information on planning issues
1:26:06 so I wouldn't I'm not debating you that
1:26:10 this document could use to be clarified
1:26:13 and cleaned up it's probably on
1:26:15 somebody's to-do list within my
1:26:17 department
1:26:17 I didn't author this document I think I
1:26:23 said I saw it for the first time during
1:26:25 these proceedings mr. Navin you had a
1:26:30 conversation with miss hime out whether
1:26:34 he had to go through all the city's
1:26:38 pre-application processes even though
1:26:40 they're not in the development agreement
1:26:41 correct
1:26:48 yes and in fact ms Himes notes reflect I
1:26:53 think more than one conversation about
1:26:56 that issue with you correct I have no
1:27:00 you do recall her testifying about it
1:27:03 from her notes not specifically you then
1:27:08 you must have an independent
1:27:09 recollection of discussing it with Miss
1:27:11 I'm I believe I wrote her a
1:27:13 clarification either in an email or a
1:27:16 letter indicating that the
1:27:18 pre-application was optional and that
1:27:22 they did not have to go through that
1:27:24 process okay and I'm my hope is that we
1:27:29 can find that communication mr. Nevin
1:27:33 are you aware that Miss Loman told this
1:27:39 time that optional means the city gets
1:27:41 to decide so
1:27:43 it's optional with the city but
1:27:44 mandatory with the applicant I believe
1:27:47 that she did tell Miss time that yes
1:27:49 believe that's accurate
1:28:00 mr. Navin you were present when miss
1:28:03 Loman presented PowerPoint slides to the
1:28:08 City Council that told the City Council
1:28:13 that the city had a West Main problem
1:28:15 and that told the City Council that the
1:28:18 development agreement didn't address
1:28:21 vesting correct yes do you think telling
1:28:35 the City Council that there was a West
1:28:38 Main problem you telling the city are
1:28:43 telling this commission that there isn't
1:28:44 a West Main problem
1:28:48 you think those communications are
1:28:51 consistent with be one of the rules of
1:28:53 conduct about clear and adequate
1:28:57 accurate information I already said I
1:29:03 believe that the memo to Council was in
1:29:05 error you don't know what you're trying
1:29:09 to get at exactly well I'm trying to get
1:29:12 at I mean if you're gonna if you're
1:29:15 asking me if I think I've acted
1:29:18 inconsistently with the AICP code of
1:29:20 ethics the answer's no hey well you sat
1:29:24 there while miss Loman told the City
1:29:26 Council that the development agreement
1:29:28 didn't address vesting correct yes and
1:29:33 you last hear and you add in front of
1:29:36 you your well-worn copy of the
1:29:38 development agreement that addresses
1:29:39 vesting does it not or did you not so my
1:29:44 understanding again is that the
1:29:48 messaging that we were giving the City
1:29:50 Council was as it relates to the
1:29:52 replacement regulations that it was our
1:29:56 understanding that when the development
1:29:58 agreement reached its term there were no
1:30:00 provisions for vesting that survived
1:30:03 that termination of the development
1:30:05 agreement and therefore they needed to
1:30:09 choose vesting provisions as part of the
1:30:13 replacement regulations if they wanted
1:30:15 it to be clear so mr. Naren we're going
1:30:19 to bring up on to the screen the
1:30:21 PowerPoint slide it's already an exhibit
1:30:24 in this proceeding okay
1:30:34 this is what you and the Sloman together
1:30:37 told the City Council the development
1:30:40 agreement does not provide regulations
1:30:42 or guidance on vesting of projects and
1:30:51 you're telling us that you think that is
1:30:52 consistent with the rule of conduct that
1:30:56 says you're required to provide adequate
1:30:59 timely clear and accurate information
1:31:03 yes the development agreement does
1:31:09 provide regulations on vesting doesn't
1:31:14 it not after its sunset where does the
1:31:17 development agreement say that mr.
1:31:19 Hobart
1:32:12 so those exact words are not in the
1:32:14 development agreement I thought we've
1:32:16 been over that okay the fact there's
1:32:18 nothing in the development agreement
1:32:20 that says that in any way correct there
1:32:24 is no provision in the development
1:32:26 agreement that talks about what happens
1:32:28 to permits that are vested to the
1:32:31 development agreement when the
1:32:33 development agreement terminates
1:32:35 okay so again your interpretation of
1:32:38 vesting is that it terminates when the
1:32:41 regulations terminate correct that is my
1:32:48 understanding of vesting to the
1:32:51 development agreement that it terminates
1:32:53 when the development agreement
1:32:54 terminates and so mr. Nevin again
1:33:03 recognizing that you're not an attorney
1:33:06 where did you come up with the idea that
1:33:10 a contract can't bind the parties after
1:33:15 the end of the term of the contract I
1:33:22 think we're back to that same third rail
1:33:25 we've been circling around all night
1:33:27 okay so you're relying on advice from
1:33:31 the city attorney that you're not
1:33:32 telling us about right yes sir okay
1:33:41 okay why don't we switch gears for men
1:33:45 at mr. Nevin in your testimony last time
1:33:49 in response to questions from mr. lell
1:33:51 you talked about other projects in the
1:33:56 city of Issaquah that have more than one
1:34:03 effe are for them recall that I do okay
1:34:08 and you gave very specific if they are
1:34:12 numbers for those other other projects I
1:34:15 did and why don't we go through those
1:34:19 other projects that you talked about one
1:34:26 of them was the Costco project correct
1:34:28 yes and Costco is developing its
1:34:32 headquarters pursuant to a development
1:34:34 agreement correct yes and another
1:34:37 project was the Swedish hospital a
1:34:42 medical office structure yes and that's
1:34:45 also being developed pursuant to a
1:34:47 development agreement correct yes and
1:34:51 another one was the that loft project
1:34:56 I'm looking for my notes do you recall
1:34:59 which one it is the Gilman lofts yes
1:35:02 that also had a development agreement
1:35:04 correct yes and then the other one was a
1:35:09 was a hotel Spring Hill Marriott
1:35:14 I'm sorry Spring Hill Marriott yeah and
1:35:17 was that subject to the Raleigh
1:35:18 development agreement no so you would
1:35:26 agree would you not that a hotel is very
1:35:29 different than in terms of its needs
1:35:32 then and the kinds of projects that the
1:35:39 zoning allows on my clients product
1:35:42 property no hey Sarah zoning allows a
1:35:46 hotel okay so what is the size of the
1:35:49 site of which
1:35:51 is located I don't think I have that
1:35:56 information and what was the FAA are
1:35:59 that you said they had built - thank you
1:36:01 hey and is there a structured parking
1:36:04 there is and that you don't know the
1:36:08 size of the site I don't how many
1:36:12 hundred thousand square feet does my
1:36:15 client have on India's aqua Highlands
1:36:20 I don't know that exact number you know
1:36:23 it's 20-some acres right yes
1:36:26 and there's what 40 odd 45,000 odd bare
1:36:32 feet per acre yes Hey so we're talking
1:36:37 about roughly 900 thousand square feet
1:36:40 of development potential I don't know
1:36:52 so they bought 1.2 million square feet
1:36:54 from Microsoft they then bought an
1:36:56 additional I misspoke I didn't mean
1:36:58 development okay I meant land if they
1:37:02 have to build to 1fa are or they have to
1:37:04 build 900,000 square feet of development
1:37:08 correct
1:37:16 just multiplying the number 20 plus
1:37:19 acres 43 560 times 20 is 871 200 so
1:37:26 almost 900,000 square feet of
1:37:29 development is what the city is
1:37:31 requiring i client to build in the
1:37:33 highlands correct under the terms of the
1:37:37 1.0 fer yes and did the city you last
1:37:42 time you testified that my client hadn't
1:37:44 presented any economic analysis to you
1:37:47 showing you that building 900,000 square
1:37:50 feet of development in the Issaquah
1:37:52 highlands wasn't economically reasonable
1:37:54 I'm asking the question turning it
1:37:56 around to the city do any study
1:37:59 whatsoever to show that 900,000 almost
1:38:03 square feet of development in the
1:38:04 Issaquah highlands was economically
1:38:06 feasible in any way did we provide your
1:38:10 client with any economic analysis to
1:38:12 that end no no not to my client did you
1:38:15 provide any information to the City
1:38:16 Council in the legislative process to
1:38:20 explain what the impact of that would be
1:38:23 on my client we did not to my
1:38:26 recollection
1:38:27 now you also testified last time mr.
1:38:29 Nevin that there was no problem imposing
1:38:34 these requirements on my clients 20 plus
1:38:37 acres in Issaquah Highlands because the
1:38:39 city imposed the same requirements on
1:38:42 property it owns in talis not sure I'd
1:38:46 characterize it that way but I think
1:38:47 what I said was that the city has owns a
1:38:51 piece of property in talus and the same
1:38:54 regulations in terms of FA are in
1:38:56 structured parking what apply to that
1:38:58 property and the city in fact owns two
1:39:03 small parcels and talus correct - we own
1:39:08 multiple parcels and talus that we own -
1:39:11 for development yes a and those are
1:39:14 zoned for retail development one is
1:39:17 zoned for retail development the other
1:39:19 is for a sustainable building project so
1:39:23 I think it's limited to residential
1:39:25 so are these parcels joining one another
1:39:29 No okay well let's talk about the one
1:39:32 that is zoned retail how did the city
1:39:34 acquire that project a property we
1:39:38 acquired that property from intra Corp
1:39:42 who was building I don't know the name
1:39:45 of the project but it was parcel 13 at
1:39:47 Allis why did enter Corps give you that
1:39:52 parcel because they didn't want to build
1:39:55 the retail corner as part of the village
1:39:58 square
1:39:59 well in fact inter core gave the city
1:40:06 this retail property because it couldn't
1:40:08 economically develop it and the city
1:40:11 wouldn't allow intra court to compel
1:40:15 project unless it gave the property to
1:40:17 the city isn't that correct
1:40:20 so Inter Corp so the the regulations
1:40:24 that are on the property now we're not
1:40:26 the regulations that were on the
1:40:27 property when inner Corp gave the
1:40:29 property to the city inter CRO chose to
1:40:33 give it to the city in lieu of building
1:40:34 the retail space at the time the other
1:40:37 corner across the street where anchor
1:40:41 had coffee and wine bar is now was built
1:40:48 by inter Corp but it was a few years
1:40:51 later
1:40:52 so whatever reason they decided to give
1:40:55 it to the city versus building it I
1:40:57 don't know that was what they chose us
1:41:34 have you seen this document previously
1:41:37 mr. Nevin I don't recall it's a it says
1:41:44 it's a notice of decision issued to Dan
1:41:47 swallow venture cor that's what it says
1:41:51 yes so I want to turn your attention
1:41:54 please to attachment 3 which is about
1:41:59 halfway into the document it has the
1:42:01 words attachment 3 on the upper right
1:42:03 hand corner yes you have that I do and
1:42:08 it's called
1:42:09 this document is called a Memorandum of
1:42:11 Understanding yes and I want you to read
1:42:17 for us please
1:42:19 recitals see which start at the bottom
1:42:22 of that first page and then he at the
1:42:26 top of page 2 and this is a memo of
1:42:31 understanding with the city of Issaquah
1:42:33 correct
1:42:37 okay so sidles C says in issuing a site
1:42:48 development permit and providing plat
1:42:51 approval for parcel 13 the city required
1:42:54 that Lots
1:42:56 83 and 84 be developed with at least 50
1:42:59 818 square feet 5818 square feet of
1:43:04 retail / office space in parens the
1:43:08 retail / office requirement under the
1:43:12 terms of the parcel 13 permits and
1:43:20 approvals the issuance of a certificate
1:43:23 of occupancy for the 55th residential
1:43:27 unit constructed on parcel 13 may be
1:43:30 issued may not be issued until final
1:43:34 inspection of the shell space of the
1:43:37 entire retail / office improvements on
1:43:40 Lots 33 and 34 occurs number D
1:43:46 TV see just okay we're gonna assume
1:43:52 that's intercourse
1:43:54 requested a revision to final plat
1:43:57 condition number three of the Tallis
1:43:59 parcel 13 final plot and in a decision
1:44:03 of the Hearing Examiner dated October 20
1:44:07 2011 just I mean that says 11 sorry my
1:44:11 contacts are getting a little funky the
1:44:14 deceit and in parens that decision
1:44:16 condition number three to the talus
1:44:19 parcel thirteen final plat was modified
1:44:22 to read as follows at least five
1:44:26 thousand eight hundred and eighteen
1:44:28 square feet of retail slash office comma
1:44:32 including any interior community center
1:44:35 square footage comma shall be provided
1:44:39 on lots 83 and 84 issuance of the
1:44:43 certificate of occupancy for the 55th
1:44:45 residential unit may not occur until
1:44:47 either paren one on paren
1:44:52 the final inspection of the shell space
1:44:54 for the entire amount of retail / office
1:44:57 square footage is issued semicolon or
1:45:01 two rights to develop the parcels / n
1:45:06 Lots 83 and 84 run paren are conveyed to
1:45:10 the city or to another acceptable to
1:45:15 another acceptable sorry to the city for
1:45:22 the purpose of fulfilling the
1:45:23 non-residential component of the project
1:45:26 though the city condition on the
1:45:31 development was they either build out
1:45:35 this retail office space or they give
1:45:37 the property to the city that looks like
1:45:41 that was the subject of this amendment
1:45:43 or this Memorandum of Understanding and
1:45:45 then if you turn a little bit further
1:45:47 maybe half a dozen
1:45:49 or so pages further to attachment for
1:45:52 that's quitclaim deed giving the
1:45:54 property to the city correct
1:46:08 I'm gonna guess that's correct
1:46:11 hey and what what's the date of the
1:46:14 quitclaim deed to the city it's on the
1:46:16 top of the second page of a statutory
1:46:18 warranty deed 2013 though the city has
1:46:22 owned this property or six and a quarter
1:46:27 years as it sat vacant during all that
1:46:30 time well yes and the size of the
1:46:37 property is is what I don't know well
1:46:46 the city's requirement is that it be
1:46:47 developed with fifty eight hundred and
1:46:50 eighteen square feet of retail office
1:46:53 correct that's what this agreement said
1:46:56 yes okay so last time you talked at some
1:47:00 length about how the there's nothing
1:47:02 wrong with the requirements imposed to
1:47:05 my client because the city imposed the
1:47:07 same requirements on its property and
1:47:09 Talas this is the property we're talking
1:47:11 about correct yes and that property is
1:47:14 set empty for over six years
1:47:18 correct yes there's the city intending
1:47:21 to do with retail property that is sat
1:47:24 empty for six years
1:47:26 at some point we will market it and try
1:47:30 to get a retail developer to build there
1:47:33 Oh a couple of small parcels that are
1:47:37 set empty for six years you think are
1:47:40 evidence that the city's regulations
1:47:42 imposed on IH IFC's almost nine hundred
1:47:47 thousand square feet or reasonable I do
1:47:51 so what's the other commercially zoned
1:47:56 property in Allis besides these two
1:47:59 small city owned parcels the other
1:48:03 commercial property is the office parcel
1:48:07 it was called 17b it's not owned by that
1:48:15 developer any longer it was purchased by
1:48:17 his quest school district for a middle
1:48:19 school
1:48:20 a-and that property subject to the one
1:48:29 FA our requirement it's subject to I I
1:48:36 don't know I have not reviewed the
1:48:40 Tallis replacement regulations I didn't
1:48:43 know that was going to be germane well I
1:48:45 thought you testified last time that the
1:48:47 same regulations were imposed on
1:48:48 Tallis's were imposed on the askew
1:48:50 Islands I did hey well then there's a 1f
1:48:53 AR and a structured parking requirement
1:48:56 on the property now and by the school
1:48:57 district correct there is a those
1:49:03 standards are applicable to the school
1:49:07 district as long as it's still zoned
1:49:09 commercial oh that's what it's sown
1:49:11 today you haven't changed the zoning
1:49:13 have you I have not so or you think this
1:49:17 middle school is going to be built to
1:49:19 1fa are I think the middle school will
1:49:22 be built to standards that are
1:49:23 applicable to the middle school that
1:49:27 doesn't answer my question
1:49:28 mr. Evan the city as opposed to one FA
1:49:32 are and structured parking on the only
1:49:35 other commercial property and Talas
1:49:37 other than the twos small city on
1:49:39 parcels and it's being developed with
1:49:41 the middle school correct it is being
1:49:44 developed for a middle school correct
1:49:46 okay so once again all you have to show
1:49:49 that you you're the one who brought up
1:49:51 Tallis and said how the city is treating
1:49:54 the rather the commercial property there
1:49:56 demonstrates the reasonableness of its
1:49:58 treatment of my client I believe we said
1:50:00 retail by the way you're mixing retail
1:50:02 and commercial I think the comment was
1:50:05 about retail but I didn't review the
1:50:10 transcript so I might be wrong I might
1:50:13 be wrong too we'll find it okay
1:50:24 [Applause]
1:51:07 Oh mister never knew you
1:51:11 response to a question for mr. lell if
1:51:14 you have the transcript out and directed
1:51:16 to you but I I'm not sure it's necessary
1:51:19 bottom of page 93
1:51:21 so mr. last does the city of mr. claw
1:51:26 itself own property with a palace area
1:51:29 your answer was we do we own retail
1:51:31 property and Talas the remaining part of
1:51:35 the village square is owned by the city
1:51:36 and is basically zoned for lack of a
1:51:38 better term for retail development right
1:51:41 so so I think you know at least my
1:51:45 intent was to really say the retail
1:51:48 issue that shelter Holdings was bringing
1:51:50 up we have the same issue on property we
1:51:54 own at Allis and our intent is to finish
1:51:57 out the village square which would mean
1:51:59 at some point when we have capacity we
1:52:03 will be working on that property
1:52:13 okay so could you also since you have
1:52:15 the transcript in heaven turn back to
1:52:21 page 92
1:52:26 yes it's the little number C's to 92
1:52:39 yeah so at the last question on the page
1:52:43 mr. well asked are the fa r and
1:52:48 structured parking requirements
1:52:49 contained in the Issaquah Highlands
1:52:51 replacement regulations identical to
1:52:54 those contained replacement regulations
1:52:57 for the Tallis area of the city and uses
1:52:59 your answer was identical yes yes an
1:53:05 error and then you were asked by mr. Lau
1:53:15 are there any property owners in the
1:53:17 Tallis area had that contended that the
1:53:22 FA are in structured parking would hit
1:53:24 render development economically unviable
1:53:26 and your answer was no correct correct I
1:53:30 didn't remember that there were any I'm
1:53:33 sorry I didn't remember that there were
1:53:34 any well you said no and the only
1:53:40 property owners who could have contended
1:53:42 that were the city and the school
1:53:43 district correct no at that time it was
1:53:45 trimet development okay and who properly
1:53:49 sold to the school district and by that
1:53:53 time prom please a year the school
1:53:55 district just sold just bought it like
1:53:57 this month right so you're saying that
1:54:01 the school district bought the property
1:54:02 since you testified two weeks ago it may
1:55:21 in just a moment we may be done but I
1:55:23 want to confirm
1:56:58 mr. Libin how long have you been aware
1:57:00 that the school district was purchasing
1:57:05 the palace property for the middle
1:57:07 school I don't have a good sense for
1:57:13 that Oh they've they've been in with pre
1:57:17 apse and meeting with the city about it
1:57:19 for many months correct they have had I
1:57:22 believe maybe two priests the middle
1:57:24 meetings with city staff I haven't been
1:57:27 in either of those okay but you knew
1:57:29 when you testified here a couple of
1:57:31 weeks ago that that property was being
1:57:33 acquired by the school district correct
1:57:35 I was in belief that they were deciding
1:57:40 to buy that property yes so again since
1:57:45 you knew that when you told this
1:57:49 commission that no property owner had
1:57:53 objected no retail or commercial
1:57:57 property owner had objected you knew
1:57:59 that the only one who could object would
1:58:02 be the city itself because of the
1:58:04 property it acquired from the developer
1:58:06 correct no that's not correct so the
1:58:09 replacement regulations were adopted in
1:58:11 March of 18 we're in March of nineteen
1:58:13 in March of 18 at was still trying to
1:58:18 push on a short plat and residential for
1:58:22 their property the school district at
1:58:24 that time had not indicated to the city
1:58:28 that they were looking at talus they
1:58:31 were there were some other properties
1:58:33 that they were looking at in the city
1:58:34 for a middle school but we were unaware
1:58:38 that they were looking at talus when the
1:58:40 replacement regulations were adopted in
1:58:44 March of 18 well mr. Navin again I'm
1:58:48 talking about what you knew when you
1:58:50 testified to this commission you knew
1:58:52 that the property was being acquired by
1:58:54 the school district because they had
1:58:56 been in meeting with your department
1:58:59 about that issue correct well but the
1:59:01 question was whether or not the
1:59:02 regulations in the Highlands were the
1:59:04 same as talus and the answer is yes I
1:59:07 don't
1:59:08 think that was the question but thank
1:59:10 you but one one more moment please
1:59:52 Thank You mr. Niven that's all I have
1:59:56 mr. Lowe - chairman I'm happy to begin
1:59:59 my redirect for rebuttal purposes with
2:00:02 mr. Navin but since we are at the one
2:00:03 hour marker I would defer to the
2:00:05 Commission if it would like to take a
2:00:06 break I think we would I think we would
2:00:09 enjoy a break and let's take a break for
2:00:11 10 minutes thank you
2:12:05 alright we're back online so it's time
2:12:09 to resume I'm sorry
2:12:13 thank you yeah
2:12:30 okay now we're ready thank you thanks
2:12:33 thank mr. Lowe Thank You mr. chairman
2:12:36 mr. Nevin I have what I hope were
2:12:39 relatively few questions and redirect
2:12:42 for purposes of your rebuttal testimony
2:12:44 first of all I'd like you to refer to
2:12:46 the the document that was distributed
2:12:50 and labeled as exhibit s 112 and the
2:12:56 cover email to that were typically was s
2:12:59 one thirteen of those please I have an s
2:13:12 113 believe that s 112 was the first
2:13:18 document that mr. Snyder handed out this
2:13:21 evening and I can provide you with a
2:13:22 copy if it's not available oh pardon me
2:13:27 and it would be he referred to 112
2:13:36 thank you take a moment and refresh your
2:13:40 memory regarding that document for the
2:13:41 record this is in April 15 2019 letter
2:13:45 from Lucy sloman your employee to miss
2:13:50 Jaime
2:13:50 yeah and it's actually attached to 113
2:13:53 so I'm gonna get rekt great yes
2:14:01 we're clear I believe you testified that
2:14:03 you did not actually participate in the
2:14:06 drafting of that document
2:14:07 I did not why is that I believe I was
2:14:13 out of the office while this was being
2:14:16 drafted you have since reviewed it
2:14:19 correct I have reviewed it do you concur
2:14:26 in the substantive conclusion of that
2:14:29 letter that I H IFC's preliminary plat
2:14:33 application is not vested to the process
2:14:36 or procedures of the Issaquah Highlands
2:14:38 development agreement I do you agree
2:14:43 with the substantive conclusion of that
2:14:46 letter that I H IFC's preliminary plat
2:14:49 application should be processed under
2:14:51 the procedures specified by the
2:14:54 replacement regulations I do like you
2:15:03 did please turn your attention to
2:15:05 exhibit s 115 also a handed to you by
2:15:10 mr. Schneider and his cross-examination
2:15:12 yes this is the email exchange involving
2:15:19 David Avenel jr. familiar with that
2:15:21 document yes
2:15:24 [Applause]
2:15:27 mr. Niven was this email exchange taking
2:15:34 place before the replacement regulations
2:15:36 for Issaquah Highlands were adopted yes
2:15:41 because it's dated August of seventeen
2:15:45 was this email exchange dated before the
2:15:47 build-out period expired under the
2:15:49 development agreement yes that would be
2:15:51 September of seventeen was anything in
2:15:55 this email exchange intended to be or
2:15:58 was an appealable decision under your
2:16:01 understanding nothing in this email
2:16:05 exchange that I can tell
2:16:16 you then go back please to exhibit s4
2:16:20 and this was a pre-existing document in
2:16:22 the record and you don't have a copy and
2:16:24 even I know I'm good okay once more
2:16:34 could you please identify this document
2:16:36 for the record yes okay so this document
2:16:50 is the formal recommendation coming from
2:16:57 the urban village Development Commission
2:16:59 to the City Council and it's signed by
2:17:03 the chair Jeff Walker on the 10th of May
2:17:06 2018 and to clarify I believe what mr.
2:17:11 Schneider had asked you in his line of
2:17:14 questioning and did the city process the
2:17:19 polygon decision at issue in an exhibit
2:17:23 s4 under the procedures specified in the
2:17:26 ethical Highlands development agreement
2:17:30 that's my understanding yes your
2:17:33 knowledge did anyone implicated in that
2:17:36 proceeding ever challenge or object to
2:17:40 the city's processing of that
2:17:43 application under the Icicle Highlands
2:17:46 development agreement to my knowledge
2:17:48 there were no public comments to that
2:17:51 and no appeals filed that was gonna be
2:17:53 my next question just another record was
2:17:55 there ever an appeal filed of that
2:17:57 decision I know did you purport to issue
2:18:04 a formal determination regarding vesting
2:18:07 any manner concerning the polygon
2:18:10 application can you say that with a
2:18:17 different word other than purport sure
2:18:22 referring you back to
2:18:24 provision of the Issaquah municipal code
2:18:26 that you've previously testified about
2:18:28 that's IMC 1801 oh five oh yes
2:18:32 and specifically the provision in that
2:18:36 ordinance that empowers you as the
2:18:40 director to make vesting determinations
2:18:43 in consultation with the city attorney
2:18:45 yes I do remember that are you familiar
2:18:47 with that provision yes I am with
2:18:50 respect to the procedure used for the
2:18:52 polygon plat application did you issue a
2:18:58 formal vesting determination I believe
2:19:06 we did issue a document to polygon
2:19:10 indicating that there plat was vested I
2:19:14 don't remember it every day out I'm
2:19:16 sorry did anyone ever challenge that
2:19:18 decision no or that determination
2:19:20 no made
2:19:28 I'd like to then turn your attention
2:19:29 please mr. Niven to Exhibit C for
2:19:33 previously existing document in the
2:19:36 record this is an email exchange
2:19:39 involving yourself and miss Mullen yes
2:19:45 what's the date on that email that date
2:19:49 was November 22 of 2017 and I know that
2:19:54 this is old ground for purposes of this
2:19:56 proceeding but could you please briefly
2:19:58 describe the the subject and content of
2:20:01 your communications with a miss Loman
2:20:03 and how they came about so miss Loman
2:20:06 was cc'd on the email between myself and
2:20:10 miss hime and she then directly emailed
2:20:16 me in response to my email back to miss
2:20:19 hime that indicated she was confused at
2:20:33 the time of this email colloquy between
2:20:35 yourself and mr. almond is it your
2:20:38 understanding that I H IFC's SDP and
2:20:42 ASDP applications at issue in this
2:20:45 proceeding had already been submitted to
2:20:48 the city I believe they had been
2:20:51 submitted thank you I'd like to turn
2:20:54 your attention next to exhibit s 116
2:20:58 this is the AICP code of ethics that mr.
2:21:03 Schneider introduced as is an exhibit in
2:21:07 his cross-examination
2:21:20 yes you familiar with this document yes
2:21:29 have you ever knowingly and/or
2:21:32 intentionally breached any of the
2:21:36 ethical requirements under the code of
2:21:39 ethics absolutely not
2:21:42 in your opinion
2:21:57 pardon me if you could please turn to
2:22:00 Roman numeral to be of that document yes
2:22:05 and subsection 1 beginning with we shall
2:22:09 not deliberately or with reckless
2:22:12 indifference fail to provide adequate
2:22:14 timely clear or adequate information on
2:22:17 planning issues yes you believe that you
2:22:20 have fulfilled the ethical requirements
2:22:22 of this mandate I believe so in
2:22:32 questioning from mr. Schneider he
2:22:35 characterized your April 4th 2018 letter
2:22:44 as involving a quote or your quote new
2:22:49 understanding of vesting do you remember
2:22:51 that characterization vaguely was the
2:22:58 position on vesting expressed in your
2:23:01 April for 2018 letter a new position for
2:23:05 you no could you expand on that we we
2:23:13 had started a very meaty conversation
2:23:18 with the City Council on vesting as
2:23:21 early as my recollection was maybe late
2:23:25 October early November of 2017 so by the
2:23:29 date of that letter it had gone around
2:23:32 enough times that it wasn't a new
2:23:34 conversation thank you I might then like
2:23:37 to turn your attention to exhibit s 36
2:24:06 okay are you familiar with this document
2:24:10 yeah let me look at it real quick yes
2:24:14 could you briefly describe and identify
2:24:17 this document so this document which is
2:24:26 entitled Letter agreement regarding
2:24:28 completeness determination for IHI FC
2:24:31 commercial LLC's SDP applications and
2:24:37 it's addressed to Lucy but ultimately
2:24:42 was signed by Patrick Mulaney Gary Young
2:24:45 and myself did you please turn to page 2
2:24:48 of that letter agreement okay and read
2:24:52 paragraph 5 5 it's the shortest one
2:24:56 thank you the party's intent in
2:25:00 executing this letter agreement is for
2:25:02 the limited purpose of establishing the
2:25:05 criteria for obtaining SDP completeness
2:25:09 determinations and you construe this
2:25:17 document then and in light of that
2:25:19 paragraph that you just read as
2:25:22 purporting to establish or define any
2:25:25 vested rights and IHI FC's various
2:25:28 permit applications not in my opinion
2:25:31 thank you did you then read paragraph 6
2:25:36 yes the parties acknowledge that the
2:25:41 council has not yet adopted replacement
2:25:43 regulations for the Grand Ridge
2:25:45 development agreement thus depending on
2:25:49 the language ultimately adopted comma
2:25:51 the parties may have differing positions
2:25:54 regarding the effect of the replacement
2:25:57 regulation
2:25:58 Shinzon ih IFC's proposed development
2:26:04 therefore both parties reserved all
2:26:07 legal and equitable rights comma
2:26:10 positions and remedies , and execution
2:26:14 of this letter agreement shall not be
2:26:17 construed as a waiver of either party's
2:26:21 respective legal rights comma
2:26:23 positions and remedies including comma
2:26:26 without limitation comma the legal
2:26:29 requirements of the development
2:26:30 agreement , the effect of the
2:26:33 replacement regulations comma or vesting
2:26:36 period thank you how do you construe
2:26:39 that provision as it relates to any
2:26:41 vested status claimed with respect to IH
2:26:45 IFC's ASDP and SDPD applications well I
2:26:51 what I read out of this subsection six
2:26:54 is that there's some acknowledgement
2:26:59 that the parties may have a different
2:27:01 interpretation of vested rights and that
2:27:05 the execution of this document does not
2:27:07 compromise either parties differing
2:27:11 opinions if there were different
2:27:13 opinions these read the first four lines
2:27:16 of paragraph 7 of that document sure so
2:27:22 7 subject to the party's reservation of
2:27:26 Rights in paragraph 6 , and without
2:27:29 agreement between the parties as to
2:27:32 whether the SDP applications already
2:27:35 have vested or whether further
2:27:38 processing of the SDP applications is
2:27:41 required following adoption of the
2:27:43 replacement regulations comma thank you
2:27:49 how do you construe that reference in
2:27:52 relation to the processing of IH IFC's
2:27:55 STP and ASDP applications
2:28:08 well I'll rephrase the question if you
2:28:11 prefer I mean so my not a lawyer but
2:28:17 basically this is this is subsection 7
2:28:22 is a tolling agreement between the
2:28:26 parties you construe the text that you
2:28:32 just quoted out loud as suggesting that
2:28:36 the city is required to process IH IFC's
2:28:40 a STP and STP applications under the
2:28:44 replacement regulations or the
2:28:46 development agreement I'm sorry I was
2:28:58 reading now can you please say your
2:29:00 question sorry I will move on to the
2:29:02 next question okay thank you for reading
2:29:04 that aloud you do then turn your
2:29:06 attention please
2:29:08 to exhibit s 9 also a pre-existing
2:29:14 document that's already been placed in
2:29:16 the record ok this has been a subject of
2:29:28 much discussion as you're aware during
2:29:30 these proceedings but could you describe
2:29:32 and identify this document one more time
2:29:34 for the record yes so this document and
2:29:37 there are this is one specifically for
2:29:40 commercial and multi-family building
2:29:42 permits the middle requirements we have
2:29:45 other such checklists on our webpage
2:29:49 intended to help applicants understand
2:29:53 what they should compile to form a
2:29:59 complete application because every
2:30:01 permit is different many times or what
2:30:06 my understanding of the intent is is
2:30:08 that most applicants discuss these
2:30:13 requirements with city staff in terms of
2:30:16 you know for example is smoke control
2:30:19 design required
2:30:21 which is listed on page 11 or not is you
2:30:26 know what of the mechanical section is
2:30:28 required so it's a little bit finer
2:30:30 grained and I would expect it to be a
2:30:35 little bit more interactive than for
2:30:38 somebody to be able to just understand
2:30:39 what's intended by this 12-page document
2:30:41 do you ever tell hif see that a land use
2:30:45 permit would be necessary before it
2:30:47 applied for a building permit I did not
2:30:50 you aware of any member of your staff
2:30:52 that made a similar statement like that
2:30:54 to IHI FC I'm unaware of any of those
2:30:58 conversations so no did IHI FC ever
2:31:03 indicate its intent or desire to submit
2:31:06 a building permit application for its
2:31:09 property not to me be aware if I'm
2:31:14 expressing any such intent any other
2:31:17 member of your staff I'm unaware of that
2:31:20 conversation the IHI FC or its
2:31:26 representatives ever do or say anything
2:31:29 that indicated that they were even aware
2:31:33 of this document before this proceeding
2:31:36 before the Development Commission they
2:31:38 never raised it to me before this
2:31:40 proceeding as conflict or in any term in
2:31:47 any way and are you aware of them
2:31:49 raising that to anyone else of the city
2:31:51 any member of your staff I don't believe
2:31:54 I believe you testified in response to
2:31:57 questioning by mr. Schneider that you
2:32:01 were not even aware of this document
2:32:04 until this proceeding is that an
2:32:07 accurate characterization I have not
2:32:09 looked at this document before this
2:32:10 proceeding that's accurate
2:32:16 and finally mr. Niven you touched on
2:32:19 this during your original testimony but
2:32:21 I'd like to refer your attention back to
2:32:23 IMC 1801 Oh 5oc the vesting provision of
2:32:28 the Issaquah municipal code
2:32:42 believe that you've testified to this
2:32:43 but I will ask it once more for the
2:32:45 record do you believe that the
2:32:47 provisions of that section supersede the
2:32:52 web document identified it as exhibit s
2:32:56 9 to the extent of any inconsistency yes
2:32:59 why is that because this is Council
2:33:02 adopted city code and the documents on
2:33:05 development services webpage are
2:33:07 authored by the administration by staff
2:33:10 thank you could you please turn to
2:33:13 exhibit s1 seventeen huh
2:33:34 mr. Niven when you construe the
2:33:36 provisions of the Issaquah Municipal
2:33:39 Code do you view or construe individual
2:33:45 Code sections in isolation or do you
2:33:47 attempt to harmonize all code sections
2:33:50 to the extent possible the intent would
2:33:53 be to hopefully there's consistency with
2:33:57 all code sections where there is
2:34:00 ambiguity or inconsistencies we try and
2:34:03 look to the bigger picture to try and
2:34:05 make a decision on what was intended
2:34:09 with the adoption of maybe a particular
2:34:13 ambiguous section now that you have
2:34:16 these two code sections in front of you
2:34:19 mr. Niven with respect to I I am C 1804
2:34:26 own I know the concurrent building
2:34:28 permit review option provision that mr.
2:34:30 Schneider handed you and I M C 1801 o
2:34:35 5oc how would you construe these
2:34:39 sections and attempt to harmonize them
2:34:43 so my first my first lens would be 1801
2:34:52 being a general provision Trump's 1804
2:34:55 which is a procedure so that's where I'd
2:34:58 start evaluation and is it your position
2:35:01 then that any inconsistency between 1801
2:35:04 o5o C wood wood and 1804 o9o
2:35:11 would be resolved in favor of 1801 5oc
2:35:15 that would be my initial take yes mr.
2:35:20 Devon did IHI FC ever raise this issue
2:35:24 or psyche to you the provisions of 1804
2:35:28 o9o or 1802 1-800 as set forth in an
2:35:33 exhibit s 117 before this hearing no are
2:35:37 you aware that they may have raised that
2:35:41 issue to any member of your staff or
2:35:43 anyone else at the city or this
2:35:45 I don't believe so code interpretation
2:35:49 should always funnel through me funnel
2:35:54 through me sorry I've been talking for a
2:35:57 long time and just to clarify one final
2:36:01 time for the record does the city
2:36:03 administer and construe IMC eighteen oh
2:36:07 four oh nine Oh in a manner that is
2:36:09 inconsistent with or that would
2:36:11 supersede IMC 1801 oh five OSI no mr.
2:36:22 Niven do you recall mr. Snyder's
2:36:25 questions to you regarding and I think
2:36:27 I'm pronouncing this correctly the the
2:36:30 the Vale application I remember the
2:36:34 conversation about bail yes could you
2:36:36 please expand upon that it's the first
2:36:40 time that that project application I
2:36:42 believe has been referenced in these
2:36:43 proceedings well it came up in context
2:36:47 of this conversation about 1804 Oh 90
2:36:50 and that the city's actions were to not
2:36:56 allow for a building permit to come in
2:36:59 in advance of a land use permit and I
2:37:03 provided Vale as at least one example a
2:37:06 recent example I know that that's not
2:37:09 true that we would allow for a building
2:37:12 permit to be submitted in advance of
2:37:14 completing a land use decision as it's
2:37:18 currently stated on the checklist that
2:37:20 we've talked about quite a bit I know
2:37:23 you there may be many other applications
2:37:27 out there in the ether of the cities a
2:37:28 current and historical processing but do
2:37:32 you believe and understand that the the
2:37:34 Vale application was anomalous in that
2:37:37 way or do you think that that was
2:37:39 indicative of how the city generally
2:37:41 treats other applicants it is my belief
2:37:44 that if someone came in to submit a
2:37:47 building permit in advance of their land
2:37:51 use permit that we would allow that
2:37:53 application to be submitted
2:37:57 like I'd like to turn your attention
2:37:59 please to exhibit s 1:18 okay
2:38:08 this also is a document that I don't
2:38:11 think had been introduced previous to
2:38:13 tonight's proceedings and by its title
2:38:19 it's indicated a memorandum it's
2:38:22 apparently authored by the Clark Design
2:38:24 Group and do you recall mr. Schneider's
2:38:28 questions to you about this document
2:38:30 well his questions to Murphy he had
2:38:33 questions related to two point five
2:38:36 correct but I've never seen this
2:38:38 document before tonight and that's where
2:38:39 I was going with it just to clarify you
2:38:41 had no no previous knowledge of this
2:38:46 document before this evening no I was
2:38:48 not in the meeting nobody gave me a copy
2:38:50 of this document that I know of or asked
2:38:55 me if to render an opinion on any of it
2:38:58 thank you could you please turn to
2:39:00 section 2 for paragraph 2.5 the specific
2:39:04 provision that I believe mr. Schneider
2:39:05 was questioning you about sure
2:39:18 see that yes I do okay does the last
2:39:26 sentence of that paragraph which reads
2:39:30 the building permit may be submitted
2:39:32 once the ASTP is approved does that
2:39:35 reflect your understanding and
2:39:37 administration of the city's permit
2:39:40 processing framework in Issaquah so you
2:39:46 know this paragraph because I have no
2:39:48 context you know there's words like
2:39:51 typically allow and may and not must I
2:39:55 mean if if the second sentence the
2:39:57 building permit must be submitted once
2:40:00 the ASDP is approved
2:40:02 that's reads to me very differently then
2:40:04 may be submitted again I don't know if
2:40:08 the conversation that surrounded this
2:40:10 particular issue was here's how we do
2:40:15 things
2:40:15 you can pick another path but this is
2:40:17 how we like to do things I don't know I
2:40:20 wasn't at this meeting if that second
2:40:24 sentence of paragraph 2.5 had read that
2:40:29 a building permit may only be submitted
2:40:32 once the ASDP is approved
2:40:35 what unquote would you agree or disagree
2:40:38 with that statement I would disagree
2:40:40 with that statement it's clearly
2:40:41 inconsistent with code thank you and
2:40:46 have you turned to exhibit s 119 yes
2:40:56 this was the
2:41:01 notice of decision for the intra core
2:41:07 project original decision date listed as
2:41:10 May 28 2008 and it was apparently
2:41:13 revised on February 25th 2013
2:41:16 yes recall this document yes believe
2:41:23 that mr. Schneider referred your
2:41:25 attention during his cross-examination
2:41:27 testimony to the memorandum of agreement
2:41:32 or the agreement that was appended to
2:41:35 this document do you recall that the
2:41:38 Memorandum of Understanding I believe
2:41:40 yes this is I believe labeled as
2:41:42 attachment three to exhibit s1 19 yep
2:41:48 were you do you recall being involved in
2:41:51 the drafting and negotiation of this
2:41:54 agreement personally I was involved
2:41:57 personally in this yes could you
2:42:00 describe the nature of your involvement
2:42:02 and the extent of your involvement this
2:42:05 was so this was originally again back to
2:42:18 the timeline of relevance so I didn't
2:42:21 start being development services
2:42:23 director till 2015 November 2015
2:42:28 this predates that so this was them I
2:42:32 was involved in this in my role as
2:42:38 Economic Development Director for the
2:42:39 city and so yes so it's I just want to
2:42:46 be clear it was me being economic
2:42:49 development director which is why I was
2:42:50 negotiating this with Inter Corp not me
2:42:53 being development services director okay
2:42:55 so just to clarify you were acting in
2:42:57 your capacity as the city's economic
2:42:59 services or economic development
2:43:01 director and not in some type of a
2:43:04 regulatory permitting capacity is that
2:43:06 exactly okay but you do have familiarity
2:43:09 with it with the document and they do
2:43:11 the context in which it
2:43:12 arisen I do was the Memorandum of
2:43:16 Understanding appended as attachment
2:43:18 three to exhibit s1 19 the product of an
2:43:23 arm's length negotiation between the
2:43:25 city and the the landowner at the time
2:43:29 yes could you describe how those
2:43:33 negotiations came to be if you recall
2:43:34 them so my recollection of the
2:43:39 conversations we had with Inter Corp so
2:43:42 so the the village square at talus the
2:43:47 development agreement allowed it to be
2:43:49 developed in a couple different
2:43:51 configurations one would have been all
2:43:54 on one parcel as and initially they had
2:43:58 described it as being somewhat whistler
2:44:01 like but as the project built out the
2:44:05 master developer chose to split the
2:44:09 village square into two pieces basically
2:44:12 one on the east side of Scheib error and
2:44:16 the other one on the west side of Scheib
2:44:17 air so two smaller parcels kind of
2:44:20 divided by a street and that was allowed
2:44:25 under the development agreement so this
2:44:27 property constituted the western piece
2:44:31 of the village square and the parcel
2:44:34 itself before it was plaited was one
2:44:38 parcel and it went from Scheiber all the
2:44:42 way up to shangri-la sorry for these
2:44:44 names and so when they planted out the
2:44:48 property they created the parcels down
2:44:52 at Scheiber at the corner of talus Drive
2:44:54 and Shai bear for the retail piece and
2:44:56 what the city did as we said and because
2:44:59 inner Corp to our knowledge they do
2:45:03 build some non-residential space as part
2:45:06 of their portfolio but they hadn't done
2:45:08 that in the city and so part of the
2:45:12 concern that we had and and why we put a
2:45:17 requirement for them to build out the
2:45:20 non residential space prior to getting
2:45:22 all of the residential built is we
2:45:25 really didn't want it to be the last
2:45:26 that got built and so as they started
2:45:30 building out their plat and their
2:45:32 project they came back to the city and
2:45:37 indicated that they really didn't want
2:45:39 to do that they really didn't want to
2:45:41 build a non-residential corner of the
2:45:45 project and in half of the village
2:45:47 square and so you know at this point and
2:45:52 sometimes you kind of back yourselves
2:45:56 into to not a great outcome one way or
2:45:59 the other I mean we could have either
2:46:01 just said you know you have to build it
2:46:04 or else you don't get any more
2:46:05 occupancies which would have been half
2:46:07 of the residential project would have
2:46:09 stayed undeveloped whereas the other
2:46:11 half already had people moving in so
2:46:13 that's kind of a bad outcome the other
2:46:15 outcome is we took ownership of the
2:46:19 property with an understanding that at
2:46:21 some point we would actively market it
2:46:24 and try and find a buyer so that's
2:46:28 that's the way this played out we kind
2:46:31 of I think had two options neither one
2:46:34 we're great and we picked the one to
2:46:36 take the property ownership take the
2:46:39 asset and then let them build out their
2:46:41 residential space do you explain why the
2:46:45 city had an interest in trying to ensure
2:46:50 that retail or office improvements would
2:46:58 be made on the site yeah so you know
2:47:01 both Issaquah Highlands and talus were
2:47:04 kind of sold to the community as
2:47:07 live-work-play residential retail
2:47:11 commercial you know parks and trails
2:47:14 things of that sort
2:47:15 they both took on very different
2:47:17 characters I think Issaquah highlands
2:47:20 and talus are very much different but at
2:47:23 the end of the day you know we believed
2:47:27 that that TriMet who owned the office
2:47:33 parcel was sincere in what they were
2:47:36 going to build they unfortunately I
2:47:39 think
2:47:40 hit the recession kind of got things
2:47:46 lined up at the wrong time and got put
2:47:48 on hold as far as retail goes you know
2:47:52 part of what we heard from the residents
2:47:54 at Allis was you know they wanted some
2:47:57 retail space within their neighborhood
2:47:59 if possible and at the time that we made
2:48:02 this decision there was no retail yet
2:48:05 there is a small amount of retail in
2:48:09 Dallas now we also had conversations
2:48:12 with the Tallis homeowners about a
2:48:16 community space Issaquah Highlands has
2:48:20 Blakely Hall which is a great kind of
2:48:24 HOA run community space for them and
2:48:29 part of what we were hoping to maybe get
2:48:31 out of this was maybe a retail space and
2:48:34 a community center space for the Tallis
2:48:36 homeowners all that has just kind of
2:48:39 been shelved for right now just because
2:48:43 we haven't had kind of the bandwidth to
2:48:45 work on it and just to clarify was the
2:48:50 land owners agreement to this memorandum
2:48:53 of understanding generally and the the
2:48:55 provisions that we've just discussed
2:48:56 specifically was that voluntary oh yeah
2:49:00 this was their idea there's there any
2:49:01 coercion on behalf of by the city in
2:49:04 relation to this transaction I don't
2:49:07 believe so no was the underlying permit
2:49:10 approval decision or the regulatory
2:49:12 approval this decision ever appealed no
2:49:17 mr. Navin do you recall your testimony
2:49:21 and mr. Schneider's questions to you
2:49:23 this evening regarding the content and
2:49:28 effect and reach of the the Taos
2:49:32 replacement regulations yes and I
2:49:36 believe that you testified that in
2:49:39 relation to the FAA our requirement and
2:49:43 I think you said the structured parking
2:49:45 but correct me if I'm wrong the
2:49:47 the provisions of the Issaquah highlands
2:49:49 replacement regulations are identical to
2:49:52 those in the talus replacement
2:49:54 regulations is that is it accurate to my
2:49:57 knowledge yes they're the same there was
2:50:02 testimony that you may recall regarding
2:50:04 the extent to which the talus
2:50:07 replacement regulations and the FAA are
2:50:10 requirement really just applied to the
2:50:12 city proper the city-owned property and
2:50:14 talus do you recall that testimony they
2:50:16 do mr. Nibin it does anything in the
2:50:21 talus replacement regulations limit the
2:50:25 the scope and reach and applicability of
2:50:28 the fa our requirement to just the
2:50:31 city-owned property no what does it
2:50:34 apply to it would apply to the
2:50:36 commercial property as well so any
2:50:39 property subject to those regulations
2:50:43 within the the talus area if it was
2:50:46 going to develop or redevelop in the
2:50:48 future would be subject to the FA our
2:50:51 requirement is that is it accurate
2:50:53 anything that's non-residential okay
2:50:55 thank you and in the Issaquah Highlands
2:51:01 area yes believe there's been some
2:51:04 insinuation or maybe perhaps even some
2:51:06 testimony that the fa our requirement
2:51:10 really is only limited to IH IFC's
2:51:13 property do you recall that yes is that
2:51:16 an accurate characterization no why is
2:51:19 that it would also apply to Grand Ridge
2:51:23 Plaza which is the retail space so right
2:51:27 now it's basically non-conforming but if
2:51:30 it were to redevelop it would need to
2:51:33 comply is my recollection of the
2:51:36 replacement regulations but again Lucy's
2:51:39 gonna have probably a better answer
2:51:40 because she's more intimate with them
2:51:44 than I am but to your knowledge mr.
2:51:48 Nevin there's this is where I'm going
2:51:50 with the line of question is there
2:51:51 anything in their replacement
2:51:53 regulations that specifically calls out
2:51:55 IH IFC's property particularly or
2:52:00 being subject to the FAO requirement or
2:52:03 any other provision of chapter 18 19 bi
2:52:07 MC No
2:52:08 Thank You mr. chairman if I might have a
2:52:10 one brief moment to consult with my
2:52:13 co-counsel before concluding I would
2:52:15 appreciate it no need for a recess just
2:52:17 a brief moment to confer
2:52:59 [Applause]
2:53:05 very briefly mr. Nevin believed that we
2:53:09 touched on this before but again once
2:53:10 more for the record with respect to the
2:53:13 SDP and ast P's respectively for the
2:53:17 medical office facility the retail
2:53:20 facility in the storage facility each of
2:53:23 these applications were submitted after
2:53:25 the build out period under the Issaquah
2:53:27 Highlands development agreement is that
2:53:29 your understanding that's my
2:53:31 recollection of the timelines that were
2:53:33 presented earlier and with respect to
2:53:37 staff's recommended option or vesting
2:53:43 under the replacement regulations
2:53:47 preferred option of staff as I
2:53:51 understand it would have preserved
2:53:55 vesting would have essentially
2:53:57 recognized vesting for IH IFC's various
2:54:01 projects is that accurate daffs initial
2:54:08 recommendation on vesting was that
2:54:11 vesting would occur with a complete
2:54:14 application which they had complete
2:54:19 applications submitted
2:54:20 just to clarify that the staffs original
2:54:24 recommendation was not limited to state
2:54:27 law vesting ie limited just to
2:54:29 preliminary cloud and Allegra mr.
2:54:31 chairman I have to object I didn't ask a
2:54:33 single question about recommendations of
2:54:36 staff for the replacement regulations I
2:54:38 will throw the question that's fine
2:54:40 thank you and I have no further
2:54:41 questions of mr. Nevin Thank You major
2:54:44 yeah I'm afraid I do in light of the new
2:54:47 testimony
2:54:48 so mr. Dave and I understood you to
2:54:53 testify in response to my questions that
2:54:56 you didn't think there was any
2:54:57 significance in terms of vesting to the
2:55:01 end of the build-out period that I
2:55:04 misunderstand your testimony
2:55:08 that I didn't think that there was any
2:55:12 significance for vesting in terms of the
2:55:16 end of the build-out period was that we
2:55:17 changed yes I understood you to tell me
2:55:20 I I asked that question and I understood
2:55:22 your answer to be it was the end of the
2:55:24 development agreement and not the end of
2:55:26 the build-out period that's my
2:55:29 understanding
2:55:30 okay so why does it matter that the
2:55:33 applications for the SGPS and ASD piece
2:55:36 was submitted after the end of the
2:55:38 build-out period if it doesn't matter
2:55:40 I don't know so can we go back for a
2:55:46 moment to the code sections mr. Navin
2:55:48 that you talked about and I think you
2:55:49 said 1801 the whole 500 in the in the
2:55:59 code section we introduced tonight which
2:56:01 is 1804 toh 900 you get my copy of that
2:56:11 are in conflict with one another is that
2:56:15 your testimony
2:56:53 yes I do believe they're in conflict and
2:56:56 would you explain the conflict to us
2:56:58 please
2:56:58 so under C it says nothing in this
2:57:03 chapter shall be interpreted to require
2:57:05 an applicant to obtain approval of any
2:57:08 other permit or approval from the city
2:57:10 prior to applying for a building permit
2:57:12 and what 1804 o9o says all development
2:57:16 proposals come including the optional
2:57:18 consolidated permit review process , are
2:57:21 subject to project permit approval prior
2:57:25 to building permit application unless
2:57:28 otherwise allowed by the building
2:57:29 official that mr. Nevin 1804 is a
2:57:33 different chapter than 1801 why are they
2:57:36 in conflict because they don't say the
2:57:40 same thing so 1801 Oh 500 is completely
2:57:48 irrelevant to 1804 as 8 because it says
2:57:53 nothing in this chapter in 1804 is a
2:57:55 different chapter
2:57:56 so 1804 applies there's no conflict
2:58:00 between them is there um I disagree okay
2:58:03 where's the conflict you read language
2:58:05 that says nothing in this chapter 1804
2:58:09 is a different chapter so if if you
2:58:13 would like a formal interpretation from
2:58:15 the development services director I'd be
2:58:17 glad to provide well I'm asking you for
2:58:18 your testimony tonight mr. Nevin you're
2:58:21 not gonna pass this off to a formal
2:58:23 interpretation where is the conflict the
2:58:26 conflict is to me both these sections re
2:58:29 completely opposite yeah one of them
2:58:32 1804 own I know you already testified is
2:58:36 consistent with the online permit
2:58:38 checklist requirement and the language
2:58:42 you just read does not in any way
2:58:44 conflict with it because it says nothing
2:58:46 in Chapter 1801 so 1804 is valid and
2:58:51 completely in completely consistent with
2:58:54 1801 and if it's not tell me why so in
2:58:58 my opinion 1801 Trump's 1804 because
2:59:01 1801 is general procedure general
2:59:03 provisions 1804 is procedures
2:59:07 so are you aware of the traditional
2:59:11 canon of statutory construction mr.
2:59:13 Niven that says the specific pumps the
2:59:15 general and not the other way around
2:59:21 I'm not a lawyer
2:59:32 now mr. Nevin response to my questions
2:59:34 about exhibits s12 and Esther
2:59:38 you said I had to ask miss Loman about
2:59:40 them because she hadn't read them and in
2:59:43 response to mr. Lau's questions after
2:59:46 the break were you met was mr. lile you
2:59:49 came back and said you agreed with him
2:59:51 correct I did so your review happened in
2:59:57 your meeting with mr. Lille it did and
3:00:02 you recall that at the your several
3:00:07 meetings ago when you testified the
3:00:09 first time you testified as you
3:00:12 acknowledged last time that one does
3:00:14 vest a process under the development
3:00:17 agreement correct I don't remember that
3:00:20 no well it's it's in the record twice
3:00:23 now mr. Nevin and it's late so I'm not
3:00:25 going to bother finding it though I
3:00:27 assure you you did do that and now we
3:00:30 have a document let's go back to exhibit
3:00:38 it's s4 that is already in the record
3:00:42 hold that up please yes okay I had the
3:00:56 last time I had you read the first
3:00:58 whereas clause in this document that you
3:01:01 were copied on would you read this
3:01:04 beginning of the second whereas Clause
3:01:07 whereas comma pursuant to appendix L
3:01:10 processing of the Issaquah Highlands
3:01:13 parens Grand Ridge and friend to party
3:01:17 annexation and development agreement
3:01:19 comma the U V DC held a public hearing
3:01:21 on March 20 2018 and you can stop there
3:01:25 I just wanted you to confirm that in
3:01:29 this document this development the U V
3:01:32 DC expressly said it was processing this
3:01:37 pursuant to appendix L correct yes
3:01:39 that's what it says okay and you are the
3:01:42 person in the city responsible for
3:01:44 vesting to determine
3:01:45 correct in consult with the city
3:01:48 attorney right the code doesn't say the
3:01:50 city attorney in consultation with the
3:01:52 development director it says it the
3:01:53 other way around right yes
3:01:56 is it your decisions that you're
3:01:58 responsible for yes and you've treated
3:02:00 polygon as vested to appendix L of the
3:02:04 development agreement and you're telling
3:02:06 this commission now after you met with
3:02:09 the city attorney that the my
3:02:12 client is not vested even though they're
3:02:14 completely similarly situated correct I
3:02:21 didn't say I think they're similarly
3:02:25 situated
3:02:26 oh I added that so if they're not
3:02:28 similarly situated what's the difference
3:02:30 I would have to consult with my staff on
3:02:33 that so as you stand here tonight mr.
3:02:36 Navin
3:02:36 there's no lawful basis for
3:02:38 distinguishing them and yet you're
3:02:40 treating one is vested and one is not
3:02:42 correct I don't know that answer so
3:02:46 because I don't know what the lawful
3:02:49 reason is why they were treated
3:02:51 differently from a processing standpoint
3:02:53 mr. Nevin you just met with the city
3:02:55 attorney and came out and told us that
3:02:57 it was you agreed that my client was not
3:03:01 vested yet you've you treated polygon is
3:03:04 vested so I'm asking you what is the
3:03:07 basis for your distinction treating one
3:03:09 differently than the other I think we're
3:03:12 back to third rail okay so you're
3:03:14 blaming this city attorney again on your
3:03:17 conduct I'm saying that the city
3:03:23 attorney is helping me to make decisions
3:03:29 pursuant to the code but you it's your
3:03:32 decision mr. Evan you've already agreed
3:03:35 that you are responsible so you have no
3:03:38 reason for doing or saying what you're
3:03:41 saying other than you met with mr. Lau
3:03:43 of the ten minute break here tonight
3:03:45 correct I'm saying that what my response
3:03:49 is to the difference in processing as a
3:03:53 result of conversations with the city
3:03:55 attorney yes and you have no other
3:03:57 grounds for saying
3:03:58 what you're saying I have no other
3:04:03 grounds
3:04:38 now mr. Newman you testified about
3:04:40 exhibit ness 9 the middle requirement
3:04:43 checklist you told us more than once
3:04:47 that you never saw it to the night and
3:04:49 yet you also testified in response to
3:04:52 mr. Lau's question that most applicants
3:04:54 discussed this these requirements in the
3:04:57 checklist with city staff that's my
3:05:00 understanding though you you testify
3:05:03 that you have personal knowledge that
3:05:05 most applicants assessees requirements
3:05:08 with city staff and a document that you
3:05:10 weren't aware of until this proceeding I
3:05:13 know what I said was I believe IX Peck
3:05:16 tation is that they discuss it with city
3:05:18 staff I have no idea what actually
3:05:22 happens I'm not I do not do permitting
3:05:32 that's all I have no further questions
3:05:37 mr. chairman thank you so oh I think we
3:05:40 have move on to a second witness I'm
3:05:44 happy to begin with our next rebuttal
3:05:46 witness which would be miss sloman and
3:05:48 I'm also conscious that we've been going
3:05:51 for at least an hour and I'm happy to
3:05:53 take a break if that's the Commission's
3:05:55 preference either way how much longer
3:06:00 are we going to me well I'm also happy
3:06:02 to take a break and begin my rebuttal
3:06:06 questioning of miss Loman at the next
3:06:08 meeting if that's the Commission's
3:06:09 preference as well I would anticipate my
3:06:12 direct questioning of her probably will
3:06:14 be about an hour and a half
3:06:24 was tonight as we can okay we need a
3:06:29 break short break or can we go let's
3:06:31 let's continue on let's start start here
3:06:35 thank you
3:06:36 our next rebuttal witness is Lucie
3:06:39 Sloman miss Loman would you please
3:06:53 acknowledge that you continue to be
3:06:54 under oath from your original
3:06:56 appearances before this proceeding I am
3:06:59 have you been present for the entirety
3:07:01 of these proceedings yes have you
3:07:04 listened to all the testimony of all the
3:07:07 other witnesses yes
3:07:11 did you hear miss hime and mr. young
3:07:14 during their respective testimony
3:07:16 expressed frustration regarding the
3:07:19 allegedly inconsistent statements made
3:07:21 by city staff in relation to the vested
3:07:25 or non-vested status of hif seized
3:07:28 various project applications yes
3:07:31 are you a land use attorney miss Loman I
3:07:34 am NOT
3:07:34 have you received formal legal training
3:07:36 no I have not when you were interacting
3:07:40 with Miss hime regarding IH IFC's
3:07:43 various product applications throughout
3:07:46 2016 and 2017 did you know that Ms hime
3:07:50 was an attorney no in fact I believe the
3:07:53 first time that I met her she brought an
3:07:56 attorney with her to the meeting do your
3:08:00 recollection did she ever introduce
3:08:01 herself as an attorney not that I
3:08:04 remember you recall approximately when
3:08:07 you became aware that Miss hime was an
3:08:09 attorney during these proceedings during
3:08:12 these proceedings before the Development
3:08:13 Commission yes thank you with respect to
3:08:18 all of your various meetings with IH
3:08:21 IFC's development applicant team do you
3:08:27 know where were you aware that Miss
3:08:28 highness was taking notes yes I mean
3:08:33 lots of us took notes in the meeting
3:08:35 didn't miss I never offered to share her
3:08:38 with you I don't remember her doing that
3:08:41 but I wouldn't know without going back
3:08:44 and checking my email actually I would
3:08:48 say associated with these permits I
3:08:52 don't I remember following during the
3:08:56 replacement regulations review she would
3:09:00 sometimes follow up with her notes and
3:09:03 thoughts following a commission or
3:09:06 council meeting that that's the only
3:09:08 time that I remember off the top of my
3:09:10 head in your personal and professional
3:09:15 experience miss Loman is vesting a
3:09:19 common discussion topic between city
3:09:22 staff members and permit applicants no
3:09:26 not not until the last year or two last
3:09:29 few years have you ever had
3:09:33 conversations with other project
3:09:34 applicants concerning vesting or
3:09:37 non-vested status apart from the
3:09:39 Issaquah Hyland's development agreement
3:09:42 expiration process the moratorium and I
3:09:48 did not tend to have discussions with
3:09:51 applicants I would direct them to the
3:09:53 director Nibin in in variously referring
3:10:00 to IH IFC's STP and ASTP applications as
3:10:04 being bested what did you understand
3:10:08 that the city meant by that term
3:10:14 in the context of these proceedings in
3:10:19 the general time frame of 2016 or 2017
3:10:24 when the topic of vesting apparently
3:10:27 came up during your meetings and other
3:10:29 communications with IH IFC and its
3:10:31 representatives that's what I'm
3:10:33 referring to you there have been
3:10:33 throughout this hearing before the
3:10:36 Development Commission has essentially
3:10:39 involved allegations of who said what
3:10:42 regarding vesting and what I'm trying to
3:10:44 understand and the the basis of my
3:10:46 question to you is what did you
3:10:48 understand that term to mean as it was
3:10:52 used by the city in those conversations
3:10:54 or communications well I don't think we
3:10:57 understood it in the legalistic way that
3:11:00 it is being used now I think to some
3:11:03 extent we used it to talk about how long
3:11:07 a permit was valid for as opposed to
3:11:12 this very specific intention related to
3:11:17 the development agreement as your
3:11:19 understanding of term vesting evolved or
3:11:27 otherwise changed as a result of these
3:11:29 proceedings yes but I'm not sure unclear
3:11:31 but yes and just to clarify was the
3:11:38 city's or your use of the term vesting
3:11:40 always consistent with the legal meaning
3:11:43 of that term as you now understand it no
3:11:45 I'm sorry
3:11:46 no did you expand on that please well
3:11:52 these are very specific interpretations
3:11:56 related to development agreements
3:12:01 contract law land use law and so first
3:12:12 of all as I said we didn't deal with it
3:12:15 very often
3:12:16 second of all early on we agreed that
3:12:19 this was the purview of the director and
3:12:24 in consultation with the city attorney
3:12:27 and I tend to not talk about it I tended
3:12:35 to leave that up to director Niven or if
3:12:38 he had he and I had discussed it and he
3:12:41 had clarity with the city attorney then
3:12:43 I might use that information but I did
3:12:48 not make any determinations on my own
3:12:52 but if I understand I understood your
3:12:55 previous testimony you may have
3:12:57 misspoken or mischaracterized the the
3:13:01 term or concept of Vesta did you ever
3:13:05 miss characterize the use of the term
3:13:08 vesting in your dealings with IHI FC as
3:13:12 you understand that term now yes because
3:13:14 as I said we sometimes used vesting in
3:13:19 an equivalent manner to how long the
3:13:22 permit was valid for and I now
3:13:25 understand that those terms are not
3:13:27 synonymous from a legal position to
3:13:30 clarified that response miss lemon did
3:13:33 you are you saying that you sometimes
3:13:38 inflated
3:13:47 would you sometimes mischaracterize
3:13:49 vesting as meaning the permit rights
3:13:53 that were in inherent in an issued
3:13:56 permit
3:14:07 so would you try to reframe your
3:14:10 question one more time please
3:14:15 it's Loman in your opinion or your
3:14:19 professional understanding is there a
3:14:22 difference between vested permit
3:14:25 application rights and the rights that
3:14:30 accrue from an issued land use permit I
3:14:32 understand that now I did not understand
3:14:35 that then could you expand upon that
3:14:42 well I think the example would be that
3:14:47 IH IFC and in MS Himes testimony has
3:14:52 talked about for instance we were
3:14:57 talking through various permits and how
3:15:00 long they were vested for and one
3:15:04 example was a site development permit
3:15:07 and we said that it was vested for three
3:15:09 years I I didn't my note that's in my
3:15:12 notes I shouldn't say that I said that
3:15:14 and I now understand that that's how
3:15:18 long the SDP is valid for and we were
3:15:22 using that from the IMC which does not
3:15:27 describe it as a vesting in the context
3:15:32 of vesting it's talking about how long a
3:15:34 permit is valid for do you have any idea
3:15:38 why that that confusion arose in your
3:15:41 mind why you would have used one term
3:15:42 versus another and and mixed and matched
3:15:45 those concepts well I just don't think
3:15:49 we had much experience with them it it
3:15:53 was not something we talked about very
3:15:55 often we it just wasn't something we had
3:16:02 a lot of experience with I guess if you
3:16:05 please turn to the email exchange
3:16:10 referenced in exhibits C 3 through C 5
3:16:45 there's obviously been much testimony
3:16:48 discussion and argument concerning of
3:16:50 this interchange I'm sorry to keep going
3:16:52 over ground that's already been tilled
3:16:55 but I think it's an important point
3:16:56 apparently from the applicants
3:16:58 perspective but I'd like you to reefa
3:17:00 miliar eyes yourself with those
3:17:02 documents if you could please
3:17:04 specifically the November 22nd 2017
3:17:09 email colloquy between yourself and mr.
3:17:11 Nevin
3:17:47 okay and specifically looking at your
3:17:53 response back to mr. Niven on Wednesday
3:17:59 November 22nd 2017 at 10:30 6:00 a.m.
3:18:03 where you said shouldn't that be clear
3:18:05 in their response okay what was the
3:18:11 purpose of that statement back to mr.
3:18:13 Niven I was just trying to understand
3:18:17 his intent or how this communication was
3:18:23 um bolding did you ever provide any
3:18:29 follow-up clarification or communication
3:18:32 to the applicant on that point not in
3:18:36 this email chain I think there were
3:18:38 other times that it was conveyed through
3:18:42 other means that was it conveyed by
3:18:47 other means
3:18:48 after this email Oh after this email
3:18:55 well let's see that's on the 22nd so
3:18:59 after this email I think it was in early
3:19:04 to mid-december there was a memo to the
3:19:12 council probably for the December 18th
3:19:17 memo I think it's a December 12th date
3:19:21 on the memo and there was a chart
3:19:24 attached to that memo that the council
3:19:29 had asked for the status of a variety of
3:19:32 permits and in going through those
3:19:37 various permits we identified whether
3:19:41 they were vested based on state law or
3:19:44 based on the replacement regulations
3:19:47 current language okay could I have you
3:19:50 then turn to exhibit c7 I think that's
3:19:54 the document you're referring to
3:19:58 yes it's part of that okay could you
3:20:01 identify that for the record again
3:20:03 please what what that document is yes
3:20:07 and it's specifically the chart that you
3:20:09 just referenced
3:20:10 okay so c7 is an email and I guess as
3:20:16 part of that email was a memo to the
3:20:20 council from Keith Niven and myself
3:20:22 dated December 12 2017 and on the second
3:20:29 page was a table listing all pending
3:20:32 permits which included permits in both
3:20:36 iske Highlands and Tallis and with
3:20:40 respect to IH IFC's ending a STP and STP
3:20:45 applications what did this chart
3:20:47 attached to your memo indicate that for
3:20:51 the retail center the medical the office
3:20:55 mixed-use building which is not part of
3:20:59 these proceedings the medical office
3:21:01 building and the storage building that
3:21:04 those they're vested by proposed
3:21:07 language and if I understood your
3:21:12 testimony just a few minutes ago a Miss
3:21:16 Lamont follow-up to your colloquy with
3:21:20 mr. Niven and the email exchange on
3:21:23 November 22nd 2017 was essentially this
3:21:28 memo was this as that was that correct
3:21:30 that you this the substance of this
3:21:32 document and exhibit
3:21:34 c7 was intended to to basically clarify
3:21:38 a staffs position is that that accurate
3:21:41 statement I don't know that it was
3:21:45 intended to clarify staff's position we
3:21:47 were constantly talking to various apps
3:21:52 well constantly we're regularly talking
3:21:55 to various applicants and communicating
3:21:57 with them in a variety of means
3:21:58 sometimes it was by email sometimes it
3:22:01 was in meetings and sometimes it was in
3:22:04 the materials that would be sent to the
3:22:08 commission or
3:22:09 Council so like the applicant the
3:22:14 council was also asking questions about
3:22:17 the status of various permits and the
3:22:20 basis of those relative to vesting and
3:22:24 so this chart was meant to clarify for
3:22:28 everyone our kind of understanding and
3:22:31 and I H IFC would have received this as
3:22:35 part of the packet distribution for this
3:22:38 council meeting as an interested party
3:22:40 and when you refer to everyone what is
3:22:45 that in reference to other project
3:22:47 applicants with then pending a permit
3:22:50 applications members of the public or
3:22:52 the council who is everybody well I
3:22:55 think the main interest was from the
3:22:59 decision-makers which was the council
3:23:01 and then various applicants who had
3:23:04 permits that were interested that were
3:23:09 not complete relative to what would be
3:23:14 happening with them based on the
3:23:19 language in the replacement regulations
3:23:22 is the vesting status reference or
3:23:30 references contained in the December 12
3:23:39 2017 memorandum and the chart attached
3:23:41 to it insistent with what you had
3:23:44 previously told other applicants
3:23:55 well the reason I'm pausing is I just
3:23:58 don't remember what when I had what
3:24:00 communication or that Keith had with
3:24:04 applicants so I just don't know
3:24:07 specifically the order of events but I
3:24:12 guess what I would say is that the
3:24:15 interested party emails were often
3:24:18 property owners with pending permits or
3:24:21 undeveloped property who might have an
3:24:24 interest in how these things were
3:24:28 decided was the content of this chart
3:24:32 this memorandum inconsistent with your
3:24:36 recent statements or communications to
3:24:39 IH IFC I don't think so I thought I
3:24:42 think this was consistent with our
3:24:47 conversations and some of our because
3:24:51 around this time in November was when
3:24:56 well not this time in November I think
3:25:00 middle to late November was when the
3:25:04 land and Shore Committee of the council
3:25:07 began to focus on vesting and so I have
3:25:17 gone back and looked at some of those
3:25:18 slides and they generally indicate that
3:25:23 the vesting was there was state law and
3:25:27 there was the replacement regulations
3:25:29 and that depending on how the council
3:25:32 decided certain permits may or may not
3:25:37 be vested and again time frame for that
3:25:43 I miss Loman those discussions I believe
3:25:47 you said was was it October November of
3:25:49 2000 I think it was November the
3:25:52 replacement regulations vesting language
3:25:55 I think came out in October I think or
3:26:03 maybe early November I think it was
3:26:06 October and so
3:26:08 as the council was whittling down or the
3:26:12 council committee was whittling down
3:26:14 various issues vesting became a regular
3:26:17 topic that was both touched on in some
3:26:21 of the memos and presentations and then
3:26:23 in their discussions I assume and the
3:26:28 context of those vesting discussions was
3:26:32 that part of the council's are they that
3:26:34 land in short committees and maybe the
3:26:36 council's broader policy discussions
3:26:39 concerning the replacement regulations
3:26:41 sure I mean that's what they were mainly
3:26:44 focused on was the policy discussions
3:26:46 related to lots of different provisions
3:26:50 not they didn't focus on every single
3:26:53 thing in the replacement regs there was
3:26:55 maybe six to eight topics that they
3:26:59 focused on and were those meetings were
3:27:02 vesting was discussed and the evolution
3:27:04 of the vesting provision for the
3:27:07 replacement regulations during that time
3:27:09 frame were those open public meetings
3:27:10 yes did i hif sees representatives
3:27:13 attend those meetings most of the time I
3:27:15 mean I can't say every single meeting
3:27:17 but my memory is that they attended most
3:27:20 if not all during that general period
3:27:23 did i H IFC say or do anything
3:27:27 indicating that they knew their ability
3:27:29 to have their a STP and STP applications
3:27:32 evaluated under the standards contained
3:27:34 in the development agreement would
3:27:36 ultimately be subject to a City Council
3:27:39 legislative determination so I'm not
3:27:44 sure they said it that directly but it
3:27:45 seemed like that was clear because they
3:27:47 were writing letters they were either
3:27:49 testifying and/or writing letters to the
3:27:52 council or the council committee on a
3:27:53 regular basis so it seemed like the
3:27:56 intent of that was to influence the
3:27:58 decision the council was making is it
3:28:00 just to clarify to your understanding
3:28:02 and/or your observation Mis moment i hif
3:28:06 see understood that this
3:28:11 vesting issue was being addressed as a
3:28:14 policy determination of the Issaquah
3:28:16 City Council is it an accurate statement
3:28:19 I I would assume so I don't know whether
3:28:22 they thought of it as a policy matter
3:28:24 but I think they understood that it was
3:28:27 within the realm of things that the
3:28:29 council was discussing and making
3:28:30 decisions on thank you I'd like to
3:28:33 introduce a new exhibit if I could
3:28:36 please I believe that this is Exhibit C
3:28:39 54 but I would have to defer to ten
3:28:50 o'clock I'm happy to break at this point
3:28:54 this is probably actually a logical
3:28:56 breaking point if that's the
3:28:57 Commission's preferences okay let's
3:29:04 appreciate appreciate your willingness
3:29:07 to hold off so given that we have
3:29:12 reached the agreed-upon time a journey
3:29:15 tonight continued public hearing on
3:29:17 tonight's agenda to may 7th I understand
3:29:22 that all commissioners are available
3:29:23 that night the parties have an estimate
3:29:29 of whether they will be able to wrap up
3:29:31 all their Witnesses on May 7th or do we
3:29:34 need to schedule another night the city
3:29:36 at this point has no intention to call
3:29:39 any further rebuttal witnesses beyond
3:29:41 miss Loman I fully intend to complete my
3:29:44 direct rebuttal questioning of her
3:29:47 within I would say probably an hour hour
3:29:49 and 15 minutes I would have to defer to
3:29:52 the applicant as to the number and
3:29:55 length of any applicant rebuttal
3:29:58 witnesses so I expect we will call at
3:30:03 least three and perhaps as many as five
3:30:06 rebuttal witnesses I don't think he is
3:30:08 animal deep particularly long but there
3:30:11 will be multiple rebuttal witnesses it
3:30:14 is my hope and desire and intent to
3:30:16 from the seventh but I think it's
3:30:18 unlikely I think we may have to a little
3:30:22 bit into an additional meeting so I
3:30:24 would ask that we schedule it and my
3:30:26 understanding is there was a possibility
3:30:28 at least that the 15th might be
3:30:30 available right now I understand that
3:30:33 the parties would be able to meet May
3:30:34 17th or May 15th I'm cEPAL Ajay is that
3:30:38 correct we'll come find you so the
3:30:45 public hearing the public hearing on
3:30:49 tonight's agenda will be continued a
3:30:51 special meeting of the Commission on May
3:30:52 7th and the council chambers here at
3:30:55 6:30 and the meeting is now adjourned
3:30:58 thank you

Attendance

Council / Members (16)
Administration/Staff: Richard Sowa
Keith Niven
Econ. & Dev. Srcs. Dir. Mel Morgan
Lucy Sloman
Land Development Mgr. Michael Brennan Kevin Price Others Present: Richard Sanford Jeffrey Dunbar
City Attorney’s Office Commissioners Not Present (Excused): Tia Heim
Shelter Holdings Randy Harrison Zachary Lell
City Attorney’s Office Jasmina Mihova Ray Liaw
Van Ness Feldman
LLP Mark Rigos
Alternate Jackie Quarré
Foster Pepper PLLC Ryan Roeter
Alternate Patrick Schneider
Foster Pepper PLLC Nischitha Venkatesh
Alternate Gary Young
Shelter Holdings [audience] 1