Loading...
10/18/2005 City CouncilOctober 18, 2005 Following a Special Meeting at 6:30 p.m. for an Executive Session regarding a real estate matter, the Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Richard Marin, Council President Michael Plunkett, Councilmember Jeff Wilson, Councilmember Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember ELECTED OFFICIALS ABSENT Deanna Dawson, Councilmember ALSO PRESENT Michael Bowker, Intern Molly Thomson, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Tom Tomberg, Fire Chief David Stern, Chief of Police Duane Bowman, Development Services Director Stephen Clifton, Community Services Director Dan Clements, Administrative Services Director Brian McIntosh, Parks & Recreation Director Jennifer Gerend, Economic Development Dir. Noel Miller, Public Works Director Kathleen Junglov, Asst. Admin. Services Dir. Rob Chave, Planning Manager Dave Gebert, City Engineer Debi Humann, Human Resources Manager Don Fiene, Assistant City Engineer Mike Thies, Code Enforcement Inspector Steve Bullock, Senior Planner Scott Snyder, City Attorney Grant Weed, Special City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCIL PRESIDENT MARIN, FOR APPROVAL OF THE CONSENT AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve 10/4/05 (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF OCTOBER 4, 2005. Minutes (C) APPROVAL OF CLAIM CHECKS #82796 THROUGH #82970 FOR THE WEEK OF Approve Claim OCTOBER 3, 2005, IN THE AMOUNT OF $159,944.52, AND CHECKS #82971 Checks THROUGH #83126 FOR THE WEEK OF OCTOBER 10, 2005, IN THE AMOUNT OF $646,832.10. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #41874 THROUGH #41998 FOR THE PERIOD SEPTEMBER 16 THROUGH SEPTEMBER 30, 2005, IN THE AMOUNT OF $933,121.46. Edmonds City Council Approved Minutes October 18, 2005 Page 1 Claims for (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM JANE HINRICHS Damages ($2,000), NANCY BRANCHEAU (-AMOUNT UNDETERMINED), KIM NEWMAN (AMOUNT UNDETERMINED), ANATOLY KOSYUK ($605.48), AND SHELLEY MURRAY (AMOUNT UNDETERMINED). vehicle Donations (E) ACCEPTING THE DONATIONS OF VEHICLES FROM LYNNWOOD HONDA AND DOUG'S LYNNWOOD MAZDA FOR USE BY THE EDMONDS POLICE DEPARTMENT YOUTH SERVICES OFFICER AND CRIME PREVENTION PERSONNEL. Approve Cascade (F) FINAL APPROVAL OF A 16 LOT TOWNHOUSE SUBDIVISION KNOWN AS THE Cottages CASCADE COTTAGES LOCATED AT 20925 — 76TH AVENUE WEST. (APPLICANT: Subdivision DOUG HERMAN OF PROJECT 21.0 / FILE NO. P- 2004 -112) Make a Difference Day I (G) PROCLAMATION IN HONOR OF MAKE A DIFFERENCE DAY, OCTOBER 22, 2005. Introduce Mayor Haakenson introduced Special City Attorney Grant Weed, Weed Graafstra and Benson, explaining special City he would be representing the Council tonight as City Attorney Scott Snyder would be representing staff ttorney during Agenda Item 6. Introduce Council President Marin introduced Michael Bowker, a student at Central Washington University, who is councillntern doing an internship with the Council. He encouraged Councilmembers to invite Mr. Bowker to accompany them to outside committee meetings. Preliminary 13. PRESENTATION OF PRELIMINARY 2006 BUDGET 2006 Budget Mayor Haakenson read his budget address: "The financial plan I am presenting this evening is a good - news /bad -news budget. The good news is that we have continued stabilizing the City's financial position for the coming year. I am not recommending any further reductions in services or staffing levels for 2006. The bad news is that demands for public safety, transportation, and facilities continue to outstrip our ability to keep up with needs and requests for service. Recall that our present workforce is 9% smaller than it was in 2000. Let me be more specific. Since 2000, our street overlay cycle has more than doubled: from approximately 30 to 75 years. In the police department, total calls for service have grown over 14 %, felony filings have increased over 62 %, and juvenile arrests have climbed 71 %. Looking at specific infractions, residential burglaries are up 150 %, and felony assaults 333 %. We have one of the only courts in the area that has not had a security officer. The time has come to address these needs, and I am proposing four strategies to help us turn the corner on these challenges: 1.) Make strategic public safety additions: add a two - person Street Crime Unit and an additional police officer in order to increase police presence in our community; add a Fire Battalion Chief to help resolve the fire administration staffing deficit. 2.) Use the remainder of the City's unused property tax banked capacity to support my proposed police staffing additions. 3.) Continue the City's leadership role in advancing State legislation that will provide local- option . funding for continued operating, transportation, and facility maintenance: specifically sales tax modernization, local- option real estate excise tax, and pension rate increase phase -in. 4.) Continue stabilizing our financial future by moving forward on key economic development initiatives. The need for additional public safety personnel is clear; funding is just as clear: we don't have the money. Adding additional public safety employees is not sustainable over the long term within our existing revenue structure. In order to keep Edmonds fiscally sound for 2006 and beyond, my budget proposes that Edmonds City Council Approved Minutes October 18, 2005 Page 2 these new staff be phased in during the coming year, the fire position at the end of the first quarter 2006, and the police officers at the end of the second quarter. I am proposing that funding for these positions come from two sources: 1) The Fire Battalion Chief from the expiring medical services contract with the City of Lynnwood. 2) The police positions can be funded in 2006 from the property tax "banked capacity" mentioned earlier. Use of banked capacity will add $3 per month in property taxes to homes valued at $500,000. That's $36 per year. Additional revenue will be needed in 2007 and beyond to sustain the additional police officers. We anticipate that the source of this support will be increased sales tax revenue resulting from new sales tax reform legislation scheduled for consideration by the State legislature this winter. We project this will add $325,000 annually commencing in 2007. For the past two years Edmonds has been a leader in the efforts to bring the State's antiquated sales tax statutes into the digital age. With the recent compromise agreement among Washington State cities, there is a high degree of certainty that a bill will pass this session. However, should the State not act on sales tax sourcing legislation, hiring new officers in July provides us the option of revisiting the issue prior to placing the officers on the street. Moving on to our transportation and facility maintenance issues, I again turn to the State legislature for a new local- option revenue source: the ability of cities and counties to implement up to four - tenths of one percent (0.4 %) additional real estate excise tax. Legislation giving cities this revenue option was introduced by a coalition consisting of the master builders, general contractors, cities, and counties during the 2005 session. I would urge the Council to offer their support to our legislators to help pass this bill in 2006. Before moving on to a more detailed discussion of my 2006 budget recommendations, I wanted to briefly discuss my thoughts on a mixed -use economic development strategy. There is a direct connection between the City's financial future and our land -use policies. Quality redevelopment increases property values, and the property taxes subsequently collected. Construction generates sales tax revenues, which can increase with commercial redevelopment as well. Since we don't have a major regional shopping center, we must scramble to squeeze every available revenue stream available to us in order to continue to provide the services that our community expects. In the upcoming months, a number of revisions to various business zones around the city will be presented to you. I urge you to act on them as expeditiously as possible, and please remain cognizant of the impact on our long -term financial future. Mixed -use redevelopment has been booming around the region, and it would be wise for the Council to take advantage of this market by creating policies that will lead to quality development that is appropriate for "enhancing our waterfront community." With the exception of public safety services, the 2006 budget is essentially a status quo financial plan. The proposed budget totals $66.4 million, excluding fund balances, and is a decrease of 4.8% over 2005. The primary drivers for this decrease are reduced construction activity: street construction projects have been reduced by $2.4 million, building maintenance by $500,000, and treatment plant by $2 million. Moving on to the General Fund, the source of dollars for City programs such as public safety, parks, and development services, the proposed budget, excluding fund balance, totals $29.5 million: a 5.7% change from 2005. Approximately $764,000 of this increase is due to an accounting change relating to voter - approved debt service payments. Subtracting this bookkeeping change results in a more realistic General. Fund growth rate of 3.1 %. Taxes & Fees The proposed budget does not call for any new taxes or fees except, as I mentioned earlier, I am recommending that the City collect the statutory 1% increase in general property taxes ($81,280), Edmonds City Council Approved Minutes October 18, 2005 Page 3 plus the 3.5% banked capacity ($285,000) remaining from years in which the City collected property taxes below what could have been levied. Looking at our utilities, a 7% stormwater rate increase was scheduled for 2006. Because of an emergency outfall repair project, a rate increase of approximately 9% will be needed for the coming year. As part of our annual utility rate study, staff noted that sanitary sewer revenue was holding up well, and costs were below projections. As a result, sanitary sewer rates will be reduced by the amount of the stormwater utility increase, so the net impact to the average ratepayer will be zero. The proposed budget contains $654,000 in program additions of which $578,000 are General Fund and $76,000 are Street and Utility Fund additions. With the exception of the Court Security Officer ($20,656), Fire Battalion Chief ($59,297), the two- person police Street Crime Unit ($75,406), and police officer replacement position ($32,443), the remaining budget additions are one -time -cost items. The most significant one -time additions include: a rewrite of our zoning code ($140,000), temporary building inspector ($74,450), police vehicle replacements ($49,612), police portable radios ($20,480), cashiering system ($20,300), parks online registration system ($15,160), and police bulletproof vest replacement ($13,091). In what we anticipate will be a zero -net -cost program, I am having staff move ahead with the City's fiber- optic technology initiative. This plan originated with the Community Technology Advisory Board, and moves the City toward being able to offer high -speed internet and related services to our residents and businesses. We anticipate a 2006 cost of $175,000, which will be offset by outsourced management lease fees. A complete list of 2006 decision packages included in the budget may be found as Exhibit 13 in the budget. Most of you know I have always used my conservative business background and I am not an advocate of increasing taxes in order to expand the government's role in our community. There comes a time, however, when we must balance existing community needs with fiscal reality. This is one of those times. For the past five years we have reduced our staffing and costs. Requests for the services that we provide have not declined; in fact, they have grown substantially in a number of areas. At the same time, we have seen the State and Federal governments reduce funding for vital local public safety and transportation programs. In my view, we are at a critical juncture in our public safety and transportation services. I sincerely hope that all Councilmembers will work with my staff and me to help resolve these issues in 2006. In conclusion, I would like to thank Council President Marin for serving on our budget review team, and special thanks to the budget team and finance staff who put together the preliminary budget." Mayor Haakenson advised of the 90 minute budget work session scheduled for the October 25 meeting. Team Edmonds 4. PRESENTATION BY TEAM EDMONDS Funding Request Chris Guitton, Chamber Director, recalled in 2005 the City contributed $30,000 to a community marketing program along with the Port of Edmonds who contributed $30,000, and Chamber and business members who provided the remaining $30,000 for a total budget of $90,000. These funds were used to conduct a community marketing campaign that included media and print, radio advertising and expanding Edmonds' web presence. The marketing campaign focused on what makes Edmonds unique, publicizing the Jazz Connection, garden market, summer market, Waterfront Festival, Edmonds in Bloom garden. tour, Arts Festival, 4th of July, concerts in the park, Taste of Edmonds and Classic Car Show. Under the direction of consultant David Watkins, $45,000 was spent on radio advertising and $17,000 on print advertising. The radio advertising achieved 3 million impressions at a cost of approximately 2 cents each. The print campaign reached about 43 million readers at a cost of approximately 40 cents per 1,000 Edmonds City Council Approved Minutes October 18, 2005 Page 4 readers. He advised details of the campaigns, timing, number of ads placed, etc. was available in the written report. With regard to indicators of the success of the campaign, he noted there were 20 -30% more visitors to the Arts Festival. He attributed this to the work of the Arts Festival Board and believed Team Edmonds had an influence as well in marketing the event. The Edmonds in Bloom garden tour attracted three times more visitors this year than last year. Again he gave credit to the Edmonds in Bloom Board and believed Team Edmonds' advertising had also contributed. The Taste of Edmonds had a very good financial outcome this year and he planned to request the Chamber Board allocate funds to community marketing next year. Another measure of their success was the number of stakeholders who participated in the campaign; in addition to Team Edmonds partners, 27 downtown merchants pledged $26,000 for co -op advertising to promote the brand, "Find Yourself in Edmonds." Several organizations such as the Waterfront Festival and the Arts Festival have indicated they were likely to assist with funding Team Edmonds next year. Mr. Guitton requested the Council continue funding Team Edmonds next year. Recognizing the City had budget challenges, he emphasized the importance of community marketing. He played the radio ad that had aired on several radio stations. Councilmember Moore expressed her appreciation to the retailers who had sponsored advertisements. She asked whether the request for funding in 2006 would be for the same program. Mr. Guitton answered the budget would likely be different and he was receptive to any opportunities to partner with the City such as share in the responsibility of operating the program. Councilmember Plunkett suggested Team Edmonds provide their report in advance so that it could be included in the Council packet to allow Councilmembers adequate time to review it. He inquired how Team Edmonds measured their success. Mr. Guitton answered with advertising, there was no exact science to measuring results. He gave credit to the volunteers who organized events as well as the Team Edmonds volunteers who ran the advertising campaigns. He commented Team Edmonds chose to spend funds on a product rather than measurement. Mayor Haakenson suggested this be discussed further at next week's budget workshop. Councilmember Plunkett suggested Mr. Guitton review last year and the prior year's discussion regarding ways to measure the success of the marketing program. Mayor Haakenson clarified Team. Edmonds' request was not included in the 2006 preliminary budget and if the Council chose to fund that program, it would need to be added to the budget. Resolution 5. CONSIDERATION OF RESOLUTION OPPOSING INITIATIVE 912. INITIATIVE 912 WOULD Opposing REPEAL MOTOR VEHICLE FUEL TAX INCREASES OF 3 CENTS IN 2005 AND 2006,2 CENTS Initiative 912 IN 2007 AND 1.5 CENTS PER GALLON IN 2008, ENACTED IN 2005 FOR TRANSPORTATION PURPOSES. Public Works Director Noel Miller recalled last year the Council adopted Resolution No. 1069 that supported the Washington State Legislature's effort to create additional funding for the City's transportation infrastructure. He displayed a chart of gas tax increases since 1969, commenting in spring 2005, the State Legislature enacted a State gas tax increase that dedicated an additional ' /z cent per gallon to counties and municipal governments. When fully enacted next year, this would amount to $160,000 annual contribution to capital operating and maintenance of transportation programs for the City. Referring to the chart, Mr. Miller pointed out the gas tax was not indexed to inflation; thus previous and current levels of service for State and local transportation could not be maintained over the long term Edmonds City Council Approved Minutes October 18, 2005 Page 5 unless there were periodic increases to the gas tax. The last time the City received an increase from the State gas tax was in 1990; local government did not necessarily receive an increase when the gas tax had been raised in the past such as there was no additional contribution to local government via the 5 cent gas tax increase adopted three years ago. He explained that over the 15 year period since 1990, there had been an overall inflationary increase of approximately 50 %; the % cent increase to the City amounts to only a 5% revenue increase over that 15 year period. Mr. Miller summarized additional sources of revenue were needed to sustain the City's infrastructure; however, this small revenue increase in transportation funding was better than no increase. Public Works and Engineering staff recommends the Council consider adopting the proposed resolution opposing I -912. Councilmember Olson asked whether the funds could be used as matching funds for grants. Mr. Miller answered they could be used to match smaller grants; because it was not a great deal of money, it would not be enough to match a large grant. Councilmember Wilson referred to comments that the funds were not specifically earmarked for projects and that the funds would go into the State General Fund. Mr. Miller answered his understanding was the legislation identified 276 projects statewide that would be funded via the gas tax increase. Councilmember Moore asked whether the Safety to Schools program that funded sidewalks near schools would be funded via the gas tax. Mr. Miller answered no, commenting the funds could be used to match grants for that program. Councilmember Moore inquired about the legal obligations for the Council to take a position on an initiative. City Attorney Grant Weed answered the State Statue referenced in the resolution, RCW 42.17.131A, allowed a public body to take a position on a ballot issue provided, 1) the Council gave public notice of their intent via the agenda, and 2) provided approximately equal time for the public to comment on the Council taking a position. Mayor Haakenson invited the public to provide comment. Don Kreiman, Edmonds, expressed his support for the Council passing the proposed resolution, commenting the tax was essential to address transportation needs. Chris Guitton, Edmonds, advised the Edmonds Chamber of Commerce Board voted not to support I- 912. He was supportive of the Council's action via the resolution to oppose I -91.2. Rowena Miller, Edmonds, commented although she was a senior citizen on a not increasing budget she believed that taxes were the obligation and responsibility of citizens in order to live in a community. She supported the Council opposing I -912, commenting the City needed the tax revenue and citizens should not undo the courageous work of the legislature. Jim Young, Edmonds, expressed his support for the proposed resolution opposing I -912. He suggested the Council consider not only the revenue the City would receive but also multiply it by four which represented the amount in grants the City could qualify for. He referred to the Planning Board's unprecedented action this spring, forwarding the Capital Improvement Program to the Council with a statement that although the projects were needed, the City could not afford them. He commented on items that were essential to the community that were not included in the list of projects: an annual street overlay program, upgrading curb ramps to meet ADA standards, and pedestrian street lighting program. He concluded the City and the Public Works Department needed this revenue which represented approximately P /2% of the cost of a gallon of gas. He commented there were other jurisdictions in the area with more serious maintenance issues and backlogs than Edmonds but unless funds were not Edmonds City Council Approved Minutes October 18, 2005 Page 6 allocated soon, Edmonds would soon join the company of local agencies who were unable to address the backlog of maintenance. He noted that was as much a measure of quality of life in a community as many other things. Hearing no further public comment, Mayor Haakenson closed public comment and remanded to Council for action. Res# 1 X COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOTRE, FOR Opposing g Initiative 912 APPROVAL OF RESOLUTION NO. 1109. Council President Marin, a member of the Board of Directors of Sound Transit and Community Transit, commented passage of I -912 would eliminate funding for major programming by Sound Transit that would impact Edmonds over the years including the effort to construct a backbone for light rail. He commented on Atlanta's light rail system which was constructed with federal funds that this region rejected. He urged citizens to defeat I -912 and retain the gas tax so that transportation improvements in the region could be realized. Councilmember Moore also urged citizens to vote no on 1 -91.2. She referred to Mayor Haakenson's comments that the City would continue their efforts to seek assistance from the legislature for local - option funding; commenting on unsuccessful efforts with the legislature for a local street utility tax option. She pointed out that recent increases in gas prices were realized by the oil producers; this small . increase would be realized by the public, the users of the roads and not the oil producers. MOTION CARRIED UNANIMOUSLY. The resolution reads as follows: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, OPPOSING INITIATIVE 912 CONCERNING MOTOR VEHICLE FUEL TAXES IN THE NOVEMBER 8, 2005 GENERAL ELECTION. Walter Day 6. CLOSED RECORD REVIEW OF THE APPEAL OF THE HEARING EXAMINER DECISION TO Appeal -19728 DENY THE APPEAL OF THE STAFF DECISION TO DISALLOW THE USE OF AN EXISTING and 94" Ave. W. RESIDENTIAL STRUCTURE AS A DUPLEX IN A SINGLE FAMILY ZONE. (APPELLANT: W. WALTER R. DAY: PROPERTY LOCATION: 18728 AND 18730 — 94TH AVENUE W: FILE NO. AP- 05 -73. City Attorney Grant Weed described the procedures for a closed record review. The Council's role in the closed record appeal was to consider the arguments of both parities — City staff and the appellant each represented by legal Council, staff by Scott Snyder and the appellant by Charles Maduell. He explained State law only allowed one open record hearing which was conducted by the Hearing Examiner. The Council's consideration was limited to the record created at the Hearing Examiner's hearing and the Council's decision was to determine whether the record supported the findings, conclusions and decision of the Hearing Examiner. He reviewed the Council's options, 1) affirm the decision of the Hearing Examiner, 2) reverse the Hearing Examiner's decision, 3) modify the Hearing Examiner's decision, or 4) remand the decision for further consideration of the findings. He advised the Council was not allowed to accept any new testimony or evidence and consideration was limited to the record. The appellant had the burden of proof to show the structure was a non - conforming use. Noting this was a quasi judicial matter, Mr. Weed requested Councilmembers disclose any conflicts or ex parte communications. None of the Councilmembers made a disclosure. Mayor Haakenson advised he could vote to break a tie in this matter; he also had no disclosures. Mayor Haakenson stated all Councilmembers as well as himself would participate in the closed record review. Mayor Haakenson established time limits of 15 minutes for the appellant and staff, reminding the appellant to save time for rebuttal. Edmonds City Council Approved Minutes October 18, 2005 Page 7 Appellant Charles Maduell, attorney representing the appellants, Walter and Denise Day, requested five minutes for rebuttal. He advised the Days have owned and rented the duplex since 1976 when they purchased the property from the original owner, Captain Shields. He noted the issue was narrow — whether the duplex was a legal, nonconforming use. He referred to the definition of legal nonconforming use in the City's code, commenting the issue was whether the duplex use was lawfully established. The Hearing Examiner found there was insufficient evidence that it was lawfully established; his position was that not only was there sufficient evidence that the duplex use was lawfully established prior to adoption of Snohomish County zoning in 1957, this evidence was undisputed. First, Captain Shields, the original owner, constructed the residence under a permit issued by Snohomish County in 1956. Captain Shields is now deceased and the only record of the permit is a notation in the Snohomish County permit record book. In 1956, Captain Shields lived in the upper unit and rented the lower unit, a use that was allowed at that time. This use continued until 1976 when the Days purchased the two unit /two family dwelling and since 1976 the Days have rented both units. He referred to page 2 of the staff report which states the facts presented indicate the Day's predecessor in title lived in the main floor unit and rented the basement unit out. He concluded staffs position was taking Mr. Day's evidence at its best; the vested use was that of an owner- occupied two unit structure. Mr. Maduell noted the Hearing Examiner reached the same conclusion, finding testimony from the appellant, neighbors and letter from Snohomish County PUD strongly suggested the former property owner, Captain Shields, had begun renting the lower floor of the residence soon after construction in 1956. The Hearing Examiner's findings indicated staff concurred with this conclusion. He commented the evidence was undisputed that the structure had been used as a two unit /two family dwelling since 1956 and that use was lawful when established in 1956. On that basis alone, he recommended the Hearing Examiner decision be reversed. He noted the Hearing Examiner and the City apparently based their conclusion that the duplex use of the structure had not been lawfully established on the fact that one of the units was owner - occupied by Captain Shields until he sold the structure to the Days in 1976 who then rented out both units. He noted while true, this fact was legally irrelevant, whether Captain Shields lived in the two unit /two family dwelling did not matter. The relevant consideration was the dwelling had two units and was used as such. Mr. Maduell commented the Hearing Examiner and City appeared to be suggesting the use expanded from an owner - occupied accessory dwelling use to a duplex; however, accessory dwelling units were not recognized or allowed as a permitted use in Snohomish County or the City until 1980. At that time, the Days had already purchased the duplex and were renting it as such. He concluded it was established as a two unit dwelling in 1956 when that use was lawful and has continued as such since then. He reiterated it was irrelevant that one unit was originally owner- occupied, similar to the irrelevancy if a single family home was owner - occupied or rented. He acknowledged this may be different if the use had been established after 1980. Mr. Maduell explained not only was the duplex use established in 1976 but the Days provided evidence at the hearing via expert testimony that the house was constructed as a duplex. He noted Mr. Day's son, a licensed master electrician, testified via affidavit that when he did repairs on the house in 1976, the original wiring indicated the structure had been constructed and wired as a duplex with separate meters. This was confirmed by a witness who testified at the hearing, a neighbor who had known Captain Shields since 1970, who stated Captain Shields told him the house was constructed as a duplex to serve as a duplex. The Hearing Examiner disregarded this testimony and questioned its relevancy. Edmonds City Council Approved Minutes October 18, 2005 Page 8 Mr. Maduell said the Hearing Examiner also made a procedural error that violated the Days due process rights by looking at Uniform Building Codes that were not part of the record and opined that the separate electrical service for the second unit could have been established any time up until the early 196Os when the type of wiring used was no longer allowed. He concluded that evidence was not presented at the hearing; if the Council did not grant the appeal, an alternative would be to remand to the Hearing Examiner to allow the Days to rebut that evidence. Mr. Maduell summarized the evidence at the hearing and the principles of fairness support the Days request that the duplex use of the property be recognized as a legal nonconforming use. The Days and Captain Shields used the structure as a 2 family dwelling for 50 years continuously without complaint until recently. He noted this was not surprising because the structure was very compatible with the neighborhood. The difficulty providing proof was due to the absence of any records and the failure of the City to take action on this nonconforming use for nearly 30 years since they became aware of it. He referred to a letter in the record from Captain Shields inquiring about legal nonconforming uses; had the City taken action at that time, Captain Shields could have addressed the issue. However, due to the absence of Snohomish County and City records, it had been difficult for the Days to provide proof. He concluded the evidence submitted in the record convincingly demonstrated the use of the structure established was a 2 family dwelling. The recognition of the legal nonconforming use would not set a precedent due to the uniqueness of the situation. He urged the Council to reverse the Hearing Examiner's decision. For Councilmember Plunkett, Mr. Maduell advised according to the testimony at the hearing, it was not until 1980 that the City recognized accessory dwelling units. Councilmember Plunkett asked when Snohomish County recognized accessory dwelling units. Mr. Maduell answered there was no evidence that Snohomish County recognized accessory dwelling units in that zone prior to annexation. Councilmember Plunkett asked Mr. Maduell if his argument was that because there was no evidence that accessory dwelling units were allowed in that zone, then it must be a duplex. Mr. Maduell answered the use established was a duplex. Councilmember Plunkett inquired regarding the documentation that the use was established as a duplex versus being used as a duplex. Mr. Maduell answered that was the same thing; two units with the bottom unit rented out which equated to a two family dwelling /duplex as defined in the Snohomish County code. Councilmember Plunkett inquired about Mr. Maduell's comment that the fact that one unit was owner occupied was irrelevant. Mr. Maduell answered it was legally irrelevant. He noted the City's argument was that a duplex was an expansion of the owner - occupied multiple -unit dwelling because in that instance one unit was an accessory dwelling unit. He argued there was no expansion because the use established was a two family dwelling and there were no accessory dwelling unit provisions at the time. Councilmember Plunkett asked the legal basis for Mr. Maduell's argument that the owner - occupancy was irrelevant. Mr. Maduell answered it was a two family dwelling regardless of whether one unit was occupied by the owner. Councilmember Plunkett asked whether there was anything in the Snohomish County code at the time that defined a duplex. Mr. Maduell answered the Snohomish County code at that time defined single family residences, duplex or two - family residential dwellings and multi- family residences. Councilmember Plunkett asked whether the code indicated a duplex could be owner - occupied. Mr. Maduell answered that was not addressed which was why it was legally irrelevant. Councilmember Wilson asked whether the Snohomish County code and land use designations in 1956 permitted a duplex in that zone. Mr. Maduell answered he was unsure whether it was specifically allowed but it was not prohibited. Councilmember Wilson asked how the use could be a nonconforming use if it Edmonds City Council Approved Minutes October 18, 2005 Page 9 were not specifically allowed. Mr. Maduell answered prior to adoption of the Snohomish County zoning code, property owners were permitted to use their land in any manner unless the land use provided otherwise. Councilmember Wilson observed Mr. Maduell's interpretation appeared to be that any use not prohibited in a single family zone was deemed to be allowed. Mr. Maduell answered the property was not zoned single family residential until 1957 when multiple family and duplexes were prohibited in that zone; prior to that time they were not prohibited. Councilmember Wilson concluded there was nothing in the record that indicated this use was allowed to occur in 1956. Councilmember Moore noted the zoning code did not make reference to owner - occupied. Parties of Record Ray Martin, Edmonds, commented he had known the Shields since 1970. He recalled asking Captain Shields about renting out the basement. Captain Shields explained it was a permitted use and he had built the house under Snohomish County code. He believed Captain Shields as he was an honest and trustworthy individual. He cited this as an example of why it was appropriate for appeals to come to the Council to allow consideration of the human factor. He suggested the Days be allowed to continue the use for 50 years or until the end of their lifetime. As Mr. Martin began to comment on remarks made following the hearing, Mayor Haakenson cautioned him to restrict his comments to the record. Mr. Martin urged the Council to consider the human factor as no one was doing anything detrimental to the neighborhood. Applicant Scott Snyder, Ogden Murphy Wallace, representing the City's Planning Department and Code Enforcement Inspector, referred to Councilmember Wilson's question regarding the Snohomish County ordinances was contained on pages 30 -34 of the record. He noted the zoning was R -12 and suggested the Council also consider R -8 and R -6 which both permit the renting of a guest house or other quarters, and R -6A, the multi - family zone. He pointed out there were a number of options at that time including something comparable to an accessory dwelling unit provision. Mr. Snyder stated staff considered the issue of the use of the property as the key, central issue. The problem with the appellant's position and the Hearing Examiner's was that they confused the issue of the nonconforming use of the structure with a nonconforming structure. He explained what a person intended to do with regard to a nonconforming use was irrelevant; what was relevant was what was done. The fact that a house may be constructed in a certain manner addressed the nonconforming structure; a nonconforming use was what was done. He agreed that there was nothing in the record, other than Captain Shields built a house, lived in it and rented it. He agreed it was confusing when the rental occurred but during the only relevant period, 1956 . to April 1957, the house was owned by Captain Shields and probably rented; the City has no reason to dispute that. Mr. Snyder referred to point 6 of Mr. Maduell's brief in which he argued the City failed in its burden of proof. He explained this was an appeal of a staff decision to pursue the issue of whether a nonconforming use was established. For the use that exists to be legal, the City only needed to show it was a single family zone and that more than one family lives in the structure. As the Council was instructed and his briefing indicated, it was clear under Washington law that someone asserting a nonconforming use had the burden of proof. In this instance, the key was what actually occurred in 1956. It was clear the rental of both portions of both units did not begin until 1977. Mr. Snyder referenced annexation information contained on pages 35 -37, explaining that once the property was annexed to the City, any use other than the use established was irrelevant. He referred to points 2 and 5 of Mr. Maduell's briefing which he asserted attached labels. He explained what controlled Edmonds City Council Approved Minutes October 18, 2005 Page 10 was how a property was used. Washington courts had been clear that use of property need not be just in the minds of the owner. He quoted from the 1972 Washington Supreme Court case Anderson v. Island County, "It is almost universally held that the mere purchase of property and occupation thereof are not sufficient factors, either severally or jointly, to establish the existing nonconforming use, and a vested right to a nonconforming use cannot exist unless the particular use in question is in fact established prior to the enactment of the zoning ordinance. [citation omitted] Before a supposed nonconforming use may be protected, it must exist somewhere outside of the property owner's mind." He recalled Mr. Day and Mr. Martin have asserted they were told by Mr. Shields that he intended for this to be a duplex; however, what he established was an owner- occupied property with a rental unit. He noted Snohomish County allowed rental units in a variety of zones in owner- occupied properties such as guesthouses, servant's quarters, and other rental property. Mr. Snyder referred to Mr. Maduell's briefing which argued procedural violations regarding the Hearing Examiner. Mr. Snyder agreed the Hearing Examiner's knowledge regarding the building code was not in the record; however, staff's position was that a remand was unnecessary as it merely confused a nonconforming use with a nonconforming structure. He reiterated nonconforming structures /buildings were addressed by a separate provision of the code; this issue was the actual use of the property. With regard to the argument that there had been unfairness, under Chaussee v. Snohomish County, neither the Hearing Examiner nor the City Council may consider matters of fairness; their obligation was to apply the code as written. Mr. Snyder referred to the letter from Mr. Wallis on page 57 of the record and the attached March 19, 1975 Board of Adjustment minutes. He noted after annexation of this area, the City enacted an amortization ordinance intended to phase out commercial properties. The Board of Adjustment noted it did not apply to residential uses. Captain Shields asked whether he could continue the nonconforming use and he agreed the letter referred to a duplex. Mr. Snyder explained the letter was accurate, factual and true today because it was addressed to Captain Shields who was an owner - occupant of the property and renting a unit. Staffs position was if the Council found the evidence established the existence of a nonconforming use, that use was an owner - occupied property and Mr. Day should be allowed to continue what Captain Shields established. Mr. Snyder commented there were several other factors in the record that were consistent with the concept of a single family owner - occupied dwelling with one rented unit. He referred to pages 38 -42 that indicated this property had been consistently assessed, which Captain Shields and the Days have benefited from, as a single family dwelling by the Snohomish County Assessor. As page 43 indicates, the dwelling also has a single family sewer rate with one sewer hookup. Mr. Snyder commented if the record were taken in the light most favorable to the appellant, there was a nonconforming use established, an owner - occupancy with a rental unit. Captain Shields built the home with two units; whether it was a duplex existing only in Captain Shields mind, what he did with the property was owner occupancy with a rental unit. Mr. Snyder referred to Coleman v. Walla Walla where a property owner operated a boarding house, renting rooms to college students. When she rented the house to a fraternity, the court found that was a change in use and an illegal expansion. Mr. Snyder summarized the actual use of the property controlled. He did not dispute that during the period 1956 -1957 Captain Shields lived in one unit and likely rented the lower unit. He concluded that was the use established and that was the use that should be allowed to continue. Councilmember Orvis remarked what was viewed as an expansion was when the use changed from owner occupied to two rental units. Mr. Snyder answered any use established had to have been established before March 15, 1957. The evidence in the record that the change to two rental units rather than owner - occupied occurred after the Day's purchase in 1976 which is when the expansion occurred. He noted Edmonds City Council Approved Minutes October 18, 2005 Page 11 under the City's ordinance, an expansion of a nonconforming use can result in its extinguishment; staff was not requesting it be extinguished, only that the Days continue the use Captain Shields established. Councilmember Plunkett observed it was staff's contention that this was never a duplex which they predicated on Snohomish County regulations on page 34. Mr. Snyder agreed. Councilmember Plunkett noted based on the code it appeared to be an accessory dwelling unit. Mr. Snyder cautioned against attaching labels; staff's position was the use that was actually established. The chart on page 34 indicated when the use was established, Snohomish County had zoning categories that permitted the maintenance /rental of guesthouses, servant quarters and other rentals as part of single family uses. Mr. Snyder acknowledged Captain Shields may have built the house as a duplex, but what he established was an owner- occupied dwelling with a rental unit. Councilmember Orvis commented the issue was expansion; the appellant's position was there wasn't anything in the code that suggested this was an expansion, but staff felt there was. Mr. Snyder answered a nonconforming use was a use that was legal when established and later became nonconforming. What made this nonconforming was Snohomish County's adoption of the zoning code that established this as a single family zone. That zoning code had categories in which this use would have been permitted. Councilmember Orvis asked whether the relevant code was 1976. Mr. Snyder answered the code adopted in 1957 was the relevant code; anything after 1957 was irrelevant because 1957 was when the nonconforming use was established. The property has consistently been single family in Snohomish County and the City since then. Councilmember Wilson commented there was nothing in the record regarding the regulations prior to 1957. Mr. Snyder agreed, noting the zoning code adopted in 1957 was the initial zoning code adopted by Snohomish County, it was "anything goes prior to that." Councilmember Wilson commented if anything goes prior to that date, there was nothing indicating the use had to be owner - occupied. Mr. Snyder answered Washington law allows a property owner to use their property in any way that does not violate state or local law /ordinance. Therefore property owners were presumed to be allowed to do whatever they wanted. Councilmember Wilson stated if the use established prior to 1957 was two dwelling units, there was no requirement for it to be owner - occupied. When the first code was adopted by Snohomish County in 1957, how did the property become nonconforming and why was it strictly construed that it was required to be owner - occupied. Mr. Snyder answered the Snohomish County code adopted in 1957 prohibited the occupancy of a dwelling by more than one family in a single family zones. Mr. Snyder advised this information was contained on page 31, Section 5.01.A.1, "one one - family dwelling." Councilmember Wilson acknowledged the code stated one one - family dwelling, however, there was nothing in the text requiring it to be owner- occupied. Mr. Snyder explained more than one family resided on the property, Captain Shields and the person he rented to. Therefore, upon adoption of the zoning code by Snohomish. County, the use became nonconforming. He clarified it was the use that became nonconforming; the structure was to a certain extent irrelevant although it was a nonconforming structure. Since only one family was permitted, the use, an owner - occupied dwelling with a rented unit, became legally nonconforming. Councilmember Wilson inquired about what would have occurred if there were two units prior to 1957 but neither was owner - occupied. Mr. Snyder answered by quoting from the State Supreme Court Open Door Baptist case, "Where a nonconforming use is in existence at the time a zoning ordinance is enacted, and thus allowed to continue, it cannot be changed into some other kind of nonconforming use." Councilmember Wilson commented the nonconforming use was one owner - occupied unit and one rental dwelling unit; the fact that the owner moved out and two non - owners reside on the property discontinued the nonconforming use. Mr. Snyder clarified the previous use was an owner of a home that rented a unit; Edmonds City Council Approved Minutes October 18, 2005 Page 12 now the owner rented both units. Staff found this to be an expansion of the nonconforming use which was illegal. Councilmember Wilson asked if the same would be true if the property had been occupied by two non- owners, would the nonconforming use be discontinued if an owner moved into one of the units. Mr. Snyder answered Washington courts make a clear distinction between expansion and intensification. A nonconforming use can be intensified such as more people moving in. In the scenario Mr. Wilson described, an owner moving into the property would be a less intense or contraction of the use. He noted the rules were different for contraction, 1) the City had the burden of proof in establishing the contraction or loss of nonconforming use rights, and 2) the person doing so was required to do so with the intent they were abandoning their nonconforming use rights. He noted Washington law regarding nonconforming use rights also permitted fluctuations such as a rental unit that could not be rented for a period of time. In. those situations the key was whether the owner intended to abandon the use. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO EXTEND THIS ITEM FOR 20 MINUTES. MOTION CARRIED UNANIMOUSLY. Councilmember Orvis observed there was a distinction made between an owner occupying one unit and renting the other versus the owner renting both units and the change to renting both units was considered an expansion. He asked what in the code in 1976 . suggested that was an expansion. Following a brief review of the record, Mr. Snyder advised that information was not in the record. For Councilmember Moore, Mr. Snyder advised pages 39 -41 of the record indicated the property was currently assessed as a single family residence; there was no information in the record regarding the assessment prior to the present time. Rebuttal Mr. Maduell commented the issue had morphed somewhat; the Hearing Examiner was concerned with whether the duplex structure was legally established. He clarified when he stated duplex, he merely meant a two unit, two dwelling structure. Once it was established that the structure was built in 1956 and used for two families with two units, that two family use was established. He emphasized it was lawfully established because it was not prohibited prior to Snohomish County's adoption of the zoning code in 1957 that prohibited that use. With regard to the City's allegation that the use had been expanded, one would usually consult the zoning code, which was not possible due to the inadequate records. Mr. Maduell clarified their position was a two unit structure /two family dwelling was established. In. 1957 this became nonconforming, not because it was an owner - occupied dwelling with a separate dwelling unit, it was nonconforming because it was a two dwelling /two family residence which was prohibited in that zone in 1957. He acknowledged there were provisions for accessory buildings for a guesthouse, noting there was no assertion that had been established. Mr. Maduell pointed out there was nothing in the 1957 code that stated one of the units in a two -unit structure must be owner - occupied. He noted the two family use was not expanded. He acknowledged it could be alleged there was an expansion in 1980 when the City adopted a zoning code specifically allowing accessory dwelling units; however, by that time this structure had already vested its nonconforming use rights. He reiterated the fact that one of the units was owner - occupied was not legally significant in terms of the code. Mr. Maduell concluded the two family dwelling was vested as a legal nonconforming use and his client was entitled to continue that use. He noted that was not only the intent of the owner but the use that had been established. Edmonds City Council Approved Minutes October 18, 2005 Page 13 Councilmember Wilson asked what evidence had been provided that both units had been occupied since 1956. Mr. Maduell referred to the testimony provided by Mr. Martin whom Captain Shields told the unit had been rented out since 1956. Councilmember Wilson asked whether Mr. Martin was present in 1956. Mr. Maduell answered he was not, pointing out that issue was not disputed but the only person who would know, Captain Shields, was deceased. Councilmember Wilson referred to page 3 of Mr. Maduell's brief and the statement that the City did not dispute that the owner lived in one unit. Mr. Maduell clarified the City did not dispute there were two units, the owner occupied one and rented the other. Councilmember Wilson commented there was no dispute that the structure was established with Captain Shields living in one unit and renting out the other. Mr. Maduell answered the key was that this was established as a two unit dwelling that happened to have the owner living in the upper unit and the lower was rented. Hearing no further questions, Mayor Haakenson remanded the matter to Council for action. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DENY THE APPEAL AND AFFIRM THE HEARING EXAMINER'S DECISION. Council President Marin commented back in that time period, this type of unit was referred to a mother - in -law apartment. The records do not prove that the second unit was rented in 1957 other than testimony that Captain Shields lived in the house. He was satisfied the record staff presented was correct. Councilmember Plunkett expressed disappointment that it may be necessary to burden these property owners and he wished there was a way to say "no harm, no foul" but unfortunately the Council did not have that option. He noted it appeared the use that was established was more similar to an accessory dwelling unit than a duplex use; therefore, in order for the nonconforming use to continue, it must continue similar to the accessory dwelling unit use. Councilmember Orvis disagreed, observing the question appeared to be owner - occupied in one unit versus two rental units. If that had happened in 2005, he agreed it may be an expansion; however, in 1976, he found it difficult to view that as an expansion. He noted the key evidence offered by the Days was that accessory dwelling unit regulations were not adopted until 1980. Councilmember Moore expressed concern with the 1977 expansion versus contraction, commenting the use could not have been converted into any other nonconforming use after 1957 and the nonconforming use at the time was a two family dwelling unit and did not refer to rent paid, who owned the property and who rented, it was simply a two family dwelling unit. She questioned how the owner moving out and whether rent was charged or not changed the nonconforming use. She was also unsure that Captain Shields constructed the structure as a duplex /two family dwelling unit since it had one sewer and a single family tax rate. She commented the Council could not read Captain Shields' mind or use their hearts. She concluded she was having difficulty viewing this as an expansion rather than a two family unit regardless of who lived there. Councilmember Wilson expressed support for the motion, explaining what was established by the appellant's attorney in his brief was that it was the original owner's intent to establish a duplex unit and for the owner to occupy one of the units. He agreed with the conclusion that in 1977 the change from an owner occupied plus a second unit to renting both units was a change in use because it evolved from a mother -in -law apartment to a multi family structure. He summarized when one of the units was no longer owner - occupied, the use of the property changed. Councilmember Olson expressed her support for the motion, acknowledging this was a difficult decision. She agreed there was a difference between owning a house and renting a basement and a house with two Edmonds City Council Approved Minutes October 18, 2005 Page 14 units. She was concerned that the structure was assessed as a single family residence which seemed to suggest when it was constructed, it was a house with a mother -in -law apartment and when the Day's bought it, they expanded the use to a duplex. Councilmember Moore reiterated the Council could only consider the record and were not allowed to use their hearts; if the Council were allowed to use their hearts, the outcome may be different. 1►l [i71 Y CiL`�tl_\ 9 b i �f 17� ��Kilil►Ctl 11►51 �1►� 1 � �I:Z�7 Mayor Haakenson declared a brief recess. Street vacation 7• PUBLIC HEARING ON A STREET VACATION REQUEST FOR A PORTION OF 8TH AVENUE Request — NORTH NORTH OF SPRAGUE STREET Portion of 8`h Ave. rr.' north Senior Planner Steve Bullock stated earlier this year the Council approved a street vacation for portion of Sprague St._ Y pp p of 8th Avenue North on the south boundary of Daley Street. Subsequently, the property owners adjacent to the southern portion of the same 81h Avenue right -of -way have requested vacation of the southern section. The applicants were the owners of the property immediately to the east of the subject right -of- way. Shell Creek runs through this portion of right -of -way; the portion the Council vacated earlier this year did not contain the stream and that property was in the process of being converted into a separate, buildable lot. The applicants wished to acquire the right -of -way to allow them the right and responsibility for maintaining the area due to their concern with blackberries, dangerous trees, rodents and vermin. Mr. Bullock advised the appraisal report submitted by the applicant provides a market value for this portion of the right -of -way of slightly over $22,000 due to the encumbrances. In their initial application, the applicant offered to pay 50% of the market value as allowed by ordinance. The Engineering Department was not opposed to the vacation but requests a 30 -foot easement be retained for maintenance /erosion control projects on the stream as needed. Councilmember Moore noted the Critical Areas Ordinance required more than a 30 foot easement. Mr. Bullock advised a 75 -foot buffer would be required; the easement staff requested was only to allow the City to make repairs on the stream bank. Council President Marin asked if the Critical Areas Ordinance would place heavy obligations on the applicant that they were not aware of. Mr. Bullock stated no, unless an attempt was made to develop it. Councilmember Wilson commented whatever encumbrance existed on the property existed regardless of the ownership. Keith & Theresa Simanton, applicant, recalled the Council approved vacation of the north portion and they were petitioning to have the south portion of 8th Avenue North vacated and sold to them as recommended by the City Engineer. He noted because the land was bisected by Shell Creek, it was not buildable. The easement the City requested would be 60 feet, 30 feet on each side of the stream, as the neighbor to the west had waived her claim and responsibility to her side of the vacancy. He explained they were requesting the vacation to provide them a compelling reason to maintain it and so that they were not trespassing on City land when maintaining it. The intent was to remove garbage and non - native plant species on the site. They recently attended the Shell Creek Nature Walk at Yost Park to further educate themselves regarding native vegetation and wildlife with the intent of respecting and enhancing the area. Mr. Simonton proposed to purchase the property for $7500, noting the City code states once approved by the City Engineer, a petitioner may purchase the land for up to 50% of the appraised value. He explained Edmonds City Council Approved Minutes October 18, 2005 Page 15 the property was appraised at $22,500; 50% of the value would be $11,250. He suggested subtracting costs associated with the vacation and the required lot line adjustment as well as the cost to remove a tree on the site for a purchase price of $7500. Mayor Haakenson opened the public participation portion of the public hearing. There were no members of the audience who wished to provide testimony and the Mayor closed the public hearing and remanded the matter to Council for action. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO DIRECT THE CITY ATTORNEY TO PREPARE A RESOLUTION OF INTENT TO VACATE AT THE PRICE THE APPLICANT PROPOSED, $7500. Councilmember Moore commended the Simontons for their goal to be good stewards of this land. MOTION CARRIED UNANIMOUSLY. Amend ECDC 8, PUBLIC HEARING ON AN AMENDMENT TO EDMONDS COMMUNITY DEVELOPMENT Ch. 18.05— CODE CHAPTER 18.05 ALLOWING PUD TRANSMISSION POLES TO BE EXTENDED 15 Wireless Communication FEET TO ACCOMMODATE WIRELESS COMMUNICATION FACILITIES. Facilities Senior Planner Steve Bullock advised wireless carriers and Snohomish County PUD made this proposal to the City. He explained the City's wireless ordinance contains provisions for new monopoles and lattice towers but encouraged wireless facility antennas be mounted on existing structures such as water tanks, buildings, telephone poles, etc. Carriers were interested in locating antennas on existing structures but an inherent conflict existed because most poles in Edmonds were not tall enough and the taller ones had power lines at the top. The PUD has separation requirements between antennas and power lines. Mr. Bullock explained the initial proposal by carriers and the PUD was to have an exemption from a provision in ECDC Chapter 18.05 that limited an extension of the height of a telephone pole to 10 %. He noted for a 40 -foot pole, this limited the extension to 4 feet which was not enough to accommodate the PUD's separation requirements. He recalled concern expressed at the Community /Development Services Committee that approval of an exemption of Chapter 18.05 could allow the extension to occur anywhere in the City including areas where there could be a substantial view impact. A suggestion was made at that time to confine the height increase to transmission poles. He explained this was more desirable to the carriers as transmission poles were taller and it was more desirable to the City because there were fewer transmission poles and they were located in areas outside view corridors. Mr. Bullock displayed a drawing of a transmission pole and the potential extension that would provide for the 15 -foot separation requirement as well as additional height to accommodate the height of the antenna. He displayed a map identifying the location of transmission lines in the City, all that were outside of view sensitive areas and where there were already taller poles. He referred to Exhibit 1, the proposed code change in Section 18.05.000.6.A.iii that would retain the 10% limitation in the expansion of the pole except for as provided for wireless facilities. He then referenced Section 18.05.030.B.3 which outlined the provision for pole extension for wireless facilities, allowing one carrier to mount antennas on the existing structure and allowing the pole to be increased in height no more than the sum of the wireless antenna plus the 15 -foot vertical separation from power lines. Councilmember Wilson asked whether expansion of transmission poles would require replacement of the pole. Mr. Bullock answered typically it would. Councilmember Wilson asked whether the ordinance could incorporate a fee to be paid by the applicant that would be placed in a fund for undergrounding Edmonds City Council Approved Minutes October 18, 2005 Page 16 utility lines in areas that may be view sensitive. City Attorney Grant Weed answered he knew of no reason why the City could not impose such a fee. Mr. Bullock noted whenever a wireless facility was located in the public right -of -way, the City charged carriers a fee via a mini franchise agreement for the site - specific location. Councilmember Plunkett asked how many poles could potentially be extended. Councilmember Wilson inquired about the current franchise fee. Mr. Bullock suggested those questions be directed to the wireless carrier. Liz Carrasquero, Cingular, explained Cingular, like other wireless carriers, was constantly expanding their network and was always seeking low impact ways to bring coverage to areas. She noted what was becoming the most common siting alternative was to site antennas on power poles which was done frequently in residential areas in King and Snohomish Counties. She commented on standards in other areas with regard to height extension. Their request was for a minimum height increase — 15 feet of vertical separation from power lines as required by Snohomish. County PUD plus the antenna height. In response to the how many poles could potentially be extended, Ms. Carrasquero answered most carriers have coverage in the Edmonds area; she anticipated Cingular may propose one additional site every 1 -2 years. She advised there was a T- Mobile representative in the audience who could address their needs. With regard to the franchise fee, she noted it depended on whether there was only an antenna or also ground equipment. She recalled the franchise fee was in the $300 -$400 per month range which was consistent with the fee charged by most jurisdictions. Councilmember Moore recalled the Community /Development Services Committee referred this to the Citizen Technology Advisory Committee (CTAC) and inquired about the results of that meeting. Ms. Carrasquero answered one of the main issues was whether there was potential for a conflict between the alternate communication system the CTAC was considering and the wireless antennas. The Committee did not anticipate there would be any conflicts. Councilmember Wilson asked the cost to replace a transmission pole. Ms. Carrasquero stated the PUD did all the work and the cost ranged from $25,000 - $60,000 for materials, construction, traffic control, etc. Mayor Haakenson opened the public participation portion of the public hearing. Don Kreiman, Edmonds, commented on locations in the City that did not have adequate wireless communication coverage, stating he did not have coverage at his home. He noted today's children would be competing internationally and that would not be possible with inadequate wireless communication. He summarized the proposed extension appeared to be an inexpensive method of achieving enhanced wireless communication service. Roger Hertrich, Edmonds, referred to the PUD's T &D Guidelines, noting the drawing did not provide an adequate representation of how the pole would look in its entirety. He asked for a perspective of the antenna on top of a power pole with the other associated enclosures. Enclosures could be located 13 -16 feet above ground although more than one antenna or enclosure on a pole required approval of the PUD. He suggested approval of the City be required to ensure citizens' view of the antenna and/or equipment was considered. He anticipated if the antennas were allowed on transmission poles now, they would be allowed on smaller poles in the future. He requested the Council protect the public's interest by providing more illustrations and schedule a second public hearing so that the public understood the proposal. Ray Martin, Edmonds, recommended further information regarding the proposal be provided to the public including specifics such as the coverage area. Edmonds City Council Approved Minutes October 18, 2005 Page 17 Joan Bloom, Edmonds, commented her primary concern was that the public was not aware of many of these issues. She noted Cingular would benefit financially from placing antennas on telephone poles and she questioned whether a $300 -$400 per month franchise fee was sufficient. She questioned whether allowing these poles to be replaced would result in their being above - ground in perpetuity. She supported Councilmember Wilson's idea of an additional fee for undergrounding. She acknowledged the importance of wireless communication, but felt there were issues that needed further consideration. Hearing no further public comment, Mayor Haakenson closed the public hearing. In response to Mr. Hertrich's concern with other structures associated with wireless communication facilities, Mr. Bullock emphasized the proposal did not change what the City's current wireless communication ordinance required or allowed. Chapter 20.50 would continue to control the size of antennas and enclosures, and treatment to minimize visual impact on the community. He referred to the conflict between the wireless code that encouraged antennas to be mounted on existing structures and the utilities wire chapter that did not allow poles to be used for wireless communication in most instances. Rather than a carrier submitting a request for a new monopole, he found it preferable to use existing poles to mount antennas. Mayor Haakenson asked where the equipment on these poles would be located. Mr. Bullock answered that was at the option of the carrier if they could work out a ground lease with an adjacent property owner or agreement with the City to locate it in the right -of -way. He noted wireless carriers had options for locating their equipment out of sight, citing an example on Main Street where AT &T /Cingular located their equipment in a vault under the sidewalk. Mayor Haakenson asked staff to address Mr. Hertrich's comment that equipment could be mounted 15- feet up on a pole, affecting someone's view. Mr. Bullock advised the wireless chapter provided provisions for small equipment structures on poles. He noted if a site had larger equipment needs, that equipment would need to be located in an alternate location and screened appropriately. Mayor Haakenson observed this did not differ from the existing ordinance. Mayor Haakenson asked who owned the poles. Mr. Bullock answered PUD in most cases, the City did not. Councilmember Orvis pointed out federal law prohibited the City from excluding wireless antennas. Mr. Bullock agreed, noting the wireless ordinance was adopted to address that requirement. Councilmember Wilson asked whether the $300 -$400 per month franchise fee was per facility or per user. Mr. Bullock answered when the antennas were installed in specific sites, the City entered into a mini - franchise agreement and charged on a per site basis. He noted the franchise agreement documented the requirement to comply with the City's wireless chapter. Councilmember Wilson noted the franchise fee was a lease for the use of the right -of -way. Mr. Bullock agreed. Councilmember Wilson noted the proposal was only consideration of extending the height of only the transmission poles which were already 50 -60 feet tall. Mr. Bullock agreed. With regard to the comment that allowing these poles to be extended would result in their being above ground in perpetuity, Mr. Bullock explained it was unlikely that transmission poles which contained high voltage lines would ever be undergrounded due to the voltage and need for access to service the lines. Councilmember Wilson asked whether the existing ordinance required undergrounding of overhead utility lines. City Attorney Grant Weed advised there was a State Statute that addressed limitations and requirements for undergrounding. City Engineer Dave Gebert explained Chapter 18.05 required new or extended utilities to be undergrounded. An overhead line could be rebuilt as long as it did not expand by Edmonds City Council Approved Minutes October 18, 2005 Page 18 more than 10 %. The code also had requirements for new private service to residential units /commercial be undergrounded. Certain capital projects such as 2201h Street, the City required PUD, Verizon and Comcast to relocate their lines. This was done at their expense; if the City required the lines to be undergrounded, the City would pay the cost difference. Councilmember Plunkett summarized the proposal would not allow any additional equipment on the poles over what was currently allowed. Mr. Bullock agreed. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER OLSON, TO DIRECT THE CITY ATTORNEY TO PREPARE AN ORDINANCE TO IMPLEMENT THE PROPOSED CODE AMENDMENT. Council President Marin recalled 21 years ago he purchased one of the early cell phones at a cost of nearly $4,000 only to discover it did not work in downtown Edmonds. He noted 21 years later there were still holes in the coverage in Edmonds. He expressed his support for co- locating antennas, commenting on an outstanding looking antenna installation on 76th /196th in the Lynnwood area. MOTION CARRIED UNANIMOUSLY. 9. AUDIENCE COMMENTS Intersection section at Eric Sundquist, Edmonds, commented on a fatality accident at 240th & Edmonds Way, noting the & Ed monds Way g e was aware y intersection was atrocious and needed to be fixed. Although h the City could not install a Ed traffic signal because it was a State Highway, he asked the Council, Mayor and City Engineer to help their neighborhood petition the Washington State Department of Transportation to install a traffic signal. He commented on the numerous close accidents at this location and the amount of time it took to exit his neighborhood via the intersection. He recalled last spring observing a near - collision when a young mother with a stroller and a toddler attempted to cross at this location. He commented on the amount of pedestrian traffic in this neighborhood due to the condominium complex and two apartment complexes and requested the City assist the neighborhood in seeking the assistance of State Representatives and Senators. He summarized it was only a matter of time before another family was destroyed. lnterseehon at Mark Pembrooke, Edmonds, a resident living near the scene of the accident at 240th & Edmonds Way, 240 & commented this was a matter of public safety. He encouraged the Council and staff petition the State to Edmonds way consider the past fatalities /near fatality accidents at this intersection. He noted the State's concern with traffic flow could be addressed while maintaining 40 mph speeds in this area, likely with fewer accidents. lnterseotion at Arthur Aropov, Edmonds, echoed his neighbor's shock at the accident that occurred Monday morning. 2ao« & He noted there were a lot of pedestrians in the area and the very dangerous situation warranted a traffic Edmonds Way signal. Roger Hertrich, Edmonds, expressed dismay at the questioning of Team Edmonds' efforts and urged Team Edmonds the Council to support the Chamber and Team Edmonds' efforts to promote the City. He commented the Funding 1�1� l� y xegUest key to increasing business in Edmonds was tourism not condominiums. With regard to acquiring the old Woodway Elementary School site, he recommended the Council request a report on the grants that had old wooaway been researched /applied for. He relayed the Park Director's comments that he was awaiting direction Elementary from the Council before proceeding. If staff was unable /unwilling to seek grants, he recommended the school site Council hire Arvilla Ohlde to pursue grants for the purchase of the old Woodway Elementary School site. Don Kreiman, Edmonds, thanked the Council and Mayor, commenting he was impressed by their conduct as well as the conduct of Council candidates. Although he was astounded by the Council's intelligence and hard work, he reminded them of their constituents, pointing out Councilmembers were Edmonds City Council Approved Minutes October 18, 2005 Page 19 the stewards of Edmonds. He relayed a story of a community called Edmonds where the citizens enjoyed peaceful days, quiet nights, clean air and natural beauty. This was disturbed when the woods were cut down, expensive houses constructed, traffic increased and the roads became too dangerous to walk. The residents now see houses where trees used to be, they curse the traffic, pray taxes don't continue to increase, and many of the happy people who used to live in Edmonds have had to leave. Only a few developers, realtors and rich corporate executives lived happily ever after. He noted this was how Edmonds' story would end if action was not taken. He recalled Councilmember Wilson and former Councilmember Lora Petso tried to address these issues but were opposed by those who refused to make any changes. He concluded the City's problems today were caused by the rules that existed today and not the rules that should be passed to protect the community. oct.1� Ray Martin, Edmonds, advised the October 17 candidate forum would be televised on Channel 21 at Candidate 10:00 a.m. and 5:00 p.m. daily. With regard to the budget, he recalled funding provided in the past to the Forum Alliance for Economic Development whose only message was raise building heights. The City then hired an Economic Development Director with a salary of over $100,000 per year who also supported raising Budget building heights. He commented it took the property taxes that 22 average homeowners paid to the City Concerns to pay the salary of the Economic Development Director, yet her efforts have not paid off. He recommended the decision to hire the Economic Development Director be reconsidered. He referred to the $1.50,000 in last year's budget and $100,000 this year for a skate park, commenting Edmonds did not need a skate park. He recommended those funds be used for streets, walkways and public safety. In response to Mr. Hertrich, Mayor Haakenson advised the Parks Department had researched each grant the Council suggested and he was working with the Council on that issue. He agreed staff was awaiting direction from the Council; he invited Mr. Hertrich to discuss this with any Councilmember. Traffic Mayor Haakenson commented the hearts of the Council and staff went out to both families involved in Accident at 240r' and the traffic accident on SR -104. He read a statement developed by staff that stated the City's Capital Edmonds way Improvement Program for transportation projects did not presently include installation of a traffic signal at the intersection of 240th & Edmonds Way. Although a project requirement was identified in the 6 -year Transportation Improvement Program for a signal installation at 238th & Edmonds Way, funds were not presently available to accomplish this project. He explained because Edmonds Way was a State highway, staff contacted WSDOT today and confirmed the intersection of 240"' & Edmonds Way was on their signal priority array which meant they monitored it for accident data and traffic counts and whether the data warranted a traffic signal. WSDOT advised staff today that this intersection was ranked low in priority region wide for a signal based on accident data and traffic counts. The City's 2002 Transportation Comprehensive Plan update analyzed accident data throughout the City and identified high accident locations. The intersection of 240`h & Edmonds Way /SR 104 was not identified in the Transportation Comprehensive Plan update as a high accident location; accident data provided by WSDOT today indicated for the period 1999 through 2004, there were a total of 13 accidents at this intersection, all minor with no fatalities. Updated accident data provided by the Edmonds Police Department today for the period 2000 through 2005 indicated a total of ten accidents with no fatalities prior to this week. With the occurrence of the fatal accident this week, the City's Traffic Engineer will be asked to reevaluate the accident data at this intersection with WSDOT and reassess the need and priority for a traffic signal. Mayor Haakenson urged anyone interested in this project to contact their State Senator and Representatives to inform them of the need for a traffic signal at this intersection. He commented traffic did not go fast only on SR 104 or downtown Edmonds, traffic went fast everywhere in Edmonds and throughout the region. He emphasized it was the drivers who were the problem; the only way to address speeding was for everyone to slow down. Edmonds City Council Approved Minutes October 18, 2005 Page 20 Councilmember Plunkett asked the best way for interested citizens to follow this issue. Mr. Gebert suggested they keep in contact with the City's Traffic Engineer, Darrell Smith, whose phone number was 425- 771 -0220. He advised this issue would require considerable evaluation with WSDOT. Councilmember Plunkett asked that staff keep the Council up -to -date on staff and WSDOT's evaluation. 10. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF OCTOBER 11, 2005. Community/ Community /Development Services Committee Development Councilmember Moore reported the Committee discussed a proposed partnership for Edmonds Services Committee Elementary School playfield improvements and recommended the Playground Committee develop a cost estimate of the recreation related elements of the proposal and present their request to the full Council in the near future. Finance Committee Finance committee Councilmember Plunkett reported the Committee discussed the 2006 property tax ordinance, particularly the proposal to use banked capacity as described in Mayor Haakenson's budget message. Next the Committee reviewed position reclassification requests and recommended they proceed as part of the 2006 budget process. The Committee then reviewed the L -5 salary survey which will be placed on a future Consent Agenda. Public Safety Committee Publi °safety Councilmember Orvis reported the Committee discussed the Public Safety Element of the Comprehensive Comnuttee Plan. The Committee then discussed the Municipal Court Judge position; the Council will consider whether to make the Judge's position an elected one at the October 25 meeting. He noted the two reasons for making the Judge an elected position were, 1) the State was encouraging the City to do so and 2) there may be State funds available to pay the Judge's salary if it were an elected position. Mayor Haakenson advised staff learned today that the State would not pay as much as was anticipated and making the Municipal Court Judge an elected position would require increasing the Judge's salary. He advised Municipal Court Judge Fair was preparing a memo to the Council. 11. MAYOR'S COMMENTS Mayor Haakenson expressed his thanks to City Attorney Grant Weed for his assistance. 12. COUNCIL COMMENTS walkways on Council President Marin commented the new walkways on Dayton, 5th and Main were spectacular as was s'h & Dayson the artwork adorning the south corner of City Hall. He noted the artwork was constructed using the and 5`" &Main. copper remnants of the original fountain. Mayor Haakenson advised the artwork would be dedicated on city Hall October 31. Artwork Councilmember Wilson thanked Mayor Haakenson for his comments regarding the accident at 240th & Accident at Edmonds Way, noting his daughter knew one of the parties involved. He echoed Mayor Haakenson's 240`h & Edmonds way recommendation to speak with the City's legislators, noting the City was fortunate to have two districts representing Edmonds with a total of six legislators — Representative Kagi and Chase, and Senator Fairley from the 32 ad Legislative District and Representatives Roberts and Sullivan and Senator Shin from the 21st Legislative District. Friends of the Councilmember Olson announced the Friends of the Library book sale on October 29 at the Frances Library sock Anderson Center from 9:00 a.m. to 4:00 p.m. Sale Edmonds City Council Approved Minutes October 18, 2005 Page 21 Councilmember Moore reported she participated in Walk Across America along with 150 others. She Walk Across occurring& advised of Walk Across Washington on October 29; further information is available at America WalkWashington.org. Old Woodway With regard to the Woodway Elementary School site, Councilmember Moore advised staff was working Elementary hard to pursue everything the Council asked them to and it was indeed in the Council's hands. She School Site commended staff for everything they were doing in an effort to acquire the 11 acre site. Councilmember Moore echoed Mayor Haakenson's comments urging everyone to slow down. Student Representative Molly Thomson recommended the funding for a skate park be retained in the Edmonds- Woodway High 2006 budget as youth in the City needed things to do. She advised the Edmonds-Woodway homecoming School events included charity chains that would benefit hurricane relief. She advised the high school would be Homecoming doingeverything it could to assist with providingitems on the list of needs for the cityEdmonds adopted. Benefit � g P With no further business,the Council meeting was adjourned at 10:20 p.m. G • 'Y !• • ENSON,MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes October 18,2005 Page 22 Alik AGENDA !;y EDMONDS CITY COUNCIL 11 Council Chambers, Public Safety Complex 250 5th Avenue North 7:00 - 10:00 p.m. OCTOBER 18, 2005 6:30 p.m. - Executive Session regarding a real estate matter. 7:00 p.m. - Call to Order/Flag Salute 1. Approval of Agenda 2. Consent Agenda Items (A) Roll Call (B) Approval of City Council Meeting Minutes of October 4, 2005. I/ (C) Approval of claim checks #82796 through #82970 for the week of October 3, 2005, in the amount of$159,944.52, and checks #82971 through #83126 for the week of October 10, 2005, in the amount of $646,832.10. Approval of payroll direct deposits and checks #41874 through #41998 for the period September 16 through September 30, 2005, in the amount of$933,121.46. *Information regarding claim checks maybe viewed electronically at www.ci.edmonds.wa.us (D) Acknowledge receipt of Claim for Damages from Jane Hinrichs ($2,000), Nancy Brancheau (amount undetermined), Kim Newman (amount undetermined), Anatoly Kosyuk ($605.48), and Shelley Murray (amount undetermined). (E) Accepting the donations of vehicles from Lynnwood Honda and Doug's Lynnwood Mazda for use by the Edmonds Police Department Youth Services Officer and Crime Prevention personnel. (F) Final approval of a 16 lot townhouse subdivision known as the Cascade Cottages located at 20925 - 76th Avenue West. (Applicant: Doug Herman of Project 210 / File No. P-2004-112) (G) Proclamation in honor of Make a Difference Day, October 22, 2005. 3. (15 Min.) Presentation of Preliminary 2006 Budget. 4. (15 Min.) Presentation by Team Edmonds. Page 1 of 2 CITY COUNCIL MEETING AGENDA OCTOBER 18, 2005 5. (15 Min.) Consideration of Resolution opposing Initiative 912. Initiative 912 would repeal motor vehicle fuel tax increases of 3 cents in 2005 and 2006, 2 cents in 2007 and 1.5 cents per gallon in 2008, enacted in 2005 for transportation purposes.* *Public comment will be received on this matter;opposing viewpoints are encouraged to come forward. 6. (30 Min.) Closed Record Review of the appeal of the Hearing Examiner decision to deny the appeal of the staff decision to disallow the use of an existing residential structure as a duplex in a single-family zone. (Appellant: Walter R. Day; Property Location: 18728 and 18730 - 94th Ave. W; File No. AP-05-73) 7. (15 Min.) Public Hearing on a street vacation request for a portion of 8th Avenue North, north of Sprague Street. 8. (45 Min.) Public Hearing on an amendment to Edmonds Community Development Code Chapter 18.05 allowing PUD transmission poles to be extended 15 feet to accommodate wireless communication facilities. 9. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings. 10. (10 Min.) Report on City Council Committee Meetings of October 11, 2005. 11. ( 5 Min.) Mayor's Comments 12. (15 Min.) Council Comments 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. Page 2 of 2