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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.