09/27/2005 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES
September 27, 2005
Following a Special Meeting at 6:45 p.m. for an Executive Session regarding a real estate matter, the
Edmonds City Council meeting was called to order at 7:03 p.m. by Mayor Haakenson in the Council
Chambers, 250 5f' Avenue North, Edmonds. The meeting was opened with the flag salute.
ELECTED OFFICIALS PRESENT
Gary Haakenson, Mayor
Jeff Wilson, Council President Pro Tem
Michael Plunkett, Councilmember
Mauri Moore, Councilmember
Peggy Pritchard Olson, Councilmember
Dave Orvis, Councilmember
Deanna Dawson, Councilmember
ELECTED OFFICIALS ABSENT
Richard Marin, Council President
ALSO PRESENT
Molly Thomson, Student Representative
1. APPROVAL OF AGENDA
STAFF PRESENT
David Stern, Chief of Police
Duane Bowman, Development Services Director
Dan Clements, Administrative Services Director
Brian McIntosh, Parks and Recreation Director
Rob Chave, Planning Manager
Darrell Smith, Traffic Engineer
Dave Gebert, City Engineer
Frances Chapin, Cultural Services Manager
Scott Snyder, City Attorney
Sandy Chase, City Clerk
Jana Spellman, Senior Executive Council Asst.
Jeannie Dines, Recorder
COUNCIL PRESIDENT PRO TEM WILSON MOVED, SECONDED BY COUNCILMEMBER
MOORE, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY.
2. CONSENT AGENDA ITEMS
COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCIL PRESIDENT PRO TEM
WILSON, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED
UNANIMOUSLY. The agenda items approved are as follows:
(A) ROLL CALL
(B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF SEPTEMBER 19, 2005.
Approve Claim (C) APPROVAL OF CLAIM CHECKS #82476 THROUGH #82620 FOR THE WEEK OF
Checks SEPTEMBER 19, 2005, IN THE AMOUNT OF $297,211.73. APPROVAL OF PAYROLL
DIRECT DEPOSITS AND CHECKS #41742 THROUGH #41872 FOR THE PERIOD
Claim for I SEPTEMBER 1 THROUGH SEPTEMBER 15, 2005, IN THE AMOUNT OF $924,576.78.
Damages
(D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM CHRIS SKURSKI
Resg 1107 — ($645.99).
Set Hearing for
portion of 8rh (E) RESOLUTION NO. 1107 ESTABLISHING A HEARING DATE FOR A STREET
Ave. N. Street VACATION FOR A PORTION OF 8TH AVE. N. BETWEEN SPRAGUE AND DALEY ST.
Vacation
(FILE NO. ST- 05 -69)
Ord# 3563
Public Facilities (F) ORDINANCE NO. 3563 - PUBLIC FACILITIES DISTRICT LOAN GUARANTEE.
District Loan
Guarantee
Edmonds City Council Approved Minutes
September 27, 2005
Page 1
Arts &
Humanities 3. PROCLAMATION IN RECOGNITION OF OCTOBER AS NATIONAL ARTS & HUMANITIES
Month MONTH
Mayor Haakenson read a proclamation declaring October as National Arts and Humanities Month. He
presented the proclamation to Arts Commission members Leigh -Ann Hafford, Pam Harold, and Julie
Long. On behalf of the citizens of Edmonds, Ms. Hafford expressed thanks to the Council for their
support and she looked forward to seeing Councilmembers at arts events during Arts & Humanities
Month.
4. AUDIENCE COMMENTS
Parking to the Joyce Settergren, Edmonds, expressed her support for the proposed three hour parking limit on 4th and
Main. She described the existing situation where vehicles including ferry commuters could occupy
parking spaces in front of her building for days. She noted even when vehicles' tires were chalked by the
Police Department in response to residents' complaints, cars were often only moved a few car lengths.
Former x -Mart I Al Rutledge, Edmonds, referred to the former K -Mart property and Wal -Mart's interest in the property,
Property
recommending the City adopt a policy establishing a period of time for large corporations to purchase
property.
Variance Cod,71 Roger Hertrich, Edmonds, commented the most abused section of the variance code was self - creation.
Although the Code did not permit a variance to be granted for a situation the owner created, this was often
abused/overlooked by the Hearing Examiner. He encouraged the Council while they were considering
variances to also study the nonconforming section of the Code to provide residents an opportunity to
preserve historic buildings instead of demolishing them. With regard to the parking code and the
expansion of the 3 -hour limit, he noted the reduction in parking requirements for multi family and mixed
use zones made those developments less expensive for the developer but the resulting parking shortage
forced more parking onto the streets and increasing parking problems. He concluded the request to
expand the 3 -hour parking zone illustrated there was a problem.
Changes to the 5. CONTINUED CITY COUNCIL DELIBERATION ON PROPOSED REVISIONS TO THE
Parking Code PARKING CODE
Traffic Engineer Darrell Smith advised staff had made grammatical edits to the Parking Code as
suggested by City Council. He requested Council direction on the following issues:
• The number of on- street disability parking stalls in the downtown area.
• Whether there should be a disability parking stall on Main Street.
• Whether the fire zone parking violation should be increased and if so, by how much.
• Whether the 3 -hour parking should be expanded around the Frances Anderson Center
He explained the Parking Committee which consists of citizens, staff and members of the Police
Department, plans to continue monitoring parking impacts of the Perfonning Arts Center, reassess the fee
structure for various parking violations, consider restricting residential parking permits along Main Street
and 5th Avenue, and assess citizen and business requests for improved parking.
Councilmember Plunkett recalled some of the questions the public posed at the previous meeting were
answered by staff in the packet. He recalled there were also long -term issues identified that needed
further discussion which were deferred to the Parking Committee. Mr. Smith answered those issues were
not addressed in the proposed revisions to the Parking Code. The response to the questions posed at the
public hearing were available by contacting him.
Edmonds City Council Approved Minutes
September 27, 2005
Page 2
City Attorney Scott Snyder commented neither Mr. Smith's nor his research of federal regulations could
identify a parking standard for on- street disability parking stalls. He agreed the City had a duty under
federal law to make changes in its programs and practices as were necessary to accommodate the disabled
and provide equal access to City services. For individuals who encounter difficulties, he pointed out the
City had a process to make changes to address individual issues. If the Council found a particular issue
was not being addressed, it should be identified and referred to the Parking Committee for review.
Councilmember Plunkett inquired about the Parking Committee's recommendation regarding the number
of on- street disability parking stalls. Mr. Smith answered staff and the Parking Committee recommended
adding 7 new stalls to the existing 12 that were designated but not codified. Mr. Snyder pointed out with
an appropriate placard, a disabled person was not subject to parking ordinances and could park anywhere
(except a fire lane /zone) for an unlimited amount of time without danger of being ticketed. The
discussion tonight was related to dedicated disability parking spaces.
Councilmember Orvis asked whether a vehicle displaying a placard could park in a loading zone. Mr.
Smith answered they could parking in 5 and 15 minute parking zones but not truck loading zones or fire
zones /lanes.
For Council President Pro Tem Wilson, Mr. Smith explained there were 12 existing, designated disability
parking stalls but they may not meet current standards such as grade, sign, pavement marking, etc.
Council President Pro Tem Wilson inquired about the disability parking stall in front of City Hall, noting
it likely would not meet ADA standards due to the slope. Mr. Smith responded there were plans to
relocate that space closer to the front door in an area with less of a cross - slope. He noted there were also
plans to modify other disability parking spaces as well as move a space on Dayton closer to the curb ramp
to provide for better accessibility.
Council President Pro Tem Wilson inquired about the usage of the existing 12 spaces. Mr. Smith
responded staff had no inventory information. Council President Pro Tem Wilson supported adding more
disability parking spaces, recalling the difficulty he experienced while he was on crutches finding an
accessible parking space. He noted the creation of additional opportunities for disability parking in the
downtown was supportive to businesses as well as supportive of residents with disabilities. He noted the
committee recommended an additional seven spaces and staff recommended an additional four. Mr.
Smith recalled there was consensus by the Parking Committee and positive feedback from the business
community to add four disability parking spaces downtown. Since that time, certain businesses in the 5th
Avenue corridor have described a need for additional disability parking stalls, thus the addition of three
more spaces. Council President Pro Tem Wilson asked whether four spaces could be added now and
more added later. Mr. Smith agreed that would be possible.
Mr. Smith displayed a map, identifying the existing 12 disability parking spaces and the 7 proposed
spaces and a 300 -foot radius around each, a common distance for accessibility.
Councilmember Dawson asked whether there was a recommended location for a disability parking stall
on Main Street. Mr. Smith recommended it be on the south side of Main between 5th Avenue and the
alley. Councilmember Dawson supported the addition of a disability parking space on Main, commenting
it would send a positive message about the City's accessibility.
Ord# 3564 - COUNCILMEMBER DAWSON MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR
Changes to the
Parking Code APPROVAL OF ORDINANCE NO. 3564 WITH AN AMENDMENT TO ADD THE DISABILITY
PARKING STALL AS DESCRIBED BY MR. SMITH (ON THE SOUTH SIDE OF MAIN
BETWEEN 5TH AVENUE AND THE ALLEY).
Edmonds City Council Approved Minutes
September 27, 2005
Page 3
Councilmember Moore supported the Parking Committee studying expansion of the 3 -hour parking near
Frances Anderson Center and increasing the fire zone parking violation. Mr. Smith noted the Parking
Committee planned to consider the fee structure for various parking violations.
Councilmember Plunkett expressed his support for the motion and for the Parking Committee and Parks
and Recreation Director continuing to monitor the voluntary program where staff parked further away
from the Frances Anderson Center.
Councilmember Dawson also supported increasing the fine for parking in a fire zone as well as for other
parking violations. She cautioned there was an appropriate level for fines — high enough that it prevents
people from the violation but low enough that everyone didn't challenge the ticket. She thanked Ms.
Hahn for her excellent grammatical and language suggestions.
Councilmember Plunkett expressed his thanks to Karen Wiggins, Chair of the Parking Committee, for her
assistance with developing the revisions to the Parking Code.
Councilmember Olson asked whether a Parking Enforcement Officer had been hired. Police Chief Stern
advised the Parking Enforcement Officer started September 16 and was undergoing training now and
would be providing enforcement soon.
Variances 6.
MOTION CARRIED UNANIMOUSLY.
DISCUSSION REGARDING VARIANCES
City Attorney Scott Snyder explained the concept of variances was a recognition of 1) it is virtually
impossible to craft a zoning ordinance that addressed every situation thus the variance process, and 2) if a
city's zoning ordinance destroyed the economic value of a property, the city purchased it. Therefore,
from a takings point of view, the variance process was important as a risk management tool. The
principles with regard to variances are that it must be fair and assist citizens with situations they did not
create and be the minimum legally necessary to prevent the destruction of the value of the property. For
the most part, that meant allowing someone to build a residential house — not necessarily the house of
their dreams — but something that allowed the property owner to recapture the value of the property.
Mr. Snyder explained another basic concept was that a variance should not be spot zoning. One of the
reasons for restrictions on variances was to maintain it as a tool to prevent unfair hardship and preserve
the minimum value of a property and not a tool that allowed someone to leverage rights their neighbor did
not have. He explained to avoid spot zoning, the right granted to a citizen via a variance did not change
the zoning category of the property, only adjusted some of the bulk standards.
Mr. Snyder advised Edmonds' variance ordinance was enacted in the 1980's as a very restrictive form of
this tool. At that time, the city made a variety of changes in the zoning code and both the nonconforming
use provisions and the variance provisions were crafted very tightly, intended over time to phase out all
the nonconforming uses and push people, as infill development occurred, into the concepts that the new
ordinance contained. However, a great deal had changed since 1980 such as the Growth Management Act
(GMA) that encouraged infill development; to reduce sprawl, the City was required to accept increasingly
greater densities. Therefore, because the easy lots have been developed, most development was occurring
in what was formerly someone's backyard, the vacant lot at the corner where neighborhood children used
to play, etc. He concluded as crafted in the City's ordinance, variances should rarely be granted, should
be granted only to the absolute minimum necessary to avoid destruction of the property's value, and was
not intended to be based on factors personal to the owner. He cited a case pre -ADA where a woman
needed changes to accommodate her sister's disability, however, the variance process was not an
Edmonds City Council Approved Minutes
September 27, 2005
Page 4
appropriate mechanism to grant the change because variances run with the land and changed the
property's character in perpetuity.
Mr. Snyder summarized a variance is a) related to the physical characteristics of specific property (size,
topography, location, critical area), and b) avoids total destruction in value. A variance is not, a) related
to limitations common to an entire neighborhood, b) based on factors personal to the owner (age, income,
desire to make a profit or avoid expense, ability to get financing, taste /design), and c) self - created
hardship (by the applicant). He noted if due to lending ratios, the value of the lot required a certain type
of house be built to obtain financing, that may not be personal to the owner. He noted lending ratios had
also changed. In 1960 the average value of a lot to structure value in Washington was 10 %; today it can
be 50% or more.
Mr. Snyder explained a variance was not a special privilege and was intended to be the minimum
necessary. To this end, it avoided a spot zone, complied with Comprehensive Plan and Zoning Code
(permits bulk variances — setback, building envelope and prohibits use variances — how you use a
property), and could not be based on nonconforming uses in a zone. He explained this may arise in
annexed areas where a property owner requests a variance for something a neighbor was allowed. He
concluded variances were to be the minimum necessary and avoid total destruction in value.
Mr. Snyder noted the reality for the Council and Hearing Examiner was it was difficult to say no to a
variance request when no one objected. However, this creates the problem of creeping variances. He
pointed out the Board of Adjustments was abolished because it was felt to be too loose a process.
Mr. Snyder commented if the Council was uncomfortable with denying variance requests and believed
GMA would over time force the City to find creative ways to develop problem lots, the Council may want
to consider methods other than variances.
In determining whether variances were the right tool, he suggested the Council consider changes in the
landscape including infill and required GMA densities, land values and lending ratios, annexations in
South Edmonds, takings law and the critical areas ordinance. He pointed out Planned Residential
Developments (PRDs) allow creative use of sub - dividable parcels; a variance was not the equivalent for a
single lot. If variances were not the right tool, options include making variance criteria user friendly,
authorizing use variances (which Mr. Snyder did not recommend), use conditional use permits, use
special use permits, or allow exchange of use rights /performance zoning (an entirely different approach to
zoning).
Mr. Snyder reviewed a case study which he referred to as the Sunset Avenue problem, an area with
Edmonds characteristics that had a look that people liked and wanted to preserve but was not historic.
Due to lending ratios, there was a tendency to demolish a smaller house or purchase two lots and build a
"mega house." It would be preferable to coordinate the nonconforming use provisions and variance
provisions to allow historic structures and perhaps a designed neighborhood more flexibility. Using the
Sunset house as an example, he referred to disincentives in the nonconforming use provisions for
preserving smaller houses. He noted the ADB process was currently limited to commercial structures; the
Council may want to consider creating new rules via the ADB and the Historic Preservation Commission
to allow variances for historic structures so that those structures could be preserved. The Council may
also want to consider allowing variances for setbacks, lot coverage, etc. in specific neighborhoods whose
character they want preserved. The historic preservation ordinance did a good job of preserving historic
structures but if houses that were not yet historic were not preserved, they would never become historic.
He noted these may not be extraordinary houses but houses that were part of the local vernacular.
Edmonds City Council Approved Minutes
September 27, 2005
Page 5
Mr. Snyder summarized the city's variance ordinance was very restrictive and consideration should be
given to whether it was the tool the Council wanted. If the ordinance was applied as written, few
variances would be granted and only when the value of property was about to be destroyed and it would
be granted to the minimum necessary to prevent destruction. If that was not how the Council wanted
variances to be applied, he recommended not granting variances on a lack -of- objection approach, if the
Council did not want to deny variances, he recommended the rules be changed. However, if the Council
wanted to apply the ordinance as written, the Council needed to be prepared to say no.
For Councilmember Plunkett, Planning Manager Rob Chave agreed nonconforming homes on the
Edmonds Register of Historic Properties could be rebuilt if damaged. Councilmember Plunkett suggested
the Historic Preservation Commission consider Mr. Snyder's suggestions with regard to nonconformity.
Councilmember Plunkett referred to the comment that there was abuse occurring with regard to self -
creation and asked whether that was actually occurring and if so, was it due to code inadequacies or
inaccurate interpretation. Mr. Snyder read a quote from McQuillin, Municipal Corporations, 3rd Edition
Revised, §25.159 citing Williams, The American Land Use Planning Law, "Although many zoning acts
and ordinances expressly distinguish between use variances and non -use or area variances, the distinction
is becoming increasingly difficult to administer. The same has been said with regard to the distinction
between unnecessary hardship and practical difficulty as appropriate standards to guide local officials in
granting such variances." He noted the remainder of the article makes the point regarding the difficulty
with saying no. He noted what Edmonds was experiencing was the same as other communities
experience, it was difficult to say no to something that caused very little harm, however, variances by
their nature were a creeping tool. He concluded there was not systematic or widespread abuse, it was a
natural outgrowth of it being difficult to say no to people not intending to do harm.
Councilmember Plunkett asked whether the answer to a natural outgrowth was via the code or the
interpretation of the code. Mr. Snyder emphasized there was no way to make the City's code more
restrictive other than a preamble that stated variances were very difficult to obtain and should only be
granted in very limited circumstances. If the Council wanted to continue to be restrictive, he suggested a
rededication by the Council and staff to that principle and the Council emphasizing that message to the
Hearing Examiner during his annual report. He explained staff indicated they make it clear to property
owners inquiring about variances that they were difficult to obtain. Mr. Chave estimated only one in 3 -4
property owners inquiring about variances actually applied.
Mr. Chave commented staff did not judge variance applications on whether they would be controversial.
What made variances difficult was the combination of the old code and GMA goals because some goals
in the Comprehensive Plan are contrary to the variance criteria. He suggested making the variance
criteria and other rules in the code more congruent with the goals of the Comprehensive Plan.
Mr. Snyder commented the critical area process and PRDs provide flexibility during development of
multiple lots, however there was no equivalent tool for individual lots, the areas currently being
developed in the City.
Councilmember Orvis referred to the use of tools other than the variance process, commenting he liked
the PRD idea. He noted the City could change the code to allow more flexibility. Mr. Snyder noted
whatever tool that was used as an alternative to the variance process would need to include a public
hearing process.
Councilmember Orvis commented one concern he had with making the variance criteria less restrictive
was that the variance process applied to nearly every development standard. Mr. Snyder pointed out the
City had been experiencing infill but some neighborhood would soon experience redevelopment. He
Edmonds City Council Approved Minutes
September 27, 2005
Page 6
noted there may be neighborhoods whose character the Council may want to preserve via design
flexibility. He suggested a dialogue between the ADB and Historic Preservation Commission to consider
what neighborhoods may be appropriate or neighborhoods could be invited to apply. He noted the
Council may also want to consider providing some flexibility in neighborhoods that have been annexed.
Council President Pro Tern Wilson commented although the discussion thus far had been regarding single
family houses, variances were applicable to commercial, multi family, signs, etc. If the Council wanted
to craft an alternative tool, he asked whether it could be more restricting in some zones and flexible in
other zones such as to promote single family residences and preserve the single family housing stock.
Mr. Snyder commented there could be different tools and criteria applicable to different situations. He
noted it would be important to establish a constitutionally valid rational purpose, a legislative purpose, for
what the Council was trying to achieve.
With regard to retaining the character of certain neighborhoods such as Sunset, Council President Pro
Tern Wilson asked whether that same approach could be taken to affordable housing to provide
flexibility, such as a number of smaller structures within a constrained area, to reduce the cost of housing.
He asked whether that could be done via the variance process or a new tool. Mr. Snyder answered it
likely would be a combination. He commented a restrictive application of the variance criteria would
result in the creation of affordable housing because instead of a large house with a view, there might be
two cottages in areas that are difficult to develop. He recalled a recent case in another city where a
neighbor was complaining about a small house being built in their neighborhood because it was not large
enough to fit with the neighborhood.
Council President Pro Tem Wilson commented on competing interests of GMA, critical areas and zoning
standards. He noted a variance must meet all the criteria in order to be approved and although the criteria
may be inconsistent with the goals of the Comprehensive Plan, an applicant must meet the criteria in their
entirety in order for a variance to be granted. He noted it may be necessary to restate that message to the
Hearing Examiner. He recalled a situation in another city where an elderly lady who requested a variance
was denied by the Hearing Examiner because her request did not meet the criteria, yet the Council
approved the variance because they did not want to deny the elderly lady. He reminded the Council that
their application of the variance criteria must also be consistent.
With regard to the mega house concept, Council President Pro Tern Wilson asked whether the City had
the tools to cap lot consolidations to preclude mega houses. Mr. Snyder answered the City did not.
Council President Pro Tern Wilson asked whether the City had the ability to create those tools based on
GMA and the need to preserve density within the City as consolidation would result in the loss of one
dwelling unit and would it be defensible. Mr. Snyder answered Gig Harbor adopted unique provisions in
its code that capped the size of homes by square footage. He noted it would require a good legislative
record and GMA compliant goals.
Councilmember Dawson expressed her thanks to Mr. Snyder for the information he provided in the
packet and hoped it would be shared with the Hearing Examiner. She expressed frustration, not that the
variance process was too restrictive, but that variances were being granted because no one objected and
the affect of that was additional variances. She preferred the variance ordinance be strictly enforced as
written, commenting it would be interesting to observe the affect that would have. She envisioned that
strictly enforcing the variance criteria would result in smaller houses that conformed to critical areas. She
also expressed interest in tools to preserve the existing housing stock and existing neighborhoods. There
are many neighborhoods whose character residents want to preserve. Further, many people in the
community were interested in preventing the spread of "McMansions" even without variances.
Edmonds City Council Approved Minutes
September 27, 2005
Page 7
Councilmember Dawson referred to an article in last month's issue of Metropolitan Home regarding a
town in Florida concerned with "McMansions" who wanted to preserve the single family character of
their neighborhood. This neighborhood purchased a lot, held a contest for design of the home, and later
built and sold the home. She expressed interest in tools for preserving non - historic homes with
architectural significance. Mr. Snyder commented the Historic Preservation Commission could offer
insight into neighborhood they found worthy of preservation and the ADB could also be asked to provide
their input. He noted one tool may be to allow staff approval for construction in certain neighborhoods
that adhered to criteria for that neighborhood and require anything else to go through a variance process.
Councilmember Dawson noted there were two issues, neighborhood preservation and critical area
preservation. In neighborhoods with critical areas, the character of the homes may be due to their effort
to preserve the critical area via smaller homes with larger setbacks, etc. The residents of these
neighborhoods were concerned that new development did not follow the same rules they followed in the
development of their homes.
Councilmember Dawson supported strictly enforcing the variance ordinance and not granting variances
except when warranted by law. Until the City's existing variance criteria was strictly enforced, she noted
it would be difficult to determine whether it was an appropriate tool.
Mr. Snyder explained the Hearing Examiner made his decision based on the record. Frequently a
developer or person seeking the variance developed a package, however, the neighborhood, although
upset by the proposal, did not offer substantial and competent evidence. He suggested the Council may
want to consider including additional funds in the Development Services budget for additional expert
testimony to assist residents in creating a record.
Councilmember Dawson commented it was the Council responsibility to inform the Hearing Examiner
how to interpret the ordinances. If the ordinances were being interpreted in a manner the Council found
objectionable, the Hearing Examiner needed to be informed.
Mayor Haakenson suggested the Hearing Examiner's annual report in November would be an opportunity
for the Council to discuss enforcement of the variance ordinance.
Councilmember Orvis suggested the information in the packet be incorporated into the code. Mr. Snyder
suggested the variance ordinance be amended to add a preamble that stated the variance ordinance was to
be strictly construed to achieve its purpose — avoiding total destruction of a property's value — and that
variances were to be rarely granted.
Councilmember Olson referred to GMA and the fact that the only lots remaining to be developed were
infill. She inquired whether a Conditional Use Permit could be used to provide flexibility for infill
development. Mr. Snyder answered that was a policy decision for the Council. The City was currently
meeting its density /population guidelines. If the Council was not comfortable with the restrictive nature
of the variance ordinance, the Council may wish to develop a more creative tool akin to PRD regulations.
Mr. Chave commented the biggest problem with the variance criteria and how they were applied was
because in many situations it was the only "out" to the existing conflicts in the Code. The City's
subdivision ordinance was old and had not been updated to reflect the realities of development today.
The Planning Board was currently considering setbacks as most variances were in regard to setbacks from
critical areas. With regard to the Critical Areas Ordinance, he recommended "reasonable use" be defined
as the ordinance was silent on that issue.
Mayor Haakenson declared a brief recess.
Edmonds City Council Approved Minutes
September 27, 2005
Page 8
7. DISCUSSION OF THE ISSAQUAH ORDINANCE REGARDING SEX OFFENDERS
Issaquah
Ordinance re:
seX oreenaers Mr. Snyder explained the Council asked him to consider enacting an ordinance generally in the format of
Issaquah's community protection zones. Many states have enacted community protection zones and they
have been challenged in two federal circuits and upheld. Most of the constitutional challenges have been
held in favor of laws of this sort. The concept was that there were certain triggers /targets such as schools
or parks near which registered sex offenders should not be permitted to reside. The State of Washington
recently enacted an 880 -foot community protection zone around schools. As part of that legislation, the
legislature commissioned a task force report on the effectiveness of the State law and whether additional
provisions should be enacted. That report is scheduled to be provided on December 1, 2005.
Mr. Snyder reported Issaquah passed an ordinance modeled on those in other states, enacting an
additional community protection zone. Ordinances of that sort on a facial attack (the ordinance is
unconstitutional on its face) have an excellent chance of being upheld. However, the other portion of a
potential challenge may be more problematic — whether or not the ordinance conflicts with or is
preempted by State law. In order to lay the appropriate basis for this type of legislation; an ordinance
must not attempt to restrict individuals from residing in the community. Issaquah conducted a planning
process to ensure their ordinance did not exclude registered sex offenders from their community as a
whole.
He explained Issaquah's ordinance has been challenged by the American Civil Liberties Union. The
temporary restraining order was denied and a preliminary injunction was denied on the basis that they did
not appear to have a reasonable likelihood of prevailing. He noted summary judgment motions were
scheduled for December 16, 2005 which would likely cover the facial invalidity portion. The as- applied
argument, that an ordinance was unconstitutional as applied, would likely survive for a later trial. He
noted Issaquah felt a trial by jury on these issues would be in their favor. He concluded in order for
Edmonds to enact its own ordinance would require a good legislative foundation to determine what
community protection zones would look like and what areas would remain. If the City enacted an
ordinance, it would be buying into a lawsuit along with Issaquah. Because the State planned to make a
recommendation by December 1 that may change the rules, it may be preferable to allow the State to
enact regulations. He referred to Iowa's enactment of very expansive community protection zones which
effectively excluded registered sex offenders from small towns but because it was done on a State -wide
basis, there were other places for registered sex offenders to live within the State.
Mr. Snyder suggested this issue be discussed with the Association of Washington Cities (AWC); if the
State enacted extensive, significant community protection zones, it would be difficult to site a facility in
Edmonds. He recalled with regard to Secure Community Transition Facilities, the City determined it was
not worthwhile to enact regulations because there were very few places under the criteria where such a
facility could be located. He pointed out Issaquah had discovered in the rush to adopt an ordinance, there
were questions not addressed in their ordinance. These included their assumption that conditions were
imposed on registered sex offenders upon sentencing and although they sometimes were, local law
enforcement could change the conditions via an administrative process. Another issue Issaquah did not
anticipate was how to address registered sex offenders who were homeowners or juvenile registered sex
offenders returning to a parent's home.
Planning Manager Rob Chave displayed a map illustrating an 880 -foot buffer around school sites, parks
and recreation facilities, daycare facilities licensed by the City, and churches. He concluded although
much of the City was eliminated via the buffer areas, there were areas spread throughout the city where a
registered sex offender could reside. He displayed a map illustrating a 1000 buffer, noting there was little
difference in the pattern with an 880 -foot or a 1000 -foot buffer He advised with an 880 -foot buffer, 21%
of the City was outside the buffer and available; a 1000 -foot buffer reduced the available area of the City
Edmonds City Council Approved Minutes
September 27, 2005
Page 9
to 15 %. He questioned the logic for an 880 -foot buffer, commenting most planning numbers were
associated with a reasonable walking distance such as 1/4 mile; 880 feet was 1 /6`h of a mile, an easily
walkable distance that provided little protection. He agreed with Mr. Snyder it may be preferable for the
City to lobby AWC for a larger buffer that protected a larger area.
Councilmember Dawson asked whether the maps identified school bus stops. Mr. Chave answered they
did not. He advised the map also did not identify private amusement facilities. Councilmember Dawson
asked whether the State included school bus stops. Mr. Snyder recalled the State did consider school bus
stops as an area to be buffered from a Secure Community Transition Facility and he hoped the same
would be done when the legislature reviewed this issue. He noted the addition of school bus stops would
likely not leave any areas in the City where a registered sex offender could live.
Mr. Snyder explained the purpose of the ordinance was not to exclude registered sex offenders from the
community but to create zones around vulnerable children and critical areas. The purpose of staff's
analysis was to determine whether the City could craft an ordinance that would pass judicial scrutiny
based on the federal precedence. He noted if the City adopted an ordinance and the State changed the
rules, the City may have bought into a lawsuit. He estimated the cost of winning such a lawsuit at
$50,000 - $200,000 over a four year period and 2 -3 times that if the City lost. He recommended the
Council do the preliminary work to develop an ordinance, follow what the State did and the decision in
the Issaquah case. If those were not acceptable, the City would be prepared to enact an ordinance.
Mr. Snyder cautioned this would not be a zoning ordinance and there was no grandfathering. Therefore,
significant issues would need to be addressed such as registered sex offenders who were homeowners and
juveniles returning to a parent's home.
Council President Pro Tem Wilson inquired whether a map with buffers would be adopted with an
ordinance. Mr. Snyder responded the City would need to have a legislative record establishing that the
Council was enacting a police power protection for citizens and not trying to exclude people from the
community. Mr. Chave noted locations of schools, daycare facilities, etc. would also need to be tracked
over time. Council President Pro Tem Wilson commented school bus stops change annually which would
require the City to work closely with the school district to ensure the locations were accurate. Mr. Snyder
agreed there were significant issues that would need to be addressed in the drafting process of an
ordinance. He noted another issue would be how to address a registered sex offender who was directed to
live in a certain location.
Mr. Snyder recommended waiting to see what the State did and what the judge did with regard to the
Issaquah case. He noted the action taken by the State was a very narrow provision, somewhat of a band -
aid approach, as 880 feet around only schools left numerous other locations where there were vulnerable
children. Mr. Snyder encouraged daycare facilities to obtain licenses with the City.
Council President Pro Tem Wilson concluded although he wished the City could do something right
away, he appreciated the advice provided by Mr. Snyder. He suggested the City offer their moral support
to Issaquah, finding it prudent to wait for the State to take action and for the City to lobby AWC and
appropriate State representatives to strengthen the regulations to include additional facilities.
Councilmember Moore concurred with Council President Pro Tem Wilson, commenting by waiting the
City was likely to get something better that protected the community long term.
As the area's elected official on the AWC Policy Board, Mayor Haakenson invited the Council to develop
material for him to present to the Policy Board at their meeting in early October.
Edmonds City Council Approved Minutes
September 27, 2005
Page 10
8. MAYOR'S COMMENTS
Response to Mayor Haakenson reported the City was in the process of adopting two cities in the Gulf Coast area, Bay
xurricane St. Louis, Mississippi, population 8,000 and Waveland, Mississippi, population 7,000, who both sustained
Katrina
terrible damage during hurricane Katrina. He planned to talk with representatives from those cities
tomorrow about how the community of Edmonds could assist them.
9. INDIVIDUAL COUNCIL REPORTS ON OUTSIDE COMMITTEE /BOARD MEETINGS
snohomish Council President Pro Tern Wilson encouraged citizens to attend tomorrow's Snohomish County
county Tomorrow meeting which would include a presentation and discussion regarding how Paine Field fit into
tomorrow the regional airport system.
Councilmember Olson reported on the SeaShore Transportation Forum she attended along with
washore Councilmember Moore where representatives from Snohomish County discussed Sound Transit Phase 2
Transportation 1� �
p °rule priorities. The list now includes advancing the light rail line from Northgate to the Snohomish County
line, SR 99 north corridor improvements for Bus Rapid Transit, and SR 522 corridor capital
improvements including business access transit lanes from 145th to Lake Forest Park Towne Center. A
representative from PSRC also described how freight and transportation were impacted by the lack of
good infrastructure.
scum Councilmember Olson reported the South Snohomish Cities' meeting, a group comprised of
snohomish representatives from seven cities in South Snohomish County, included a description by Lobbyist Mike
cities Doubleday of issues to be addressed during the next legislative session. The intent of the South
Snohomish Cities group is to identify issues of common interest and approach the legislature as a group.
Councilmember Moore reported on the opening of the Ash Way bus ramp, advising 180 buses would use
the ramp daily. She urged the Council and the public to attend the Performing Arts Center ground
Public Facilities
District breaking tomorrow. She congratulated the members of the Public Facilities District (PFD) Board — Jan
Conner, Dave Farling, Kay Mahaffey, Terry Vehrs, and John McGibbon — on their hard work to make
this a reality. She also thanked the Council for their support of the PFD, commenting it would be an
important addition to the City.
roger souna Councilmember Moore reported Puget Sound Regional Council (PSRC) approved the Regional Economic
Regional Development Plan for the Puget Sound Region, the Prosperity Partnership. The intent was to create
council 100,000 new jobs in the Puget Sound region via clusters of economic development and action plans. She
advised the report was available via ProsperityPartnership.org or the PSRC website. She concluded this
plan would jettison the Puget Sound area into the future of economic development in the region and look
at the region as a whole rather than as individual cities. With regard to where Edmonds fit the region
economically, she commented the President of the Snohomish. County Economic Development Council
made it clear that he saw Edmonds as providing upscale housing for CEOs. She questioned whether that
was the vision the City had, referring to the work being done by the City's Economic Development
Director to determine the City's potential.
Councilmember Moore commented a fellow Rotarian opined that residents did not want economic
development; she disagreed, believing Edmonds could provide upscale executive housing, affordable
rental units, as well as a vibrant business and retail community. In an effort to encourage the community
to provide input, at her request staff is adding a page to the City's website for citizens to provide input
regarding what they think the community should be.
roil District Councilmember Orvis reported the Port discussed their budget at their last meeting.
Edmonds City Council Approved Minutes
September 27, 2005
Page 11
Councilmember Dawson apologized she would miss the PFD's groundbreaking to attend a memorial
service for Judge Faye Kennedy, Division 1 Court of Appeals, who passed away recently. She spoke in
honor of Judge Kennedy's memory, advising Judge Kennedy had served as a judge on the Washington
State Court of Appeals for 14 years and Councilmember Dawson was fortunate to work with her for
several years. Judge Kennedy was the first woman prosecutor in Snohomish County and the first woman
judge in Snohomish County. Councilmember Dawson considered Judge Kennedy a role model, mentor
and friend as well as an exceptionally thoughtful, hardworking and diligent judge and a woman of great
elegance, style and grace. Her passing was a great loss to the court, the community as well as to herself
and the other women Judge Kennedy mentored in Snohomish County and throughout the region.
Councilmember Dawson summarized she considered herself to be a better person for having known Judge
Kennedy, and she would be greatly missed.
Councilmember Dawson advised a memorial scholarship fund had been created in Judge Kennedy's name
at the University of Idaho College of Law,the Judge Faye Kennedy Memorial Law Scholarship. Anyone
interested in contributing to the scholarship could send gifts to the University of Idaho, c/o Gift
Administration Office, PO Box 443147, Moscow, Idaho 83844, payable to the University of Idaho
Foundation,noting the gift was sent in Judge Kennedy's memory.
Councilmember Plunkett thanked Councilmember Orvis for initiating the discussion regarding variances.
With no further business,the Council meeting was adjourned at 9:30 p.m.
5-4-04)
G Y • ENSON,MAYOR SANDRA S. CHASE, CITY CLERK
Edmonds City Council Approved Minutes
September 27,2005
Page 12
AGENDA
M �I
EDMONDS CITY COUNCIL
Council Chambers, Public Safety Complex
250 5th Avenue North
7:00 - 10:00 p.m.
SEPTEMBER 27, 2005
6:45 p.m. - Executive Session Regarding a Real Estate Matter
7:00 p.m. - Call to Order and Flag Salute
1. Approval of Agenda
2. Consent Agenda Items
(A) Roll Call
(B) Approval of City Council Meeting Minutes of September 19, 2005.
(C) Approval of claim checks #82476 through #82620 for the week of September
19, 2005, in the amount of $297,211.73. Approval of payroll direct deposits
and checks #41742 through #41872 for the period September 1 through
September 15, 2005, in the amount of$924,576.78.*
*Information regarding claim checks may be viewed electronically at www.ci.edmonds.wa.us
(D) Acknowledge receipt of Claim for Damages from Chris Skurski ($645.99).
(E) Proposed Resolution establishing a hearing date for a street vacation for a
portion of 8th Ave. N. between Sprague and Daley St. (File No. ST-05-69).
(F) Public Facilities District Loan Guarantee.
3. ( 5 Min.) Proclamation in recognition of October as National Arts & Humanities Month.
4. Audience Comments (3 Minute Limit Per Person)*
*Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings.
5. (60 Min.) Continued City Council deliberation on proposed revisions to the parking code.
6. (60 Min.) Discussion regarding variances
7. (30 Min.) Discussion of the Issaquah Ordinance regarding sex offenders.
8. ( 5 Min.) Mayor's Comments
9. (15 Min.) Individual Council reports on outside committee/board meetings.
ADJOURN
Parking and meeting rooms are accessible for persons with disabilities.
Please contact the City Clerk at(425) 771-0245 with 24 hours advance notice for special accommodations.
A delayed telecast of the meeting appears on cable television-Government Access Channel 21.