Loading...
12/20/1994 City CouncilAPPROVED CITY COUNCIL MINUTES Approved 113195 EDMONDS CITY COUNCIL APPROVED MINUTES DECEMBER 20,1994 The Edmonds City Council meeting was called to order at 7:00 p.m. by Council President John Nordquist in the Library Plaza. Room, 650 Main Street. Following the flag salute, Council recessed for an executive session on legal matters. The meeting was reconvened by Mayor Laura Hall at 7:45 p.m. ELECTED OFFICIALS PRESENT Laura Hall, Mayor John Nordquist, Council President Barbara Fahey, Councilmember Steve Dwyer, Councilmember Michael Hall, Councilmember Dave Earling, Councilmember Tom Petruzzi, Councilmember William J. Kasper, Councilmember ABSENT Ellenann Chiddex, Student Representative AGENDA STAFF PRESENT Tom Miller, Police Chief Mike Springer, Fire Chief Art Housler, Administrative Services Director Brent Hunter, Personnel Manager Rob Chave, Planning Manager Noel Miller, Superintendent of Public Works Paul Mar, Community Services Director Jeff Wilson, Current Planning Supervisor Steve Bullock, Assistant Planner Scott Snyder, City Attorney Rhonda March, City Clerk Christine Laws, Recorder COUNCILMEMBER STEVE DWYER MOVED, SECONDED BY COUNCIL PRESIDENT JOHN NORDQUIST, TO APPROVE THE AGENDA. MOTION CARRIED. CONSENT AGENDA Councilmember Tom Petruzzi requested pulling Item D from the Consent Agenda. COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCIL PRESIDENT JOHN NORDQUIST, FOR PASSAGE OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED. The items passed were as follows: (A) ROLL CALL (B) APPROVAL OF SPECIAL MEETING MINUTES OF DECEMBER 8,1994 ' (C) APPROVAL OF SPECIAL MEETING MINUTES OF DECEMBER 12,1994 Approved City Council Minutes December 20, 1994 Page 1 (E) APPROVAL OF CLAIM WARRANTS #945934-#946394 FOR WEEK OF DECEMBER 12,1994 (F) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM BARRY BIRCH ($145.74) (G) REPORT ON FINAL CONSTRUCTION COSTS FOR THE 1994 WATER LINE REPLACEMENT PROGRAM AND COUNCIL ACCEPTANCE OF PROJECT V' L. (I) REPORT ON FINAL CONSTRUCTION COSTS FOR THE LIBRARY BRICK WASH AND SEAL PROJECT AND COUNCIL ACCEPTANCE OF PROJECT (1) REPORT ON FINAL CONSTRUCTION COSTS FOR THE ANDERSON CENTER BOILER REPLACEMENT PROJECT AND COUNCIL ACCEPTANCE OF PROJECT J) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACTS WITH MUNICIPAL COURT JUDGE PRO-TEMS KATHLEEN FIELD AND KRISTEN ANDERSON (I) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH DAVID STEINER FOR PROSECUTOR SERVICES (L) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JAMES FELDMAN FOR PUBLIC DEFENDER SERVICES (1VI) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JOHN GALT, HEARING EXAMINER PRO TEM (N) ACCEPTANCE OF UTILITY EASEMENTS FROM THE ELM PLACE HOMEOWNERS' ASSOCIATION, M. D. FREEDMAN, AND JANIS AND MAIJA REIKSTINS FOR THE REPLACEMENT OF LIFT STATION NO.6 (0) APPROVAL OF CONSULTANT AGREEMENT AND FUNDING FOR CABLE < TELEVISION FRANCHISE RENEWAL SERVICES +� (P) ORDINANCE 3000 AMENDING EDMONDS CITY CODE, REPEALING SECTION 2.05.010(B) RELATING TO TERMINATION OF THE CITY ATTORNEY, AND �jy, PROVIDING FOR TERMINATION IN CONTRACT NEGOTIATION (J' Q) REPORT ON INFORMAL QUOTATIONS AND AUTHORIZATION FOR PURCHASE OF LEAF TRUCK LOADER FROM EMPIRE EQUIPMENT ($2,379.32) (R) ORDINANCE 3001 ADOPTING ALTERNATIVE LEGAL DESCRIPTION OF PROPERTY ANNEXED BY ORDINANCE 2997 TO CLARIFY THE BOUNDARIES DUE TO A SCRIVENER'S ERROR IN A DESCRIPTION APPROVED BY SNOHOMISH COUNTY g� COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCIL PRESIDENT U JOHN NORDQUIST, TO DEFER ITEM D UNTIL THE JANUARY 3, 1995, MEETING. MOTION CARRIED. The item deferred was as follows: (D) APPROVAL OF MINUTES OF DECEMBER 13,1994 Approved City Council Minutes December 20, 1994 Page 2 COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCIL PRESIDENT JOHN NORDQUIST, FOR PASSAGE OF THE CONSENT AGENDA WITH ITEM D DEFERRED UNTIL JANUARY 3. MOTION CARRIED. AUDIENCE Natalie Shippen, 1022 Euclid, Edmonds, expressed her desire for the Council to discuss this next year commuter only car ferries. She reminded the Council that the Washington State Ferry System and the Transportation Commission don't think the Unocal/Pt. Edwards site is a good location for a ferry terminal. She said the only reason they even agreed to consider that idea was the result of two actions: 1) when Burlington Northern announced it wanted commuter rail between Everett and Seattle and 2) shortly after that Amtrak suggested they would like to nun from Vancouver to Eugene, Oregon. She credits the prospect of increased commuter rail in making these agencies consider ultimately moving the ferry terminal to Pt. Edwards. She suggested looking at the prospects of commuter rail. Right now Amtrak is having financial problems. Because reserves are down, it is thinking of cutting a line between Washington and New York. Congress is now controlled by a party not historically generally sympathetic to public operated railroads. In order to make Burlington Northern a working commuter rail, there are going to be needed capital improvements in bed, signalization, rolling stock, and possible operating subsidies once established. All of that will take tax increases at the state and local levels which will be voted upon. In addition, federal matching funds will be needed. She feels that the last month's vicissitude of politics puts the Pt. Edwards site in a very vulnerable position as the whole project relies on political action on a great deal of diverse political funding. She believes that if you come to the prospect that there can't be a Pt. Edwards site, other alternatives are to go back to the existing site or you can say you are not going to expand the existing site. Those are both difficult positions to take and maintain. She thinks now is the time to consider a compromise where Edmonds doesn't take the entire ridership that is on the Edmonds -Kingston line, but perhaps concentrates on the commuter traffic which is right now less than 25% of the ridership. Ms. Shippen thinks it would also solve the problem that 75% of the Edmonds -Kingston ridership is recreational and other -- they are driving through. She reiterated that the Council should be concentrating on commuters as a fall -back position and also as a better prospect for Edmonds. Councilmember Barbara Fahey announced her realization that corrections had been made to the December 8 minutes and on the Consent Agenda they were approved as originally submitted, without making note of the corrections. Councilmember Petruzzi agreed. Mayor Hall suggested that this be brought up in the Council section of the meeting. HEARING ON APPEAL OF HEARING EXAMINER'S DECISION TO GRANT APPROVAL OF A VARIANCE TO INCREASE THE MAXIMUM PERNIITTED HEIGHT FOR STRUCTURES AT PROPERTY AT 7222 156TH ST. SW (APPLICANT: CRAIG & LINDA SUMMERS - FILE NO. V 94-156 / APPELLANT: MICHAEL HOUNSHELL, ET AL. - FILE NO. AP-94-179) [Rescheduled from 11/15/941 �y Councilmember Bill Kasper indicated he was not present in 1992 for the original hearing, but indicated he had been told this was an entirely separate matter. He has reviewed the original. Approved City Council Minutes December 20, 1994 Page 3 Councilmember Petruzzi indicated that in 1992 counsel for the applicant was a member of Foster Pepper Sheffelman, a firm which his company uses as general counsel. He asked if Foster Pepper Sheffelman was still counsel for the applicant. He was advised not. Councilmember Fahey also stated that in 1992 she was not on the Council, so this is a new hearing for her. Mayor Hall asked the audience if there was any objection to the presence or participation of anyone on the Council. No objections were heard. Mayor Hail announced the receipt of a December 20, 1994, letter from Jan Phillips, 7100 - 156th Street SW, Edmonds, WA 98026. City Attorney Scott Snyder indicated that would be Exhibit 13 and that the City Clerk would have a copy available for the applicant or the public to review. No other communications were noted. Steve Bullock, Assistant Planner, gave a brief summary of the history of this property. In the winter and spring of 1994 the applicants submitted a request for a building permit. He called the Councilmembers' attention to Exhibit 1 of their packets which is the site plan submitted at that time. When the initial review was being done for the building permit application, it was the first time a comprehensive review was made in regard to all the City codes that pertain to it. At that time it became clear that their proposal which was one building was going to have problems regarding the maximum permitted height in the zone in which it is located. As an RS-20 zone it is allowed a maximum height of 25'. At that time both the architect and the applicant were informed there were three options to deal with this dilemma: 1) to request a variance to gain some relief from that 25' height limit, 2) to separate the garage from the main residence in which case separate height calculations would be done on both structures, and 3) to redesign the entire project to reduce the size of it or lower the roof, whichever they felt appropriate. The applicant chose to separate the garage from the main structure. City staff did the separate height calculations. The proposed separation was 3/8-3/4" between the buildings. There is nothing in the code which defines what an attached or detached structure is. Since there was no physical connection, it was deemed this separation, though minute, does make for separate structures. A building permit was issued on the property, and building commenced. The applicants then chose to pursue a variance request. They made their submittal to the Hearing Examiner in August, with a hearing held in September. On October 6 the Hearing Examiner issued his decision. Based on all the criteria needed for a variance, he granted the request of the applicant. The difference between the approved building permit and what would happen if the variance was approved on appeal, is: the buildings approved allow for a specific height of the structures. The nature of the variance is to attach the buildings. Because of the way the City requires the height calculations be made, the expanse of the box used to measure the average grade of the structure enlarges, and it goes into a ravine area of the property. That drops the average grade for the entire structure by approximately four feet. The applicant is not trying to increase the height of the building they already have approved; they just want to be able to attach the garage structure to the main house. A variance would then be required to allow the buildings to be maintained at the already approved height. Approved City Council Minutes December 20, 1994 Page 4 Councilmember Steve Dwyer asked if the applicant could develop the project according to the plan they submitted with the 3/8" separation without garnering any special permits or variances. Mr. Bullock indicated they could. Councilmember Dwyer summarized the necessity of this request as being from the applicants' decision to change the method of construction. This, too, was affirmed. Councilmember Petruzzi asked for an explanation as to why they want to attach the buildings. Mr. Bullock responded that it was because they felt that the minute separation may be a cause for problems regarding rot, infestation, and like problems. At the Hearing Examiner's hearing, they also introduced that it could be a danger to them as it could allow a fire hazard through fire travel. Councilmember Dwyer asked if there was evidence that no other version of a similar structure could be constructed on this lot under the allowable heights, with an attached garage. Mr. Bullock responded that that was never explored. Councilmember Dwyer expressed his understanding was that the sole focus was this particular design on this particular lot, joining the structure rather than separating it by 3/8". Mr. Bullock concurred. Councilmember Dave Earling asked if, in the construction of the garage, were it to remain as it currently stands with a slight separation, whether a fire wall would be required in the garage as it would if the garage were actually in the envelope with the house. Mr. Bullock answered that when the project went through the building permit stage, the Building Department had some very specific requirements of the architect and contractor for having a fire separation there. They would not have approved a building permit unless certain requirements were made as far as having a fire separation between the two. Councilmember Petruzzi advised that he had had a copy of the revised Findings of Fact, Conclusions and Decision of the City Council printed and distributed to the other Council members. He asked City Attorney Scott Snyder if it would be appropriate in this setting to refer back to that part of the record. Mr. Snyder indicated that Council could take official notice of prior administrative decisions and, in fact, are bound by them. He advised that the Council, in making this decision, is bound by that decision as well as the interpretation of that decision by the Hearing Examiner about a year later. Those decisions were not appealed. He advised the audience that if anyone wanted to use their time to discuss whether the Council should have granted the variance in 1992, it was important for them to understand that those rights are vested, construction has already begun, and the Council is bound by both the prior decision of the Council and of the Hearing Examiner. Councilmember Petruzzi asked about the later decision of the Hearing Examiner. Mr. Snyder stated that it was the interpretation of the plans upon which the permit design was based. Councilmember Petruzzi confirmed that since no one appealed that decision, Council is bound by that decision. Mr. Snyder further stated that an action was commenced in superior court under the constitutional writ of certiorari — an order was entered dismissing that appeal -- so not only the statutory cert, but also constitutional cert (review) has been denied by Snohomish County Superior Court. Councilmember Petruzzi asked if they could rely upon any of their own interpretations of what they decided two years ago. Mr. Snyder said that to the extent that they don't conflict with the Hearing Examiner's decision, they could. Councilmember Bill Kasper asked about the height of the garage at the original hearing -- wasn't that part of the separation. Mr. Snyder stated that the height was part of that decision, but the Approved City Council Minutes December 20, 1994 Page 5 interpretation of how the height was calculated was not reviewed at that time because there were no specific plans for either the Council or the Building Department. Councilmember Kasper said the new plans show a two-story garage. Mr. Snyder indicated there was no reference in the decision to stories, but rather to overall height. Councilmember Kasper stated that it was over 15'. Mr. Snyder said that would be an issue for the Council to determine. Councilmember Petnizzi inquired about the issue of the 1992 findings where the Council had found that the garage structure shall not be designed or used for human habitation. He asked further S, in the later interpretation by the Hearing Examiner, there was a determination made on that part, or only on the height. Mr. Snyder answered that the habitation issue was an issue in the sense that the Hearing Examiner approved the design as meeting the Council's intent. Steve Bullock interjected that the Building Department makes a determination based on if the room is heated, and things of that nature. The applicant has indicated that the room above the garage will not be heated, and therefore it is not habitable space. Councilmember Dwyer said that in the Hearing Examiner's decision, on pages 3-4 (pages 9-10 of the packet), he sets forth the criteria for a variance in an A-F setting. Councilinember Dwyer expressed his impression that that recitation is incomplete and that several of the sections have subsections. He asked if that could be checked. Steve Bullock answered that on the second and third pages of the agenda memo there are items 1-6 which are a word-for-word quotation of the code as it relates to the variance criteria. Councilmember Dwyer asked the location of the language concerning self-created hardship. City Attorney Snyder called his attention to the last sentence in paragraph 1: "nor any factor resulting from the action of the owner or any past owner of the same property ...". At 8:10 p.m. Mayor Hall called a three minute break. The meeting resumed at 8:14. City Attorney Snyder clarified his earlier statement regarding the question concerning one-story. The first decision referred to one story; the Hearing Examiner's decision of October 6, 1993, specifically approved the design put forward. That matter wasn't referred to the City Council, and Council is bound by that decision. The Hearing Examiner's decision focused on the Council's language in its decision referring to changes necessary to orient the house to the lot and looked to orientation and not the specific one-story limit. Paul Secora, 1415 Norton Building, Seattle, spoke as attorney for the applicants', the Summers. He reserved half of his time for rebuttal. Mr. Secora first clarified that he was not a member of the firm Foster Pepper Sheffehman. He stated his desire to focus his presentation on those variance criteria which he feels to be at issue. The most important one for the appellants is, "what is the impact on the appellants?" Mr. Secora said it was stipulated in his letter, and had been stated under other circumstances, that there would be no increase in height from this variance. He proposed language which was contained on pages 4445 of the packet which could be placed into the ordinance to make City law -- to say that this variance allows no additional actual height to that building other than that allowed currently under the existing permit and code. All they are doing is closing the 3/8" gap. He visually demonstrated the size of 3/8". He maintains that no one could have a visual impact from any of the neighbors' homes to something that narrow all the way through that 22' deep garage. There is Approved City Council Minutes December 20, 1994 Page 6 no adverse impact on the neighbors. Mr. Secora asked further if there was any negative impact on Dr. Summers, and, if so, was the impact self-inflicted. He related that Dr. Summers' dilemma is not of his own creation. He fuuther stated that the dilemma, started in the spring when, because of the strict application of the City Code to this particular site and the unusual topography of the site, Dr. Summers was given three options: 1) he could either reduce the height of his garage or the whole building by 4'/z' -- adverse impact not of his own choosing; or 2) he could dig in another 4'/i to meet the height limitations and still get the same walls -- very expensive digging holes and building bulkheads; or 3) create a 3/8" gap between the two buildings. He chose the least adverse impact and one which had no adverse impact on his neighbors. He reiterated the four potential problems as described in the exhibits and in Staffs earlier report -- potential dry rot, water leakage, insect infestation, exacerbating any fire that may occur. He stated no ordinance can be perfect. It is impossible with the varied topography to anticipate all of the things which may happen. When a very narrow exception occurs, where strict application is nonsense, and the detrimental effect of relieving a hardship caused by that strict application is zero, you have good precedent for granting a variance. Councilmember Dwyer attempted to narrow the issues. He asked, given that the code provides that special circumstances cannot be predicated by any factor personal to the owner, such as extra expense which may be necessary to comply with the zoning ordinance, if the cost of compliance — the cost of going down four feet -- cannot be the basis for a grant of variance. Mr. Secora asked what point could be made if it is nonsense, if it is totally useless to expend that cost, and a total waste. Councilmember Dwyer stated that Mr. Secora chose to compare the impact on the neighborhood of the project as desired (the one building with its design) against the project as proposed (two buildings separated by 3/8"). He asked if there was any testimony or evidence in the record in regard to the impact on the neighborhood of the project as desired versus the project built at the height limited by the code. Mr. Secora said it was irrelevant; all that was being done was closing a 3/8" gap. Councilmember Dwyer stressed that Mr. Secora had chosen to make that the issue. Councilmember Michael Hall asked how the 3/8" was chosen as opposed to another size. Mr. Secora did not know and deferred to Dr. Summers. Dr. Craig Summers, 16228 - 70th Place West, stated this came about at the suggestion of Paul Mar. They had a meeting where the dilemma of the ravine, which could be used against them, was discussed. Dr. Summers went on to state that they had discussed what the height requirement would be if they used an area known to be within a setback. According to Dr. Summers, Mr. Mar had suggested separating the buildings by a fraction of an inch as a potential solution and to, after that, apply for a height variance. He stated that everything they had done so far had been with the approval of, or at the recommendation of the City Planning Department or the Hearing Examiner. City Attorney Snyder asked if Mr. Mar was indicating that was the minimum separation? Again, why not a foot or two feet to allow for painting and the other sorts of things that would prevent infestation and rot. Dr. Summers responded it was because Mr. Mar had suggested a fraction of an inch so that, in theory, the walls would be separated and they could still travel from one part to another and not have the elements of the weather within that space. He stated Mr. Mar had told him "the narrower, the better" and again mentioned the height variance. Mr. Snyder asked if that was without changing his building plans -- was his goal to avoid having to redo the plans? Dr. Summers said they had been in design for a year. Everything up to that point had been discussed with the City by the architect, and Approved City Council Minutes December 20, 1994 Page 7 they felt everything was in line. It was after the fact that the issue came up of height calculation when the fourth point drops way down into a ravine or is a setback, both non -buildable areas. He believes if it is a non -buildable area, it should not be used against them in terms of buildable area. Mr. Snyder questioned Dr. Summers about the 10-foot setback which sets one buildable boundary extreme. Dr. Summers confirmed it was a 10-foot setback from the property line to the garage. Mr. Snyder stated the choice as using a 3/8" separation or changing your building plans to build a smaller garage. Dr. Summers said it would not have changed that. When questioned further, Dr. Summers said it would not change the width of the garage, only the height. - Scott Snyder summarized his question by indicating his understanding that the setback offers one extreme and that Dr. Summers had two choices: he could separate the buildings by a minor amount and still meet the setback using the proposed design, or he could have redesigned the garage in order to have a bigger gap between. Dr. Summers stated they would have had to redesign the house. They had been given a setback area defined the area in which to put living space. That space incorporates a portion of the minor residence. The whole conceptual design would have to change. Mr. Snyder stated the choice as being anything larger than 3/8" would require a redesign of the house and garage. Dr. Summers concurred. Dr. Summers further stressed that at no point within the setback is the garage higher than 15'. Mayor Hall asked if Mr. Snyder was discussing footprint building pads. Mr. Snyder said he was asking questions to elicit evidence to point out that it was a choice between redesign and a minor gap and that anything larger would require redesign. He was following up on Councilmember Dwyer's question on cost. The appellant, Michael Hounshell, asked to have Paul R Kent speak on his behalf. Dr. Kent lives at 15515 - 72nd Avenue West, Edmonds. He introduced Bill Jessberger who would assist in a visual presentation. Mayor Hall indicated that many of the individuals on the sign-up sheet were appellants. Mayor Hall gave the audience a choice between whether they wished to have Dr. Kent speak for them or have a portion of their allotted time reserved. Bill Jessberger and Ron Anderson expressed their willingness to have Dr. Kent speak. Beth Kent acquiesced, and Nan Jessberger indicated her desire to speak. It was decided that Nan Jessberger would be heard under the public portion of the hearing. Paul Kent asked Mr. Mar if it was his suggestion that the 3/8" be implemented as a solution to the height problem and that then the variance be applied for. It was clarified that all questions needed to go through the Mayor to be addressed at a later point in the agenda. Dr. Kent repeated that this is a height variance hearing wherein the applicants are asking for an exception to the rules which govern the height of structures within the city of Edmonds. He stated this was not an attachment variance and pointed out that the city does not have any rules regarding attachments. He says the city also does not define attached or detached. He said most people would argue that by all reasonable measures the structure has always been attached. Consequently, the plans submitted violated the height restrictions from the very beginning and should never have been approved. Through the use of overhead presentation, Dr. Kent described how the appellants feel Dr. Summers circumvented the system upon learning that his structure was 4.25' too high. If the applicants had applied for the height variance at the time they were told their structure was too high, before the Approved City Council Minutes December 20, 1994 Page 8 3/8" separation, it would have to be denied on its merits because it failed on four of the six major criteria. It only needs one failure to be denied. First and foremost, granting this variance at the time of the original building plans would certainly have been detrimental to surrounding properties. He quoted the City's guidelines regarding variance: "The variance as approved will not be significantly detrimental to the public health, safety and welfare or injurious to the property or improvements in the vicinity and same zone". Granting a height variance in a view area is clearly injurious to those property whose views are blocked. Economic differences between view homes and homes without a view can be significant. It cannot be argued that an increase in height of over.four feet would not be detrimental to the surrounding properties. This is sufficient basis to deny any height variance filed with their original plan. Dr. Kent then spoke on the concepts of special circumstance, no special privilege, and minimum variance. He proclaimed the Summers property as well suited to build a home within the height requirements similar to or better than others in the area. He feels that any hardships claimed are their own creation. He said that though the topography of the entire lot does include a slope on three sides, there is plenty of level area on which to site a suitably large residential structure. It may not be exactly the structure they wanted, but could be larger than any home in the area. He surmised that Dr. Summers could build a home of exactly the same building pad but lowered the roof line. He claimed their design has a very tall roof, the ground floor to roof ridge height is 26'. It is 27' from their sunken ground floor rooms to the roof line. He compared his house (one of the tallest in the neighborhood) as being 23' from ground floor to roof ridge. He described his house as two stories with a complicated roof design. He suggested the difference was the 10' and I ceilings on the ground floor, 12' vaulted ceilings on the second floor, and an attic. He thinks one of those items could have been omitted to stay within the height restrictions. He believes that speaks to the criteria of this being the "minimum necessary to allow the owner the rights enjoyed by other properties in the vicinity with the same zoning". He fiuther compared the Message house next door to the Summers' property as having a flat roof in order to stay within an even stricter covenant than the City's height restriction. If that solution worked for them, he questioned why is it such a hardship for Dr. Summers. He claims that Dr. Summers could have built the same design but lowered the level of the building pad by four feet. The expense is not an issue, and it is specifically precluded from being considered. He went on to state that they could have moved the low corner of the height calculation up the slope by designing a two -car garage instead of three -car garage. A two car garage would have given them three feet more of legitimate average height by changing one of their corners. Where most of the houses in the neighborhood have garages for two cars or less, the applicants opted for a three -car garage with a solarium on the end of the further extension. By doing that they reduced their overall allowable height. He suggested there are always trade-offs and that Dr. Summers was not entitled to both the height and the extended garage with solarium. That would be granting a special privilege. Many homeowners in the area have had to make special accommodations to their designs to comply with the City's height restrictions, for very similar reasons as those of the applicant. He questioned why Approved City Council Minutes December 20, 1994 Page 9 Dr. Summers should be different and again cited special privilege. He stated no one was attempting to keep Dr. Summers from building what he is legally entitled to build. Dr. Kent stated that if there were no issues of attached or detached, and the plan as now requested was presented, it would have had to deny the height variance application. It would be detrimental to surrounding properties, there are no special circumstances, it is not the minimum required, and it constitutes a granting of special privilege. He said the applicants knew they would be denied if they applied at the time they submitted their original plans or they would have applied for a height variance at that time as the City suggested. They then came up with their 3/8" separation. They submitted an intricate plan with an artificial separation between the garage and main house. They got approval, rushed ahead, poured foundation, started framing, and then find themselves in the position of having an unsafe plan as testified to under oath by their architect. Dr. Kent passed out copies of an excerpt from the September 15 testimony of Rick Jones, the architect, as well as that of the contractor, Bob Bradwell. He paraphrased that testimony as stating that although the design meets minimal restrictions of code, that the fire doors that he had designed were unlikely to remain closed. He also did not "feel comfortable with the solution of a 3/8" airspace between these buildings for that reason alone". It was stated that if the architect considers his own design unsafe, that should override the meeting of minimum code standards. Dr. Kent stressed that nothing has changed since the original application that was not of the applicants' own doing. There are no new City -imposed restrictions; the topography did not change; they could have designed or built a legitimate structure in a number of different ways, they have always had any number of reasonable alternatives which would have let them develop the property in a manner consistent with other properties in the neighborhood. Dr. Kent declared that the timing of the application and expression of concern over safety and practicality is suspect. He questioned why the architect didn't note on his original plans that he had concerns over the safety of the separation. These concerns were only expressed after the foundation was poured and framing started. Dr. Kent said Mr. Jones, in his testimony, put the City on notice of the hazards of his design. Dr. Kent countered that it was the applicants' decision to build first and apply for a variance later. He called it an attempt to circumvent the legitimate and enforceable building ordinances of the City of Edmonds and said it should be treated as such. He does not believe the remedy lies in granting a variance they could not get through legitimate processes and thereby reward them and deprive their neighbors of significant property value. He believes the remedy is to deny the height variance request. He called for Dr. Summers to redesign the structure to meet the height restrictions. He summarized his remarks by saying that the City is no way compelled to grant this variance and is, in fact, completely justified in denying it. The public portion of the meeting was opened. City Attorney Snyder again reminded everyone that the City is bound by the issuance of the initial variance and by the Hearing Examiner's interpretation. To date, the issues addressed don't relate to those variances. Approved City Council Minutes December 20, 1994 Page 10 Nan Jessberger, 15508 - 72nd Avenue West, Edmonds, came to the podium. Discussion was had regarding whether Ms. Jessberger classified as an appellant. She said she had not signed anything. Mr. Snyder deferred to the City Clerk. Upon verification she had not signed the appeal, Ms. Jessberger testified in opposition to the variance. She stated they bought their home one year ago, fiilfilling a life- long dream of a home with a view. That has now changed, as a result of the adverse impact of granting the height variance, through the reduction of their Sound view which could potentially cause significant value loss. She presented as an exhibit a page of pictures from the deck of her house. She pointed out the differences as eliminating the view of the water, the far shoreline, and the Edmonds ferry run. When they bought their house, they had been told they would probably continue to enjoy this view because of strict adherence to the height restrictions in Edmonds. She believes a different roof design could have been used to keep within the height limitations and precluded the need for a variance. She sees the applicants' action as showing an indifference to the impact on the neighbors. She feels the house built is too large for the buildable lot space. She indicated the Council should deny the variance request and give them the three choices they were originally given. Ms. Jessberger said that if the Council denies the variance and requires Dr. Summers to comply with those options, it will affirm that the building codes of Edmonds have substance and cannot be manipulated through the heavy-handed use of architectural and legal firms, and that the rights of all property owners are protected. John Dempsey, 7119 - 157th Street SW, spoke next. He and his wife moved to Edmonds a year ago and had hoped that their view obtained then would be ongoing. From the appearances of the hearings conducted so far, he questions that reality. He said they would be directly effected by homes built in front of theirs and believes that allowing this variance to take place will create a precedent. He stated further he believes allowing this to happen would create many problems downstream. He concurred with the feelings of previous speakers that many homes in the area had to have variations in their original designs in order to accommodate the roof restrictions provided by the code. These were previously submitted. Four of the six houses identified had exactly that sort of problem and had to restrict heights accordingly. He thinks granting this variance would be a special privilege. He visually demonstrated the difference between the original proposal provided in 1992 and the current plan. Mr. Dempsey reiterated the fact that he feels the variance should not be allowed. Gillian Lewis, 15702 - 71 st Avenue West, addressed the issue of the 3/4" separation being a legitimate basis for change in the way the maximum height calculation is made. She wants a public hearing to determine whether this plan should have been approved with the separation. She feels it a violation of the building code, yet there is no procedure for bringing that before the Hearing Examiner and before the City Council. The people have had no opportunity to object to his circumvention of the rules because they were not given any effective notice until this application for height variance was instituted after the foundation was poured and framing started. She sees this as a procedural issue which impacts not only this case but sets a precedent for future building permit applications as well. If a plan like this is submitted, will the benefit of the doubt be given to the builder or, rather, will such interpretations of the code be brought into public forum with proper notice and an opportunity for comment. She thinks the applicants have given the City ample justification for denying the height variance and reversing the building permit, but states that in the future that may not be the case. She summarized her position as not seeing justification for granting a height variance and taking property value from neighbors. She Approved City Council Minutes December 20, 1994 Page 11 feels the stage of construction should also not be considered in weighing the merits of the height variance since the applicants are the ones who chose to build first and apply later. Robert Dradwall represents the builder for the Summers, Lakeside Seawood Group. He indicated this is a difficult property upon which to build a residence. The permit was issued in the proper channels. He _feels Dr. Summers dealt with this in an honest manner through the advice of the Building Department and took the proper channels to design their house. He does not believe in any way the structure is obscuring the property views. Mr. Dradwall thinks everyone is loosing track of the issue. The height variance is an issue passed quite a while back, what is being dealt with now is the 3/8" separation which Dr. Summers' lawyer concurred is the topic of this meeting. The actual height of the house would not change in any way and has nothing to do with that 3/8" issue. As far as the neighbors' view corridors, he feels they have improved the value of the properties in the neighborhood. He suggested some of the energy being devoted at this hearing could be utilized in some other way to benefit the community. John Martinson, 17101 - 170th, moved here two or three years ago. He explained how they had offers from neighbors to cut trees to improve their view. He feels that was the attitude of all of the people in the neighborhood. This project does not affect his property directly, but he can see where it ruins the view of many of the other houses. He likened the structure to a hotel and indicated it was not in keeping with what should be built in that area. He also expressed concern over the precedent which may be set for future violations. He thinks that an important reason for denying the building as is. Tim Clump, 7026 - 156th Street SW, also asked that the variance be denied. He agreed with the items contained in the presentation of Dr. Kent. He feels the neighbors immediately around the house are noticeably effected by this and should not have been subjected to this harm to their house values. Mr. Clump's view is not directly effected, but he does have homes in front of him. With regard to earlier comment concerning community action, he feels the community does help each other. He says there has been a long history with this property, and the views, opinions and desires of the rest of the community were clearly expressed to preserve views and the neighborhood feeling. He thinks those have all been ignored in this process. He again stated the variance should be denied. Gretchen Eakes, 15524 - 72nd Avenue West, spoke on behalf of herself and her husband Richard. They ask that the variance for additional height retained after the attachment of the garage to the main house be denied. She agrees this variance establishes a precedence which if applied to other developable properties to the West of her home will have extensive view and negative economic impact to them. During their remodel project in 1985, they needed to flatten a portion of their roof to comply with building height requirements. They were not granted a variance and don't believe the Summers should be granted one. She expressed belief that if the rules are to have any real meaning, they should not be allowed to be circumvented by those that can spend large architectural and legal fees to exploit loopholes in the building codes and the variance process. The public portion of the hearing was closed. Steve Bullock deferred to Paul Mar, Community Services Director. Mayor Hall reminded Mr. Mar of the question that had been asked. Mr. Mar indicated he had heard the applicant's comments. He relayed the incidents from his perspective. On the 15th of February he met at the request of Dr. Summers with Dr. Summers. At that meeting they Approved City Council Minutes December 20, 1994 Page 12 discussed two items: 1) alternative methods of height calculation and 2) whether or not he as a Community Services Director, or any other City official, could grant an administrative variance for height. In researching the code and discussions with the City Attorney, the answer was negative on both in that there is one method per the code for calculating height and height variances cannot be granted administratively. Subsequent thereto the applicant requested Mr. Mar meet with Messrs. Nash and Jones, the architects. On the 23rd of February he met with them. The plans were discussed, and Acting Building Official Jeannine Graff met with them to find out what alternatives they would have to get the project built. One, as previously described, was to reduce the height of the building to meet the code, to apply for a height variance, or to redesign the building. In that discussion of the redesign of the building the question was asked what they would have to do. The issue was with two separate buildings we can have calculation of height for each building separately. The question was then raised as to what would be considered separate buildings. In researching the City Code, all the City has in meeting the code is to provide the appropriate fire separation. There were discussions in terms what of that would mean in terms of distances, but Mr. Mar does not recall indicating 3/8" or 3/4". Councilmember Dwyer called attention to Dr. Summers' December 8 letter wherein he makes reference to this concept being at the suggestion of Mr. Mar. He asked if Mr. Mar ever suggested to Dr. Summers any particular distance by which these two buildings could be separated. Mr. Mar indicated the only discussion regarding the separation was concerning the need for two separate fire walls. Councilmember Dwyer asked if there was any reason to believe that the amount of separation was generated by Mr. Mar or by the City staff. He further asked if there had been any discussion which would reasonably have led Dr. Summers to believe that the amount of separation between the buildings was being suggested by Mr. Mar. Mr. Mar's recollection was concerning a conversation with Dr. Summers' architect -- the architect would design as long as they met the code in terms of fire wall separation. Councilmember Dwyer asked Mr. Mar if he ever told the applicant that he would be able to successfully build two structures separated by 3/8" and then later obtain a variance to allow him to join the structures. Mr. Mar did not believe so. Councilmember Dwyer asked Mr. Mar if he had ever had any discussion with him prior to this application being made that had to do with building two structures and then later coming in for a variance. Mr. Mar did not recall having any such discussion. Mr. Dwyer further asked if Mr. Mar was aware of anyone who reports to him having a discussion that would create this scenario. Mr. Mar responded he did not believe so and he had sat in on several of the meetings with both Ms. Graff and Mr. Bullock. Councilmember Dwyer confirmed with Mr. Mar that the discussions he had had with the applicant had to do with creating the two separate buildings and obtaining a building permit for those buildings. Councilmember Petruzzi asked if it was fair to say that in discussions between the City and Dr. Summers, what was explained were his alternatives as would be explained to anyone asking the question. Mr. Mar responded in the affirmative. City Attorney Snyder stated that one reality of land use law is that if there are ambiguities in a code, they are interpreted or resolved in favor of property owners' rights. Sometimes it is suggested a loophole is something wrong; it is simply not specified in this case how far a separation is. It is Washington State Law that that needs to be interpreted in favor of the property owner. Approved City Council Minutes December 20, 1994 Page 13 Paul Secora stated that Dr. Kent created a situation that is not presently before the Council. The height variance is not before Council. All of Dr. Kent's remarks to that are irrelevant and should be dismissed. He also stated that the neighbors' arguments were irrelevant. He indicated his belief that it was the desire of all of the appellants not to prevent closure of that 3/8" gap as that doesn't damage them. No one has testified that the 3/8" damages them; they are objecting to the height which was validly granted and has been built to. Nothing Council can do can change that. The only thing it can do is serve the neighbors' purposes of vengeance and harassment upon Dr. Summers because he legally got away with something. Council cannot reverse that. All it can do is perpetuate harassment. He reminded the Council this decision will not increase height at all. He stated there is no precedent in this decision to increasing the actual height of the building. The height is fixed. He pointed out his reasoning for feeling Dr. Kent's arguments benefited Dr. Summers' position. He again asked to close the 3/8" gap. Dr. Summers took the remaining time to finalize his position. The building permit has already been granted through a carefully thought out process by the Planning Department and the Hearing Examiner. The design of the house and the calculations were scrutinized (page 49 for review). The main portion of the house is no higher than 25' which is the standard limit. The height of the area in the setback is no higher than 15' which is what they were held to. The increased roof height came about was defined by pre-existing grade. They dug down over 5' and carried out tons of dirt so they could get height. The net height as calculated and approved by the building permit states that as long as they don't go 25' above existing grade and 15' above existing grade, they were given permission. Dr. Summers asked to go on record, under sworn oath, that he was told and sketches were drawn, and he mentioned in the meeting about the separation. He says he specifically asked what defined separation and that the word "fraction of an inch" was utilized. He says he was also told he could then apply for a height variance. He stated he was not told he would be granted one, only that he could apply for one. Before the foundation was poured, Dr. Summers claims to have spoken to Mr. Mar, asking if they could pour a common foundation even though there was to be a 3/8" gap. He further indicated that approval was given. He stated that the height of the house is fixed, that they have a valid permit, and that the house has been instructed to a "T" as to what they had been given approval for -- height of 25' and 15'. It appears high because they dug down the 5'. He asked Council to look at his letter preceding page 49, and the calculations. He reiterated they have done everything according to the permission, the code, the legal approvement by the City Planning Department and the Hearing Examiner or the house would not be completed as far as it has. Councilmember Petruzzi asked Dr. Summers for clarification on this request. He read from the findings and decision of the Hearing Examiner for the City of Edmonds: V-94-156. Introduction. Craig and Linda Summers, hereinafter referred to as applicants, 7222 - 156th Street SW, Edmonds, Washington, requested approval of a variance to increase the maximum allowed height on the structure at 7222 - 156th Street SW, Edmonds, Washington. The request is to allow the house and attached garage on site to be 29.25', 4.25' above the permitted height for RS-20 zoned property. He asked Dr. Summers if this had been his request. Dr. Summers says the request specifically was that the existing building permit which already defined a height of 29.25', 4.25' above the height for an RS- 20 zoned property not change in any capacity with what had already been approved by the building Approved City Council Minutes December 20, 1994 Page 14 permit, but simply close the 3/8" gap. Councilmember Petruzzi asked Paul Secora, 1214 Norton Building, Seattle, if the request was as read. Mr. Secora explained that the method of a high calculation that resulted in the 3/8" gap is the ordinance's specification for high calculation. To cure the 3/8" gap they have to go back and not say directly they want to cure a 3/8" gap (it may have been more artfully phrased if they had), but simply start at the source of that problem -- the variance of that particular law which is the source, and that is the height. City Attorney Snyder summarized the problem. The L-shaped building that was referred to early on by the staff member requires a very large box to be drawn around it in order to calculate height. If there are two smaller buildings, you can draw two smaller boxes which keep you fiuther up the slope. The reference in the code is 20.40.030 Height. The last portion reads "average level shall be determined by averaging elevations of the downward projections of the four corners of the smallest rectangle which will enclose all of the building". If you close the gap, the building is 29' high; if there are two buildings, it is 25' high. Councilmember Petruzzi reiterated that the variance had already been granted by which the building was able to be built under normal setbacks. City Attorney Snyder concurred, stating it was both with setbacks and specific design that brings it forward with the attendant structures. The hearing was closed and remanded to Council for consideration and deliberation. Councilmember Dwyer stated that initially he was concerned about the variation in the discussions between the applicant and Mr. Mar. After the applicant's last comments, he is satisfied that even if they were to find that those discussions took place as Dr. Summers claims, he would understand that Dr. Summers was told that a slight separation would result in him obtaining building permits and that he would later be able to apply for a height variance. Councilmember Dwyer is satisfied that all of those things have happened and that there wasn't any allegation that Dr. Summers was promised more than that. He doesn't think Council needs to or should worry about whether it is establishing a precedent. It is incumbent upon Council to do two things when these matters come before it: view each on its own merits without regard to other things that might happen that are not in the record, and to apply the code as it is worded to what is before it. In doing that, Council tries to be as conservative as it can. When someone comes forward for a variance, that applicant has the burden of showing that they meet the criteria. In this case, while not bound by what the Hearing Examiner has done, Mr. Dwyer feels the Hearing Examiner missed a crucial issue because nowhere in his decision does he refer to that aspect of the criteria which involves self-created hardships. The Community Code, Section 20.85.010 says "no variance may be approved unless all of the findings in this section can be made". Under special circumstances, number 2 is "special circumstances should not be predicated upon any factor personal to the owner nor any factor resulting from the action of the owner or any past owner of the same property". He feels Council needs to find that did not happen in order to discuss anything else. After reading the voluminous information provided as a result of this hearing, re -reading the findings of the 1992 decision, and listening to the testimony, Councilmember Dwyer thinks that the present situation is a result of a design decision applicants made to build two structures rather than to seek to build one structure at the risk of going through a variance process. He thinks what is before them now is the joining of two structures which comes about as a result of the decision to build two structures. He can see nothing that is more of a pure form of a situation of a problem that is created by the owner of the Approved City Council Minutes December 20, 1994 Page 15 property. He believes that the request to join the two buildings, thus creating a single building which exceeds the height limit, is directly the result of the decision to design and build two buildings. That was a decision made by the applicant which is clearly a factor personal to the applicant as the owner. Therefore, Council cannot find that there is no special circumstances and cannot, therefore, make all of the findings and cannot grant the variance. Councilmember Petruzzi agreed with Councilmember Dwyer. He further commented on whether the variance was the "minimum necessary to allow the owner the rights enjoyed by other properties in the vicinity in the same zoning". A building permit has been issued for a separate building design. He thinks it would make it more than a little arguable that this meets the requirements for the minimum required. The applicants already met the minimum when they had their building permit issued with the two separate buildings. He believes the Hearing Examiner erred on that. The other issue is that it is not detrimental. He re -cited the code as to regarding detriment and injury to the property or improvements in the vicinity. The Hearing Examiner covered the part concerning detriment to the public safety and welfare, but did not cover the part "injurious to the property or improvements in the vicinity in the same zone". Councilmember Petruzzi suggested that granting the variance would be injurious to property owners in the vicinity. He stressed that he was not discussing a protection of views but living within the code. COUNCILMEMBER TOM PETRUZZI MOVED, REGARDING APPLICANTS CRAIG AND LINDA SUMMERS, FILE NO. V94-156; APPELLANT MICHAEL HOUNSHELL, ET AL., FILE NO. AP-94-179, THE PROPOSED VARIANCE BE DENIED AND THE APPEAL UPHELD. THE MOTION WAS SECONDED BY COUNCILMEMBER STEVE DWYER. Councilmember Hall desired clarification of the effect of denying the variance. He thinks there may be some misconceptions. He believed that even if Council denies the application for the variance, it is not going to make any difference in the height of the buildings. He is somewhat disturbed by some of the testimony in the case as it seemed to have hinged on that issue of height and view blockage. He feels even if Council denies the variance, neither side is going to be happy with the outcome. His concern is that if the only concern is the 3/8" separation, that may be more of a crux to the matter than denying the variance. COUNCILMEMBER MICHAEL HALL VOTED NO. MOTION CARRIED. City Attorney Scott Snyder indicated to Mayor Hall that hopefully he will be able to have these back for the first meeting in January. Unless Council instructs otherwise, he will include a referral of the safety issue back to the building inspector for review so that they can at least take into consideration the evidence that has been presented at the hearing as an administrative matter. Councilmember Dwyer reminded Mayor Hall that the first meeting in January would be his last meeting. If the papers were to come back after that, his vote would have to be discounted. Mr. Snyder will make every effort to be ready for that January 3 meeting. Mayor Hall called a three minute break at 9:36 p.m. and reconvened the meeting at 9:46 p.m. Approved City Council Minutes December 20, 1994 Page 16 APPROVAL OF 1995 EQUIPMENT RENTAL RATES Art Housler, Administrative Services Director, reported that attached to Council packets were rental rates for 1995. In accordance with City Code 3:05, the Council has approved reasonable monthly rental rates which will be sufficient to maintain the operations and replacement of equipment in the \G4 fund. These rates presented will meet all of the replacement and maintenance requirements for 1995. dL He requested approval of the equipment rental rates. Councilmember Dwyer asked how high the rates were. Council President Nordquist questioned the meaning of codes 1, 2 and 3 to the right as shown on page 3 of the Agenda Memo. Mr. Housler advised that those numbers refer to footnotes which are detailed on the last page. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER STEVE DWYER, FOR PASSAGE OF THE EQUIPMENT RENTAL RATES FOR 1995. MOTION CARRIED. PROPOSED ORDINANCE 3002 ADOPTING 1995 BUDGET Councilmember Petruzzi questioned the addendum Mayor Hall passed out with selected budget cuts. For the record, he wished to make sure that Items 1 and 30 have been deleted from the list of 58. Another question he had referred to Exhibit 1. Under funding sources revisions, the items in red are items that were added to the budget and items in black were those cut from the budget. This was \ confirmed. Council President Nordquist questioned the equipment rental vehicles. He indicated it looked like three new units were listed -- the executive building vehicle, the combination sewer jet, and a jetvac truck. If the two are added together it looks like $410,000 in new equipment. He said Item 68 refers to a 1993 sewer jet truck and it looked like two more were being added. Today he spoke with Greg Ramsland, and he indicated only one was being purchased. They are different names for the same truck. One is referencing $250,000, another is referencing $160,000, and someone mentioned $90,000 coming from elsewhere. He asked for clarification of the source. Noel Miller, Public Works Superintendent, responded that it was discussed in the water and sewer budget that monies were being budgeted out of the 411 Fund to help pay for that. The total purchase for that truck would be financed by money transferred to the 511 Fund to make that purchase out of equipment rental. In reviewing this further with Art Housler, it was decided it was not appropriate use to come up with the additional money from the B Fund which was the $90,000 using some of the money that was accumulated to replace the existing vactor jet truck. The numbers should be changed in the 411 Fund so that it says $250,000 to budget for a new vactor jet truck, and that truck will be purchased under the 511 Fund. When the unit is ready to be purchased, they will come back before Council to explain their entire storm drainage maintenance program and the reasons why they have budgeted for that purchase. Council President Nordquist suggested it might be purchased between now and then, so his question is whether or not two were needed. Mr. Miller responded it is only one. He also stated they could not buy it between now and then because they would need to come to Council to ask permission to go out for bid on it. Council President Nordquist asked for clarification Approved City Council Minutes December 20, 1994 Page 17 on what was now owned and referred again to Item 68. Mr. Miller says that is a different unit purchased in the mid-1980s. Council President commented on the $160,000 figure shown and asked for confirmation that the names were going to be changed and $250,000 will be put in the 511. Mr. Miller said there would be $250,000 in the 411 and $250,000 in the 511. The new money is coming from the 411 Fund. The way it has been budgeted in the past, equipment rental out of its section, the money is transferred from water and sewer in order to purchase out of equipment rental. Council President Nordquist asked Mr. Housler to make a note of that. Councilmember Petruzzi asked if the transfers shown had already been made and whether an individual motion was necessary on each. Mr. Housler responded that they are included in the proposed ordinance. Council President Nordquist asked about the shift of the $160,000. Mr. Housler indicated they would be coming back in the first quarter with an adjustment on that at the time the maintenance program is presented. COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCILMEMBER DAVE EARLING, TO ADOPT ORDINANCE 3002 ADOPTING THE 1995 BUDGET. COUNCILMEMBER STEVE DWYER VOTED NO. MOTION CARRIED. COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCILMEMBER BILL KASPER, THAT THE 1995 FINANCIAL REPORTING TO THE CITY COUNCIL BE IN THE SAME FORM AND FORMAT AS THE 1994 REPORTING SYSTEM, INCLUDING THE USE OF THE CONTINGENCY PLAN AS WAS USED IN 1994. MOTION CARRIED. Mr. Miller clarified that the vactor unit existing is Unit 94 and is a 1989 model. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER MICHAEL HALL, TO EXTEND THE MEETING UNTIL COMPLETION. MOTION CARRIED. Mr. Housler clarified for Councilmember Petruzzi that that is Section 4 which is already included in the ordinance. PROPOSED ORDINANCE 3003 AMENDING THE 1994 BUDGET AS A RESULT OF q� UNANTICIPATED TRANSFERS AND EXPENDITURES OF VARIOUS FUNDS City Attorney Scott Snyder explained this is that odd ordinance where he explains twice a year the need to have an opportunity for public comment. Mayor Hall asked if there were any comments to be made. None heard, the matter was remanded to Council. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER MICHAEL HALL, FOR PASSAGE OF ORDINANCE 3003. MOTION CARRIED. Approved City Council Minutes December 20, 1994 Page 18 DISCUSSION OF MEMORANDUM FROM PLANNING MANAGER REGARDING LAND USE CONCEPTS AND MASTER PLANS (THIS IS INTENDED TO BE ONLY A QUESTION AND n AY ANSWER DISCUSSION.) Rob Chave said the reason to have this on the agenda was to make sure that everyone had the material. The review will not be taken up in earnest until January. This was mainly an opportunity for Council to provide him with feedback, concerns, or issues he should be looking at in the interim. He recapped the materials as including land use policy maps and master plan material. During the firsurneeting in January Council will be looking at how those relate to the downtown waterfront plan. They want to get into some of the general concept review before getting into detail. The Planning Board should have completed their review by the early part of January. Council President Nordquist said it came as a suggestion that perhaps it is time to start looking at the use for cellular units in various zones and areas. He asked if this was something that should be sent to the Planning Commission at this time to start including in the studies. Mr. Chave suggested that type of item is better left to the development regulations. His caution concerns adding anything at this time. Until the City gets its Comp Plan passed (should have been passed by December 31), it will not be able to apply for a variety of state funding. Mr. Chave stated that the cellular towers and some of those issues are covered by some general broad policies in the Comp Plan that address health and safety - related issues that Council can easily fold in developmental regulations based on that. Councilmember Barbara Fahey asked if there would be another public hearing before approval. Mr. Chave indicated he thinks the Planning Board is probably finished with its hearings on this type of material. They are in the process of finalizing recommendations based on testimony received. The Council will want at least one more hearing which will be scheduled in January. DISCUSSION ON COUNCIL VACANCY REPLACEMENT PROCESS Council President John Nordquist called Council attention to a December 14 memorandum containing updated information. We have 90 days now instead of 30 days. He reminded Council that his term as Council President ends at the January 3 meeting. He asked if Council wished to wait until after the first C of the year to begin the process. "0 Councilmember Petruzzi questioned whether Council could advertise yet. Mr. Snyder indicated the position could be advertised. There is no vacancy until Mr. Dwyer leaves. Councilmember Petruzzi said he didn't really want to advertise until after Mr. Dwyer's leaving. He did suggest, however, that the questionnaire utilized when he applied could be reviewed or updated. He feels the questionnaire gives the Council an advantage by being able to review the questionnaire responses prior to meeting. Council President Nordquist asked if it was the Council consensus to wait until Councilmember Dwyer submitted his resignation to begin the process. Councilmember Dave Earling agreed with that, but he indicated he would like to move the process forward as quickly as possible. He suggested that all members have questions ready at the January 3 meeting so that time lines may be set at that meeting. He would like to see a 3045 day time period because he feels it incumbent to get the new Councilmember on board as quickly as possible. Approved City Council Minutes December 20, 1994 Page 19 Councilmember Fahey would also like to see the process moved along as quickly as possible. She wasdt sure whether the seven questions on the questionnaire reflected a specific question each Councilmember wanted answered, or if the Council as a whole had put them together. She agrees that the questions should be ready, and perhaps put together in advance, so that they can be finalized at the meeting. Council President Nordquist suggested that if the questions could be delivered to him by next week he will start putting them together for submission in the packet for over the 1 st. Councilmember Fahey also stated that she thought the process last time was done in a vacuum and did not include the citizenry as a whole when in fact a person is being appointed to the Council who is going to be representing those people for at least a period of time. She expressed concern that people did not know who was interested in the position. She further acknowledged receipt of letters of support for various individuals who had expressed interest. Councilmember Fahey feels that part of the public process should provide all of the names of the candidates so there is some opportunity for citizens to give direct input on any candidate, pro or con. Mayor Hall suggested that it will take some time to go through the process as there are a lot of steps to go through to fill that vacancy. She stated her right, if necessary, to vote in a tie -breaking situation. Councilmember Petruzzi indicated his understanding there was Council consensus that this procedure must be completed rather quickly. Councilmember Earling agreed with Councilmember Fahey. He recalled last time having received numerous calls so felt there must have been some opportunity for public comment. CONFIRMATION OF MAYOR'S APPOINTMENT FOR HEARING EXAMINER v Mayor Hall recited the names of the people on the selection committee as being former Councilmember Dr. Robert Anderson; Mary Lou Block, Snohomish County Executive's Office; Don Batholomaus, Edmonds Chamber of Commerce; Ken Mattson, Chairperson Edmonds Planning Commission; William Kasper, Councilmember, and Steve Bullock, Edmonds Planning Department. The field of candidates was narrowed to three, and one applicant withdrew. Council interviewed the remaining two on December 19. Mayor Hall read into the record the memorandum she had circulated to Council: I am recommending Ron McConnell to you for City of Edmonds Hearing Examiner. Based on the interviews with the Selection Committee, the interviews with City Council, my impressions, and research of this candidate, Mr. McConnell has distinguished himself from the other applicants. His record is impressive. I look forward to the same high work standard for our City. Contact persons at the cities of Kirkland and Marysville have stated complete satisfaction with his work and plan to retain him. I ask for your approval of Ron McConnell as the Hearing Examiner for the City of Edmonds. Per Chapter 10.35.010 of the Code (attached), the term for Mr. McConnell would be four years -- 1995-1998, with the first year probationary. Approved City Council Minutes December 20, 1994 Page 20 COUNCILMEMBER DAVE EARLING MOVED, SECONDED BY COUNCILMEMBER TOM PETRUZZI, FOR APPROVAL OF RON McCONNELL FOR CITY OF EDMONDS HEARING EXAMINER AS RECOMMENDED. Councilmember Dwyer indicated that while Mr. McConnell would not have been his first choice, he was going to vote in favor of the motion applying the standard he has applied before which is not a matter of whom he would choose, but whether the choice is a reasonable one and the applicant is a competent person. He feels it is reasonable, and Mr. McConnell is certainly competent. Councilmember Kasper is of the same feeling as Mr. Dwyer. He also feels Council should watch closely throughout the year to see if it incurs additional expense not having a legal person in there. Mayor Hall reminded him that the current pro-tem is not a legal person either. MOTION CARRIED. REVIEW AND APPROVAL OF PROFESSIONAL SERVICES CONTRACT WITH OGDEN MURPHY WAL11ACE FOR CITY ATTORNEY SERVICES Brent Hunter said Ogden Murphy Wallace's contract had been reviewed by Staff. He reported that the / only item of note was that the fee which was proposed exceeds the budget amount. The issue appears to be in the number of hours per month. Councilmember Petruzzi commented to Mayor Hall that 86.5 hours were covered in the budget. He noted three options: 1) transfers from the contingency fund, 2) lower the retainer, or 3) transfer from miscellaneous litigation. He asked if Mayor Hall could get by with 86.5 hours, and she believes so. She noted the cooperation of Staff and City Attorney Snyder in keeping the amount of time down. Councilmember Petruzzi asked Mr. Snyder if the reduction to 86.5 hours caused him any concern. Mr. Snyder expressed no serious concern. COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCILMEMBER BILL KASPER, FOR APPROVAL OF THE PROFESSIONAL SERVICES CONTRACT WITH OGDEN MURPHY AND WALLACE FOR CITY ATTORNEYS ' WITH THE ADJUSTMENT THAT RATHER THAN BEING 95 HOURS FOR THE RETAINER, IT WOULD BE LOWERED TO 86.5 HOURS. Council President Nordquist asked if the motion authorized the Mayor to sign the contract. COUNCILMEMBER TOM PETRUZZI AGREED TO THE INCLUSION OF AUTHORIZATION FOR MAYOR HALL TO EXECUTE THE CONTRACT. SECOND CONCURRED. MOTION CARRIED. Approved City Council Minutes December 20, 1994 Page 21 REVIEW AND APPROVAL OF PROFESSIONAL SERVICES CONTRACT WITH MUNICIPAL COURT JUDGE STEPHEN CONROY Brent Hunter called Council's attention to an error in the packets due to a miscommunication. Judge Conroy is not seeking a pay increase for this year. The contract will be the same as the previous year. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER STEVE DWYER, TO AUTHORIZE MAYOR HALL TO SIGN THE CONTRACT WITH MUNICIPAL COURT JUDGE STEPHEN CONROY. MOTION CARRIED. MAYOR HALL Mayor Hall noted she had forwarded to Council a memo received from the Sno-Isles Regional Library System. She also asked if Council had seen the flyer sent out by the man who was quite upset with Edmonds' Court and Judge. He has sent out what is believed to be about 6,000 flyers regarding the City and naming Mayor Hall, Jun Feldman, Dave Steiner and the Judge. They were getting calls from people upset because it was thought these individuals were sending them. They have had to tell these people that the flyer was not generated by the Mayor's office. Others called and were upset that this person would do this. She received a call from a person claiming to represent this gentlemen, and they are upset with the City and mainly the court for our actions, and are citing that the citizens of Edmonds must take responsibility for those actions. Mayor Hall will call this lady back even though there is uncertainty as to her actual representation of this gentleman. She will turn this over to the Police Chief. Mayor Hall wished everyone a happy holiday season. She reminded Council there was to be no meeting on December 27. COUNCII, Council President Nordquist wished everyone a Merry Christmas and Happy New Year. Councilmember Kasper also expressed his holiday wishes. He further suggested Council should look at the library as soon as possible. He noted we are at 108% for the last five years. The other thing he has been looking into is the fact that they are charging other cities fees for using our library, but he questioned whether we were getting it. He indicated they are not paying for their use of the building if they are paying the district. He feels Council needs to look at the whole aspect and meet with them, if they continue to charge the rates they are, and compare the rates of other cities. Councilmember Petruzzi wished all a Happy New Year and Meng Christmas. He also thanked a couple of gentlemen for staying so late to complete the meeting. Councilmember Hall expressed his feeling concerning the rather unique opportunity Council has to be able to wish the citizens a Merry Christmas through video capability. He also pointed out that Steve , Fisher (the Recycle Guy) is still on the move. Councilmember Hall appreciated the memorandum and Mr. Fisher's efforts on behalf of the City. He noted the curbside motor oil and used oil filter program coming up. Mayor Hall agreed that Mr. Fisher is visionary in anticipating these matters. Approved City Council Minutes December 20, 1994 Page 22 Councilmember Fahey indicated Council still needed to address the corrections to the December 8 minutes. COUNCILMEMBER BARBARA FAHEY MOVED, SECONDED BY COUNCIL PRESIDENT JOHN NORDQUIST, THAT THE CORRECTIONS TO THE DECEMBER 8 MINUTES BE INCORPORATED INTO THE DRAFT AND THE MINUTES BE APPROVED AS CORRECTED. MOTION CARRIED. Councilmember Fahey also reported the first meeting was held of the Oversight Committee for the Hotel -Motel Tax. Lots were drawn for terms, and Councilmember Fahey has one of the two-year terms. She said it will be an interesting year because they have already started rankling on who is going to get the right to make the requests and how the two-thirds of the pie will be divided. They will be meeting twice a month for the next couple of months or until they get a few things ironed out, they have a chance to review the proposals and requests that have come forward for the 1994 monies, and also determine whether the 1995 monies will be totally allocated at the end of 1995 or allocated on a quarterly basis as they come in from the tourist industry. In discussing Christmas, Councilmember Fahey wished everyone to know that the City and the staff of the City did a giving tree, contributing presents for 136 families through Catholic Community Services and for 30 children and families at Pathways for Women. She applauded the efforts of the City in bringing that about. She noted there were a few tags left, primarily for small items for infants (blankets, snugglers, etc.), and donations would gladly be accepted. Barbara Mehlert, Council Assistant, has volunteered to do the shopping to finish up the gift list. Should a citizen decide they wish to help, they can contact the City on Wednesday and either make a donation or bring an item to help cover those needs. She extended Merry Christmas wishes to all and expressed her thanks for getting her through her first year on the Council. She looks forward to her three more years. Mayor Hall added comment on the giving trees. Councilmember Earling thanked the Council for their support in regard to the RTA proposal. There were six hours of hearings last week. He further thanked Councilmember Fahey for coming to the meeting and reading into the record the resolution of the Edmonds City Council. Councilmember �- Earling also thanked the cities and towns of Woodway, Edmonds, Mountlake Terrace, Lynnwood and Mill Creek who passed resolutions encouraging the County Council to stay at the table so we are part of this process and to take the issue to a vote of the people. He also expressed thanks to the County Council for their vote, recognizing it was a struggle for them as they were the smallest of the three counties participating. There were challenges to be examined that perhaps the other two counties did not have. He is encouraged by the three counties moving forward. He wished all a Merry Christmas. Councilmember Dwyer wished everyone a Merry Christmas and Happy New Year. He also wished Dave and Susan Earling well on their notable anniversary next Tuesday. There being no further business to come before the meeting, the meeting was adjourned at 10:32 p.m. THE ORIGINAL SIGNED COPY OF THESE MINUTES, AS WELL AS A TAPED RECORDING OF ALL COUNCIL MEETINGS CAN BE LOCATED IN THE CITY CLERK'S OFFICE. .� 1. 1 1� `�. . 1 1 Approved City Council Minutes December 20, 1994 Page 23 DECEMBER 20, 1994 CALL TO ORDER - 7:00 P.M. FLAG SALUTE EXECUTIVE SESSION ON LEGAL MATTERS 1. APPROVAL OF AGENDA 2. CONSENT AGENDA ITEMS (30 MINUTES) (A) ROLL CALL (B) APPROVAL OF SPECIAL MEETING MINUTES OF DECEMBER 8, 1994 (C) APPROVAL OF SPECIAL MEETING MINUTES OF DECEMBER 12, 1994 (D) APPROVAL OF MINUTES OF DECEMBER 13, 1994 (E) APPROVAL OF CLAIM WARRANTS #945934 - #946394 FOR WEEK OF DECEMBER 12, 1994 (F) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM BARRY BIRCH ($145.74) (G) REPORT ON FINAL CONSTRUCTION COSTS FOR THE 1994 WATERLINE REPLACEMENT PROGRAM AND COUNCIL ACCEPTANCE OF PROJECT (H) REPORT ON FINAL CONSTRUCTION COSTS FOR THE LIBRARY BRICK WASH AND SEAL PROJECT AND COUNCIL ACCEPTANCE OF PROJECT (1) REPORT ON FINAL CONSTRUCTION COSTS FOR THE ANDERSON CENTER BOILER REPLACEMENT PROJECT AND COUNCIL ACCEPTANCE OF PROJECT (J) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACTS WITH MUNICIPAL COURT JUDGE PRO TEMS KATHLEEN FIELD AND KRISTEN ANDERSON (K) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH DAVID STEINER FOR PROSECUTOR SERVICES (L) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JAMES FELDMAN FOR PUBLIC DEFENDER SERVICES (M) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JOHN GALT, HEARING EXAMINER PRO TEM (N) ACCEPTANCE OF UTILITY EASEMENTS FROM THE ELM PLACE HOMEOWNERS' ASSOCIATION, M.D. FREEDMAN, AND JANIS AND MAIJA RIEKSTINS FOR THE REPLACEMENT OF LIFT STATION NO. 6 (0) APPROVAL OF CONSULTANT AGREEMENT AND FUNDING FOR CABLE TELEVISION FRANCHISE RENEWAL SERVICES CONSENT AGENDA CONTINUED ON PAGE 2 EDMONDS CITY COUNCIL AGENDA DECEMBER 20, 1994 PAGE 2 (P) PROPOSED ORDINANCE AMENDING EDMONDS CITY CODE, REPEALING SECTION 2.05.010(B) RELATING TO TERMINATION OF THE CITY ATTORNEY, AND PROVIDING FOR TERMINATION IN CONTRACT NEGOTIATION (Q) REPORT ON INFORMAL QUOTATIONS AND AUTHORIZATION FOR PURCHASE OF A LEAF TRUCK LOADER FROM EMPIRE EQUIPMENT ($2,379.32) (R) PROPOSED ORDINANCE ADOPTING ALTERNATIVE LEGAL DESCRIPTION OF PROPERTY ANNEXED BY ORDINANCE 2997 TO CLARIFY THE BOUNDARIES DUE TO A SCRIVENER'S ERROR IN A DESCRIPTION APPROVED BY SNOHOMISH COUNTY 3. AUDIENCE 4. (50 Min.) HEARING ON APPEAL OF HEARING EXAMINER'S DECISION TO GRANT APPROVAL OF A VARIANCE TO INCREASE THE MAXIMUM PERMITTED HEIGHT FOR STRUCTURES AT PROPERTY AT 7222 156TH ST. S.W. (APPLICANT: CRAIG & LINDA SUMMERS - FILE NO. V-94-156 / APPELLANT MICHAEL HOUNSHELL, ET AL - FILE NO. AP-94-179) [Rescheduled from 11115194] 5. (5 Min.) APPROVAL OF 1995 EQUIPMENT RENTAL RATES 6. (5 Min.) PROPOSED ORDINANCE ADOPTING 1995 BUDGET 7. (5 Min.) PROPOSED ORDINANCE AMENDING THE 1994 BUDGET AS A RESULT OF UNANTICIPATED TRANSFERS AND EXPENDITURES OF VARIOUS FUNDS 8. (10 Min.) DISCUSSION OF MEMORANDUM FROM PLANNING MANAGER REGARDING LAND USE CONCEPTS AND MASTER PLANS (rH►s Is INTENDED TO BE ONLY A QUESTION AND ANSWER DISCUSSION) 9. (20 Min.) DISCUSSION ON COUNCIL VACANCY REPLACEMENT PROCESS 10. (5 Min.) CONFIRMATION OF MAYOR'S APPOINTMENT FOR HEARING EXAMINER 11. (5 Min.) REVIEW AND APPROVAL OF PROFESSIONAL SERVICES CONTRACT WITH OGDEN MURPHY WALLACE FOR CITY ATTORNEY SERVICES 12. (5 Min.) REVIEW AND APPROVAL OF PROFESSIONAL SERVICES CONTRACT WITH MUNICIPAL COURT JUDGE STEPHEN CONROY 13. (5 Min.) MAYOR 14. (15 Min.) COUNCIL Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at 771-0245 with 24 hours advance notice for special accommodations. The Council Agenda appears on Chambers Cable, Channel 32. Delayed telecast of this Meeting appears the following Wednesday evening at 7.00 p.m. on Channel 36, and the following Friday and Monday at noon on Channel 32.