Development Commission - Special Meeting - 07 M · Tuesday, May 7, 2019 · City Council Digest

1. CALL TO ORDER

Commission Membership

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Staff report:

Development Commission About Staff Liaison Created in 1983, this commission reviews all land Lucy Sloman, use actions requiring a Level 3 review. The Land Development Manager Commission further serves as an advisory board Email to the City Council on land use actions requiring council approval (Level 5 review). Regular Members 2020 – Melvin Morgan The appearance of fairness doctrine prohibits 2020 – Kevin Price Development Commission members and City 2022 – Michael Brennan Council members from discussing the merit of 2022 – Richard Sowa specific land use development applications outside 2022 – Richard Sanford of the formal public meeting process. Citizens, 2023 – Brooke Shore however, may discuss any issue with the City's 2023 – Ben Rush Development Services Department. Written comments are also welcome. Alternate Members 2020 – Mark Rigos Membership 2020 – Nischitha Venkatesh The…

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

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Topics: Land UseTransportation

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0:05 ↗ you

0:15 ↗ all right

0:16 ↗ ladies and gentlemen like to welcome you

0:20 ↗ all here and call to order the special

0:23 ↗ meeting of the development Commission

0:25 ↗ will be discussing the Icicle Highlands

0:28 ↗ retail site development permit the

0:31 ↗ medical office administrative site

0:32 ↗ development permit in the highlands

0:34 ↗ storage administrative site development

0:36 ↗ permit and as I recall our last meeting

0:40 ↗ mr. Snyder you were rebutting Lucy its

0:43 ↗ moment mr. Lowe you were yes I'm in the

0:49 ↗ middle of my direct rebuttal testimony

0:52 ↗ with our second rebuttal witness ah miss

0:54 ↗ lemon sorry before I recommend mr.

0:57 ↗ chairman if I could please briefly

0:58 ↗ address to preliminary housekeeping

1:00 ↗ matters please thank you first of all I

1:04 ↗ apologize but I am required to briefly

1:07 ↗ excuse myself this evening at

1:09 ↗ eight-thirty for what I hope will be a

1:10 ↗ brief telephonic executive session for

1:12 ↗ another City Council I'm fully intending

1:16 ↗ and hoping that my direct questioning of

1:18 ↗ miss Loman will be completed by the time

1:20 ↗ and I am timing my departure at the same

1:25 ↗ time that we typically break for these

1:27 ↗ proceedings in the unlikely event that

1:29 ↗ our questioning is still ongoing my

1:32 ↗ colleague mr. Dunbar will take over for

1:33 ↗ me well my 1 1 gone ok do you have an

1:37 ↗ estimate of how long you're gonna be the

1:39 ↗ very most I would assume 25 minutes but

1:41 ↗ it could be shorter than that okay well

1:43 ↗ if you're okay we'll just proceed to

1:45 ↗ take a break for ten minutes and then

1:47 ↗ we'll presume thank you very much I

1:49 ↗ appreciate your consideration the second

1:51 ↗ point is I believe that you're aware

1:53 ↗ that counsel for the applicant filed a

1:56 ↗ memorandum or letter yesterday

1:59 ↗ concerning the findings and conclusions

2:02 ↗ and decisional process for this

2:04 ↗ proceeding that's still under review

2:05 ↗ from my office and we would respectfully

2:09 ↗ request a reasonable time in which to

2:12 ↗ file a written response if that's the

2:14 ↗ Commission's preference okay well would

2:16 ↗ you that'd be we would suggest next

2:19 ↗ Monday if worked for the council for the

2:21 ↗ Commission okay

2:22 ↗ thank you it does thank you with that if

2:27 ↗ there are no more preliminary matters

2:28 ↗ I'd like to recall Lucy sloman to the

2:30 ↗ stand miss Loman could you please

2:34 ↗ reiterate that and reaffirm that you

2:36 ↗ continue to be under oath from your

2:38 ↗ prior testimony I do I believe where we

2:42 ↗ left off was what we were about to

2:44 ↗ introduce a new exhibit I believe this

2:47 ↗ is Exhibit C 54 and I'll have my

2:50 ↗ colleague hand that out to you the

2:53 ↗ applicants Council and the Commission

3:00 ↗ the record this is a January 12th 2018

3:05 ↗ email exchange between yourself and

3:08 ↗ Patrick Mulaney I believe that the the

3:10 ↗ larger email communication was

3:12 ↗ referenced in mr. mulaney's testimony on

3:14 ↗ January 16th are you familiar with this

3:19 ↗ document I am is the inter lineatus in

3:24 ↗ this document reflect your response

3:26 ↗ comments bacter mr. maleeni yes do you

3:30 ↗ please read aloud and mr. mulaney's

3:32 ↗ comments in the full fourth bullet point

3:35 ↗ on page one the city would that IHI f is

3:40 ↗ f s-- preliminary plat and s DP pre

3:45 ↗ applications are currently considered

3:47 ↗ complete invested to the development

3:49 ↗ agreement and what was your inter

3:51 ↗ lineatus Ponce comment based on the

3:54 ↗ current draft of the replacement regs

3:56 ↗ if those changed significantly we'd have

3:59 ↗ to revisit this we all need that caveat

4:02 ↗ I see you have that below what did you

4:05 ↗ mean by that response that we were in a

4:09 ↗ process in which the council was

4:13 ↗ considering what if any vesting language

4:18 ↗ would be included in the replacement

4:20 ↗ regs and we did not know what the

4:23 ↗ outcome of that would be and that might

4:25 ↗ change make his statement no longer

4:28 ↗ valid and what statement was that again

4:31 ↗ that would be no longer valid in that

4:32 ↗ event that the

4:34 ↗ applications are best into the

4:36 ↗ development agreement thank you

4:38 ↗ I'd now like to introduce a new exhibit

4:40 ↗ believe as c55 this is a document

4:55 ↗ entitled action memo the major

4:58 ↗ development review team and it is dated

5:02 ↗ September 27th or the written signature

5:08 ↗ block indicates that it's September 28

5:10 ↗ 2004 yes are you familiar with this

5:14 ↗ document I am do please describe this

5:17 ↗ document and with respect to its its

5:19 ↗ purpose and context so an action memo

5:22 ↗ was a tool that the major development

5:27 ↗ review team developed to capture

5:30 ↗ interpretations that were made that we

5:34 ↗ wanted to make sure were documented for

5:36 ↗ reference and what does this action

5:41 ↗ accomplish or intend to accomplish well

5:46 ↗ it was trying to identify how long

5:49 ↗ permits were good and under what

5:51 ↗ circumstances they might expire and can

5:55 ↗ you elaborate on that please

5:58 ↗ well I think there were a couple of

6:02 ↗ things that we were trying to get at one

6:04 ↗ was that during the term of the

6:09 ↗ development agreement we were not

6:12 ↗ applying time related expiration the

6:17 ↗ municipal code limits land use permits

6:21 ↗ to three years and but that was because

6:25 ↗ the underlying code provisions could

6:28 ↗ change but because the standards and the

6:32 ↗ development agreement were fixed for the

6:35 ↗ build-out period then there wasn't that

6:42 ↗ likelihood except if a modification

6:45 ↗ either a major or minor modification

6:47 ↗ took place

6:48 ↗ and so we were trying to explain what

6:52 ↗ how we were going to approach that topic

6:55 ↗ and could you please read aloud the

6:57 ↗ proviso beginning of the word provided

7:00 ↗ however in the fourth to final line of

7:05 ↗ the summary of action provision yes this

7:08 ↗ action memo provided however that if at

7:11 ↗ any time either development agreement is

7:14 ↗ terminated provisions may be made to an

7:16 ↗ established to establish an expiration

7:19 ↗ period for outstanding permits as

7:21 ↗ allowed through the termination process

7:24 ↗ and what was the reference in that

7:29 ↗ statement to either development

7:31 ↗ agreement intended to mean

7:33 ↗ as you may notice up at the top where it

7:37 ↗ says project both its aqua Highlands and

7:40 ↗ East Village which is now called talas

7:43 ↗ both of the the boxes are checked for

7:46 ↗ both of these so this action memo

7:49 ↗ applied to both of these development

7:51 ↗ agreements so is it your understanding

7:55 ↗ then miss lemon that the summary of

7:59 ↗ action provision of this memo indicated

8:03 ↗ staffs position regarding the status of

8:07 ↗ approved permits under the development

8:10 ↗ agreement following the the the

8:14 ↗ termination of the agreement

8:21 ↗ yes I was just rereading the language

8:27 ↗ because what it refers to is outstanding

8:30 ↗ permits and that isn't defined term but

8:34 ↗ I think that when you read the piece

8:37 ↗ above it in which it's talking about

8:42 ↗ that they're valid during the

8:44 ↗ construction process including

8:46 ↗ acceptance and closeout its it's talking

8:49 ↗ about the full art even beyond permit

8:55 ↗ issuance but the complete closeout of

9:00 ↗ the entire project and so I think it was

9:03 ↗ trying to address if there were permits

9:07 ↗ that were not passed that complete

9:11 ↗ process that it might be necessary to

9:15 ↗ address those during the termination

9:18 ↗ process by the date of this action memo

9:21 ↗ which is again that September of 2004

9:24 ↗ had had I H IFC acquired its property

9:29 ↗ not that I'm aware of no had it

9:32 ↗ approached the city with any development

9:35 ↗ proposal by that point

9:38 ↗ no thank you

9:41 ↗ miss Loman did you hear the testimony

9:45 ↗ made by the applicants various witnesses

9:49 ↗ in this proceeding to the effect that

9:51 ↗ the city discriminated against ih IFC in

9:54 ↗ favor of other project applicants under

9:57 ↗ the 1996 development agreement yes to

10:00 ↗ your knowledge was there ever any

10:02 ↗ deliberate discrimination by the city to

10:05 ↗ this effect no you specifically recall

10:08 ↗ the witness's testimony concerning the

10:10 ↗ polygons Issaquah Islands projects yes

10:15 ↗ what procedure was used by the city to

10:18 ↗ process polygons plat application was

10:21 ↗ that the procedure under the Aqua

10:22 ↗ Highlands development agreement or was

10:24 ↗ it the the new process specified by the

10:26 ↗ replacement regulations we used the

10:29 ↗ process that was in the ESCO Highlands

10:31 ↗ agreement were you involved in the

10:35 ↗ decision to process the polygon plat

10:37 ↗ under that process yes did you consult

10:40 ↗ with mr. Niven regarding the procedure

10:42 ↗ to be used for processing the polygon

10:44 ↗ plat at one point yes did you consult

10:47 ↗ with legal counsel no your opinion

10:56 ↗ miss Loman was the decision to process

10:58 ↗ the polygon plat under the development

11:00 ↗ agreement a mistake yes you expand on

11:03 ↗ that please sure I'd like to as mr.

11:09 ↗ Niven testified there this was the first

11:13 ↗ time we had terminated development

11:15 ↗ agreements I was having I was

11:19 ↗ approaching it as if it was all or

11:21 ↗ nothing which I have since learned is

11:24 ↗ incorrect

11:25 ↗ that the standards can terminate but or

11:28 ↗ the replacement regs take into a sorry

11:34 ↗ I'm not saying this very clearly that

11:36 ↗ the replacement reg regulations process

11:39 ↗ is what comes into play even if some a

11:42 ↗ project is determined to be vested under

11:45 ↗ the development agreement and at the

11:48 ↗ time for preliminary Platts we actually

11:52 ↗ preferred to use the replacement

11:54 ↗ regulation process we thought it was

11:57 ↗ better for the applicants and a cleaner

12:00 ↗ process and we didn't but we chose not

12:04 ↗ to use it because we didn't think we

12:06 ↗ could did any party ever challenged the

12:10 ↗ city on this point or otherwise raised

12:12 ↗ this procedural issue during the polygon

12:15 ↗ review proceedings yeah when was the

12:18 ↗ final decision on the polygon plat made

12:20 ↗ well there were actually two plats there

12:23 ↗ was the West Ridge north single-family

12:25 ↗ plat and that one concluded I think

12:28 ↗ around July of last year and the parcel

12:33 ↗ D preliminary plat which concluded early

12:37 ↗ this year was either decision or polygon

12:42 ↗ appealed by any party no

12:45 ↗ did you deliberately treat polygon or

12:48 ↗ any other project applicant

12:49 ↗ preferentially yeah are you aware of any

12:53 ↗ such preferential treatment by other

12:54 ↗ city staff members yeah what is the UDV

12:59 ↗ see you VDC is the urban village

13:02 ↗ Development Commission like this

13:05 ↗ Development Commission they hear similar

13:08 ↗ kinds of permits but we're focused on

13:10 ↗ the projects in the urban villages which

13:12 ↗ are the areas that have development

13:15 ↗ agreements was the U V DC involved with

13:19 ↗ the polygon plat yes review process yes

13:23 ↗ they for both plots they made a

13:27 ↗ recommendation to council and was that

13:29 ↗ process the one specified under the

13:31 ↗ development agreement yes what is the

13:35 ↗ current status of the U V DC they're

13:39 ↗ essentially done we had a meeting in

13:44 ↗ March of this year in which we heard

13:49 ↗ what we expect to be the last action

13:52 ↗ that they were to take the mayor showed

13:55 ↗ up and thanked them thank you notes were

13:58 ↗ handed out both to them and from them so

14:02 ↗ it seemed fairly conclusive just a

14:05 ↗ clarifier is the U V DC effectively

14:07 ↗ disbanded effectively it won't be

14:11 ↗ officially disbanded until actions taken

14:15 ↗ by council but we have nothing on the

14:18 ↗ schedule and we don't expect to

14:20 ↗ reconvene them thank you I'd now like to

14:23 ↗ introduce a new exhibit which I believe

14:26 ↗ is C 56

14:34 ↗ this is an email string culminating in a

14:38 ↗ September 11th 2017 email message from

14:42 ↗ Nik Abel more to Jean Lin with yourself

14:45 ↗ and David Avenel jr. listed as courtesy

14:48 ↗ copy recipients are you familiar with

14:51 ↗ this document yes you please describe

14:53 ↗ this document well it started earlier in

14:58 ↗ the summer of 2017 when both David

15:05 ↗ Avenel and Nik Abdel noir were trying to

15:09 ↗ get a better understanding of schedules

15:14 ↗ for their projects

15:16 ↗ David had laid out and schedule and we I

15:21 ↗ was identifying that we hadn't agreed to

15:23 ↗ that and because many of the permits

15:28 ↗ that they were identifying were to be

15:30 ↗ processed at that time by jean lin i had

15:34 ↗ asked her to respond and she did on

15:37 ↗ September 8th to which Nik responded

15:41 ↗ which is the ultimate email in the chain

15:44 ↗ and how would you characterize NICs

15:46 ↗ response in that ultimate email in the

15:49 ↗ chain he was very unhappy

15:50 ↗ why was he unhappy because the timelines

15:54 ↗ that ms lynn laid out was word didn't

15:58 ↗ meet their business model and their

16:01 ↗ needs for getting permits processed so

16:06 ↗ if I understand you correctly miss Loman

16:09 ↗ mr. Allen or who's working for polygon

16:13 ↗ was complaining to the city about the

16:15 ↗ city's processing exactly thank you were

16:19 ↗ these complaints consistent with

16:21 ↗ communications received by the city from

16:23 ↗ other project applicants at the time yes

16:28 ↗ I'd like to introduce a new exhibit to

16:32 ↗ believe his Exhibit C 57

16:43 ↗ this is a February 2nd 2015 email

16:47 ↗ message on Elena Robertson to Mike

16:50 ↗ Martin

17:05 ↗ are you familiar with this document yes

17:10 ↗ who was Elena Robertson she was working

17:14 ↗ for polygon and was kind of the project

17:17 ↗ manager for the permits much the way

17:20 ↗ David Avenel was in the previous email

17:23 ↗ and who was Mike Martin he was a planner

17:27 ↗ working for development services do you

17:30 ↗ please describe this document well Elena

17:34 ↗ was laying out the when they would plan

17:39 ↗ to submit four different permits which

17:42 ↗ included both site development permits

17:44 ↗ and plots and when they planned to have

17:50 ↗ the hearings for those permits as well

17:55 ↗ as construction permits the document

17:58 ↗ contains pen and ink in her lineage ins

18:01 ↗ did you insert those yes part of the

18:06 ↗ reason I did it was because I found for

18:09 ↗ instance where it says th South site

18:12 ↗ plan approval and it says April APR - 15

18:18 ↗ you could read that as April 15th and in

18:22 ↗ speaking with Mike it was in fact that

18:26 ↗ that was April of 2015 and so that was

18:29 ↗ my way of just understanding what the

18:32 ↗ content was do you have further

18:35 ↗ communications with polygon following

18:38 ↗ this email exchange regarding this topic

18:41 ↗ I don't know I assumed so because I

18:44 ↗ don't think we agreed to that timeline

18:47 ↗ so is it is it your testimony than miss

18:49 ↗ Loman that polygon had requested or

18:52 ↗ proposed a specific processing time line

18:55 ↗ for its various projects and the city

18:57 ↗ essentially rejected that right I mean

19:00 ↗ they were proposing four months for

19:02 ↗ Platts and two months for SDPs

19:07 ↗ and that was that was just not enough

19:11 ↗ time to get through the process in fact

19:15 ↗ the SDPs took more like five to seven

19:19 ↗ months and the plats took over a year or

19:22 ↗ more to get through the corrections and

19:25 ↗ and the processing necessary the Platts

19:29 ↗ for these other projects took over a

19:31 ↗ year yes thank you could you please

19:34 ↗ describe in your own words how the city

19:37 ↗ processed or otherwise treated polygons

19:40 ↗ various applications in relation to how

19:43 ↗ IH IFC's applications were treated by

19:45 ↗ the city well we were processing them

19:50 ↗ all at the same time we were making sure

19:54 ↗ they were complete asking for

19:56 ↗ Corrections trying to figure out when

19:59 ↗ they would go on various schedules which

20:01 ↗ staff members would work for work on

20:04 ↗ them we were doing that for all the

20:06 ↗ permits that were in front of us what

20:08 ↗ was one of the polygon applications a

20:10 ↗ short plat

20:11 ↗ yes you describe that please sure and

20:15 ↗ I'm glad to speak to that because I

20:17 ↗ think there's there was some testimony

20:21 ↗ that was misleading and or incorrect mr.

20:29 ↗ maleeni for instance referred to

20:31 ↗ polygons short plat as a preliminary

20:34 ↗ plat and there's a pretty substantial

20:37 ↗ difference between the two

20:39 ↗ what is the difference for purposes of

20:41 ↗ process sure a short plat is an

20:43 ↗ administrative decision so that means

20:46 ↗ that staff can make the decision we

20:49 ↗ issue a notice of decision but it's a

20:51 ↗ relatively straightforward process

20:53 ↗ whereas a preliminary plat is a

20:57 ↗ lengthier and more complex permit and

21:01 ↗ the decision-maker is either the council

21:04 ↗ or the Hearing Examiner depending on

21:06 ↗ where it is in the city in this case

21:13 ↗ with polygons short plat it was

21:16 ↗ submitted early in 2016 and the first

21:21 ↗ set and only set of comments were issued

21:25 ↗ in May of 2016

21:28 ↗ they were relative

21:29 ↗ minor comments it was very clear to see

21:33 ↗ how they would be resolved and so while

21:37 ↗ it would have been better to have the

21:38 ↗ short plat approved before the site

21:41 ↗ development permit went to the urban

21:45 ↗ village Development Commission and then

21:47 ↗ on to the council the staff had a very

21:49 ↗ clear understanding of what the outcome

21:51 ↗ was going to be and what it was going to

21:54 ↗ take to correct the preliminary plat

21:57 ↗ shelters preliminary plat on the other

22:00 ↗ hand being a full preliminary plat was

22:04 ↗ much more complicated there because we

22:08 ↗ aren't the decision-maker we don't know

22:09 ↗ what the outcome is going to be there

22:12 ↗ the plat showed a public access easement

22:15 ↗ on areas that had parking in the corner

22:18 ↗ of a building we had no idea if that was

22:21 ↗ going to be released and so there was a

22:26 ↗ great deal more uncertainty that came

22:28 ↗ with a preliminary plat then a short

22:30 ↗ plot thank you do you recall the

22:32 ↗ testimony in this proceeding regarding

22:34 ↗ the city's alleged efforts to

22:37 ↗ preferentially facilitate the project

22:39 ↗ application filed by John Haase and/or

22:42 ↗ city serf yes do you agree with that

22:45 ↗ testimony no could you please describe

22:48 ↗ the city serf project so the city serf

22:52 ↗ project was I think it's around 13,000

22:57 ↗ square feet on about an acre maybe a

22:59 ↗ little more it was a single storey

23:02 ↗ building with a surface parking lot so

23:08 ↗ it was fairly straightforward permit we

23:14 ↗ actually had the staff person it was

23:18 ↗ originally assigned to jean lin and then

23:22 ↗ afterwards when it became clear that

23:24 ↗ there were too many permits on ms Lin's

23:27 ↗ plate we had valerie porter take on the

23:31 ↗ permit valerie hadn't actually done

23:35 ↗ staff reports before and so we asked her

23:39 ↗ to take this on and we're trying to

23:41 ↗ train her by using

23:43 ↗ reviewing and writing the notice of

23:45 ↗ decision for this now like to introduce

23:49 ↗ a new exhibit which I believe is Exhibit

23:52 ↗ C 58 this is a September 22nd 2017 email

24:00 ↗ exchange between yourself and John Hoss

24:11 ↗ are you familiar with this document

24:14 ↗ mm-hmm yes did you please describe the

24:16 ↗ content and context of this document

24:19 ↗ well I'd received a phone call from mr.

24:22 ↗ Haas he was frustrated at how long his

24:28 ↗ permit was taking and so I had done some

24:32 ↗ research speaking to the planner and to

24:36 ↗ the then permit oversight manager

24:39 ↗ Christopher Wright and was responding to

24:43 ↗ mr. Haas to give him a sense of what was

24:46 ↗ happening with his permit I believe you

24:49 ↗ just testified that mr. Haas was

24:50 ↗ frustrated yes he how did he manifested

24:54 ↗ frustration he was very upset he thought

24:58 ↗ that we should have been done a long

24:59 ↗ time ago he didn't understand what was

25:02 ↗ taking so long and conveyed that in his

25:07 ↗ voicemail to me so his voicemail to you

25:10 ↗ complained about the city's processing

25:12 ↗ of his project application exactly I'd

25:17 ↗ now like to introduce a new exhibit

25:19 ↗ entitled the c59 this is a multicolored

25:24 ↗ chart thank you

25:49 ↗ [Applause]

25:54 ↗ if someone did you prepare this document

25:56 ↗ I did you prepare it a month or two ago

26:01 ↗ when we were preparing for rebuttal

26:03 ↗ why did you prepare prepare it well

26:06 ↗ there were there were a lot of comments

26:09 ↗ made and some exhibits shown during the

26:15 ↗ testimony of MS Haim and I wanted to

26:20 ↗ have a tool that would try and explain

26:23 ↗ what was happening and I thought a more

26:28 ↗ accurate representation

26:30 ↗ could you please then explain the

26:32 ↗ various references and timeframes on the

26:34 ↗ chart and for the record it looks like

26:36 ↗ the graphic representation of this

26:39 ↗ document that was projected onto the

26:42 ↗ screen might be a little blurry okay

26:45 ↗ there a way to sharpen the focus of that

26:47 ↗ for the Commission's benefit

26:57 ↗ I don't know

27:08 ↗ I'm not seeing it sorry that's fine miss

27:11 ↗ Loman mostly what I want to do by just

27:14 ↗ projecting is be able to show you where

27:17 ↗ I'm looking on the chart because there's

27:18 ↗ so many cells so unfortunately you'll

27:22 ↗ have to be looking at your chart to

27:23 ↗ actually see the content but at least

27:25 ↗ we'll know the pieces that I'm pointing

27:27 ↗ to each Commission does have a copy now

27:30 ↗ so okay if you could please proceed with

27:32 ↗ your explanation so as I mentioned

27:36 ↗ during shelters some particularly ms

27:39 ↗ hynes testimony there were many

27:42 ↗ different permits by polygon shelter

27:45 ↗ block 19 and city surf that were

27:48 ↗ mentioned and so what I did was try and

27:52 ↗ summarize five years worth of permit

27:55 ↗ activity and a single chart which is why

27:57 ↗ it's very tiny the sources that I used

28:01 ↗ were my notes and my calendar and our

28:05 ↗ permit database to try and show what was

28:08 ↗ happening these are meetings and permits

28:14 ↗ specifically related to the development

28:16 ↗ of property they are not meetings about

28:20 ↗ the development agreement extension or a

28:24 ↗ new development agreement that have been

28:26 ↗ mentioned if the orange bars that you

28:31 ↗ see up here across mark years each row

28:37 ↗ represents two weeks of the particular

28:40 ↗ month that's identified if there are two

28:44 ↗ actions that happen to the same permit

28:49 ↗ in the same two-week period then you see

28:53 ↗ that there is a blank on the Left where

28:56 ↗ instead of having say 1 2 15 May 6th 30

29:01 ↗ May you can see that there's a blank

29:03 ↗ cell that means that there were two

29:05 ↗ things that happened in that two-week

29:07 ↗ period for the same permit and there's a

29:10 ↗ handful of those that happened so the

29:14 ↗ first thing I'll point out about midway

29:17 ↗ down on the left

29:19 ↗ are the cells right next to the date

29:22 ↗ these have to do with staffing and you

29:25 ↗ can see then in October 2016 we had four

29:30 ↗ staff members and then starting in

29:33 ↗ November we went down to three and then

29:36 ↗ in December we went down to two and then

29:39 ↗ in March we March we went up two by one

29:49 ↗ this was a planner who had one year of

29:52 ↗ experience and then we went down to one

29:57 ↗ planner and then it wasn't until July

30:01 ↗ 2016 that we were back up to be being

30:05 ↗ fully staffed so this is about nine

30:07 ↗ months in which we were not fully

30:10 ↗ staffed but even when we were fully

30:12 ↗ staffed they were all new to the city of

30:16 ↗ Issaquah half of them had no Washington

30:19 ↗ experience they didn't have any

30:22 ↗ experience with our codes or the

30:24 ↗ development agreements and I only had

30:26 ↗ one senior planner so that would have

30:30 ↗ repercussions for quite a while if you

30:34 ↗ look up at the top so the language right

30:41 ↗ up here between the two orange bars says

30:44 ↗ transfer from ms to polygon which means

30:46 ↗ that as far as I have found that was

30:51 ↗ when Microsoft sold the property to

30:53 ↗ polygon and then the gray bar a few

30:58 ↗ lines down is based on a newspaper

31:01 ↗ article that I think we were sent that

31:05 ↗ identified that Lion Holmes had

31:08 ↗ purchased polygon and that there were

31:11 ↗ people leaving polygons to start a new

31:14 ↗ company which became shelter and around

31:19 ↗ that time you can see there quite a few

31:22 ↗ meetings in this area that are identical

31:25 ↗ under the general planning for polygons

31:29 ↗ and

31:31 ↗ general planning for IH IFC so at the

31:35 ↗ very I forgot to end to say this so I'm

31:37 ↗ sorry the very top row you can see it

31:40 ↗ has polygons and then below that the

31:43 ↗ specific permits then each IFC and the

31:48 ↗ specific permits block 19 and city serf

31:53 ↗ and then the rows the next rows are the

31:57 ↗ permit number the permit type and then

32:00 ↗ some statistics about that particular

32:03 ↗ project including the size of the site

32:06 ↗ the size of the buildings that were

32:10 ↗ going on at the number of dwelling units

32:11 ↗ or square footage and whether it was a

32:18 ↗ structured parking or surface parking

32:21 ↗ just as a way of giving a sort of sense

32:24 ↗ of what the project was composed of so

32:29 ↗ what you can see is that around the time

32:31 ↗ not too long after shelter bought the

32:36 ↗ property from Microsoft there all these

32:38 ↗ green meetings up here at the top that

32:41 ↗ and the reason they show up in both of

32:44 ↗ them because at the time polygon and

32:46 ↗ shelter were the same group of people

32:48 ↗ that was a single ownership and then

32:51 ↗ after lion

32:54 ↗ bought polygon and IH IFC split off

32:59 ↗ there's a gap for shelter between when

33:04 ↗ we were talking about permits the last

33:07 ↗ meeting was in early July 2014 until

33:12 ↗ with one exception we didn't really meet

33:15 ↗ until March 2017 so almost three years

33:19 ↗ of time there are several themes that

33:25 ↗ I'm going to just introduce and then

33:26 ↗ I'll show you in more specifics one of

33:30 ↗ the themes is don't wait till the last

33:32 ↗ minute because everyone wants the same

33:34 ↗ thing when something like a development

33:37 ↗ agreement is ending all the property

33:40 ↗ owners are going to want to get their

33:42 ↗ permits down

33:43 ↗ and try and get some predictability

33:47 ↗ where we had more meetings upfront we

33:51 ↗ things went generally more smoothly and

33:56 ↗ for most permits they were complete the

33:59 ↗ first time they were submitted not all

34:01 ↗ of them but most of them so I have an

34:06 ↗ objection to this run all narrative I

34:09 ↗ understand it's appropriate to explain

34:11 ↗ the chart but if we're going to be

34:12 ↗ making specific testimony about the

34:16 ↗ meaning of the chart and I think it

34:18 ↗ needs to be question-and-answer and not

34:20 ↗ a lecture mr. Sherman I've asked miss

34:23 ↗ Loman as the witness to explain the

34:25 ↗ chart that they believe what she's

34:27 ↗ attempting to do well the hated it's got

34:30 ↗ numerous cells and that does require

34:32 ↗ some meaningful explanation well she's

34:34 ↗ now moved on to themes and talking about

34:37 ↗ don't wait to the last minute that's not

34:39 ↗ talking about the content of the chart

34:40 ↗ so I would be glad to move back to the

34:43 ↗ content of the chart thank you

34:46 ↗ so what I what you can see for instance

34:54 ↗ that for polygon in for there Westridge

35:00 ↗ single-family south they were holding

35:02 ↗ quite a few meetings up front that

35:05 ↗ actually was not just related to that

35:09 ↗ plat but was actually related to their

35:11 ↗ entire property and then after they

35:16 ↗ began to get a sense of how they wanted

35:18 ↗ to develop the entire property they

35:22 ↗ specifically focused on to the plat for

35:28 ↗ block 19 a similar point that they held

35:33 ↗ quite a few meetings and then and then

35:40 ↗ made their some middle for block 19 also

35:45 ↗ they were very focused on getting their

35:48 ↗ permits in by the end of the year and

35:50 ↗ you can see over on the right where that

35:54 ↗ happened and they started in late 2016

36:00 ↗ talking to us because they wanted to be

36:03 ↗ assured that they would have their

36:04 ↗ building permit in by the end of the

36:07 ↗ year so again I repeat the same

36:09 ↗ objection I think this is marginally

36:12 ↗ relevant at best to the subject of this

36:14 ↗ hearing but again the witness is just

36:16 ↗ saying whatever she wants to say about

36:18 ↗ the chart and not responding to

36:19 ↗ questions from Council so we need to

36:23 ↗ have a question-and-answer format so

36:25 ↗ that objections can be made mr. chairman

36:28 ↗ I would respectfully know that the

36:31 ↗ entire issue of the West Ridge

36:34 ↗ applications was one that was introduced

36:36 ↗ into this proceeding by the applicant

36:38 ↗ and this is very clearly within the

36:40 ↗ scope of the city's permissible rebuttal

36:43 ↗ and this moment is simply attempting to

36:45 ↗ contextualize the chart that she has

36:48 ↗ created to explain the similarities

36:52 ↗ and/or differences between the city's

36:54 ↗ processing of IH IFC's various permits

36:57 ↗ and those submitted by the other

36:59 ↗ applicant and I didn't object and

37:01 ↗ relevance grounds I pointed out it was

37:03 ↗ marginally relevant but it still needs

37:05 ↗ to be question and answer and not the

37:07 ↗ witness simply saying whatever she wants

37:09 ↗ to say about it

37:10 ↗ okay okay would you please try to

37:14 ↗ question and answer questions as opposed

37:16 ↗ to maybe editorialize or get further

37:20 ↗ into the depth of the chart miss Loman

37:23 ↗ we were you in the hearing room to

37:27 ↗ listen to Miss Himes testimony

37:29 ↗ concerning the city's treatment and

37:32 ↗ processing of IH IFC's various permit

37:35 ↗ applications I was were you in the

37:37 ↗ hearing room to hear the testimony of

37:39 ↗ Miss hime and I believe mr. maleeni

37:43 ↗ regarding the city's treatment and

37:45 ↗ processing of other project applicants I

37:49 ↗ was and their various permits in

37:52 ↗ attempting to summarize as best you can

37:54 ↗ how does your chart address that

37:57 ↗ testimony and rebut it well in

38:00 ↗ specifically the exhibit that shelter

38:05 ↗ presented

38:06 ↗ s88 which showed a series of permits

38:12 ↗ that they were including city serve

38:18 ↗ block 19 polygons and shelter they had

38:24 ↗ given a sense of how long those permits

38:28 ↗ had taken and how they thought that was

38:30 ↗ unfair and I think two points to make

38:33 ↗ one is that there were errors in that

38:36 ↗ this is shown at the very bottom row in

38:39 ↗ which sorry it's you can see that for

38:50 ↗ block 4 for instance down at the very

38:53 ↗ bottom

38:55 ↗ s88 showed that it was submitted April

39:00 ↗ 27th which is correct but that it was

39:04 ↗ approved May 16th when in fact it was

39:06 ↗ approved September 7th likewise although

39:12 ↗ not as incorrect the townhomes North

39:17 ↗ were shown being approved on SAT 8 May

39:22 ↗ 10th and in fact it was approved May

39:28 ↗ 21st also what the that exhibit did not

39:32 ↗ show was the number of permits that were

39:34 ↗ being processed at the same time and

39:37 ↗ that there was a huge number of complex

39:40 ↗ permits and that's part of why Appendix

39:44 ↗ L says if you have appropriate staffing

39:48 ↗ because the number of permits and the

39:51 ↗ experience of the planners that we were

39:53 ↗ able to hire did not allow us to

39:56 ↗ simultaneously move everything through

39:59 ↗ instantaneously

40:00 ↗ so in summary miss Loman you have

40:03 ↗ reviewed applicants exhibit s 88 correct

40:07 ↗ yes and do you agree with that exhibit

40:09 ↗ no the reason because it I think it's

40:13 ↗ misleading because it shows each permit

40:17 ↗ independently of all the other things

40:19 ↗ that are taking place I mean this chart

40:21 ↗ is just a snapshot of things that were

40:23 ↗ happening in a certain area of physical

40:26 ↗ Highlands not the entire city or even

40:28 ↗ the entirety of esquel Highlands and

40:31 ↗ second it had errors in it it didn't

40:36 ↗ some of the dates were incorrect and

40:38 ↗ third it only started as soon as you

40:41 ↗ submitted a permit it didn't show any of

40:43 ↗ the pre work that was done to help

40:48 ↗ improve the way the process went thank

40:51 ↗ you and the record is it your position

40:55 ↗ that the chart that was just introduced

40:57 ↗ into evidence as Exhibit C 59 is

41:01 ↗ accurate to the best in my abilities I

41:04 ↗ was trying to compile five years worth

41:05 ↗ of data but yes thank you miss Loman do

41:09 ↗ you recall the testimony in this

41:11 ↗ proceeding concerning the city's use of

41:13 ↗ the development commission process for

41:16 ↗ IH IFC's STP ASTP applications yes

41:20 ↗ following the adoption of the

41:22 ↗ replacement regulations

41:23 ↗ did you ever communicate to IH IFC that

41:26 ↗ the city would process IH IFC's STP and

41:30 ↗ ASDP applications in a manner that did

41:33 ↗ not involve the development Commission I

41:35 ↗ don't remember talking about that after

41:37 ↗ the replacement regs were adopted

41:40 ↗ adopted following the adoption of the

41:43 ↗ replacement regulations did you

41:45 ↗ communicate with mr. Niven regarding the

41:48 ↗ procedures that would be used to process

41:50 ↗ IH IFC's STP and ASDP applications not

41:54 ↗ right away

41:55 ↗ was there a miscommunication between

41:57 ↗ yourself and mr. Nevin regarding this

42:00 ↗ issue yes when we finally had a

42:02 ↗ conversation about it I realized that I

42:06 ↗ was again using the development

42:09 ↗ agreement process and not the

42:11 ↗ replacement regulation process which I

42:13 ↗ should have been using did you

42:16 ↗ originally work to prepare

42:17 ↗ administrative Lea shoot a note notices

42:20 ↗ of decision for IH IFC's STP and ASTP

42:24 ↗ applications before you and mr. Niven

42:26 ↗ discussed this procedural issue yes we

42:30 ↗ received

42:32 ↗ ih IFC's letters saying they would not

42:35 ↗ update them update their applications to

42:39 ↗ comply with the development regulations

42:41 ↗ I think on the very last day of May and

42:45 ↗ in early to mid June I had already

42:48 ↗ started reaching out to other city staff

42:51 ↗ to find out if there was a template for

42:58 ↗ development Commission staff report for

43:01 ↗ denial that was a relatively well it was

43:05 ↗ actually none of us had a model staff

43:08 ↗ report and so I was both doing that

43:12 ↗ research and then beginning to try and

43:15 ↗ assemble the pieces to figure out what

43:18 ↗ would be an appropriate way to construct

43:21 ↗ that staff report when did your

43:23 ↗ clarifying discussion if I can call it

43:26 ↗ that with mr. Nevin occur towards the

43:31 ↗ end of July or beginning of August

43:34 ↗ following your discussion with mr. Nevin

43:36 ↗ did you work expeditiously to process IH

43:39 ↗ IFC's a STP and STP applications through

43:43 ↗ the development Commission yes you

43:45 ↗ please describe your efforts in doing so

43:47 ↗ well again we were trying to decide what

43:52 ↗ were the essential pieces that would

43:53 ↗ need to be in there and the attachments

43:55 ↗ assemble them and coordinate get the

44:00 ↗ development Commission meeting

44:02 ↗ established send out all the notices

44:05 ↗ that were required there are a lot of

44:08 ↗ moving pieces to setting up a

44:11 ↗ development commission meeting if you

44:13 ↗ deliberately delayed these proceedings

44:15 ↗ in any manner no have you ever intended

44:18 ↗ to mislead IH IOC regarding the

44:21 ↗ procedure that would be used to process

44:22 ↗ its ASDP and STP applications no slow mo

44:28 ↗ did you hear the testimony from the

44:30 ↗ other witnesses regarding the alleged

44:32 ↗ delays by the city and processing IH

44:35 ↗ IFC's project applications yes did the

44:40 ↗ city always anticipate or intend for the

44:43 ↗ replacement regulations to be adopted in

44:45 ↗ our trip 2018 no when were they

44:48 ↗ originally anticipated to be adopted

44:50 ↗ when when we I think either when we

44:54 ↗ brought the first draft forward or in

44:57 ↗ the spring of that year we were doing

45:00 ↗ some informational meetings we had

45:02 ↗ thought that it would be adopted in the

45:04 ↗ early fall of 2017 by the time we were

45:10 ↗ full into going through the public

45:13 ↗ process of discussing the drafts with

45:16 ↗ the Commission's it became apparent we

45:19 ↗ weren't going to meet a fall deadline

45:20 ↗ and so we had moved it to December 2017

45:24 ↗ what were the reasons for this delay

45:27 ↗ postponement well partly it was

45:30 ↗ complexity of the work we were trying to

45:36 ↗ do as I said this is the first time we'd

45:38 ↗ ever done this and then we were also

45:42 ↗ trying to respond to a great many

45:48 ↗ requests we were dealing with to

45:51 ↗ property owners shelter and trimet that

45:56 ↗ had a lot of questions and requests and

46:00 ↗ research projects and then once we got

46:05 ↗ to council we were also and actually in

46:08 ↗ fact even before then IH IFC was asking

46:12 ↗ that the process slow down I'm sorry

46:16 ↗ could you clarify that or state that

46:18 ↗ last point again well they were in I

46:22 ↗ know in writing possibly verbally asking

46:26 ↗ that the process not go so fast was they

46:29 ↗ shelter Holdings

46:30 ↗ IH IFC and what process were you

46:35 ↗ referring to the adoption of the

46:37 ↗ replacement regulations shelter Holdings

46:41 ↗ tried to postpone the adoption of the

46:44 ↗ replacement regulations is that your

46:45 ↗ testimony I'm not saying that they I

46:48 ↗ don't know whether what they are what

46:49 ↗ their goal was whether they were trying

46:51 ↗ to postpone it or not I'm just simply

46:54 ↗ saying that the message that they gave

46:56 ↗ to

46:57 ↗ Council in particular was slowed down

47:00 ↗ this is going very fast and were those

47:04 ↗ communications by IH IFC in what general

47:08 ↗ timeframe were those made so we got to

47:15 ↗ Council in October 2017 and we were I

47:21 ↗ think by at least by November hearing

47:26 ↗ that on a regular basis but I think

47:29 ↗ possibly even in the fall of 2016 when

47:35 ↗ director Niven made his first

47:37 ↗ presentation to the land and Shore

47:39 ↗ committee and laid out his schedule

47:41 ↗ having this adopted in you know late

47:47 ↗ summer or early fall of 2017 that

47:51 ↗ message was given in one of their

47:54 ↗ letters responses to that presentation

47:57 ↗ are you familiar with dates upon which I

48:01 ↗ H I've C originally submitted its

48:05 ↗ applications for its various ASD peas

48:08 ↗ and SDP

48:09 ↗ the pre applications the applications

48:12 ↗ for the actual submittals generally yes

48:16 ↗ in your opinion and experience and is

48:19 ↗ Lohmann would have been likely or even

48:22 ↗ possible for those applications to have

48:25 ↗ been approved by the original

48:27 ↗ anticipated adoption date for the

48:29 ↗ replacement regulations you know why not

48:33 ↗ well I mean we were talking about doing

48:36 ↗ that in early fall the preliminary plat

48:39 ↗ was submitted in August on August 1st

48:43 ↗ 2017 and even if we had done what I call

48:48 ↗ straight time where it was just there

48:51 ↗ were no Corrections no changes no

48:53 ↗ additional information that permit was

48:57 ↗ wouldn't have been done until after

49:01 ↗ Thanksgiving thank you

49:03 ↗ I'd now like to shift to an exhibit that

49:08 ↗ there's been much testimony about in

49:11 ↗ this proceeding when that is s9 I'm

49:14 ↗ gonna ask mr. Dunbar to hand you a copy

49:16 ↗ this is already in the record okay this

49:19 ↗ is the commercial and multi-family

49:21 ↗ building permits and middle requirements

49:24 ↗ that I think has been variously referred

49:26 ↗ to as the web document these proceedings

49:29 ↗ are you familiar with this sort of yes

49:33 ↗ to your knowledge miss Loman is this

49:36 ↗ document referenced anywhere in the 1996

49:39 ↗ Issaquah Highlands development agreement

49:41 ↗ not that I'm aware of no to your

49:43 ↗ knowledge did you or any other staff

49:46 ↗ member ever indicate your intent to

49:48 ↗ enforce the land use permit n OD

49:51 ↗ issuance requirement on page 2 of that

49:54 ↗ document against IHI FC no IIF see ever

50:01 ↗ refer to this document in its dealings

50:04 ↗ with you or other city staff members

50:06 ↗ before the current proceedings in this

50:08 ↗ development Commission well we likely

50:11 ↗ talked about it when they we were going

50:14 ↗ through our various meetings and

50:17 ↗ coordination when they would say what do

50:19 ↗ we need to submit we would say look at

50:20 ↗ this document but at the same time we

50:24 ↗ you know encouraged applicants to talk

50:26 ↗ to us ask us questions if the middle

50:29 ↗ requirements didn't make sense we

50:31 ↗ expected to go through and identify if

50:35 ↗ some pieces didn't make sense to them

50:37 ↗ whether they were actually necessary or

50:39 ↗ not did you or any other staff members

50:42 ↗ to your knowledge ever tell I hoc that

50:44 ↗ they could not submit a building permit

50:46 ↗ application until after a land use

50:49 ↗ permit notice of decision had been

50:51 ↗ issued no I don't think we ever talked

50:54 ↗ about building permits if you then turn

50:57 ↗ to exhibit s 118 this is a previously

51:02 ↗ introduced document that the applicant

51:05 ↗ submitted into evidence for this

51:06 ↗ proceeding

51:08 ↗ s 118 I believe it's the Clark Design

51:12 ↗ Group Miranda

51:33 ↗ okay were you in the hearing room to

51:38 ↗ hear the testimony regarding this

51:39 ↗ document yes can you please turn to

51:41 ↗ section 2.5 yes and read that aloud

51:47 ↗ dual-track ASDP and building permit LS

51:51 ↗ noted that the city does not typically

51:53 ↗ allow a dual-track between the ASDP and

51:56 ↗ building permits the building permit may

51:59 ↗ be submitted once the ASDP is approved

52:01 ↗ could you please respond to that

52:04 ↗ statement well I think the important

52:08 ↗ word there is probably typically and

52:13 ↗ allow that's two words actually we

52:19 ↗ sometimes had building permits submitted

52:22 ↗ while a SDPs were in review this was

52:27 ↗ this meeting was in September 2016 at

52:31 ↗ our very preliminary meeting when we

52:33 ↗ were just laying out a larger framework

52:36 ↗ we would typically work with applicants

52:39 ↗ I know that Trammell crow who was not

52:46 ↗ the Sumitomo was the owner of the

52:48 ↗ property Trammell crow was the developer

52:50 ↗ they were asking a lot of questions

52:52 ↗ about when they could submit building

52:54 ↗ permits and so we were talking to them

52:56 ↗ about various timing along the way miss

53:01 ↗ lemon do you recall ever telling that

53:04 ↗ consultant to that applicant group that

53:06 ↗ they could not submit a building permit

53:09 ↗ application unless and until a notice of

53:12 ↗ decision for land use purposes had been

53:14 ↗ issued for the property I don't remember

53:16 ↗ saying that no thank you

53:21 ↗ if IHI FC had filed one or more building

53:25 ↗ permit applications for its property in

53:29 ↗ your understanding what those

53:30 ↗ applications have been considered vested

53:33 ↗ pursuant to state law yes your

53:39 ↗ understanding could IHI FC have

53:41 ↗ submitted building permit applications

53:43 ↗ for its property without waiting for a

53:45 ↗ land use decision or notice of decision

53:48 ↗ yes I mean that's been quite a bit of

53:52 ↗ discussion here in 1801 Oh 500 it says

53:59 ↗ that you can submit a building permit at

54:01 ↗ any time we have had applicants both

54:05 ↗ before shelter and currently who have

54:09 ↗ just gone ahead and submitted their

54:12 ↗ building permits with their land use

54:13 ↗ while their land use permit was in

54:15 ↗ process or simultaneously with their

54:19 ↗ permit the city reject those building

54:23 ↗ permit applications for those other

54:24 ↗ applicants so the one that was prior to

54:30 ↗ shelter was the Vale project which was

54:33 ↗ touched on briefly at our last hearing

54:36 ↗ would you please describe the Vale

54:38 ↗ project sure it is it is a multifamily

54:45 ↗ project I think it's five stories high

54:49 ↗ 110 units the they were their permit was

54:57 ↗ at the development Commission at the

55:01 ↗ same time or actually the moratorium was

55:04 ↗ enacted in early September and their

55:07 ↗ land use permit went to the Development

55:12 ↗ Commission later in that month we are

55:16 ↗ required to hold a public hearing after

55:18 ↗ the inaction of a moratorium they knew

55:22 ↗ that was coming up and they were

55:24 ↗ concerned that the result of that might

55:26 ↗ be that they would not be vested and

55:29 ↗ with

55:30 ↗ be held up by the moratorium and so they

55:34 ↗ submitted a building permit to get

55:37 ↗ bested that permit was not determined to

55:41 ↗ be complete but it had did not have to

55:43 ↗ do with the fact that their land use

55:45 ↗ permit was incomplete it was due to the

55:48 ↗ fact that they had not submitted all

55:50 ↗ their all the components of the building

55:53 ↗ permit so if I understand your testimony

55:55 ↗ miss Loman the city did accept building

56:00 ↗ permit applications from other

56:01 ↗ applicants including Veil the veil

56:04 ↗ project without waiting for a nano D to

56:07 ↗ be issued for the underlying land use

56:09 ↗ permit right we accepted it and then

56:12 ↗ reviewed it for completeness which it

56:14 ↗ was determined not to be complete more

56:16 ↗ recently because of concerns about

56:18 ↗ enacting new development standards in

56:21 ↗ Old Town an applicant submitted both the

56:25 ↗ building and land use permit

56:27 ↗ simultaneously and they were both

56:29 ↗ determined to be complete Hof C ever

56:33 ↗ attempt to submit a building permit

56:34 ↗ application for its property not that

56:36 ↗ I'm aware of

56:39 ↗ could i hif C have filed its SDP

56:43 ↗ application for its property and then

56:46 ↗ subdivide the property later at some

56:48 ↗ point yes I mean when we we need when we

56:53 ↗ do an SDP we do it for the entire

56:55 ↗ property and so they could have started

56:57 ↗ with a permit a site development permit

57:02 ↗ for the whole property and then later on

57:04 ↗ either short plaited or done a long plat

57:07 ↗ or a preliminary plat dividing it into

57:10 ↗ the blocks or they could have even

57:12 ↗ dedicated roadways as a means to

57:16 ↗ subdivide the property are you aware of

57:19 ↗ anything in the 1996 Issaquah Islands

57:22 ↗ development agreement or the cities code

57:24 ↗ that would prohibit that approach no

57:26 ↗ we've had it happen before in what

57:29 ↗ context

57:30 ↗ typically smaller projects where someone

57:34 ↗ wanted to get the building permit but

57:36 ↗ then also wanted the property subdivided

57:40 ↗ we've also had lots created through the

57:44 ↗ dedication of roadways rather than part

57:51 ↗ of a planning process which happened

57:54 ↗ across the street from where this is

57:56 ↗ where Safeway fuel and home Street Bank

57:59 ↗ are located mr. chairman we're at the

58:02 ↗ one hour point and I'd be happy to break

58:04 ↗ if that's the Commission's preference

58:05 ↗ I'm it I think a logical breaking point

58:07 ↗ but I'm also happy to keep billing if

58:08 ↗ that's what the Commission would prefer

58:10 ↗ I think we would like a break so let's

58:12 ↗ let's take a 10-minute break thank you

58:28 ↗ you

1:08:21 ↗ all right I'd like to call the meeting

1:08:23 ↗ back to order please

1:08:29 ↗ miss lemon did you hear miss Himes

1:08:31 ↗ testimony regarding the pre-application

1:08:33 ↗ issue yes you please describe what a

1:08:37 ↗ pre-application conference is it's a sim

1:08:42 ↗ middle of kind of an early sim it'll of

1:08:45 ↗ the project that lays out many of the

1:08:49 ↗ pieces so that both development services

1:08:54 ↗ and other reviewing departments can give

1:08:57 ↗ feedback to the application applicant

1:09:00 ↗ and who typically attends a

1:09:01 ↗ pre-application conference the project

1:09:05 ↗ engineer project engineer and planner as

1:09:10 ↗ sometimes the manager or the fire

1:09:13 ↗ marshal depending on the content of the

1:09:15 ↗ project and how long does a three

1:09:18 ↗ application conference typically last an

1:09:21 ↗ hour hour and a half does a

1:09:23 ↗ pre-application conference typically

1:09:24 ↗ result in some type of a written summary

1:09:26 ↗ a report or other document yes prepares

1:09:29 ↗ that typically the planner and is that

1:09:32 ↗ typically distributed to the applicant

1:09:35 ↗ team oh yes I mean that's the point of

1:09:37 ↗ it there a practical reason or benefit

1:09:41 ↗ and your understanding for a project

1:09:43 ↗ applicant to engage in a pre-application

1:09:45 ↗ conference sure I mean they're getting

1:09:47 ↗ feedback early on from the departments

1:09:50 ↗ that will be making the decision on the

1:09:52 ↗ permit in your opinion and expertise

1:09:56 ↗ miss lemon as participating in a

1:09:59 ↗ pre-application conference typically

1:10:01 ↗ expedite and facilitate the review of an

1:10:04 ↗ underlying permit application or does it

1:10:05 ↗ slow the process down well it's a step

1:10:09 ↗ along the way but I think the whole

1:10:11 ↗ point is to provide that early feedback

1:10:13 ↗ before you dive in to a fulsome itll so

1:10:17 ↗ that your submit all is closer to

1:10:18 ↗ something that can be approved by H IFC

1:10:23 ↗ object to the pre application

1:10:25 ↗ requirement for it's a STP and STP

1:10:28 ↗ applications yes

1:10:29 ↗ late in October maybe October 26th did

1:10:34 ↗ the city retract the requirement hif C

1:10:39 ↗ yes sometime

1:10:40 ↗ maybe five to ten days later in email

1:10:46 ↗ and conversations we set we had

1:10:49 ↗ concurred that it was optional we felt

1:10:52 ↗ it was an important part of the process

1:10:53 ↗ but that it was an optional part of the

1:10:55 ↗ process by the time I hoc objected to

1:10:59 ↗ that pre-application conference had IH

1:11:02 ↗ IFC already submitted one or more of its

1:11:04 ↗ a SDP or AST STP applications yes it had

1:11:08 ↗ submitted to two pre apps prior to two

1:11:14 ↗ that objection and then after we said

1:11:19 ↗ that we did not we concurred that they

1:11:22 ↗ were optional they continued to both

1:11:24 ↗ submit and hold pre-op applications HOF

1:11:31 ↗ C continued to hold pre-application

1:11:34 ↗ conferences even after the city informed

1:11:36 ↗ IHI of C that free application

1:11:39 ↗ conferences weren't being required yes

1:11:41 ↗ and they not only held the conferences

1:11:44 ↗ but they also continued to submit the

1:11:47 ↗ applications and it wasn't just that we

1:11:50 ↗ had told them that they were optional we

1:11:56 ↗ thought they were important but optional

1:11:57 ↗ but when they submitted the retail

1:12:01 ↗ application the site development permit

1:12:05 ↗ for the retail application on November

1:12:09 ↗ 22nd and we gave them an in a letter of

1:12:14 ↗ insufficiency on December 1st nowhere in

1:12:18 ↗ that letter did it identify that the

1:12:20 ↗ pre-application meeting had not taken

1:12:23 ↗ place and it didn't take place until

1:12:25 ↗ December 5th so would the city have

1:12:29 ↗ acceptance of middle of hif C's

1:12:31 ↗ applications even though a

1:12:32 ↗ pre-application conference may not have

1:12:35 ↗ occurred exactly we that was not one of

1:12:38 ↗ the criteria that we used in saying that

1:12:42 ↗ their permit was insufficient did the

1:12:45 ↗ city tell other project applicants in

1:12:47 ↗ the Issaquah Islands that a

1:12:48 ↗ pre-application conference was required

1:12:50 ↗ yes did any other applicants object to

1:12:53 ↗ this

1:12:54 ↗ I'd like to introduce a new exhibit this

1:12:57 ↗ is labeled little bit c60 for the record

1:13:07 ↗ this is an another one page multicolored

1:13:11 ↗ chart so I'm gonna get familiar with

1:13:21 ↗ this document yes I prepared it when did

1:13:24 ↗ you prepare it again when we were

1:13:26 ↗ preparing for rebuttal

1:13:28 ↗ could you please describe that the

1:13:30 ↗ contact content and context of this

1:13:32 ↗ document

1:13:33 ↗ well it really is illustrating the

1:13:35 ↗ things that I just testified to that on

1:13:38 ↗ you can see on the right that in late

1:13:43 ↗ October MS Haim had challenged the

1:13:46 ↗ requirement that either sometime in

1:13:50 ↗ early November miss hime testified to

1:13:53 ↗ the sixth there may have also been there

1:13:56 ↗ was also an email on the 1st of November

1:13:58 ↗ saying that pre-application conferences

1:14:02 ↗ were optional and you can see that these

1:14:06 ↗ they continued to both submit pre apps

1:14:10 ↗ such as for the office and the storage

1:14:13 ↗ and that continued to hold the meetings

1:14:17 ↗ so only the two pre apps for the retail

1:14:22 ↗ and the medical office were in prior to

1:14:25 ↗ that conversation that said they weren't

1:14:27 ↗ required

1:14:29 ↗ did you hear miss Himes testimony

1:14:31 ↗ concerning the sufficiency letters that

1:14:34 ↗ the city sent in response to IHI f sees

1:14:37 ↗ a STP and STP applications I did are you

1:14:40 ↗ familiar with the exhibits of C 16

1:14:43 ↗ through C 26 where those sufficiency

1:14:45 ↗ letters are located in this record more

1:14:49 ↗ or less yes you recall ms times

1:14:52 ↗ characterization of the sufficiency

1:14:54 ↗ letters as quote nitpicky end quote

1:14:57 ↗ yes you agree with that testimony and

1:14:59 ↗ characterization no I had actually

1:15:02 ↗ talked to city staff and said that for

1:15:05 ↗ anything that was coming in at the end

1:15:06 ↗ of

1:15:06 ↗ the development agreement it was

1:15:08 ↗ important to review them closely against

1:15:11 ↗ the submitter requirements to ensure

1:15:12 ↗ they were complete and everything that

1:15:15 ↗ we needed was there prior to deeming

1:15:17 ↗ them complete would you explain why the

1:15:21 ↗ city kept deeming IH IFC's land use

1:15:23 ↗ permits insufficient under that standard

1:15:26 ↗ well there are generally two reasons one

1:15:29 ↗ in the beginning and even maybe towards

1:15:32 ↗ the end there were specific pieces of

1:15:35 ↗ the proposal that were not provided as

1:15:39 ↗ described on this middle requirements

1:15:42 ↗ the second part was that there were

1:15:45 ↗ elements that would be established

1:15:46 ↗ through the preliminary plat process

1:15:49 ↗ that had not that were represented as

1:15:53 ↗ existing when they were at this point

1:15:57 ↗ just proposed and there was as I

1:16:01 ↗ mentioned earlier a concern that some of

1:16:06 ↗ those things in the preliminary plat

1:16:08 ↗ were going to potentially change and

1:16:11 ↗ that the right-of-way the property lines

1:16:15 ↗ the legal descriptions that they were

1:16:17 ↗ showing might not in fact end up that

1:16:20 ↗ way and therefore the time that we had

1:16:22 ↗ invested in reviewing the site

1:16:25 ↗ development permits would be wasted and

1:16:29 ↗ we'd have to start over again you please

1:16:31 ↗ turn to exhibit s 25 an exhibit that's

1:16:36 ↗ already been entered into the record for

1:16:38 ↗ this proceeding

1:16:51 ↗ got it

1:16:53 ↗ please turn to Appendix L and

1:16:56 ↗ specifically page L - 5 of that appendix

1:17:05 ↗ yes in the middle of the page under a

1:17:09 ↗ section heading 3 entitled sufficient

1:17:12 ↗ application decision did you please read

1:17:14 ↗ the text beginning with the second

1:17:19 ↗ sentence in the words as used in as used

1:17:23 ↗ just that one sentence as used in this

1:17:26 ↗ appendix L sufficient shall mean the

1:17:29 ↗ required submission materials are

1:17:31 ↗ sufficiently complete to allow continued

1:17:34 ↗ processing this woman in your opinion

1:17:40 ↗ and observation and experience were IH

1:17:43 ↗ IFC's various a STP and STP applications

1:17:47 ↗ as submitted to the city sufficient

1:17:49 ↗ under the standard

1:17:51 ↗ no as I testified there were things that

1:17:53 ↗ were uncertain or incomplete and that

1:17:57 ↗ could interfere with our ability to

1:17:59 ↗ complete our review your decision to

1:18:02 ↗ send the various sufficiency letters

1:18:04 ↗ that again are listed at Exhibit C 16

1:18:07 ↗ through C 26 made in good faith yes did

1:18:12 ↗ anyone direct you to send these

1:18:13 ↗ efficiency letters no I consulted with

1:18:16 ↗ director Niven before I assured them but

1:18:18 ↗ no one was telling me to do that thank

1:18:20 ↗ you

1:18:21 ↗ did you hear the testimony by the other

1:18:23 ↗ witnesses concerning IHI FC submission

1:18:26 ↗ of its December 2017 well supplement end

1:18:30 ↗ quote to its preliminary plan

1:18:32 ↗ application yes believe that you've

1:18:36 ↗ testified to this but once more for the

1:18:37 ↗ record in your understanding did this

1:18:40 ↗ December 2017 submittal depict building

1:18:43 ↗ footprints for future buildings on the

1:18:45 ↗ project site yes did i HAF see ever

1:18:48 ↗ mentioned the submittal to you or other

1:18:50 ↗ city staff members before filing it well

1:18:53 ↗ I don't know exactly about other staff

1:18:55 ↗ members I believe miss Lin testified

1:18:57 ↗ that she had not heard about it ahead of

1:18:59 ↗ time and I know

1:19:00 ↗ I didn't which surprised me when Ms hime

1:19:04 ↗ testified as part of these proceedings

1:19:07 ↗ that they one of the reasons that they

1:19:09 ↗ had submitted it was to assist in

1:19:11 ↗ understanding where the buildings shown

1:19:14 ↗ in the SDPs were relative to the parcel

1:19:17 ↗ lines it seemed to me that if that was

1:19:20 ↗ the point you would have let me know

1:19:22 ↗ that it was coming in or had been

1:19:24 ↗ submitted to your knowledge was the

1:19:29 ↗ submittal ever requested by the city no

1:19:31 ↗ not that I'm aware of

1:19:33 ↗ I'd like to refer you back to him as

1:19:35 ↗ Himes testimony from the February 6 2019

1:19:40 ↗ proceedings and specifically to her

1:19:42 ↗ statement in reference to this

1:19:44 ↗ supplemental submission that quote it

1:19:47 ↗ has always been part of our application

1:19:48 ↗ and quote you familiar with that

1:19:51 ↗ statement I was here when she made it

1:19:54 ↗ you agree with that statement if you're

1:19:58 ↗ referring to if that was referring to

1:20:00 ↗ the building footprints I would disagree

1:20:03 ↗ with that because both the August 1st

1:20:05 ↗ and I believe August 28th submittals did

1:20:09 ↗ not include that did I H I have C's

1:20:13 ↗ December 2017

1:20:15 ↗ supplemental submittal depict or

1:20:17 ↗ otherwise indicate the height of future

1:20:20 ↗ buildings on the project site not in the

1:20:22 ↗ drawings that was there anything in the

1:20:25 ↗ Associated narrative submitted with that

1:20:28 ↗ document that would have indicated

1:20:29 ↗ particular building heights well there

1:20:32 ↗ was a general description that they

1:20:34 ↗ might be I think up to 8 storeys tall

1:20:37 ↗ was that in the original August

1:20:39 ↗ submittal or was that in the December

1:20:41 ↗ submittal I believe that was in all that

1:20:44 ↗ part of the narrative was in all the sin

1:20:47 ↗ middles as I remember it I'm sorry you

1:20:50 ↗ indicated that it the possible intent

1:20:54 ↗ was up to an eight story building was

1:20:56 ↗ that correct yes with structured parking

1:20:59 ↗ I think so if I understand your

1:21:02 ↗ testimony I H IFC's platon narrative

1:21:06 ↗ indicated that its future development

1:21:08 ↗ plans for the property could include

1:21:10 ↗ buildings up to 8 storeys is that

1:21:12 ↗ correct that's

1:21:13 ↗ memory yes what applying the replacement

1:21:18 ↗ regulations prevent IHI FC from

1:21:21 ↗ developing its property in the manner

1:21:23 ↗ proposed by its August 2017 preliminary

1:21:26 ↗ plat application no good ih IFC still

1:21:29 ↗ comply with the FA our standard imposed

1:21:32 ↗ imposed by the replacement regulations

1:21:34 ↗ sure because I didn't know how tall the

1:21:37 ↗ buildings were and so it was not

1:21:39 ↗ possible to calculate F AR but it seems

1:21:41 ↗ like it would be possible

1:21:42 ↗ good ih IFC still comply with the

1:21:45 ↗ structured parking requirements sure

1:21:47 ↗ some of those buildings might have been

1:21:49 ↗ structured parking thank you did you

1:21:55 ↗ hear miss Himes testimony regarding the

1:21:57 ↗ city's alleged delay in reviewing and

1:22:00 ↗ processing IH IFC's preliminary plat

1:22:02 ↗ application yes you agree with that

1:22:06 ↗ testimony could you be more specific

1:22:10 ↗ which part thank you believe that she

1:22:13 ↗ was characterizing the length of time

1:22:18 ↗ that the plat application has taken to

1:22:22 ↗ be administratively processed as being

1:22:24 ↗ essentially the city's fault and I'm

1:22:25 ↗ paraphrasing do you agree with that

1:22:27 ↗ characterization no I mean we issued

1:22:31 ↗ comments and I think there were some

1:22:34 ↗ engineering comments in January and then

1:22:38 ↗ electronic comments in March and there

1:22:44 ↗ were then addition on meeting and

1:22:46 ↗ questions for my IFC which did take the

1:22:49 ↗ city a long time to reply to but then it

1:22:53 ↗ was a back-and-forth of more and more

1:22:55 ↗ questions the last round of which did

1:22:58 ↗ not seem directly related to some of

1:23:01 ↗ which did not seem directly related to

1:23:03 ↗ the plat drawing Corrections and the the

1:23:07 ↗ phrase out for correction quote-unquote

1:23:10 ↗ was used several times in the testimony

1:23:12 ↗ could you describe what that means in

1:23:14 ↗ your understanding when we send comments

1:23:16 ↗ to an applicant we consider that permit

1:23:20 ↗ out for Corrections and what were the

1:23:25 ↗ elements of IH IFC's

1:23:26 ↗ application that required correction

1:23:29 ↗ under the standard well I think we had

1:23:32 ↗ some questions I was not the reviewer on

1:23:36 ↗ it so I don't remember all the details

1:23:37 ↗ the main set of questions that I

1:23:41 ↗ remember were around particularly

1:23:44 ↗ discovery Drive and which standard and

1:23:48 ↗ which components it would have what is

1:23:52 ↗ the current status of the I hoc

1:23:55 ↗ preliminary plat application it's been

1:23:57 ↗ resubmitted as of what date

1:23:59 ↗ approximately sometime in March - what

1:24:03 ↗ do you attribute the length of time that

1:24:06 ↗ has been implicated in the review and

1:24:07 ↗ processing of IH IFC's plat application

1:24:12 ↗ well I mean between March 2018 and March

1:24:17 ↗ 2019 it was out for Corrections so there

1:24:20 ↗ was a back-and-forth going on of

1:24:23 ↗ questions and answers while we were

1:24:26 ↗ waiting for the recent middle did you

1:24:34 ↗ hear the testimony from the other

1:24:35 ↗ witnesses suggesting that city staff

1:24:37 ↗ allegedly targeted IH IFC's project

1:24:41 ↗ proposals because they didn't like them

1:24:42 ↗ yes do you agree with that testimony no

1:24:46 ↗ why not well part of the targeting

1:24:53 ↗ related to the kind of regulations that

1:24:55 ↗ were put into the replacement

1:24:57 ↗ regulations and the ones that they

1:25:01 ↗ identified were things like minimum fer

1:25:05 ↗ and the structured parking but those

1:25:09 ↗ were in the drafts of the replacement

1:25:13 ↗ regulations well before we had even seen

1:25:16 ↗ any preliminary drawings from shelter

1:25:19 ↗ and we had also put vesting provisions

1:25:25 ↗ in place right around the same time that

1:25:28 ↗ would have resulted at least as proposed

1:25:33 ↗ by staff at that time that their permits

1:25:36 ↗ would have been vested so those

1:25:37 ↗ provisions wouldn't have applied to them

1:25:40 ↗ was a staff recommendation yes did you

1:25:43 ↗ hear the testimony from other witnesses

1:25:45 ↗ suggesting that mayor Pauley

1:25:47 ↗ deliberately intended to target IHI FC

1:25:50 ↗ yes do you agree with that

1:25:53 ↗ characterization no expand on that well

1:25:57 ↗ I just I never heard her say anything to

1:26:01 ↗ that effect are you aware of any

1:26:04 ↗ statements by mayor poly that would

1:26:05 ↗ support that allegation no did mayor

1:26:09 ↗ poly ever direct you in any manner to

1:26:11 ↗ thwart delay or otherwise oppose ih

1:26:14 ↗ IFC's development proposals you know are

1:26:17 ↗ you aware of any direction to that

1:26:19 ↗ effect from Mayor Polly made to any

1:26:21 ↗ other city of Issaquah staff members

1:26:23 ↗ yeah

1:26:25 ↗ approximately when was the one point

1:26:28 ↗ zero minimum floor area ratio or FA our

1:26:32 ↗ requirement added to the replacement

1:26:34 ↗ regulations in late September 2017 sorry

1:26:38 ↗ was the inclusion of a one point zero

1:26:41 ↗ minimum FA our requirement in the

1:26:44 ↗ replacement regulations intended to

1:26:46 ↗ thwart or otherwise target IH IFC's

1:26:48 ↗ proposal no because we hadn't seen their

1:26:50 ↗ proposals we didn't know what it was

1:26:52 ↗ going to be at the time I think you just

1:26:56 ↗ answered this but I'll clarify that for

1:26:57 ↗ the record at the time the FA our

1:26:59 ↗ requirement was added to the draft

1:27:01 ↗ replacement regulations that IH IFC

1:27:04 ↗ submitted any development application to

1:27:06 ↗ the city that would have been impossible

1:27:08 ↗ to pursue under that FA our standard no

1:27:11 ↗ the size of their property and the

1:27:15 ↗ amount of entitlement that they had

1:27:19 ↗ purchased would have resulted in FA are

1:27:22 ↗ of about two so it seemed that they had

1:27:25 ↗ enough entitlement to be able to achieve

1:27:29 ↗ that and when was the FA our requirement

1:27:35 ↗ first vetted with the Planning Policy

1:27:37 ↗ Commission the draft was issued I think

1:27:43 ↗ around September 21st 2017 and then it

1:27:49 ↗ was that that draft was for their

1:27:52 ↗ September 28th 20

1:27:53 ↗ 17 meeting thank you I'd like to

1:27:56 ↗ introduce a new exhibit this I believe

1:27:59 ↗ is Exhibit C 61 and for the record this

1:28:04 ↗ is an email exchange that spans from

1:28:08 ↗ October 24th 2017 to November 1st 2017

1:28:13 ↗ the most recent email being an email

1:28:17 ↗ from mr. Niven it's a TIA hi I'm with

1:28:20 ↗ Gary Young and yourself listed his

1:28:22 ↗ courtesy copy recipients are dated

1:28:25 ↗ November 1st 2017 and timed at 7:30 9

1:28:29 ↗ a.m. are you familiar with this document

1:28:31 ↗ yes you please describe this document

1:28:33 ↗ well after we had introduced the minimum

1:28:39 ↗ f AR there was discussions with shelter

1:28:43 ↗ Holdings about how it applied to their

1:28:46 ↗ property and this email is a kind of

1:28:49 ↗ back and forth as we're discussing you

1:28:53 ↗ know how it might be applied to their

1:28:55 ↗ property whether a variable f AR might

1:28:58 ↗ be more acceptable to them and so that

1:29:03 ↗ was we were having that back and forth

1:29:05 ↗ by email okay would you characterize

1:29:08 ↗ this email exchange as antagonistic or

1:29:10 ↗ cooperative it seemed cooperative to me

1:29:16 ↗ approximately when was the structured

1:29:18 ↗ parking requirement added to the draft

1:29:20 ↗ replacement regulations well it was

1:29:22 ↗ there from the beginning because we were

1:29:24 ↗ relying on central Issaquah for many of

1:29:28 ↗ the regulations so but it was not you

1:29:32 ↗ know it was not overtly called out we

1:29:34 ↗ were just saying if something wasn't in

1:29:36 ↗ the replacement regulations then the

1:29:39 ↗ centralist Clause standards would be the

1:29:42 ↗ default standard however the

1:29:46 ↗ Commission's urban village development

1:29:48 ↗ Commission and planning policy

1:29:50 ↗ Commission wanted to have a better

1:29:52 ↗ understanding of whether the centralist

1:29:57 ↗ Clause standards would be more strict or

1:30:00 ↗ less strict or the same as

1:30:03 ↗ the development agreements and so in

1:30:08 ↗ mid-september we prepared a chart that

1:30:11 ↗ showed going appendix by appendix from

1:30:16 ↗ the development agreement how the

1:30:18 ↗ central is quoi standards compared and

1:30:21 ↗ that chart specifically said that the

1:30:23 ↗ structured parking was stricter than the

1:30:27 ↗ development agreement is that is qua

1:30:30 ↗ highlands development agreement begin

1:30:33 ↗ that general timeframe for making that

1:30:35 ↗ an express provision of the replacement

1:30:38 ↗ regulations timber and if I understood

1:30:41 ↗ your testimony miss lemon I think you

1:30:43 ↗ indicated that even before that and to

1:30:47 ↗ use your words or to paraphrase them

1:30:48 ↗ that that requirement was always

1:30:51 ↗ intended to be part of the replacement

1:30:54 ↗ regulations has been saying since

1:30:56 ↗ earlier you know in the spring of that

1:31:00 ↗ year that we would be relying on central

1:31:03 ↗ Issaquah as part of the standards that

1:31:06 ↗ we would be using to create the

1:31:08 ↗ replacement regulations was the

1:31:11 ↗ inclusion of a structured parking

1:31:12 ↗ requirement in the replacement

1:31:14 ↗ regulations intended to thwart or

1:31:17 ↗ otherwise target IH IFC's development

1:31:19 ↗ proposal no we'd applied it in many

1:31:21 ↗ different era it would already applied

1:31:23 ↗ throughout Central East quad and it was

1:31:25 ↗ going to apply to all of the areas that

1:31:29 ↗ the replacement regulations would apply

1:31:31 ↗ to at the time the structured parking

1:31:33 ↗ requirement was added to the draft

1:31:36 ↗ replacement regulations at IH IFC

1:31:39 ↗ submitted any development application to

1:31:41 ↗ the city that would have been impossible

1:31:42 ↗ to pursue under the structured parking

1:31:45 ↗ requirement you know do you recall the

1:31:50 ↗ testimony regarding staff's proposed

1:31:53 ↗ vesting language for the replacement

1:31:55 ↗ regulations I sure I don't know exactly

1:32:01 ↗ which piece you're referring to or the

1:32:03 ↗ vesting provision yes what was staffs

1:32:08 ↗ recommended vesting option for the City

1:32:11 ↗ Council our initial recommendation was

1:32:15 ↗ that pre-ops and land use permits that

1:32:17 ↗ had been deemed complete would be vested

1:32:22 ↗ did the City Council ultimately accept

1:32:25 ↗ staffs recommendation no if the City

1:32:29 ↗ Council had accepted staffed proposed

1:32:31 ↗ vesting language in adopting the

1:32:34 ↗ replacement regulations what would have

1:32:36 ↗ been the effect on IHI FC I don't think

1:32:40 ↗ we'd be here today you expand on that

1:32:43 ↗ well well we might be here today but

1:32:49 ↗ because we would be reviewing their land

1:32:52 ↗ use permits but we wouldn't have been

1:32:54 ↗ here for 15 nights going through all of

1:32:58 ↗ these different aspects we would have

1:33:00 ↗ been focused on the land use permits

1:33:01 ↗ because they would be in all likelihood

1:33:04 ↗ compliant with the regulations that they

1:33:08 ↗ were being reviewed against so staffs

1:33:11 ↗ preferred recommendation to the City

1:33:14 ↗ Council regarding vesting would have

1:33:18 ↗ protected ih IFC's a STP and STP

1:33:22 ↗ applications in their original form is

1:33:25 ↗ that correct relative to the specific

1:33:28 ↗ provisions minimum FA are structured

1:33:32 ↗ parking and the plaza requirements yes

1:33:35 ↗ have you hear the testimony from miss

1:33:37 ↗ hime and mr. young regarding director

1:33:39 ↗ Nivens alleged anger stemming from the

1:33:42 ↗ landowners decision against pursuing a

1:33:46 ↗ college campus project on the Aqua

1:33:48 ↗ Highlands property yes

1:33:50 ↗ did mr. Nevin ever express any such

1:33:53 ↗ anger to you no and he was frustrated

1:33:56 ↗ and disappointed because he felt that

1:33:58 ↗ they had I think the terms he used was a

1:34:03 ↗ gentleman's agreement that they had been

1:34:06 ↗ working together in good faith and he

1:34:08 ↗ was surprised that all of a sudden this

1:34:11 ↗ had gone away have you ever seen or

1:34:16 ↗ heard anything from mr. Nevin indicating

1:34:18 ↗ that he was attempting to foil or

1:34:20 ↗ otherwise oppose IH IFC's development

1:34:23 ↗ plans as a result of the college campus

1:34:25 ↗ issue No

1:34:27 ↗ did you hear the testimony from mr.

1:34:30 ↗ Niven and questioning of him by mr.

1:34:32 ↗ Schneider at the previous hearing

1:34:35 ↗ regarding the planning profession

1:34:39 ↗ ethical record yes

1:34:41 ↗ how long have you worked with mr. Nibin

1:34:45 ↗ 21 years next month in that 21 year

1:34:50 ↗ period have you ever observed mr. Niven

1:34:53 ↗ doing or saying anything that would

1:34:55 ↗ violate those ethical standards no and

1:34:58 ↗ that's why he referenced those because

1:35:00 ↗ they're very important to him when did

1:35:10 ↗ you learn that polygon was purchased by

1:35:12 ↗ Lyon Holmes and that the old Microsoft

1:35:14 ↗ property was being split up I believe it

1:35:17 ↗ was a newspaper article in 2014

1:35:21 ↗ do you hear the testimony from miss Haim

1:35:24 ↗ and mr. young regarding the

1:35:26 ↗ commissioning of the Kinser report yes

1:35:28 ↗ and the conclusions of that report yes

1:35:32 ↗ were you aware that shelter had

1:35:34 ↗ purchased the remainder of portrait

1:35:37 ↗ Blakely's entitlement yes because port

1:35:39 ↗ Blakely would send changes in

1:35:43 ↗ entitlement or purchasing of entitlement

1:35:45 ↗ to me how did you become aware of this

1:35:49 ↗ because they emailed the updated

1:35:52 ↗ distribution of entitlement to me after

1:35:56 ↗ after those took place including the one

1:35:58 ↗ for shelter holdings how much commercial

1:36:01 ↗ entitlement under the 1996 development

1:36:03 ↗ agreement did they acquire so the when

1:36:08 ↗ polygon purchased the property from

1:36:10 ↗ Microsoft it was over 1.2 million square

1:36:13 ↗ feet of commercial and how much

1:36:15 ↗ residential entitlement was acquired

1:36:18 ↗ they purchased 265 dwelling units from

1:36:24 ↗ port Blakely and then another hundred

1:36:26 ↗ transfer of development right units from

1:36:31 ↗ a bank and how was entitlement addressed

1:36:34 ↗ for purposes of the development

1:36:36 ↗ agreement

1:36:37 ↗ let me rephrase that was that

1:36:39 ↗ entitlement specific to a particular

1:36:42 ↗ property or portion of a property or was

1:36:44 ↗ it transferable to other areas covered

1:36:46 ↗ by the development agreement well

1:36:50 ↗ generally you bought a piece of property

1:36:51 ↗ and you and it without entitlement you

1:36:54 ↗ didn't have any I mean a park on it or

1:36:56 ↗ something but so I get a the develop the

1:37:01 ↗ entitlement under the development

1:37:03 ↗ agreement was possible throughout the

1:37:06 ↗ whole property so when you bought it I

1:37:09 ↗ suppose you could sell it to someone

1:37:10 ↗ else were you surprised to learn about

1:37:14 ↗ the conclusions of the Kinser report

1:37:16 ↗ regarding a market support for

1:37:18 ↗ particular land uses yes because the way

1:37:24 ↗ I understood it from is Himes testimony

1:37:27 ↗ was the Kinser report did not support

1:37:30 ↗ office or maybe commercial uses and yet

1:37:33 ↗ that was in the maybe the middle of 2015

1:37:37 ↗ and then it was December 2015 that they

1:37:40 ↗ were purchasing the rest of Port

1:37:43 ↗ Blakely's commercial and retail

1:37:45 ↗ entitlement which was over six hundred

1:37:47 ↗ thousand square feet and did shelter

1:37:51 ↗ itself on any residential entitlement

1:37:53 ↗ they when they bought the rest of the

1:37:57 ↗ retail and commercial entitlement from

1:37:59 ↗ Port Blakeley they also acquired three

1:38:01 ↗ residential units did you hear the

1:38:04 ↗ previous or the witness testimony

1:38:06 ↗ regarding mr. Nivens alleged attempts to

1:38:08 ↗ take the residential entitlement away

1:38:11 ↗ from shelter yes do you agree with that

1:38:13 ↗ testimony no I think both director Niven

1:38:17 ↗ and I were kind of confused about what

1:38:21 ↗ they were going to be able to do make

1:38:24 ↗ sense of three residential units and we

1:38:27 ↗ each at different times offered to

1:38:30 ↗ convert that residential entitlement to

1:38:33 ↗ commercial but they declined and under

1:38:37 ↗ the replacement regulations they still

1:38:39 ↗ have three dwelling residential dwelling

1:38:41 ↗ units did you hear the other witness

1:38:45 ↗ testimony suggesting greater numbers of

1:38:48 ↗ residential units than

1:38:49 ↗ than three yes miss hime had mentioned I

1:38:56 ↗ think 2500 residential units at one

1:39:00 ↗ point you agree with that testimony well

1:39:06 ↗ yes and no the way I remember it Ms hime

1:39:12 ↗ had described it as something from a

1:39:15 ↗ report that they had received about what

1:39:18 ↗ the market would bear the wheat way we

1:39:22 ↗ had heard it or read about it was that

1:39:25 ↗ that was part of a proposal that they

1:39:27 ↗ had made to the esquel Islands community

1:39:33 ↗ you recall the testimony regarding the

1:39:35 ↗ community outreach meetings conducted by

1:39:39 ↗ shelter during that period yes do you

1:39:42 ↗ agree with the testimony concerning

1:39:43 ↗ their characterization or witness's

1:39:45 ↗ characterization of those meetings well

1:39:48 ↗ no as I said it sounded to me like that

1:39:52 ↗ was just a report but I did not attend

1:39:57 ↗ the meetings we decided that no staff

1:40:00 ↗ would attend because those were

1:40:02 ↗ shelter's meetings with the community

1:40:04 ↗ but it Highlands has a newspaper

1:40:08 ↗ called connections and and also weekly

1:40:13 ↗ e-blast and in those communication tools

1:40:18 ↗ they had reported on the meetings and

1:40:21 ↗ the way it was reported in those

1:40:24 ↗ articles was that the that that was the

1:40:28 ↗ proposal that was put forward to the

1:40:29 ↗ community of 2,500 at the first meeting

1:40:32 ↗ and I believe 1,800 residential units at

1:40:36 ↗ the second meeting I'm going to

1:40:37 ↗ introduce into evidence two new exhibits

1:40:40 ↗ this is going to be entitled Exhibit C

1:40:43 ↗ 62 and C 63 these are respectively

1:40:49 ↗ excerpts from the Issaquah Highlands

1:40:52 ↗ connections publication that you just

1:40:54 ↗ referred to the first is dated July of

1:40:57 ↗ 2016 the second is February of 2017 if

1:41:03 ↗ you please return to the July 2016

1:41:08 ↗ document entitled Exhibit C 62 yes

1:41:22 ↗ [Applause]

1:41:29 ↗ are you familiar with this document yes

1:41:31 ↗ I read them when they came out could you

1:41:34 ↗ describe the or explain and

1:41:37 ↗ contextualize the description of IH

1:41:40 ↗ IFC's proposal as depicted in this

1:41:43 ↗ publication well I mean my I just landed

1:41:48 ↗ on the first sentence of the second

1:41:50 ↗ paragraph which says the developer

1:41:53 ↗ shared a proposal to build 2,500

1:41:55 ↗ residential units in a mixed juice

1:41:57 ↗ configuration with retail and some

1:42:00 ↗ medical offices attendees balked at the

1:42:02 ↗ number of residential units and hope for

1:42:04 ↗ more commercial and retail development

1:42:06 ↗ so and that was consistent with a few of

1:42:10 ↗ the people that I spoke to and in how

1:42:13 ↗ many residential units did I see or

1:42:16 ↗ shelter actually have at this point

1:42:18 ↗ three and and what was the proposal that

1:42:22 ↗ they were vetting with the community at

1:42:23 ↗ that time 2,500 so a fairly substantial

1:42:27 ↗ increase yes if their proposal had been

1:42:30 ↗ ultimately pursued and approved yes then

1:42:35 ↗ please turn to Exhibit C 63 this is the

1:42:38 ↗ Seco Highlands connection excerpt from

1:42:41 ↗ February of 2017 mm-hmm are you familiar

1:42:45 ↗ with this document yes

1:42:47 ↗ did you please describe the content of

1:42:50 ↗ this document as it relates to IH IFC's

1:42:52 ↗ proposal this was describing that IH I

1:43:03 ↗ of C had scaled back their proposal so

1:43:11 ↗ they were describing the meetings that

1:43:14 ↗ took place in May and I believe yes in

1:43:19 ↗ July in which 2500 residential units and

1:43:24 ↗ then 1,800 residential units were

1:43:26 ↗ proposed and then where it says lay of

1:43:31 ↗ the land I believe that was laying out

1:43:36 ↗ what they are planning to actually do

1:43:40 ↗ which is the entitle

1:43:42 ↗ that they purchased as opposed to their

1:43:46 ↗ request to change that entitlement to

1:43:51 ↗ something different

1:43:56 ↗ did you hear the witness testimony

1:43:58 ↗ previously concerning the community's

1:44:02 ↗ response to IHI of C's proposal at that

1:44:06 ↗ time I don't remember it in detail let

1:44:12 ↗ me rephrase the question and to your

1:44:14 ↗ recollection and understanding what was

1:44:16 ↗ the Aqua Highland community's response

1:44:20 ↗ to these community outreach meetings and

1:44:24 ↗ the development proposals that IHI FCS

1:44:27 ↗ was vetting with the community at that

1:44:29 ↗ time some people were excited by the

1:44:34 ↗ kind of I think it was less about the

1:44:37 ↗ residential and more about more

1:44:39 ↗ restaurants and some of the amenities

1:44:41 ↗ that they were proposing but other

1:44:44 ↗ people were concerned that there was

1:44:48 ↗ this commitment to develop this

1:44:51 ↗ non-residential commercial center and

1:44:54 ↗ they were concerned that they weren't

1:44:55 ↗ going to get it you have any idea when

1:45:02 ↗ shelter learned that the Issaquah

1:45:04 ↗ Highlands development agreement was

1:45:05 ↗ going to be terminated I don't know

1:45:08 ↗ exactly but it seemed you know on that

1:45:13 ↗ big elaborate chart that I built there

1:45:17 ↗ are some something there was a meeting

1:45:20 ↗ that was identified as a development

1:45:23 ↗ agreement meeting which was in early I

1:45:26 ↗ think 2015 and I believe early on they

1:45:34 ↗ began to negotiate and discuss whether a

1:45:37 ↗ development agreement extension or new

1:45:40 ↗ development agreement would be possible

1:45:43 ↗ but I don't know exactly the dates were

1:45:45 ↗ you involved in those discussions very

1:45:47 ↗ very little almost exclusively that was

1:45:50 ↗ director Nibin and/or Emily moon and Bob

1:45:53 ↗ Harrison

1:45:54 ↗ other other people and when

1:45:57 ↗ approximately did IHI FC switched from

1:46:00 ↗ pursuing the significant changes to

1:46:04 ↗ their purchased entitlement to actually

1:46:06 ↗ developing under the entitlement that

1:46:08 ↗ they had actually acquired as I remember

1:46:11 ↗ it it was either late in 2016 or early

1:46:14 ↗ in 2017 as the connection article that

1:46:19 ↗ you see 63 indicated why didn't the city

1:46:24 ↗ just allow the conversion of some of IH

1:46:26 ↗ IFC's commercial entitlement to the

1:46:29 ↗ proposed residential use so the

1:46:31 ↗ development agreement had a opportunity

1:46:34 ↗ to convert I think it was around maybe

1:46:37 ↗ eight hundred thousand square feet of

1:46:39 ↗ commercial to seven hundred residential

1:46:42 ↗ units portb likely had fully exercised

1:46:45 ↗ that conversion option the residents you

1:46:49 ↗ know the residents we were hearing from

1:46:51 ↗ had been waiting for 20 years for the

1:46:53 ↗ live-work-play vision to be completed

1:46:57 ↗ shelter had at that point about 65% of

1:47:01 ↗ the commercial and 50% of the retail so

1:47:04 ↗ by converting to residential it was than

1:47:09 ↗ as the numbers in the articles indicate

1:47:11 ↗ significantly less commercial and retail

1:47:15 ↗ than the entitlement that they possessed

1:47:18 ↗ and that was sort of part of the

1:47:20 ↗ original vision and you know the last

1:47:23 ↗ piece was that at this point the city

1:47:27 ↗ was really beginning they wanted to

1:47:29 ↗ complete the development agreement as

1:47:32 ↗ envisioned and the city had made a

1:47:36 ↗ separate commitment when it became a

1:47:39 ↗ regional growth center to focus quite a

1:47:44 ↗ bit of residential development as well

1:47:49 ↗ as commercial development on the valley

1:47:51 ↗ floor and and that may have even been

1:47:56 ↗ part of st3 station happening and so

1:48:00 ↗ there was a concern that you know

1:48:05 ↗ shelters property was greenfield

1:48:07 ↗ development

1:48:07 ↗ Ms hime said that it was too easy for

1:48:10 ↗ them to develop it in her testimony and

1:48:13 ↗ by that that was kind of just a slice of

1:48:17 ↗ what I said greenfield development is

1:48:20 ↗ easier and we felt it was really

1:48:21 ↗ important that the city focus on the

1:48:26 ↗ redevelopment of the valley floor and

1:48:29 ↗ getting residential there which is more

1:48:31 ↗ difficult when you have to assemble

1:48:33 ↗ property and deal with existing uses

1:48:36 ↗ than it would have been if it had

1:48:38 ↗ happened up at Issaquah Highlands and so

1:48:40 ↗ we really wanted to see Highlands

1:48:43 ↗ development complete itself consistent

1:48:46 ↗ with the original vision and let the

1:48:49 ↗ regional growth center be the focus of

1:48:52 ↗ the new residential thank you one final

1:48:55 ↗ question mrs. Lowman are you familiar

1:48:58 ↗ with the version of the development

1:49:01 ↗ agreement for Issaquah Highlands that is

1:49:03 ↗ contained at exhibit s 25 introduced

1:49:07 ↗ into evidence for this proceeding by the

1:49:09 ↗ applicant yes that to your understanding

1:49:13 ↗ reflect the most recent complete updated

1:49:17 ↗ version of that development agreement no

1:49:20 ↗ what I noticed was that unlike the

1:49:24 ↗ version of the development agreement

1:49:25 ↗ that's currently posted on the city's

1:49:27 ↗ website none it seemed to be the 20-year

1:49:31 ↗ old version and not the one that

1:49:34 ↗ included the modifications and

1:49:37 ↗ interpretations that had taken place

1:49:39 ↗ over the years that was the version that

1:49:42 ↗ we had on the website I'm going to be

1:49:44 ↗ introducing into evidence the city's a

1:49:47 ↗ final exhibit for this witness

1:49:49 ↗ and that's Exhibit C 64

1:49:59 ↗ miss Loman could you please identify

1:50:01 ↗ this document this is a printout of the

1:50:05 ↗ development agreement that's on the

1:50:07 ↗ city's website this is the version that

1:50:09 ↗ the city holds out publicly on the on

1:50:11 ↗ the city's website yes

1:50:13 ↗ Thank You mr. chairman that concludes my

1:50:16 ↗ questioning for this witness and I would

1:50:19 ↗ yield to applicants counsel mr. Snyder I

1:50:31 ↗ was distracted or you're done yes yes

1:50:33 ↗ I'm done peppy

1:51:05 ↗ this slogan let's start with exhibit c64

1:51:09 ↗ the version of the Asuka Islands

1:51:11 ↗ annexation and development agreement

1:51:13 ↗ that they're just subscribed it's being

1:51:18 ↗ the one that's on the city's website

1:51:20 ↗ as this version of the document ever

1:51:23 ↗ been executed by the parties to the

1:51:26 ↗ agreement I don't know what you mean by

1:51:33 ↗ executed do you mean recorded no I mean

1:51:36 ↗ signed by the parties to the original

1:51:39 ↗ Grigg an agreement or their successors

1:51:46 ↗ it was no it was incorporating approved

1:51:53 ↗ modifications and interpretations which

1:51:56 ↗ the master developer had been a party to

1:52:01 ↗ but I don't think anyone ever signed the

1:52:04 ↗ document because the version of c64 I've

1:52:08 ↗ been given isn't signed it isn't dated

1:52:10 ↗ and it has a bunch of red lines in it in

1:52:14 ↗ a couple of different colors so is it

1:52:20 ↗ your opinion that this is a lawful

1:52:23 ↗ regulatory document or is it simply a

1:52:26 ↗ reflection of evolving thinking by the

1:52:30 ↗ city I wouldn't say it was evolving

1:52:33 ↗ thinking by the city it was trying to at

1:52:37 ↗ the point in time which it was created

1:52:40 ↗ incorporate modifications that were

1:52:45 ↗ because all modifications had to be

1:52:48 ↗ joint between the master developer and

1:52:50 ↗ the city was trying to incorporate

1:52:53 ↗ project wide modifications in a manner

1:52:57 ↗ that would make it easier for both staff

1:52:59 ↗ and applicants to use so how do we know

1:53:02 ↗ that you develop or agreed to any of

1:53:06 ↗ this if it's not signed

1:53:09 ↗ well my understanding is that the where

1:53:15 ↗ there are modifications that they are

1:53:19 ↗ frequently footnoted so that the

1:53:22 ↗ specific modification or interpretation

1:53:26 ↗ is identified well I'm not seeing any

1:53:29 ↗ footnotes can you give us an example

1:53:31 ↗ when you're referring to sure

1:53:54 ↗ so one example is on page L 12 which is

1:54:00 ↗ appendix L and the action memo at the

1:54:05 ↗ bottom of that page is specifically

1:54:08 ↗ called out again I'm not seeing a

1:54:17 ↗ footnote I'm seeing a highlighted

1:54:22 ↗ paragraph this one in blue many of the

1:54:24 ↗ others are in red and I think I saw the

1:54:26 ↗ third color and that paragraph concludes

1:54:29 ↗ with a parenthetical so see action memo

1:54:32 ↗ rec yes how does any repeat my question

1:54:36 ↗ how does anyone know whether the all the

1:54:40 ↗ parties who would have to approve

1:54:42 ↗ modifications of the development

1:54:44 ↗ agreement did so approve so that I also

1:54:48 ↗ noticed that the last pages of the

1:54:52 ↗ document that you received include a

1:54:55 ↗ list of modifications that have taken

1:55:01 ↗ place that were included both action

1:55:06 ↗ memos which are the interpretations and

1:55:09 ↗ administrative modifications so that

1:55:12 ↗ list is included at the very end I have

1:55:15 ↗ not cross-referenced it to determine

1:55:17 ↗ that every single one of those is

1:55:20 ↗ reflected but that was a document to

1:55:25 ↗ facilitate as I said applicant and staff

1:55:28 ↗ use of the many modifications that had

1:55:31 ↗ been approved over the course of the

1:55:33 ↗ years okay well is it fair to say that

1:55:41 ↗ is it fair to say that exhibit s 25

1:55:46 ↗ excerpts from the development agreement

1:55:48 ↗ that were already in the record reflect

1:55:51 ↗ the as far as you know the only version

1:55:55 ↗ of the development agreement that was

1:55:57 ↗ actually signed and executed by all the

1:55:59 ↗ parties okay it's a signed document it

1:56:09 ↗ isn't necessarily a reflection of all

1:56:12 ↗ the modifications that have taken place

1:56:14 ↗ my question was is s 25 as far as you

1:56:18 ↗ know the only version of the development

1:56:22 ↗ agreement that was signed by all the

1:56:23 ↗ parties sure and who created this

1:56:28 ↗ document with all of this

1:56:29 ↗ all of these red lines and changes in it

1:56:32 ↗ city staff it's the difference between

1:56:36 ↗ the red pipe and the blue type I would

1:56:40 ↗ assume that there were multiple staff

1:56:42 ↗ working on incorporating these by the

1:56:52 ↗ way have any of the sections we've been

1:56:54 ↗ talking about in this hearing and

1:56:58 ↗ changed in this version and c64 like

1:57:03 ↗ section 323 dealing with vesting

1:57:15 ↗ three five one three term has only been

1:57:19 ↗ changed to update the name from Grand

1:57:21 ↗ Ridge to Issaquah Highlands in terms of

1:57:24 ↗ three twenty three likewise only the

1:57:31 ↗ project name from Grand Ridge to

1:57:33 ↗ Issaquah Highlands is shown as changed

1:57:35 ↗ and when was this document c64 created I

1:57:39 ↗ believe it was 2008 and the bit was

1:57:42 ↗ created by city staff in 2008 yes were

1:57:46 ↗ you working for the city in 2008 yes I

1:57:49 ↗ thought you were a consultant were you

1:57:51 ↗ actually a city employee no I was you're

1:57:54 ↗ right I was a consultant performing

1:57:56 ↗ staff services for the city when did you

1:57:59 ↗ actually become the city employee again

1:58:02 ↗ 2012 has this been updated since 2008 I

1:58:08 ↗ don't believe so

1:58:13 ↗ there's no no excuse me miss Loman I

1:58:16 ↗ want to turn back to the Vale last time

1:58:24 ↗ you testified about this evening

1:58:31 ↗ I recollection of your testimony this

1:58:34 ↗ evening is that the applicant was

1:58:38 ↗ concerned about the moratorium and

1:58:41 ↗ submitted building permit application

1:58:45 ↗ that the city deemed feet in an effort

1:58:49 ↗ to ask before the moratorium took effect

1:58:52 ↗ was that what you said it wasn't before

1:58:55 ↗ the moratorium well I don't know if it

1:58:57 ↗ took effect but before they had the

1:58:59 ↗ public hearing in which they set the

1:59:02 ↗ terms of the the final terms of the

1:59:04 ↗ moratorium well the moratorium was in

1:59:09 ↗ effect it was adopted as an emergency

1:59:13 ↗ ordinance wasn't it yes in September 6

1:59:18 ↗ and that happened before the middle of

1:59:21 ↗ the building permit application that you

1:59:24 ↗ described september's well the land use

1:59:31 ↗ permit had already been submitted prior

1:59:34 ↗ to September 6

1:59:36 ↗ I don't remember some

1:59:40 ↗ it would not have been going to

1:59:43 ↗ Commission by the end of September if it

1:59:47 ↗ had been submitted after September 6 I'd

1:59:52 ↗ ask you about the land use permits right

1:59:55 ↗ now it's correct is it not that the

1:59:59 ↗ moratorium was in effect

2:00:02 ↗ and oratory which prohibited new

2:00:05 ↗ applications for building permits was in

2:00:07 ↗ effect before the the applicants and aid

2:00:12 ↗ the submittal that you deem did well my

2:00:16 ↗ understanding of moratorium I was not

2:00:19 ↗ the main person working with the council

2:00:23 ↗ on this but my understanding is that

2:00:25 ↗ when you adopt a moratorium you have to

2:00:28 ↗ hold a public hearing and that public

2:00:32 ↗ hearing was when the final determination

2:00:35 ↗ was going to be made about which

2:00:37 ↗ projects could continue moving forward

2:00:39 ↗ and which projects would be held up by

2:00:44 ↗ the moratorium and their concern was to

2:00:48 ↗ be vested with a building permit prior

2:00:51 ↗ to that public hearing we're gonna offer

2:00:58 ↗ a series of exhibits now the next one is

2:01:01 ↗ way well we do that I mister while you

2:01:07 ↗ were saying that you had to leave the 30

2:01:09 ↗ yes thank you mr. Chairman I just

2:01:11 ↗ received a text indicating that your

2:01:14 ↗ other hearing is running behind so I'm

2:01:16 ↗ kind of waiting for that present them to

2:01:18 ↗ re-engage so yeah I didn't want to share

2:01:20 ↗ our own experience here but I assume

2:01:24 ↗ that they're dealing with an equally

2:01:25 ↗ okay so you think the issue when it's

2:01:28 ↗ time for you to go would you just get up

2:01:30 ↗ and go is that we don't all take a break

2:01:31 ↗ I'll be happy to turn this over to my

2:01:33 ↗ colleague and return when the conference

2:01:35 ↗ is over thank you

2:01:37 ↗ we were gonna take a break at 8:30 is

2:01:40 ↗ this a reasonable time or we can mark

2:01:42 ↗ the exhibits totally do that okay would

2:01:45 ↗ you do that please let's take let's take

2:01:47 ↗ a 10-minute break

2:01:51 ↗ you

2:02:01 ↗ you

2:11:35 ↗ okay I'd like to call the meeting back

2:11:37 ↗ to order so I'm gonna I'm gonna hand you

2:11:41 ↗ a copy of what we marked as Exhibit yes

2:11:44 ↗ when 20 which is I represent you a copy

2:11:48 ↗ of the moratorium ordinance okay

2:12:14 ↗ the veil property we've you and mr.

2:12:17 ↗ Niven have both testified about is

2:12:19 ↗ within the geographic area subject to

2:12:22 ↗ this moratorium correct yes

2:12:24 ↗ and this moratorium if we turn to action

2:12:36 ↗ to get imposes a moratorium on permit

2:12:41 ↗ applications which are defined as

2:12:43 ↗ building permits or land use

2:12:45 ↗ applications limited to administrative

2:12:48 ↗ site development permit site development

2:12:50 ↗ permits flats and short flats correct

2:12:53 ↗ that's what it says and then if we turn

2:12:56 ↗ to section 8 declaration of emergency

2:12:59 ↗ it basically says the moratorium will

2:13:03 ↗ take effect immediately and shall remain

2:13:05 ↗ effective for six months unless

2:13:06 ↗ terminated earlier by the City Council

2:13:09 ↗ that accurate that's what section 8 says

2:13:12 ↗ okay and so what is the date that it

2:13:15 ↗ took effect then I'm sorry say that

2:13:18 ↗ again

2:13:19 ↗ what if what is the date the moratorium

2:13:21 ↗ took effect

2:13:37 ↗ 9 6 2016 date it was signed September 6

2:13:43 ↗ 2016 yes so the next exhibit that's what

2:14:03 ↗ it appears to be what is the date of

2:14:05 ↗ that land use application

2:14:08 ↗ April 19th 2016 and I'm gonna hand you

2:14:15 ↗ now a copy of don't give away my copy

2:14:24 ↗ I'm gonna hand you a copy of s1 22 which

2:14:27 ↗ is I represent a copy of the notice of

2:14:30 ↗ decision

2:14:43 ↗ that's what it appears to be what is the

2:14:47 ↗ date of that land use decision

2:14:49 ↗ October 25th 2016 what is the date of

2:14:57 ↗ the decision on the application well I'm

2:15:01 ↗ looking on the front page and it says

2:15:03 ↗ approval date October 25th 2016 are you

2:15:07 ↗ referring to a different date

2:15:35 ↗ and now I'm going to hand you a copy of

2:15:37 ↗ s 123 that's not the permit I'm

2:15:54 ↗ referring to this is a later permit that

2:15:59 ↗ they submitted in 2017 the permit that

2:16:04 ↗ I'm referring to was submitted I believe

2:16:08 ↗ October 14 if you look at s 120 in

2:16:17 ↗ Section five public hearing the public

2:16:25 ↗ hearing was scheduled for October 17

2:16:28 ↗ 2016 and my memory is that somewhere

2:16:32 ↗ maybe around October 14 2016 or sometime

2:16:37 ↗ before that date of October 17th they

2:16:40 ↗ submitted another building permit with

2:16:43 ↗ the purpose of being vested prior to the

2:16:48 ↗ public hearing that would modify the

2:16:51 ↗ terms of the moratorium I'm going to

2:16:56 ↗ offer a copy of another building permit

2:16:58 ↗ application in a moment right now this

2:17:01 ↗ Lohmann but I'm asking you to confirm

2:17:04 ↗ that this is in fact exhibit I just

2:17:08 ↗ handed you exhibit 123 is in fact

2:17:12 ↗ building permit application that the

2:17:15 ↗ city accepted process and eventually

2:17:18 ↗ approved for the Vale Apartments yes

2:17:22 ↗ that application was submitted after the

2:17:26 ↗ land use decision was issued rekt yes in

2:17:31 ↗ conformity with the what the

2:17:35 ↗ requirements stated on the city's

2:17:38 ↗ website require that you submit your

2:17:42 ↗ building permit application after you

2:17:44 ↗ get your notice of decision on the land

2:17:46 ↗ use Apple

2:17:47 ↗ application correct that's the

2:17:49 ↗ chronology that happened with the Vale

2:17:51 ↗ Apartments well your supposing that we

2:17:54 ↗ are using the semental requirements as a

2:17:57 ↗ regulatory document which we weren't but

2:18:01 ↗ yes the chronology that the notice of

2:18:06 ↗ decision for the land use permit was

2:18:08 ↗ approved in October and the permit the

2:18:11 ↗ building permit that was ultimately

2:18:13 ↗ issued was submitted in January 2017 yes

2:18:19 ↗ that is correct okay

2:18:20 ↗ and the reason I'm pointing that out is

2:18:22 ↗ that mr. Niven last time testified that

2:18:26 ↗ the city had accepted building permit

2:18:29 ↗ before the land use decision was issued

2:18:32 ↗ and the chronology that we've just

2:18:36 ↗ established by the official permit that

2:18:39 ↗ the city accepted agreed who is complete

2:18:41 ↗ and processed is different correct but

2:18:45 ↗ that's not the permit that we're talking

2:18:47 ↗ about I mean yes that is the permit that

2:18:49 ↗ was issued but that's not the permit

2:18:51 ↗ we're referring to and if one goes to

2:18:53 ↗ the city's website and looks to see what

2:18:56 ↗ is the date of the building permit

2:18:58 ↗ application for the Vale Apartments it

2:19:01 ↗ gets the date in January of 2017 correct

2:19:05 ↗ I haven't been to the web site so I

2:19:08 ↗ don't know I assume it's because they

2:19:10 ↗ withdrew that first one ultimately I

2:19:21 ↗ believe so

2:19:36 ↗ and what date what does it tell us about

2:19:38 ↗ this application what was the

2:19:42 ↗ application date October 14 2016 and

2:19:48 ↗ that is more than a month after the

2:19:54 ↗ effective date of the moratorium yes but

2:19:57 ↗ before the public hearing on the

2:19:59 ↗ moratorium well

2:20:03 ↗ the moratorium doesn't say it doesn't

2:20:07 ↗ take effect until after the public

2:20:09 ↗ hearing does it you know the moratorium

2:20:16 ↗ was in effect beginning on September 6

2:20:19 ↗ and this building permit application

2:20:22 ↗ that you've been talking about was

2:20:24 ↗ submitted on October 14th correct yes

2:20:27 ↗ when the moratorium was in effect okay

2:20:32 ↗ and I'm not aware of anything in the law

2:20:36 ↗ city code state statute or anything else

2:20:40 ↗ that says that a moratorium doesn't take

2:20:46 ↗ effect until the public hearing when the

2:20:49 ↗ public hearing is held after the

2:20:51 ↗ effective date of the moratorium are you

2:20:54 ↗ aware of any such authority I'm not an

2:20:59 ↗ expert on moratoria okay and what is the

2:21:04 ↗ status of the application you've been

2:21:06 ↗ talking about which is exhibit s 124 it

2:21:09 ↗ was ultimately withdrawn well what is

2:21:13 ↗ the city's permit say its status is

2:21:16 ↗ canceled

2:21:21 ↗ [Applause]

2:21:30 ↗ now this hold on I want to make sure I

2:21:33 ↗ heard correctly your testimony earlier

2:21:36 ↗ this evening about when you learned that

2:21:45 ↗ the applicant and I put the word learned

2:21:49 ↗ in quotation marks but when it became

2:21:52 ↗ your understanding that applicant cannot

2:21:55 ↗ vest a process when did that happen I'm

2:22:00 ↗ not sure sometime after the development

2:22:04 ↗ agreement was adopted I some time maybe

2:22:08 ↗ that summer I thought you testified

2:22:11 ↗ either late August or early September

2:22:14 ↗ did I miss remember the conversation

2:22:18 ↗ that I had with director Niven was in

2:22:20 ↗ late July early August late July or

2:22:23 ↗ early August and is that the

2:22:25 ↗ conversation where you remember him

2:22:28 ↗ telling you that an applicant cannot

2:22:30 ↗ vest a process well I don't think we

2:22:33 ↗ were discussing it in that in that

2:22:37 ↗ particular way I think what we were

2:22:39 ↗ discussing was which set of regulations

2:22:43 ↗ for processing your your clients land

2:22:51 ↗ use permits which process would apply

2:22:54 ↗ well now I'm not focusing on process for

2:23:00 ↗ the land use permits I'm asking you when

2:23:04 ↗ you learned that a vested application

2:23:09 ↗ does not best a process when did that

2:23:12 ↗ become your opinion I actually don't

2:23:15 ↗ know okay so

2:23:26 ↗ you processed all of the polygon

2:23:30 ↗ applications that you've been talking

2:23:34 ↗ about and that are demonstrated on the

2:23:35 ↗ charts you introduced this evening you

2:23:37 ↗ processed all of those applications

2:23:39 ↗ under the process in the development

2:23:43 ↗ agreement correct yes

2:23:45 ↗ and that included taking the

2:23:50 ↗ applications for the plat and for other

2:23:55 ↗ applications as well to the you VDC

2:23:57 ↗ correct yes wrote a letter to my client

2:24:05 ↗ on April 5th which is we made it an

2:24:10 ↗ exhibit last last time in this

2:24:12 ↗ proceeding

2:24:14 ↗ I think it's exhibit s 112 telling her

2:24:23 ↗ that you were going to process our

2:24:25 ↗ clients plat under the procedures in the

2:24:30 ↗ replacement regulations yes so is it

2:24:35 ↗ fair to assume that you came up with

2:24:37 ↗ that opinion that we weren't vested to

2:24:39 ↗ process before April 5th of this year

2:24:41 ↗ yes how much before that did you come to

2:24:45 ↗ that opinion I

2:24:47 ↗ I really don't know how are we talking

2:24:50 ↗ days weeks months years

2:25:06 ↗ maybe I would be guessing I just I don't

2:25:09 ↗ have an answer I I don't I don't

2:25:13 ↗ remember

2:25:14 ↗ well you continued to process all the

2:25:20 ↗ polygons applications under the

2:25:24 ↗ procedures in the development agreement

2:25:27 ↗ so you treated polygons as bested to

2:25:30 ↗ process until at least March of this

2:25:33 ↗ year did you not yes that was a chair so

2:25:37 ↗ well then when did you decide that it

2:25:44 ↗ was an error I don't remember

2:25:52 ↗ well did you continue processing

2:25:55 ↗ polygons applications as vested even

2:25:58 ↗ though you had decided it was an error

2:26:00 ↗ or did you decide it was an error after

2:26:03 ↗ you finished processing their

2:26:04 ↗ applications I don't remember I am I'm I

2:26:08 ↗ just I understand you're why you're

2:26:11 ↗ asking I I don't have an answer what

2:26:16 ↗ changed your mind about vesting so that

2:26:20 ↗ polygon is vested to process and I hif

2:26:25 ↗ see as Nobbs

2:26:26 ↗ if you can't answer the question when

2:26:28 ↗ I'm now I've seen the question why why

2:26:32 ↗ did you change your mind what happened

2:26:38 ↗ it I don't I don't know I would guess

2:26:41 ↗ that because we are for your applicants

2:26:46 ↗ permits we are consulting more regularly

2:26:49 ↗ with the city attorney that may have

2:26:52 ↗ been the reason that I became aware that

2:26:58 ↗ I had made this error when did you

2:27:01 ↗ consult with the city attorney

2:27:03 ↗ well I consult with the city attorney

2:27:06 ↗ quite often I don't necessarily know

2:27:09 ↗ which conversation was specifically

2:27:12 ↗ related to this topic so

2:27:18 ↗ it's your testimony his Suliman that you

2:27:22 ↗ cannot recall when you had a

2:27:24 ↗ conversation with the city attorney that

2:27:27 ↗ changed your mind about vesting to

2:27:29 ↗ process that is my testimony and did you

2:27:37 ↗ consult with the city attorney before

2:27:39 ↗ you wrote your April 5th letter telling

2:27:41 ↗ ih I've see that it was not best to do

2:27:44 ↗ process yes did you consult with the

2:27:50 ↗ city attorney before writing your April

2:27:52 ↗ 15 letter which is in the record as

2:27:56 ↗ Exhibit that's F s 114 which i think is

2:28:05 ↗ an email that attaches your April 15th

2:28:09 ↗ letter s 113 excuse me if you could turn

2:28:12 ↗ to that please I'm going to ask you a

2:28:14 ↗ number of questions about exhibit s 113

2:29:01 ↗ if you have a copy now I do okay and

2:29:05 ↗ again you consulted with the city

2:29:07 ↗ attorney before writing both your April

2:29:09 ↗ 5th and your april 15th letter yes did

2:29:12 ↗ you consult with mr. Nevin before

2:29:13 ↗ writing either letter which letter were

2:29:18 ↗ you were asking about either one there

2:29:23 ↗ was I believe he was aware that they

2:29:28 ↗ were happening one of them occurred one

2:29:32 ↗ of them was sent during a time when he

2:29:34 ↗ was out of the office so he was aware

2:29:38 ↗ that I was working with the city

2:29:40 ↗ attorney I don't know if he reviewed it

2:29:42 ↗ well did mr. Devon decide that I JFC is

2:29:50 ↗ not vested to process before you wrote

2:29:53 ↗ either of these letters he may have I I

2:29:59 ↗ don't know exactly what he knew when

2:30:02 ↗ well miss Loman we've had testimony and

2:30:06 ↗ the code expressly says that it's mr.

2:30:10 ↗ Niven who makes vesting determinations

2:30:12 ↗ for the city not the city attorney

2:30:14 ↗ correct

2:30:15 ↗ it's mr. Niven in consultation with the

2:30:18 ↗ city attorney right but it's mr. Niven

2:30:21 ↗ who makes the determination not the city

2:30:24 ↗ attorney correct okay and mr. Niven

2:30:30 ↗ testified in this hearing you were

2:30:34 ↗ present for it that one does vest a

2:30:37 ↗ process don't you remember that I don't

2:30:43 ↗ well we had mr. Niven read his testimony

2:30:47 ↗ at the last hearing we can go back and

2:30:49 ↗ do it again if you want why don't we go

2:30:55 ↗ back to his original testimony

2:31:01 ↗ which is in the October 24th transcript

2:31:05 ↗ age 23 24 yes

2:31:30 ↗ okay I'm at page 23 of the transcript

2:31:49 ↗ so why don't we start with why don't I

2:31:55 ↗ read my questions and you can read mr.

2:31:58 ↗ Nivens answers I'm going to start with

2:32:01 ↗ page 23 line 4 in the middle of one of

2:32:05 ↗ my questions question so if one best to

2:32:09 ↗ the development agreement including

2:32:11 ↗ exhibit L which is the process part of

2:32:14 ↗ the development agreement correct that's

2:32:16 ↗ my recollection yes okay then your

2:32:18 ↗ department in fact has treated people

2:32:20 ↗ who have vested to the development

2:32:22 ↗ agreement has vested to the process in

2:32:25 ↗ Appendix L correct mr. nubbins answer is

2:32:28 ↗ yes you've done that for multiple

2:32:30 ↗ polygon projects for example yes

2:32:42 ↗ so you knew that mr. Niven had testified

2:32:46 ↗ that his department was treating people

2:32:51 ↗ who vested to the development agreement

2:32:53 ↗ in particular polygon has vested to the

2:32:55 ↗ process in Appendix L correct I can't

2:32:59 ↗ say that I remembered this testimony

2:33:01 ↗ when we were working on these letters

2:33:04 ↗ well but you also didn't consult with

2:33:10 ↗ mr. Niven who is the official

2:33:12 ↗ responsible for vesting determinations

2:33:15 ↗ before you sent either letter did you

2:33:18 ↗ know that's not what I said I I believe

2:33:22 ↗ it was the first letter that I was

2:33:26 ↗ speaking with him I believe it was the

2:33:29 ↗ second letter when he was out of town

2:33:31 ↗ but I consulted with him before he left

2:33:34 ↗ town

2:33:36 ↗ well did when you consulted with him did

2:33:40 ↗ you ask him to determine whether or not

2:33:43 ↗ my client was vested to process I don't

2:33:50 ↗ think I would have I worded it that way

2:33:53 ↗ No

2:33:53 ↗ okay so what do you remember consulting

2:33:56 ↗ with mr. Navin about if it wasn't

2:33:59 ↗ whether my client was vested the process

2:34:01 ↗ well we were talking about the

2:34:05 ↗ preliminary plat and that I don't

2:34:11 ↗ remember how events unfolded we had

2:34:17 ↗ received the recent middle from your

2:34:20 ↗ applicant your client in March and we

2:34:24 ↗ were preparing to move forward I don't

2:34:28 ↗ remember what the event was that

2:34:31 ↗ triggered this conversation or exactly

2:34:35 ↗ who I spoke to when about it I would not

2:34:38 ↗ have sent a letter to your client

2:34:41 ↗ without having consulted with both the

2:34:44 ↗ director and the city attorney okay do

2:34:48 ↗ you my recollection

2:34:50 ↗ of mr. nevan's testimony from our last

2:34:54 ↗ hearing on April 30th and I'm refreshing

2:34:56 ↗ my recollection by looking at the

2:34:58 ↗ transcript which will I'll ask you to

2:35:00 ↗ look at in a moment that my recollection

2:35:02 ↗ is he didn't arrive at the opinion that

2:35:05 ↗ my client is not vested to process until

2:35:09 ↗ we had a 10 minute break and he

2:35:11 ↗ consulted with the city attorney in the

2:35:13 ↗ middle of this hearing did I

2:35:15 ↗ misunderstand what happened last time I

2:35:17 ↗ don't know I don't I don't have that

2:35:19 ↗ transcript in front of me and I I'm

2:35:22 ↗ unclear why I'm being asked to speak for

2:35:25 ↗ when mr. Niven knew a piece of

2:35:29 ↗ information you're being asked these

2:35:32 ↗ questions miss Loman because you wrote

2:35:34 ↗ letters two of them to my client saying

2:35:37 ↗ they are not vested to process when it

2:35:39 ↗ is mr. Niven who is responsible for that

2:35:41 ↗ determination and as far as I can tell

2:35:44 ↗ from mr. dibbens

2:35:45 ↗ testimony he didn't agree with it until

2:35:48 ↗ the middle of the last hearing long

2:35:49 ↗ after both letters were sent that's why

2:35:51 ↗ I'm asking these questions would you

2:35:53 ↗ turn please to the transcript from the

2:35:56 ↗ last hearing I was in your binder the

2:35:59 ↗ April 30th transcript okay and

2:36:27 ↗ [Applause]

2:36:32 ↗ all right let's turn please to page 110

2:36:43 ↗ okay

2:36:55 ↗ actually it's yeah page 110 I'm going to

2:36:58 ↗ read the questions again I'm going to

2:37:00 ↗ ask you to read mr. nevan's answers and

2:37:05 ↗ I'm going to start with line for my

2:37:06 ↗ question question and you treated

2:37:09 ↗ polygon as vested to Appendix L of the

2:37:12 ↗ development agreement and you're telling

2:37:14 ↗ this Commission now after you met with

2:37:16 ↗ the city attorney that my client is not

2:37:19 ↗ vested even though they're completely

2:37:22 ↗ similarly situated correct and mr. Niven

2:37:26 ↗ said I didn't say I think they're

2:37:28 ↗ similarly situated my question my

2:37:31 ↗ response was no I added that mr. Nevins

2:37:34 ↗ said you did question so if they're not

2:37:37 ↗ similarly situated what's the difference

2:37:40 ↗ mr. Niven said I would have to consult

2:37:43 ↗ with my staff on that question so as you

2:37:46 ↗ stand here tonight mr. Nevin there's no

2:37:48 ↗ lawful basis for distinguishing them and

2:37:50 ↗ yet you're treating one is vested and

2:37:53 ↗ one is not is that correct mr. Newman

2:37:55 ↗ said I don't know that answer

2:37:57 ↗ question why not mr. Nevin said because

2:38:01 ↗ I don't know what the lawful reason is

2:38:03 ↗ why they were treated differently from a

2:38:05 ↗ processing standpoint that's Jen well

2:38:08 ↗ mr. Nevin you just met with the city

2:38:09 ↗ attorney and came out and told us that

2:38:12 ↗ it was you agreed that my client was not

2:38:14 ↗ vested you get you treated polygon is

2:38:17 ↗ vested so I'm asking you what is the

2:38:19 ↗ basis for your distinction treating one

2:38:21 ↗ differently than the other

2:38:23 ↗ mr. Nevin said I think we're back to

2:38:26 ↗ third-rail question so you're blaming

2:38:28 ↗ the city attorney again on your conduct

2:38:31 ↗ mr. Nevins said I'm saying that the city

2:38:33 ↗ attorney is helping me to make decisions

2:38:35 ↗ pursuant to the code question but it's

2:38:38 ↗ your decision mr. Nevin you've already

2:38:40 ↗ agreed that you are responsible so you

2:38:42 ↗ have no reason for doing or saying what

2:38:45 ↗ you're saying other than that you met

2:38:47 ↗ with mr. ll over a 10 minute break here

2:38:49 ↗ tonight right

2:38:50 ↗ mr. Niven said I'm saying that what my

2:38:54 ↗ response is to the difference in

2:38:56 ↗ processing is a result of conversations

2:38:58 ↗ with the city attorney yes question okay

2:39:01 ↗ and you have no other grounds for saying

2:39:03 ↗ what you're saying mr. Nibin said I have

2:39:06 ↗ no other grounds

2:39:08 ↗ okay so despite the testimony that we

2:39:18 ↗ just went through from mr. Niven and

2:39:20 ↗ despite his earlier testimony in October

2:39:22 ↗ that one does best a process it's your

2:39:26 ↗ testimony tonight that mr. Niven made

2:39:29 ↗ the decision before April 5th that my

2:39:32 ↗ client is not vested to process and

2:39:34 ↗ that's why you wrote the letter

2:39:44 ↗ I don't I consulted with mr. Nibin and

2:39:48 ↗ the city attorney before writing the

2:39:51 ↗ letters mr. Niven knew that I was going

2:39:53 ↗ to be writing those letters

2:39:56 ↗ he may have reviewed the first letter I

2:39:58 ↗ don't remember I don't know how else to

2:40:02 ↗ answer your question okay well so did

2:40:06 ↗ mr. Nevin give you any reason for

2:40:09 ↗ treating my client differently than

2:40:13 ↗ polygon in terms of vesting to process

2:40:16 ↗ we didn't discuss that I thought that's

2:40:19 ↗ what we were just talking about he

2:40:22 ↗ didn't

2:40:23 ↗ didn't you just tell us that you

2:40:25 ↗ consulted with mr. Niven and he approved

2:40:29 ↗ or otherwise agreed with your letter

2:40:34 ↗ saying we're not vested the process yes

2:40:37 ↗ but we weren't doing that within the

2:40:39 ↗ context of polygon which was the form

2:40:42 ↗ part of the content of your question so

2:40:45 ↗ you didn't discuss with mr. Niven while

2:40:47 ↗ you're treating my client completely

2:40:49 ↗ differently than polygon even though

2:40:52 ↗ they're both vested through their plap

2:40:55 ↗ locations when you say they're both

2:40:59 ↗ vested to their plat applications could

2:41:02 ↗ you tell me who that they are well

2:41:05 ↗ you've treated polygon as vested for all

2:41:08 ↗ of its applications but this the

2:41:11 ↗ specific direct comparison that I'm now

2:41:13 ↗ drawing is between the two plans the

2:41:17 ↗ polygon single family north application

2:41:20 ↗ submitted in July of 2017 and shelters

2:41:25 ↗ applications submitted on August 1st of

2:41:28 ↗ 2017

2:41:30 ↗ they were both deemed vested by the city

2:41:36 ↗ and by mr. Niven correct

2:41:40 ↗ they were both deemed complete and

2:41:43 ↗ therefore vested yes okay so we're now

2:41:48 ↗ talking about an application to

2:41:51 ↗ applications that the city has agreed

2:41:55 ↗ and agreed the city has agreed that both

2:42:00 ↗ applications are vested to the

2:42:02 ↗ development agreement the city has

2:42:04 ↗ decided that one of those applications

2:42:06 ↗ is vested to process and one is not

2:42:10 ↗ and you're testifying that when you

2:42:13 ↗ wrote this letter saying my client is

2:42:15 ↗ not vested there was absolutely no

2:42:17 ↗ discussion between you and mr. Niven why

2:42:19 ↗ you're saying that to my client and you

2:42:22 ↗ didn't say that to polygon I I think we

2:42:26 ↗ were mainly focused on your permit I

2:42:29 ↗ can't say I don't remember whether we

2:42:31 ↗ discussed polygons at the time or not

2:42:39 ↗ let's turn to your April 15th letter

2:42:43 ↗ it's just Loman did you write this

2:42:45 ↗ letter in consultation with the city

2:42:49 ↗ attorney have you read the cases that

2:42:54 ↗ you cited in the letter no

2:43:08 ↗ well it's a little hard to ask you

2:43:10 ↗ questions about certian you made about

2:43:14 ↗ cases if you haven't read the cases miss

2:43:16 ↗ Loman so you put me under a bit of a

2:43:19 ↗ handicap by making statements that you

2:43:23 ↗ have no knowledge whether they're

2:43:25 ↗ accurate or not but I'm going to

2:43:33 ↗ represent to you that the one of the

2:43:35 ↗ cases that you rely upon doesn't even

2:43:39 ↗ address the issue that we're talking

2:43:41 ↗ about and the other case is one that

2:43:44 ↗ actually directly contradicts the

2:43:46 ↗ position you're taking are you familiar

2:43:52 ↗ you haven't read do you know anything

2:43:54 ↗ about the facts in the RC a dream and

2:43:56 ↗ company versus City of Seattle case no

2:43:59 ↗ well that's a case that I'm very

2:44:01 ↗ familiar with because I was the lead

2:44:03 ↗ attorney for the city on that case and

2:44:06 ↗ in fact what the court held in that case

2:44:09 ↗ is that mr. Hadean was vested to the

2:44:13 ↗ procedures in the city's landmark

2:44:16 ↗ ordinance that's if I'm accurately

2:44:19 ↗ representing what the case says how does

2:44:21 ↗ that support your position that my

2:44:23 ↗ client is not vested to the procedures

2:44:26 ↗ in the development agreement I rely on

2:44:29 ↗ my city attorney to provide me with

2:44:31 ↗ legal advice and I would not be able to

2:44:35 ↗ answer that question okay is there any

2:44:38 ↗ part of this letter that you wrote as

2:44:40 ↗ opposed to the city attorney wrote mr.

2:44:42 ↗ chairman I'm going to respectfully

2:44:44 ↗ object to that I mean that this is

2:44:46 ↗ really getting into the attorney-client

2:44:48 ↗ privilege the fact that there may have

2:44:49 ↗ been consultations between city staff in

2:44:52 ↗ the City Attorney's office it can be a

2:44:54 ↗ public record at the extent that staff

2:44:56 ↗ discloses that but the content of those

2:44:58 ↗ communications and the extent to which

2:45:00 ↗ particular documents may have been

2:45:02 ↗ co-authored by legal counsel is

2:45:05 ↗ certainly within that third rail

2:45:07 ↗ previously referenced by mr. Niven I

2:45:09 ↗ would strongly object this line of

2:45:11 ↗ questioning and the city has waived the

2:45:14 ↗ attorney-client privilege many times

2:45:16 ↗ over it is tactically asserting the

2:45:18 ↗ privilege as a defense

2:45:20 ↗ the only which is not permitted under

2:45:22 ↗ the law the only explanation we have

2:45:24 ↗ been given is that the attorneys made

2:45:26 ↗ this decision not mr. Nevin and we're

2:45:29 ↗ not and then and so we've been told that

2:45:32 ↗ you're supposed to rely on it's

2:45:33 ↗ reasonable because it's following the

2:45:35 ↗ advice of the attorney but we aren't

2:45:36 ↗ able to question or inquire into that

2:45:38 ↗ advice it's entirely inappropriate

2:45:41 ↗ though the the privilege has been waived

2:45:44 ↗ and my question despite all that my

2:45:47 ↗ question was whether she wrote any part

2:45:49 ↗ of this that is not asking for advice

2:45:51 ↗ and I would respectfully reiterate my

2:45:54 ↗ objection mr. chairman the city has not

2:45:56 ↗ waived the attorney-client privilege in

2:45:58 ↗ these proceedings and is certainly not

2:46:00 ↗ done that tactically or selectively in

2:46:02 ↗ the manner suggested by mr. Schneider

2:46:05 ↗ this is clearly within the

2:46:07 ↗ attorney-client privilege is

2:46:08 ↗ well-established in Washington law and

2:46:10 ↗ the witness should not be forced to

2:46:12 ↗ answer that question well I would

2:46:14 ↗ suggest since you are not a court with

2:46:17 ↗ jurisdiction over this issue it's

2:46:19 ↗ correct that what we do is I be allowed

2:46:21 ↗ to ask the questions I think are

2:46:23 ↗ appropriate if mr. Lall wants to direct

2:46:25 ↗ the witness not to answer he can do so

2:46:28 ↗ that will create an appropriate record

2:46:30 ↗ for judicial review okay that probably

2:46:35 ↗ is the course of action we should take

2:46:38 ↗ so my question miss Loman was is there

2:46:41 ↗ any part of this letter that you wrote

2:46:43 ↗ as opposed to the city attorney writing

2:46:45 ↗ miss Loman I would recommend that you

2:46:47 ↗ would advise you not to answer that

2:46:49 ↗ question I'm following my City

2:46:56 ↗ Attorney's direction I'm sorry I I'm

2:46:59 ↗ going to follow my City Attorney's

2:47:01 ↗ direction

2:47:02 ↗ okay so miss Loman at the on the first

2:47:05 ↗ page you cite a code section

2:47:13 ↗ from the replacement regulations 1819 B

2:47:16 ↗ 280 which says and we've talked about it

2:47:23 ↗ many times you are familiar with this

2:47:24 ↗ code section correct yes

2:47:26 ↗ okay and one of the ways in which

2:47:28 ↗ someone vests under the replacement

2:47:32 ↗ regulations is by means of a development

2:47:36 ↗ agreement correct that is one of the

2:47:40 ↗ actions that's listed there yes hey and

2:47:44 ↗ the city has acknowledged that my client

2:47:48 ↗ is vested I'm virtue of its plat

2:47:52 ↗ application to the development agreement

2:47:54 ↗ correct to the extent that my city

2:48:02 ↗ attorney tells me that that is the case

2:48:05 ↗ I'm sorry you think we're only developed

2:48:09 ↗ invested to the development agreement to

2:48:12 ↗ the extent your city attorney tells you

2:48:13 ↗ we are I am consulting with the city

2:48:21 ↗ attorney to confirm how when we ended

2:48:26 ↗ development agreement and we establish

2:48:29 ↗ vesting provisions in the replacement

2:48:32 ↗ regulations how those are applied well

2:48:35 ↗ miss lemon I I'm struggling a bit I

2:48:39 ↗ thought it was undisputed and the city

2:48:42 ↗ had acknowledged from the outset

2:48:44 ↗ including in mr. dibbens famous April

2:48:47 ↗ 4th 2018 letter that my client is vested

2:48:51 ↗ to the subdivision application in my

2:48:55 ↗ understanding from the city attorney is

2:48:57 ↗ that we are vested that you are vested

2:49:02 ↗ to certain standards related to the plat

2:49:06 ↗ but not to procedures and some other

2:49:09 ↗ standards okay and again is there any

2:49:14 ↗ thing in any city code or state statute

2:49:20 ↗ that you know of that says you

2:49:23 ↗ that's to some parts of a development

2:49:25 ↗ agreement and not to others that is my

2:49:28 ↗ understanding based on conversations

2:49:30 ↗ with the city attorney okay and I just

2:49:32 ↗ want to clarify there's you're not aware

2:49:34 ↗ of any other basis for that other than

2:49:36 ↗ what your city attorney has told you

2:49:38 ↗ okay well I understand that's based on

2:49:41 ↗ case law which you haven't read correct

2:49:44 ↗ correct as have you ever seen any case

2:50:08 ↗ that says one cannot best two procedures

2:50:12 ↗ I don't read case law I rely on the city

2:50:21 ↗ attorney to consult staff on current

2:50:28 ↗ case law

2:51:14 ↗ apologize

2:51:42 ↗ [Applause]

2:52:25 ↗ mrs. Lowman I'm going to hand you a copy

2:52:29 ↗ of the case that you cited but haven't

2:52:33 ↗ read in your letter the RC huh dream

2:52:35 ↗ company versus City of Seattle case and

2:52:38 ↗ I'm gonna point you to the paragraph

2:52:40 ↗ that includes the quote that is in your

2:52:44 ↗ letter which is from the first sentence

2:52:47 ↗ of that paragraph and then I'm going to

2:52:49 ↗ ask you to go down and well first of all

2:52:54 ↗ I'm gonna

2:53:05 ↗ well rather than ask you to read this

2:53:07 ↗ miss slow my time I'm gonna think better

2:53:10 ↗ of it and just tell you again what I

2:53:13 ↗ represented to you earlier and I'm going

2:53:15 ↗ to quote from the language right now

2:53:16 ↗ your letter quotes the first sentence of

2:53:18 ↗ that paragraph that says the vested

2:53:21 ↗ rights doctrine protects developers

2:53:23 ↗ against the effect of new regulations

2:53:25 ↗ not proceedings authorized by existing

2:53:28 ↗ regulations do you recognize that

2:53:30 ↗ sentence from your letter beside the top

2:53:35 ↗ of first third second first full

2:53:37 ↗ paragraph on the top of page three

2:53:49 ↗ question simply is that the sentence

2:53:51 ↗ that you quoted in your letter and if

2:53:58 ↗ you continue on in that same era graph

2:54:01 ↗ it's talking about what the developer

2:54:07 ↗ vested to in that case and it says he

2:54:11 ↗ vested to the landmarks ordinance and

2:54:16 ↗ which was enacted pursuant to the

2:54:18 ↗ procedures set forth in the ordinance

2:54:21 ↗ and more specifically he the designating

2:54:26 ↗ ordinance about which the developer was

2:54:28 ↗ complaining was enacted pursuant to the

2:54:32 ↗ procedures set forth in the ordinance

2:54:34 ↗ that he vested to though the court is

2:54:37 ↗ saying he was vested to the procedures

2:54:40 ↗ in the land there mr. chairman I'm gonna

2:54:42 ↗ have to respectfully object again this

2:54:43 ↗ is legal argument mr. councilman from

2:54:46 ↗ the case and expecting the witnessed

2:54:49 ↗ apparently to respond to that she's

2:54:51 ↗ already testified multiple times that

2:54:53 ↗ she's not an attorney and she is not and

2:54:57 ↗ she indicated in her testimony has not

2:54:59 ↗ read the cases I don't know where this

2:55:01 ↗ line of questioning is going to but it

2:55:03 ↗ seems much more appropriate to closing

2:55:06 ↗ legal argument than it does questioning

2:55:08 ↗ of the factual witness and I agree that

2:55:10 ↗ the question was awkward but it points

2:55:13 ↗ out the absurdity of the situation that

2:55:15 ↗ the city's you know tactical assertions

2:55:19 ↗ of privilege of putting us in here we've

2:55:22 ↗ had repeated objections in this

2:55:24 ↗ proceeding that I am asking for legal

2:55:27 ↗ questions or asking for legal opinions

2:55:29 ↗ yet the city doesn't hesitate to submit

2:55:32 ↗ a letter that is written by the city

2:55:34 ↗ attorney and that is full of legal

2:55:37 ↗ opinions so that this person signing the

2:55:39 ↗ letter hasn't read and then when I asked

2:55:42 ↗ about the letter I can't get any answers

2:55:44 ↗ because you know it's a legal issue and

2:55:46 ↗ she's not an attorney and hasn't read

2:55:49 ↗ the opinion she's excited fighting it's

2:55:52 ↗ it's another example of why the city's

2:55:55 ↗ use of the attorney-client privilege in

2:55:57 ↗ this case is completely inappropriate

2:55:58 ↗ but I

2:56:00 ↗ I am prepared to move on thank you so I

2:56:07 ↗ want to go down a little bit further on

2:56:10 ↗ page three of your letter miss Loman and

2:56:18 ↗ the fourth paragraph the third full

2:56:23 ↗ paragraph talks about the urban village

2:56:27 ↗ Development Commission and you basically

2:56:36 ↗ say and I'm going to quote from your

2:56:40 ↗ letter here you say that it's a

2:56:44 ↗ practical impossibility for IHI FC to

2:56:49 ↗ have its plat processed in front of the

2:56:53 ↗ urban village Development Commission

2:56:55 ↗ correct

2:57:02 ↗ the words practical impossibility are a

2:57:05 ↗ quote from which is written and thus

2:57:07 ↗ letter correct and what I'm looking for

2:57:12 ↗ that phrase and I'm not I apologize I'm

2:57:14 ↗ not saying it's the fourth line after

2:57:17 ↗ the third full paragraph it's the fourth

2:57:25 ↗ line of the third full paragraph oh I

2:57:28 ↗ see it now

2:57:29 ↗ Thank You mr. chairman if I could please

2:57:34 ↗ I do need to recuse myself now briefly

2:57:36 ↗ for a phone conference I should be back

2:57:39 ↗ within approximately 20 minutes I

2:57:40 ↗ apologize for the intrusion

2:57:41 ↗ thank you mr. Dunbar will take over for

2:57:44 ↗ me thank you okay miss lemon again you

2:57:48 ↗ you referred to you VDC process as a

2:57:53 ↗ practical impossibility I'd see that

2:57:56 ↗ that text appears for yes did is that

2:58:01 ↗ your language I don't remember when was

2:58:10 ↗ the last meaning of the U V DC the March

2:58:14 ↗ 26 2019 meeting referred to in the next

2:58:17 ↗ paragraph

2:58:18 ↗ hey and explain to us all the reasons

2:58:23 ↗ why it's a practical impossibility for

2:58:25 ↗ the U V DC to process my clients

2:58:29 ↗ application well I think that there are

2:58:37 ↗ two things the U V DC is not actively

2:58:42 ↗ engaged right now but I think the other

2:58:45 ↗ piece is that we believe that the proper

2:58:50 ↗ procedures to process the plat is the

2:58:54 ↗ replacement regulations which would send

2:58:56 ↗ it to another entity I think the second

2:59:00 ↗ reason you gave is a repetition of the

2:59:04 ↗ legal assertion you've been making I

2:59:07 ↗ want to focus on the practical

2:59:08 ↗ impossibilities

2:59:10 ↗ okay so what again makes it a practical

2:59:13 ↗ impossibility

2:59:15 ↗ in fact for example the you VDC didn't

2:59:20 ↗ terminate did it no

2:59:30 ↗ I said no hey and in fact the UV DC is

2:59:33 ↗ created by the City Council and only the

2:59:35 ↗ City Council can terminate it correct

2:59:37 ↗ yes and it's March 26 meeting was not

2:59:42 ↗ its last was it I don't think of another

2:59:51 ↗ meeting since March 26th well I listened

2:59:54 ↗ to the end of the video of the March 26

2:59:58 ↗ meeting and it says the Commission is a

3:00:02 ↗ journey until August isn't that correct

3:00:05 ↗ I believe you're referring to the

3:00:08 ↗ closing motion which was what to do

3:00:12 ↗ with minutes of that final meeting if if

3:00:17 ↗ it did not reconvene and August was

3:00:21 ↗ given as the date by which if it did not

3:00:25 ↗ reconvene that the chairperson and I

3:00:28 ↗ would had were given a mechanism to we

3:00:34 ↗ were authorized to approve the minutes

3:00:36 ↗ there was no meeting established okay so

3:00:40 ↗ you a couple of times said if the UVC

3:00:44 ↗ didn't reconvene there's nothing

3:00:47 ↗ preventing it from reconvening except

3:00:50 ↗ your decision not to process my clients

3:00:54 ↗ plat application in front of it is there

3:00:58 ↗ no we're just barely have a quorum but

3:01:01 ↗ yes a so why is it a practical

3:01:03 ↗ impossibility as stated in this letter

3:01:06 ↗ if you just acknowledged the only thing

3:01:09 ↗ preventing it from hearing is your

3:01:10 ↗ hearing the application is your decision

3:01:13 ↗ not to have it do that because there's

3:01:17 ↗ no other business in front of it because

3:01:22 ↗ you've decided that my clients

3:01:23 ↗ application unlike all the polygons

3:01:26 ↗ applications is not vested to process

3:01:28 ↗ correct

3:01:42 ↗ okay

3:01:44 ↗ it was as I repeatedly said it was an

3:01:48 ↗ error and the process that we proposed

3:01:51 ↗ to your client is in the replacement

3:01:55 ↗ regulations and you stated last time

3:01:58 ↗ that that process is worse we do not

3:02:01 ↗ consider that worse we consider it

3:02:03 ↗ better that's why we proposed it well I

3:02:06 ↗ respectfully disagree with your memory

3:02:08 ↗ of what you think I said last time miss

3:02:10 ↗ Loman but in any event what happened is

3:02:15 ↗ that you wrapped up polygons

3:02:18 ↗ applications under the UV DC on March 26

3:02:23 ↗ and five days later later having

3:02:27 ↗ concluded polygons applications vested

3:02:30 ↗ to process you write a letter to my

3:02:33 ↗ client saying they're not vested to

3:02:35 ↗ process isn't that exactly what happened

3:02:37 ↗ no the March 26 meeting had nothing to

3:02:40 ↗ do with processing their platen the plat

3:02:45 ↗ application meeting for parcel D was in

3:02:49 ↗ December and it went to Council in

3:02:53 ↗ January or February the March 26 meeting

3:02:58 ↗ was a separate matter not they're not

3:03:01 ↗ related to their plat I didn't refer to

3:03:03 ↗ a plot and my question miss Loman I

3:03:06 ↗ referred to polygons applications you

3:03:08 ↗ wrapped up five days before you wrote

3:03:12 ↗ the letter to my client all of polygons

3:03:17 ↗ applications which you treated as vested

3:03:19 ↗ to process and then you wrote a letter

3:03:22 ↗ to my client saying you're not vested to

3:03:25 ↗ process correct

3:03:31 ↗ so I I'm not quite sure why we're

3:03:34 ↗ conflating the March 26 meeting with

3:03:37 ↗ that was a very unique meeting that we

3:03:40 ↗ held with the urban village Development

3:03:43 ↗ Commission and it was based on a plat

3:03:49 ↗ condition it was not based on vesting

3:03:52 ↗ yes it was based on a condition of

3:03:55 ↗ polygons High Street plat correct yes

3:04:01 ↗ okay and High Street was required to be

3:04:04 ↗ converted as a condition of their plan

3:04:06 ↗ correct yes

3:04:08 ↗ the polygon was the applicant and the

3:04:11 ↗ hearing was being conducted pursuant to

3:04:13 ↗ their plat application because it was a

3:04:17 ↗ condition of approval of that plan that

3:04:20 ↗ was not a hearing it was a public

3:04:21 ↗ meeting excuse me a public meeting it

3:04:24 ↗ was nonetheless a public meeting under

3:04:29 ↗ the procedures that you treated polygons

3:04:32 ↗ as vested to in the development

3:04:34 ↗ agreement correct their plots were were

3:04:40 ↗ we treated as vested under the Issaquah

3:04:43 ↗ Highlands development agreement and all

3:04:46 ↗ of their applications went the you VDC

3:04:49 ↗ obviously including the one that was at

3:04:52 ↗ issue

3:04:53 ↗ on March 26 correct that that was a

3:04:57 ↗ public meeting that was not there's

3:05:00 ↗ nothing in the development agreement

3:05:01 ↗ about a public meeting that was not

3:05:05 ↗ based on the development agreement or

3:05:07 ↗ vesting it was a subsidiary activity

3:05:12 ↗ that came out of the plat yes it was a

3:05:16 ↗ condition of their plication that went

3:05:21 ↗ to the you VDC because you treated all

3:05:24 ↗ their applications as bested to the

3:05:26 ↗ procedures in the development agreement

3:05:28 ↗ correct and we could have specified that

3:05:32 ↗ it go to the development commission that

3:05:34 ↗ that was not an outgrowth of how those

3:05:37 ↗ plat permits were processed

3:05:48 ↗ miss Loman on March 26 the you VDC

3:05:54 ↗ conducted what you're referring to is a

3:05:57 ↗ public meeting that was required as a

3:06:00 ↗ condition of polygons Platt correct yes

3:06:05 ↗ five days after that meeting polygons

3:06:11 ↗ that was a condition of polygons plat

3:06:14 ↗ application you send a letter to my

3:06:17 ↗ client saying that without well you send

3:06:25 ↗ a letter to my client saying we're going

3:06:27 ↗ to treat you differently than we've been

3:06:29 ↗ treating polygons for the last year and

3:06:35 ↗ three months and we're going to send you

3:06:38 ↗ to the Development Commission instead of

3:06:41 ↗ the u VDC correct no the letter did not

3:06:44 ↗ refer anything about polygons and how we

3:06:46 ↗ had processed their permits no the

3:06:49 ↗ letter doesn't mention that the letter

3:06:51 ↗ doesn't acknowledge that you're treating

3:06:53 ↗ my client differently than polygon but

3:06:56 ↗ nonetheless it's a five day difference

3:06:58 ↗ between a meeting of the U VDC about

3:07:03 ↗ polygons applications in your letter to

3:07:06 ↗ my client saying you're not going to the

3:07:08 ↗ u VDC and you not accept that as a fact

3:07:12 ↗ I can accept that there was I don't know

3:07:17 ↗ whether it was five days I thought it

3:07:19 ↗ was April 5th

3:07:21 ↗ but yes approximately a week to eight

3:07:24 ↗ days between those two events okay and

3:07:28 ↗ again can you give any explanation for

3:07:31 ↗ that differential treatment other than

3:07:37 ↗ advice of the city attorney that you're

3:07:39 ↗ not telling us about I made an error in

3:07:45 ↗ how I process polygons permits of mr.

3:07:50 ↗ sloman you only made an error if based

3:07:53 ↗ on what you're now saying was advice of

3:07:56 ↗ the city attorney that you won't tell us

3:07:57 ↗ about correct I I don't even understand

3:08:00 ↗ your question

3:08:01 ↗ okay why do you think you made an error

3:08:03 ↗ is there any reason for you to assert

3:08:05 ↗ that other than the advice of the city

3:08:07 ↗ attorney advice of the city attorney

3:08:12 ↗ that I made an error is that what you're

3:08:15 ↗ asking me that I discovered the error

3:08:17 ↗ because of advice from the city attorney

3:08:19 ↗ that's one way to rephrase the question

3:08:27 ↗ in the process of

3:08:35 ↗ so I the March 26 meeting I don't think

3:08:38 ↗ it's germane to this I understand you

3:08:40 ↗ disagree with me the processing of the

3:08:44 ↗ plat and the was concluded at the U VDC

3:08:51 ↗ in December and the City Council in

3:08:54 ↗ January or February sometime after that

3:08:57 ↗ after your client resubmitted their plat

3:09:01 ↗ I realized that I had processed those

3:09:05 ↗ permits and error I don't remember the

3:09:09 ↗ exact course of events I don't remember

3:09:15 ↗ who brought that to my attention I I

3:09:20 ↗ don't have the level of detail that

3:09:22 ↗ you're asking me to reconstruct at this

3:09:24 ↗ moment I think my question miss Loman

3:09:30 ↗ what you've already told us some while

3:09:33 ↗ ago that you couldn't remember when you

3:09:36 ↗ decided you had made an error I'm not

3:09:38 ↗ asking that question again I'm asking

3:09:40 ↗ whether there is any basis for your

3:09:44 ↗ testimony that you made an error

3:09:46 ↗ other than advice from the city attorney

3:09:50 ↗ well if I don't remember the

3:09:52 ↗ conversation that identified when I came

3:09:56 ↗ to realize that I made that error it is

3:09:59 ↗ difficult for me to know whether that

3:10:02 ↗ was speaking with the city attorney

3:10:06 ↗ speaking with mr. Niven some something

3:10:09 ↗ that happened within these proceedings I

3:10:12 ↗ just I don't remember well miss Loman

3:10:15 ↗ I'm asking you about events that

3:10:16 ↗ happened within the last two months at

3:10:21 ↗ most apparently you've been testifying

3:10:23 ↗ in detail on at length about events that

3:10:26 ↗ happened years ago so are you really

3:10:29 ↗ saying you can't remember who you talk

3:10:32 ↗ to and when you made the decision that

3:10:35 ↗ you were in ere mr. chair I'm gonna

3:10:37 ↗ respectfully object to this questioning

3:10:39 ↗ the witness has answered the question

3:10:41 ↗ multiple times simply asking the same

3:10:44 ↗ question over and over again trying to

3:10:45 ↗ elicit different responses

3:10:47 ↗ gonna be forgot good okay I will move on

3:10:52 ↗ thank you

3:11:35 ↗ so I want to offer a new civet it's a

3:11:39 ↗ Code section put it up on the screen

3:11:42 ↗ Jackie eighteen oh three oh four five

3:11:53 ↗ this is exhibit

3:12:13 ↗ we believe it's s-125

3:12:16 ↗ I believe that's correct the top of my

3:12:19 ↗ pile is s 124 okay you say eighteen oh

3:12:23 ↗ three oh five oh four or five oh four

3:12:26 ↗ five and a katakana

3:13:21 ↗ so are you familiar with this code

3:13:23 ↗ section miss Loman yes so it up on the

3:13:32 ↗ screen as well but this says does it not

3:13:36 ↗ the urban village Development Commission

3:13:39 ↗ the UVC that we've been talking about

3:13:42 ↗ they'll act view project approvals as

3:13:49 ↗ provided in Issaquah Highlands

3:13:52 ↗ development agreement right yes and the

3:14:01 ↗ Highlands development agreement

3:14:03 ↗ includes appendix L which is the process

3:14:07 ↗ correct yes so since the development

3:14:15 ↗ agreement that the city acknowledges my

3:14:17 ↗ is vested to includes appendix L and

3:14:21 ↗ includes procedure in front of the U VDC

3:14:29 ↗ your decision to send my clients

3:14:32 ↗ application to the development mission

3:14:35 ↗ violates this code section does it not I

3:14:39 ↗ would not agree because the replacement

3:14:42 ↗ regulations specifically directed that

3:14:48 ↗ things like preliminary plats were

3:14:51 ↗ processed by the Development Commission

3:14:53 ↗ and the Hearing Examiner missile and the

3:14:56 ↗ replacement regulations say one of the

3:14:58 ↗ three ways you can vest after the

3:15:02 ↗ termination of the development agreement

3:15:04 ↗ is by means of a development agreement

3:15:06 ↗ correct I think this is the crux of why

3:15:10 ↗ we're here is that the city and your

3:15:14 ↗ client disagree about the applicability

3:15:18 ↗ of the replacement regulations whether

3:15:21 ↗ which set of standards apply I'm not

3:15:26 ↗ sure that in answering your question I'm

3:15:27 ↗ going to be able to

3:15:30 ↗ address what you're asking me to address

3:15:32 ↗ nonetheless I would request that you

3:15:34 ↗ answer my question

3:15:36 ↗ slowly would you repeat it please the

3:15:39 ↗ replacement regulations say that one of

3:15:42 ↗ the ways you can vest is by means of a

3:15:45 ↗ development agreement correct yes and

3:15:47 ↗ the development agreement we've been

3:15:49 ↗ talking about since last September is a

3:15:52 ↗ development agreement that not only

3:15:55 ↗ includes vesting language it also

3:15:57 ↗ includes procedures correct say that

3:16:02 ↗ again I'm sorry the visible Highlands

3:16:04 ↗ development agreement includes

3:16:06 ↗ procedures as well as substantive

3:16:10 ↗ regulations correct I agree that this

3:16:12 ↗ quality development agreement includes

3:16:14 ↗ procedures okay and so now we're talking

3:16:17 ↗ about a new statute a new ordinance

3:16:19 ↗ rather that we haven't talked about

3:16:21 ↗ previously because it doesn't

3:16:24 ↗ specifically mention vesting and this

3:16:26 ↗ ordinance says that the urban village

3:16:30 ↗ development Commission shall act to

3:16:33 ↗ review project approvals as provided in

3:16:39 ↗ Issaquah Highlands development agreement

3:16:42 ↗ correct

3:16:44 ↗ that's what eighteen oh three oh four

3:16:47 ↗ five a says yes

3:16:49 ↗ okay and your letter talking about

3:16:51 ↗ vesting right in vested rights your

3:16:53 ↗ letter but the case citations that you

3:16:58 ↗ haven't read doesn't address this

3:17:01 ↗ section does it no oh can you offer any

3:17:05 ↗ explanation for why when the City

3:17:08 ↗ Council has cleared that that the you

3:17:12 ↗ VDC shall review project approvals as

3:17:15 ↗ provided in the development agreement

3:17:17 ↗ why you're not doing that because the

3:17:20 ↗ development of regulations that were

3:17:22 ↗ adopted more recently say something

3:17:24 ↗ different

3:17:27 ↗ miss lemon eighteen oh three oh four or

3:17:30 ↗ five a is in the code isn't it it is

3:17:33 ↗ it hasn't been repealed just like the

3:17:36 ↗ city council hasn't repealed the you VDC

3:17:38 ↗ right correct

3:17:48 ↗ have you had any conversations with mr.

3:17:51 ↗ Niven about your April 15th letter since

3:17:55 ↗ you sent it probably we I mentioned that

3:18:05 ↗ it had been sent I I don't is there a

3:18:09 ↗ specific thing that you're wondering if

3:18:11 ↗ I've talked to him about I'm wondering

3:18:13 ↗ whether he agrees with it have you had a

3:18:15 ↗ conversation with him since he's the

3:18:17 ↗ city's official who makes vesting

3:18:19 ↗ determinations I have not asked him if

3:18:22 ↗ he agrees with it

3:18:26 ↗ [Applause]

3:18:32 ↗ [Applause]

3:19:30 ↗ the slogan when you gave the notice of

3:19:37 ↗ application for my client splat what did

3:19:45 ↗ you say about the process in that notice

3:19:47 ↗ of application well I don't because I

3:19:51 ↗ didn't prepare that have you done

3:19:56 ↗ anything to update the notice of

3:20:05 ↗ application that your office and out

3:20:09 ↗ January of 2018 or the plat application

3:20:21 ↗ so I take that back I'm I prepared some

3:20:25 ↗ of the text and I don't remember exactly

3:20:29 ↗ what that said that was a notice of

3:20:31 ↗ application that was issued I think we

3:20:34 ↗ worked on it there were three applic

3:20:37 ↗ notice of applications that were sent

3:20:39 ↗ out in December 2017 and I worked on the

3:20:48 ↗ text I don't remember what it said and

3:20:50 ↗ we haven't updated it because we would

3:20:52 ↗ typically do that when we send out then

3:20:54 ↗ notice for hearing on the preliminary

3:21:00 ↗ plot so when are you going to send out

3:21:04 ↗ the notice of hearing on my clients plat

3:21:06 ↗ application well we would have the we

3:21:13 ↗ would have to I think we've been waiting

3:21:15 ↗ to hear back on the second letter you

3:21:18 ↗ seem to disagree about that so we have

3:21:23 ↗ not written that until we have concluded

3:21:27 ↗ that discussion you're waiting to hear

3:21:33 ↗ back from my client in response to your

3:21:36 ↗ April 15th the determination

3:21:39 ↗ well you've taken issue with it in these

3:21:42 ↗ proceedings and so it seemed that there

3:21:45 ↗ might be more that you wanted to say in

3:21:49 ↗ response to that letter well

3:21:51 ↗ Islam and you decided in consultation

3:21:55 ↗ with the city attorney

3:21:57 ↗ apparently that my client is not vested

3:22:01 ↗ and that you're going to process it

3:22:02 ↗ under the by sending it to the not

3:22:12 ↗ sending it to the you VDC and now you're

3:22:17 ↗ you're doing nothing what waiting for

3:22:20 ↗ the outcome of this hearing or what no

3:22:22 ↗ I'm not doing nothing

3:22:24 ↗ but i am i have not scheduled it

3:22:29 ↗ wouldn't be a hearing it would be a

3:22:31 ↗ community conference and I have not

3:22:34 ↗ scheduled that community conference

3:22:36 ↗ partly because I am waiting to see when

3:22:38 ↗ these procedures have concluded to know

3:22:41 ↗ when the Development Commission would

3:22:44 ↗ have a date and partly because this is a

3:22:47 ↗ proceeding in which your client would be

3:22:51 ↗ expected to participate and I want to

3:22:53 ↗ confirm that Miss lemon

3:22:57 ↗ my understanding is as the city has been

3:23:01 ↗ arguing for over a year is that we can't

3:23:09 ↗ challenge

3:23:10 ↗ mr. Evans vesting determination assuming

3:23:14 ↗ this is mr. Newman's vesting

3:23:16 ↗ determination until this proceeding ends

3:23:20 ↗ and we appealed to the Hearing Examiner

3:23:22 ↗ isn't that this hasn't that been the

3:23:25 ↗ city's position for over a year so just

3:23:28 ↗ to make sure I'm understanding your

3:23:30 ↗ question are you saying for these land

3:23:32 ↗ use permits that the appeal of the the

3:23:37 ↗ decision on these land use permits will

3:23:41 ↗ not happen until a decision is issued

3:23:43 ↗ oh my question is specific to

3:23:49 ↗ mr. nevan's vesting determination we

3:23:52 ↗ have been trying as mr. Lall himself

3:23:57 ↗ demonstrated by offering a bunch of

3:23:58 ↗ exhibits that reflected decisions of the

3:24:01 ↗ Hearing Examiner we have been trying to

3:24:03 ↗ appeal mr. Nevins vesting determination

3:24:06 ↗ since he put it in his April 4th 2018

3:24:09 ↗ letter and the city so far has

3:24:13 ↗ successfully prevented us from doing

3:24:15 ↗ that by saying we have to wait first

3:24:18 ↗ until mr. Nevin put his vesting

3:24:20 ↗ determination in staff reports to this

3:24:24 ↗ commission and then until the Commission

3:24:27 ↗ concludes this proceeding and only then

3:24:29 ↗ can we commence appeal of those vesting

3:24:32 ↗ determinations isn't that a fair summary

3:24:36 ↗ of the city's position since April of

3:24:38 ↗ last year relative to land use permits

3:24:44 ↗ allocation to the vesting determinations

3:24:47 ↗ that this hearing has been about yes

3:24:50 ↗ that to appeal those we need a decision

3:24:54 ↗ to be issued ok so you've now made a

3:24:56 ↗ vesting determination in this letter

3:24:58 ↗ that according to the cities your long

3:25:02 ↗ position we can't appeal or do anything

3:25:04 ↗ about until this hearing is concluded

3:25:08 ↗ so why are you waiting on a response to

3:25:12 ↗ your letter are you going to change your

3:25:17 ↗ mind

3:25:18 ↗ [Music]

3:25:19 ↗ if we tell you we don't agree

3:25:26 ↗ so the first step under the replacement

3:25:29 ↗ regulations would be to hold the

3:25:31 ↗ community conference at the Development

3:25:34 ↗ Commission that would not be a decision

3:25:36 ↗ that would be a public consultation with

3:25:42 ↗ the Commission and the community

3:25:45 ↗ subsequent to that we would go to the

3:25:47 ↗ Hearing Examiner with a staff report and

3:25:52 ↗ recommendation so have you attempted to

3:25:54 ↗ schedule that hearing with the

3:25:56 ↗ Development Commission it is not a

3:25:59 ↗ hearing it is a community conference and

3:26:02 ↗ we had in our first letter offered some

3:26:07 ↗ weather how we asked your client for

3:26:11 ↗ some input about the dates of these

3:26:14 ↗ proceedings and the dates of the

3:26:18 ↗ community conference I believe and so

3:26:21 ↗ that was not discussed so we are

3:26:25 ↗ assuming that we're waiting until after

3:26:28 ↗ these proceedings are concluded before

3:26:30 ↗ we try and schedule another matter with

3:26:32 ↗ the Development Commission okay well

3:26:35 ↗ what I'm trying to find out is Sloman

3:26:38 ↗ is whether my clients plat application

3:26:41 ↗ is going to sit with the city doing

3:26:43 ↗ nothing until we have minced and

3:26:49 ↗ included an appeal to the Hearing

3:26:51 ↗ Examiner or whether you are going to go

3:26:53 ↗ ahead and act pursuant to the vesting

3:26:57 ↗ determination set forth in your two

3:27:00 ↗ letters so I'm not just because we have

3:27:03 ↗ not scheduled something with the

3:27:05 ↗ development commission and does not mean

3:27:07 ↗ that we are doing nothing are you doing

3:27:10 ↗ we have been reviewing the documents and

3:27:17 ↗ developing the list of items that we are

3:27:22 ↗ supposed to take to the Development

3:27:24 ↗ Commission so when do you think you're

3:27:28 ↗ going to be ready for this community

3:27:29 ↗ meeting then I as I said we currently

3:27:33 ↗ have a very full schedule between these

3:27:37 ↗ proceedings

3:27:38 ↗ and another permit that is at the

3:27:40 ↗ Development Commission it may be later

3:27:45 ↗ in June or early July I do not have the

3:27:48 ↗ schedule memorized it's 10 o'clock I

3:27:57 ↗ have a whole series of exhibits that

3:27:59 ↗ were offered for the first time tonight

3:28:01 ↗ to question miss Loman about that this

3:28:03 ↗ might be a good breaking point no

3:28:06 ↗ objection mr. Commissioner all right we

3:28:09 ↗ have reached the agreed-upon time to

3:28:10 ↗ adjourn tonight's meeting and will be

3:28:12 ↗ continuing the public hearings on

3:28:14 ↗ tonight's agenda to May 15th I believe

3:28:18 ↗ that all the commissioners are available

3:28:20 ↗ on the 15th and I would just offer or

3:28:26 ↗ ask if the parties have an estimate of

3:28:30 ↗ whether they will be able to wrap up

3:28:31 ↗ their Witnesses on May 15th or whether

3:28:34 ↗ we need to schedule another meeting yes

3:28:37 ↗ it's not the city does not intend to

3:28:39 ↗ call any further rebuttal witnesses so

3:28:41 ↗ our case is effectively closed as I said

3:28:45 ↗ last time we do have rebuttal witnesses

3:28:47 ↗ we have a ways to go with miss Loman I

3:28:51 ↗ think it's possible we will finish next

3:28:53 ↗ time but I can't be certain the track

3:28:57 ↗ record would indicate that we probably

3:28:59 ↗ ought to be looking at scheduling

3:29:00 ↗ another meeting that just saying with so

3:29:05 ↗ let's let's try to do that we we began

3:29:08 ↗ that process today great okay so the

3:29:15 ↗ public hearing on tonight's agenda will

3:29:18 ↗ continue especially meeting the

3:29:19 ↗ Commission on May 15th in the council

3:29:22 ↗ chambers at 6:30 the meeting is now

3:29:26 ↗ adjourned

3:29:30 ↗ [Applause]

3:29:39 ↗ you

Approved minutes

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

Open PDF

Attendance

Council / Members (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 Ben Rush Zachary Lell

City Attorney’s Office Brooke Shore Ray Liaw

Van Ness Feldman

LLP Mark Rigos

Alternate Jackie Quarré

Foster Pepper PLLC Arthur Schulte

Alternate Patrick Schneider

Foster Pepper PLLC Nischitha Venkatesh

Alternate Gary Young

Shelter Holdings [audience]