Loading...
11/15/2005 City CouncilNovember 15, 2005 The Edmonds City Council meeting was called to order at 7:09 p.m. by Mayor Haakenson in the Council Chambers, 250 5`b 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 (arrived 9:01 p.m.) Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Deanna Dawson, Councilmember ALSO PRESENT Michael Bowker, Intern Steven Landry, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Tom Tomberg, Fire Chief Al Compaan, Assistant Police Chief 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 Darrell Smith, Traffic Engineer Debi Humann, Human Resources Manager Steve Bullock, Senior Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER OLSON, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. (Councilmember Wilson was not present for the vote.) 2. CONSENT AGENDA ITEMS COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER DAWSON, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. (Councilmember Wilson was not present for the vote.) The agenda items approved are as follows: Approve (A) ROLL CALL 11/7/05 Minutes (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF NOVEMBER 7, 2005. Approve Claim Checks (C) APPROVAL OF CLAIM CHECKS #83666 THROUGH #83822 FOR THE WEEK OF NOVEMBER 7, 2005, IN THE AMOUNT OF $571,731.44. Claim for Damages (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM DON BENSON (AMOUNT UNDETERMINED). Edmonds City Council Approved Minutes November 15, 2005 Page 1 Hwy 99 (E) AUTHORIZATION FOR THE MAYOR TO SIGN A CONSULTANT CONTRACT WITH Traffic Circulation PERTEET ENGINEERING, INC. FOR THE HIGHWAY 99 TRAFFIC CIRCULATION Study AND SAFETY STUDY. 2004 Water- (F) REPORT ON BIDS OPENED NOVEMBER 1, 2005 FOR PHASE III OF THE 2004 line Replace- WATERLINE REPLACEMENT PROJECT AND AWARD OF CONTRACT TO ment Project EARTHWORK ENTERPRISES, INC. ($840,220.14, INCLUDING SALES TAX). Ord# 3573 Non- (G) ORDINANCE NO. 3573 - 2006 NON - REPRESENTED SALARY ORDINANCE. Represented Salaries 3. HEARING EXAMINER ANNUAL REPORT Hearing Examiner Hearing Examiner Ron McConnell advised this was his l lth annual report to the Council. He reported the Annual Report types of cases last year were similar to the previous year; some required interpretation and some were appealed to the Council. He expressed his support for the proposed Zoning Code update, commenting there were some areas of the Code that could benefit from clarification. Council President Marin requested he elaborate on how Edmonds' Code compared with other cities. Mr. McConnell answered some codes were easier to work with and more clear; although the Edmonds code was not the worst, it could be cleaned up and made more clear and more user friendly. He preferred codes that had more matrixes and charts. He cautioned against a code such as Kirkland's which was exceedingly detailed and very voluminous. He noted Kirkland had a slightly larger population than Edmonds and has a planning staff of 20. He recalled Bellevue's code was user friendly and provided a great deal of clarity. He recalled the drastic improvement in King County's code several years ago when it was updated. He offered to provide further assistance with the update. Councilmember Orvis encouraged Mr. McConnell to review Council and City Attorney comments on variances that have been appealed to the Council during the past year. He asked Mr. McConnell to clearly delineate in his findings how an application met the five variance criteria. 8" Ave. S 4. PUBLIC HEARING ON THE CONSIDERATION OF A POSSIBLE VACATION OF A PORTION Between OF THE UNOPENED RIGHT -OF -WAY OF 8TH AVENUE SOUTH BETWEEN ALDER AND Alder and WALNUT STREETS. Walnut Development Services Director Duane Bowman recalled on October 4 the Council passed Resolution No. 1108 initiating this public hearing. The purpose of the public hearing was for the Council to consider the best use of this unopened right -of -way. He explained the right -of -way had remained in its present undeveloped state for a number of years, particularly on the north side as it abuts Alder Street where there were two homes with driveways extending into the right -of -way. He noted property owners on the south side had cleared the blackberries and landscaped the area. He explained there was a fence with a gate separating the Walnut side from the Alder street side, recalling efforts to maintain public access in that area including requesting that the gate remain open. He concluded the issue before the Council was what to do with the unopened right -of -way. Mr. Bowman displayed a vicinity map and identified the right -of -way proposed to be vacated. He explained the City had a waterline that ran north -south in the 8th Avenue right -of -way. He displayed several photographs, 1) the right -of -way from Alder Street looking down the centerline of the 60 -foot wide right -of -way, noting both driveways were within the right -of -way, 2) the gate and fences along the right -of -way and unopened alley, 3) the right -of -way from Walnut whether there was an ecology wall due to the steep slope, 4) the area where people walk on the Adams driveway, through the gate, and along a sidewalk on the Larman's property, and the 5) area that was landscaped by neighbors on the Walnut side. Edmonds City Council Approved Minutes November 15, 2005 Page 2 He noted this path was utilized by neighborhood residents to reach downtown, Frances Anderson Center, and the library to avoid the steep grade on Alder and Walnut. Mr. Bowman reviewed the following options for the Council: • Completely vacate the right -of -way while retaining a utility easement for city utilities • Completely vacate the right -of -way while retaining a utility easement and pedestrian easement • Do a partial vacation of the right -of -way with retention of appropriate easements • Do not vacate the right -of -way and leave the right -of -way as it currently exists which requires a decision regarding the location of the walkway Mr. Bowman relayed staff's recommendation, to vacate the subject right -of -way at 50% of the appraised value ($2500) and retain a 10 -foot utility easement and a I0 -foot pedestrian easement through the entire right -of -way. He recommended staff be directed to prepare the necessary ordinance and exhibits delineating the required easements. The compensation should be used to construct the trail connecting Alder and Walnut Streets. He explained both Mayor Haakenson and he had discussed this issue with neighbors and Council direction was now necessary regarding this right -of -way. Mr. Bowman displayed a drawing illustrating the route most people used when walking through this area, from Walnut they walk along the Larman's driveway, through the gate, across the gravel and down the driveway that serves the Adams residence. He identified the four property owners who abut the property, Adams and Martin on the Alder side and Larman and Peterson on the Walnut side. City Attorney Scott Snyder explained this was a public hearing but it was a legislative and not quasi judicial act of the Council. Courts rarely if ever interfere with City Council's discretion to determine whether public property was needed; the only time would be if a property were landlocked by the decision which was not an issue tonight. He explained the Council had the authority to remove any obstruction from the public right -of -way without compensation. The Council could not order the property owners to pay for the vacation; however, the vacation could be conditioned on payment of funds. Because vacations were accomplished via passage of an ordinance, Mr. Snyder advised Mayor Haakenson could not vote to break a tie. Councilmember Dawson asked the outcome if the City vacated the right -of -way and three of the four neighbors did not want the vacation and did not want to pay for the vacated property. Mr. Bowman answered an option would be not to require compensation for the vacated right -of -way. Councilmember Dawson inquired about assertions that the property taxes would increase if the property owners accepted the additional property. Mr. Bowman acknowledged that was a possibility although he questioned the value -added due to the driveways and retention of utility and pedestrian easements. He concluded he did not have any information to confirm or refute the neighbor's assertions that their property taxes would increase, recalling one email estimated the increase at $500 per year. He assumed if area was added to a property it was likely the assessor would find value had been added to the property although a homeowner could protest the additional value the assessor assigned due to the limited functionality of the property. Council President Marin asked whether one property owner could purchase the entire right -of -way. Mr. Bowman answered one person could pay the compensation but by law the property must be returned to the adjacent property owners, in this instance four properties. Council President Marin observed four property owners had a right to the right -of -way and if vacated could purchase a 1/4 or not. Mr. Bowman agreed, explaining the Larmans and the Petersons on the south side could obtain the right -of -way, relocate the easements and create a building lot although most likely that would not occur and neither property Edmonds City Council Approved Minutes November 15, 2005 Page 3 owner had expressed interest in doing that. He noted that was not possible on the north as the Adams' and Martin's driveways were located in the right -of -way. Councilmember Moore asked how long the driveways had been in the right -of -way. Mr. Bowman answered 25 -30 years. He explained when these houses were built the City authorized the driveways in the right -of -way as their access. Councilmember Moore asked whether adverse possession was possible on public property. Mr. Snyder answered no, there was no ability to adversely possess against a governmental entity. He reiterated the Council had complete discretion to remove anything in the right - of -way at any time. Mayor Haakenson opened the public participation portion of the public hearing. James Martin, Edmonds, one of the four property owners bordering on the right -of -way, explained the driveways were on the easement because the City did not construct a street in the right -of -way. He assumed the City approved the building permit for the homes that have their driveways on the easement. He preferred the City not vacate the easement and allow the current situation to continue. He found this the best solution for several reasons, first that the current situation pleased the 12 residents who signed a petition to have the right to walk through this area; the City approved the petition and took considerable action to establish a right -of -way. He noted his wife and he have always supported people walking on the right -of -way and welcomed their use of the easement abutting their home. Because of the slope in the easement, some people prefer to walk on the Adams' driveway. He cited other reasons for not vacating the easement including that the current situation pleased three of the four property owners who abut the easement, the existing situation did not cost the City any money, and the current situation satisfied the largest number of people. Although he could understand some City officials wanting to vacate the right - of -way to eliminate the nuisance it causes, he reiterated the City caused the problem by not constructing the street in the right -of -way. He objected to the vacation, citing increased taxes and insurance on property he did not want. Eleanor Bonanno, Edmonds, a resident on Walnut since 1956, . explained she uses this area to reach downtown and the library due to the steep grade on Walnut. She recalled neighbors and she circulated a petition to allow them to walk on the right -of -way. She commented the people walking on that right -of- way do not cause any damage and respect the neighboring properties. She recommended the Council not vacate the right -of -way and retain the existing pathway. Trudy Thornbrough, Edmonds (via a letter read by Ms. Bonanno), one of the original petitioners who submitted a request to the City to open the gate to allow them to walk between Alder and Walnut which had been possible before the blackberry bushes and the fence was erected, objected to vacating the right - of -way, envisioning the neighbor who erected the fence would again block access. She referred to the information in the agenda materials that if vacated the City planned to build another path, finding this an unnecessary expense to satisfy one person. She urged the Council to retain the existing situation which worked well for most users. The existing situation did not cost any money nor cause any undue hardship. She noted the only way to improve the situation would be perhaps to install the gate in its original . location, permanently mark the right -of -way and/or eliminate the latch on the gate as it was too high for most users. She noted the right -of -way was marked at one time but the markings were removed. Brian Larman, Edmonds (via a letter read by Ms. Larman) owner of the property at the southeast corner of the subject right -of -way, recalled a number of citizens petitioned the City to require the gate /fence between Walnut and Alder remain unlocked which was accomplished with the assistance of Mr. Bowman and Mayor Haakenson. He explained this pathway allowed walkers to avoid the steep grade on Walnut and without it, many were unable to walk to downtown. He assured this was not a main pedestrian thoroughfare; on average it was used by a relatively small number of neighbors who have demonstrated Edmonds City Council Approved Minutes November 15, 2005 Page 4 respect for property owners and who appreciated the less arduous route. He and his neighbors obtained an encroachment permit to landscape and enhance the right -of -way which included a pathway that connected to their driveway and allowed neighbors to walk on their side of the right -of -way. He recommended the City retain the existing situation and preserve their right to walk unimpeded on the 8th Avenue right -of -way, envisioning that vacating the right -of -way would jeopardize the ability to walk between Walnut and Alder. If vacation were deemed necessary, he requested the City ensure the current pathway remain unobstructed. Elizabeth Larman, Edmonds, owner of the property at the southeast corner of the subject right -of -way, referred to the encroachment agreement they and the Petersons obtained for the south side of the 8tb Avenue right -of -way. She congratulated the Council for purchasing the Shell Creek property with the intent of keeping open land for the citizenry, essentially the same thing they were attempting to do in their neighborhood — preserve the right to walk downtown via the 81h Avenue unopened right -of -way. She requested the Council support Mayor Haakenson, Mr. Bowman and Mr. Lindsey who responded to their petition and opened the previously locked gate to provide safe passage via the unopened right -of -way. She objected to the City's proposal to construct a pathway parallel to the existing blacktop from Alder Street to the fence, commenting the existing path on City property was adequate and another path would be a waste of City resources. She supported the current situation, finding it had no impact on existing landscaping, satisfied the neighborhood's wishes and did not cost the City anything. She urged the Council not to allow the proposed partial vacation and support neighborhood walkers' right to use the unopened 8th Avenue right -of -way. Maureen Martin, Edmonds, one of the four property owners bordering on the right -of -way, requested the Council abandon their plans to vacate the right -of -way, asserting the transfer of the property would increase their annual property taxes by approximately $500, an estimate provided by the Snohomish County Assessor's Office. She assured they had no desire to own the property; when their home was built over 30 years ago, the right to construct the driveway on the right -of -way was granted. They have maintained their portion of the unopened right -of -way, noting the City was not required to provide any maintenance of the area. She also objected to an expenditure of City funds to construct a pedestrian pathway through the right -of -way when a usable pathway already existed. She preferred those funds be spent to construct missing areas of the walkway on Dayton and Maple. Waide (Sonya) Adams, Edmonds, one of the four property owners bordering on the right -of -way, spoke in support of the vacation, citing continuous issues at night on their driveway. He referred to discussions with Mr. Bowman and Mayor Haakenson and plans to construct a pathway down the middle of the right - of. -way. He relayed information provided by the City that a variance was granted 24 years ago to allow their driveway in the right -of -way. He expressed their willingness to purchase the property if the right -of- way were vacated, noting that revenue would cover the cost of the trail. The problem was that pedestrians must currently use private property to reach Walnut; he preferred a trail be constructed from Alder to Walnut that was open to the public. He requested the Council consider vacating the 8th Avenue right -of- way, retaining an easement for public access. LaVerne Adams- Hayter, Edmonds, advised she purchased the property in 1980 and constructed the home in 1985. After unsuccessful negotiations with the City to vacate the right -of -way at that time, she received approval to have their driveway in the right -of -way. She requested the right -of -way be vacated and a walkway constructed from Alder to Walnut. William Charbonneau, Edmonds, recalled people had used this path for decades until the Adams installed the gate as well as various other methods of blocking the path. His understanding was the Adams did not want anyone invading their space and they felt this was their property. He envisioned if the right -of -way were vacated and a pedestrian easement retained, the Adams would block that path. He Edmonds City Council Approved Minutes November 15, 2005 Page 5 concluded a citizen would not be allowed to block a right -of -way such as Main Street, why could a citizen block this right -of -way. If the Council vacated the right -of -way, he envisioned a pathway would never be completed due to the cost to build stairs where there were currently ecology blocks on Walnut. He recommended the Council not "make a mountain out of a mole hill" and not forsake the rights of citizens to use public property to cater to the illegal actions of one citizen. Warren Peterson, Edmonds, owner of the property on the southwest corner of the subject right -of -way, pointed out vacating the right -of -way was not in the best interest of the neighborhood as the outcome of vacation would be to deny residents passage between Alder and Walnut Streets. Residents use this right - of -way to avoid the steeper slope on Walnut. Only one of the four property owners abutting the right -of- way was in favor of vacation, the others preferred the existing situation remain and free passage between Alder and Walnut be retained. He referred to the small, friendly, family atmosphere in Edmonds, relaying they had not encountered any problems with people using this path for the past 30 years. He concluded it would be a mistake to vacate the 8th Avenue right -of -way as it would likely result in the closure of that area to pedestrians. Tanya Mead, Edmonds, described her use of the path, commenting on the difficulty to reach the latch on the gate as well as get through the gate with a stroller. She recommended the City retain the path, remove the gate and identify the path as public property. Not finding a petition from the Adams for vacation in the file, she questioned why this action was before the Council. She suggested the City provide further information on how the vacation would impact property owners with regard to insurance, taxes, etc. Lynne Cimler, Edmonds, commented the recent election illustrated there was a renewed interest in the preservation of the small town atmosphere and quality of life. She commented her son often walks to school on the other 8th Avenue right -of -way that connects Walnut and Cedar. She requested the Council protect precious public lands, noting the future use of these public lands was often unknown. She preferred the Council not take the drastic action of vacating the right -of -way and instead enforce the law. Jim Fitch, Edmonds, commented their family has enjoyed using the path for the past several months, remarking it was easier than walking around. He explained a successful solution would allow residents to continue using the path/trail between Alder and Walnut safely day or night, allow them to comfortably permit their daughter and friends to use the path to reach the library or downtown, allow them to walk their dog on the path, and allow continued good relations with their neighbors. He urged the Council to make the solution permanent so that this issue did have to be revisited in the future. Erik Sorensen, Edmonds, requested the Council not vacate the right -of. -way, remarking the current situation was not broken and did not need to be fixed. Carlyn James, Edmonds, remarked they had lived in the area for 19 years and she was not aware of this path until a neighbor informed her recently although she had often wished for a path between Alder and Walnut. She requested the trail be allowed to remain and was happy that at least three property owners were willing to share a portion of their property so that residents could pass through the area. She suggested marking the path so that area residents were aware of its existence. Robert Miller, Edmonds, spoke in support of maintaining the status quo, concurring with the reasons previous speakers provided for why the right -of -way should not be vacated. Joe Wermus, Edmonds, spoke in opposition to vacating the right -of -way. He agreed it was not easily apparent that there was a public pathway in the right -of -way and recommended the trail be identified and the gate that blocked public access be removed. Edmonds City Council Approved Minutes November 15, 2005 Page 6 Roger Hertrieh, Edmonds, referred to conversations he has had with neighbors in the area and his visit to the property, remarking he was surprised there was a trail in this location because of the gate that blocked it. He expressed a preference for an open passage such as an arch rather than the gate, remarking the latch was installed high to make opening the gate more difficult. He requested the Council listen to the neighbors' pleas, mark the path and allow them to continue using the path. Hearing no further public comment, Mayor Haakenson closed the public hearing. Councilmember Plunkett asked why an effort was being made to vacate the right -of -way. Mr. Bowman answered staff wanted policy direction from the Council that they could enforce. Councilmember Plunkett asked why staff recommended vacation. Mr. Bowman answered the recommendation was based on this being unopened right -of -way where a road would not be constructed at any time in the near future. He agreed that in addition to a utility easement the pedestrian access through the right -of -way should be retained which he assured could be achieved via vacation. If after listening to public testimony the Council preferred to retain the existing situation that could be accomplished. He acknowledged the pathway could be marked better as it was not obvious that a path exists. Councilmember Plunkett questioned why a gate with a latch was allowed. Mr. Bowman stated staff had been struggling with that issue. Unfortunately in working with the parties involved, they had not been successful in addressing all issues. He advised the gate was removed at one point and later reinstalled in another location at the direction of staff. He referred to Mayor Haakenson's unsuccessful efforts to address the gate issue with the neighbors, thus it was presented for the Council for policy direction. Councilmember Plunkett asked whether there was a reason why the right -of -way needed to be vacated and whether something could be done about removing the gate. Mr. Snyder stated the Council had total ability and perhaps an obligation to remove any obstruction in the public right -of -way to make it passable. Although the Council could legally allow the existing situation to remain, practically the Council created a public record that people are using a public walkway that is unsafe and frequently blocked. If the Council did not vacate the right -of -way, it needed to be marked and made safe for passage. With regard to the comment about making a mountain out a molehill, Mayor Haakenson explained when a director was unable to resolve a problem and the mayor was required to convene a neighborhood meeting, it was already a mountain. Council President Marin asked under what conditions a fence and gate would be permitted across the right -of -way. Mr. Bowman answered it could be done with an encroachment permit. Council President Marin asked if a permit was obtained for this fence /gate. Mr. Bowman answered there were no permits for the Adams' fence /gate, the Martin's fence or for a number of fences in the unopened alley. Council President Marin asked if the Council could direct that the gate be removed. Mr. Bowman answered yes. Council President Marin asked whether the Council could direct staff to install signage identifying both sides as a city trail. Mayor Haakenson advised a sign could not be installed on the Walnut side because the path in that location was on private property. Mr. Bowman described the path from Walnut to Alder, explained the Larman's have graciously allowed people to use their driveway and a sidewalk through their yard to reach the gate. After passing through the gate, people walk down the driveway in front of the Adams residence, the property owner who requested the right -of -way be vacated. Mayor Haakenson clarified that to access the path from the Walnut Street side, pedestrians must walk on the Larman's property; there was no path from Walnut to Alder that was totally on City -owned right -of -way. Mr. Bowman stated the slope on the Martin's side of the right -of -way prevented most pedestrian's use of that area. Edmonds City Council Approved Minutes November 15, 2005 Page 7 Mayor Haakenson explained in addition to opening the gate, the Parks Department drew a chalk line and spray painted the fence where the right -of -way was located at the neighbors' request so that they could show they were walking on City right -of -way although they were technically using someone's driveway on one side. When those lines were removed, staff sought guidance from Council. He explained if the current situation remained, the only solution was to paint a white line up the right -of -way on both sides designating it as City right -of -way. Mr. Bowman identified the extent of the City right -of -way into the Adams and Martins yards. Mr. Bowman acknowledged the existence of the right -of -way was unknown to most pedestrians. Mr. Snyder explained there was nothing inconsistent with the use of City right -of -way for a driveway, recalling his comment that the only reason vacations were overturned by the courts was if access were denied. It was common to allow joint use of public right -of -way as long as it was not inconsistent with the public's use. Mayor Haakenson advised Mr. Adams' objection was that people walking down the public right -of -way that he uses for his driveway look into his house as well as cause his dogs to bark and people walking on the public right -of -way feel they have been treated poorly by Mr. Adams which has resulted in this neighborhood conflict. Council President Marin observed the gate could be removed. Mr. Bowman answered yes and Mayor Haakenson remarked the gate was not the issue. Council President Marin asked if any action necessary to terminate the vacation request if the Council chose not to vacate. Mr. Snyder advised the Council could take no action, however, he recommended it be resolved. Councilmember Orvis inquired about the ability to install stairs on the Walnut side. Mr. Bowman answered the Larmans have allowed people to use their driveway; stairs would need to be constructed in the right -of -way to make that area accessible due to the steep grade. Councilmember Moore asked whether Public Works /Parks had been asked to provide an estimate for a trail. Mayor Haakenson advised Parks estimated the cost at $4,000 for a path on the Alder side; the cost for a path through the ecology block had not been investigated due to the anticipated expense. Councilmember Plunkett asked what the $4,000 would provide. Mayor Haakenson advised the solution would be to remove the vegetation in the center of the right -of -way between the Adams and Martins and construct a path to the gate leading to the Larman's property. However when he proposed this, the Larmans did not want to allow access to their private property. For Councilmember Plunkett, Mr. Bowman explained if the Council chose not to vacate the right -of -way and directed removal of the gate, staff could do that and work with Public Works /Parks on signage. Councilmember Plunkett asked if further direction from the Council would be necessary. Mr. Bowman answered no. Mayor Haakenson advised this was presented to the Council because all remedies had been exhausted; if the Council directed staff to paint stripes on the driveways to identify the public right -of -way that would solve the problem. Mr. Snyder suggested there were three other issues, 1) he recommended the Council provide direction regarding signage, such as requiring the sign to describe the hazards which would enable the City to take advantage of the recreational use statute, 2) civil or criminal action may be required to ensure the gate remains open and 3) because the use of the Larman's property creates an easement adversely against their property, a permissive use agreement should be developed between the City and the Larmans unless stairs were constructed in the right -of -way. Hearing no further questions for staff, Mayor Haakenson remanded the matter to Council for action. Edmonds City Council Approved Minutes November 15, 2005 Page 8 Councilmember Moore expressed her opposition to vacating this property, acknowledging although there may not be any current plans for the property, there could be a need for it in the future. She preferred if the area were being used as a public walkway, there be a sign identifying it so that people could use it and not feel they were walking on private property. She also supported the removal of all fences and gates on the right -of -way, preferring neighbors assist each other with building new fences that separated the public right -of -way from their property. She recommended clearly marking the trail and removing the gate. Mayor Haakenson explained it was not that simple — staff could remove the gate and /or fence tomorrow, it did not solve the problem. There would still be access from Alder to the middle of the easement and then pedestrians must use the Larman's property. If the Council wanted to have a pathway constructed in the unopened right -of -way on the Walnut Street side, he suggested an estimate be obtained first because he anticipated it would be very costly. Council President Marin preferred to terminate the vacation request and direct staff to remove the gate. Mayor Haakenson reiterated removing the gate was not the problem; if the Council wanted the status quo to remain, he recommended not vacating the right -of -way and providing direction to mark the Alder Street side of the public access that will go through the Larman's yard on the other side. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO NOT VACATE THE RIGHT -OF -WAY AND DIRECT STAFF TO OBTAIN AN ESTIMATE FOR A TRAIL THROUGH THE UNOPENED RIGHT -OF -WAY. Councilmember Orvis requested staff also have the flexibility to negotiate with the Larmans to avoid constructing stairs. Councilmember Olson remarked it seemed like this issue was becoming very complicated. She preferred to retain the existing situation and remove the gate, mark the public right -of -way and see how it worked for a year. If there were a lot of people using the pathway, possibly the Council would need to reconsider building a pathway. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCIL PRESIDENT MARIN, TO AMEND THE MOTION TO REQUEST STAFF BRING BACK A PLAN TO DO NOTHING OTHER THAN IMPROVE THE MARKING, INSTALL SIGNS, REMOVE THE GATE, ETC. MOTION CARRIED UNANIMOUSLY. (Councilmember Wilson was not present for the vote.) Councilmember Dawson agreed with Councilmember Olson, although she was not in favor of white lines painted down the driveway. She preferred the individual property owners delineate between their private property and the public right -of -way if they wished. She found it inappropriate to sign the public right -of- way on Alder side unless a permissive use agreement were developed with the Larmans so that they would not lose the ability to prevent people from walking on their property in the future if they chose. She noted future property owners may want to pursue vacation, but until that happened she did not support pursuing vacation of the right -of -way. Although she did not oppose staff obtaining estimates for a path, she found it unlikely the City could afford to construct a path through that area. Mayor Haakenson explained the simplest solution, as the neighbors said, was to maintain the status quo. This could be accomplished via the Council acknowledging that the property where the Martins and Adams driveways were located was public right -of -way and anyone could walk on it. Councilmember Dawson agreed, noting although the area needed to be identified as public property and pedestrians could access the portions that were public property, the gate should be removed. She recommended the right - of -way not be vacated and the gate be removed. Edmonds City Council Approved Minutes November 15, 2005 Page 9 COUNCILMEMBER MOORE WITHDREW HER MOTION WITH THE AGREEMENT OF THE SECOND. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO DIRECT STAFF TO REMOVE THE GATE, TERMINATE THE VACATION ACTION AND ACKNOWLEDGE THAT PUBLIC RIGHT -OF -WAY IS PUBLIC RIGHT -OF -WAY. MOTION CARRIED UNANIMOUSLY. (Councilmember Wilson was not present for the vote.) Mayor Haakenson declared a recess. To accommodate Councilmember Wilson's delayed arrival due to a flight delay, Council President Marin requested the Council take Agenda Item 8 next. 8. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF NOVEMBER 7 2005 Public Safety Public Safety Committee Committee Councilmember Dawson reported the Committee reviewed the police towing contract that is modeled after Lynnwood's contract. The Committee recommended this item be approved on the Consent Agenda following another review of the contract with inclusion of further indemnification language. Finance Finance Committee Committee Councilmember Olson reported the Committee was provided an overview of the proposed changes to the City's Municipal Employees Benefit Trust (MEBT) Plan. Final changes need to be approved by December 31 and submitted to the IRS. As the final ordinance had yet to be received, the Committee forwarded this item to Council without recommendation. Next staff provided a third quarter budget report; there were no major changes from the information provided mid -year. The Committee then discussed the final 2005 budget amendment and forwarded it to the full Council for review. The final item reviewed by the Committee was the 2006 non - represented salary ordinance which calls for a 2.7% cost of living increase for eligible employees. The Committee forwarded this item to Council for approval on the Consent Agenda. Community /Development Services Committee Development Councilmember Moore reported the Committee discussed underground wiring, topic that arose when Development p g g� p Services the City was approached by wireless providers who requested an increase in utility pole height and Committee Councilmember Wilson suggested establishing a fee that could be used to underground wires in view - sensitive areas. Although this would likely not provide enough money to cover the expensive task of undergrounding, it could offset the cost of a LID or provide matching funds for a grant. The City Attorney was asked to provide information on potential fees for wireless franchise agreements. The Committee then discussed speed humps near the 220th Street project; Fire Chief Tomberg voiced his concern regarding speed humps. Staff was directed to request a memo from the Police Department outlining their position on speed humps. 2006 Budget 5. 2006 BUDGET A. DISCUSSION ITEMS • WORKSHOP FOLLOW -UP • COUNCIL BUDGET ADJUSTMENTS Administrative Service Director Dan Clements advised at the request of Council at the last meeting, the packet contained several revenue and expense scenarios and copies of decision packages that were approved and not approved via the budget process. He displayed a list of proposed budget adjustments, explaining the Team Edmonds request was shown as $0 because it overlapped Councilmember Moore's $20,000 request. Edmonds City Council Approved Minutes November 15, 2005 Page 10 General Fund Amount Purpose Funding Source $20,000 Marketing Budget Ending Fund Balance $ 5,000 Camera Equipment Ending Fund Balance $ 5,000 Community Notification Ending Fund Balance $0 Team Edmonds Non - General Fund Amount Pur ose I Funding Source $17,000 Fire Pension LEOFF Co-Pay I Fire Insurance Premium $ 1,500 Traffic Loop Detector (SR 104) 1 Ending Fund Balance Councilmember Plunkett inquired whether Team Edmonds had agreed not to include funding in the budget. Mr. Clements answered an email from the Chamber Director indicated he felt this was acceptable but final approval would not be provided by the Chamber until their November 17 meeting. B. REMAINING ACTION ITEMS • 2006 BUDGET ORDINANCE For Councilmember Plunkett, Mr. Clements advised the proposed ordinance contained the entire banked capacity. He explained one of the scenarios was the use of 50% of banked capacity in 2006 (approximately $142,000) and the remaining 50% in 2007. If the Council chose, the 2006 budget ordinance could be amended to use 50% of the banked capacity in 2006. Councilmember Plunkett commented the Council usually adopted the property tax ordinance prior to adopting the budget ordinance. Mr. Clements recalled the Council expressed a preference to discuss the budget prior to adopting the property tax ordinance. For Councilmember Moore, Mr. Clements explained the blue dotted line in Scenario 2 (Decision Packages with Sourcing & 50% Banked Capacity in 2006, 50% Banked Capacity in 2007) was a fund balance equal to 8% of expenditures, a standard targeted fund balance for general government operations. The charts also include a line at $1 million, the target for a number of years; as the budget has grown, the standard practice was to have the reserve increase with the budget. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, FOR APPROVAL OF THE 2006 BUDGET ORDINANCE TO INCLUDE THE ITEMS ON THE LIST Councilmember Moore observed the amendments would be funded from the ending fund balance and were not relevant to any property tax increase. Councilmember Plunkett pointed out the use of ending cash resulted in less cash which may /may not have an affect on a Councilmember's decision to increase the property tax. He preferred to take action on the property tax ordinance prior to the budget ordinance. COUNCIL PRESIDENT MARIN WITHDREW HIS MOTION WITH THE AGREEMENT OF THE SECOND. • 2006 PROPERTY TAX ORDINANCE COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO APPROVE THE PROPERTY TAX ORDINANCE WITH FULL BANKED CAPACITY. Councilmember Orvis expressed his preference to amend the ordinance to use half the banked capacity. Edmonds City Council Approved Minutes November 15, 2005 Page I1 Councilmember Plunkett indicated he would not support the motion. Councilmember Moore asked why Councilmember Orvis preferred to use half the banked capacity. Councilmember Orvis responded the scenarios indicated there was little difference between using half the banked capacity this year and half in 2007 versus using all the banked capacity this year. He preferred to keep property tax growth at inflation which could be accomplished by spreading the capture of banked capacity over two years. Councilmember Dawson stated she would be unable to support the motion. Although she appreciated the effort that had gone into the budget and the numerous decision packages that had been eliminated, she did not find it necessary to access all the banked capacity and maximize property taxes at this time. COUNCIL PRESIDENT MARIN WITHDREW HIS MOTION WITH THE AGREEMENT OF THE SECOND. Ord# 3574 COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO Property Tax APPROVE THE PROPERTY TAX ORDINANCE NO. 3574 WITH AN AMENDMENT TO USE HALF THE BANKED CAPACITY (1.75 %) IN 2006 PLUS 1 %. Councilmember Dawson appreciated the attempts to lessen the tax increase but could not support the motion. She supported accessing banked capacity in order to fund essential ongoing items in the budget such as the Street Crime Unit, replacement of bullet resistant vests and a vehicle for the Street Crime Unit on the condition those items would be funded. She recalled from budget discussions those items may not be funded regardless of the use of banked capacity unless sales tax sourcing was approved by the legislature this year. Unless those items were funded, she would only support the 1% property tax increase authorized by law. Council President Marin recalled as a participant on the budget committee he reviewed the decision packages and the budget. Although it was painful to increase citizens' and his taxes, the reality was there were many needs that could not be avoided. He acknowledged it was expensive to operate a municipal corporation, maintain infrastructure and maintain competent staff. Councilmember Plunkett clarified this was not a huge tax increase but was simply the rate of inflation. He noted the Council had increased taxes at a rate of 6% per year in the past; it was only in the past four years that Mayor Haakenson had reduced that amount and via an initiative process, the increase was restricted to 1 %. He pointed out that due to labor costs, benefits, insurance, and inflation, the budget increased faster than inflation. He indicated his support for the motion. For Councilmember Moore, Mr. Clements advised the cost to the owner of a house valued at $500,000 of recapturing half the banked capacity would be $18/year. Councilmember Moore expressed her support for the motion. Councilmember Olson commented if some of the one -time costs were not funded this year, they would be more expensive next year. She indicated her support for the motion as she preferred to increase taxes at the rate of inflation. MOTION CARRIED (6 -1), COUNCILMEMBER DAWSON OPPOSED. For Mayor Haakenson, Mr. Clements advised recapturing only half the banked capacity reduced revenue in 2006 by approximately $142,000. He asked how that affected the decision packages that were approved recapturing the full banked capacity. Mr. Clements explained there was little difference Edmonds City Council Approved Minutes November 15, 2005 Page 12 between using half the banked capacity this year as long as the remaining banked capacity was used in 2007 or another revenue source identified. • 2006 PROPERTY TAX ORDINANCE (con't) COUNCIL PRESIDENT MARIN MOVED TO APPROVE THE BUDGET ORDINANCE WITH THE AMENDMENTS IN AGENDA ITEM 5A WITHOUT THE REDUNDANT $30,000 FOR TEAM EDMONDS. MOTION DIED FOR LACK OF A SECOND. Councilmember Plunkett suggested the proposed budget amendments be discussed again at the November 29 meeting to allow him time to review the budget under the new scenario and to consider Councilmember Dawson's comments. Councilmember Moore asked if Councilmembers had any additional cuts they wanted to propose. Councilmember Dawson commented although she had made several suggestions regarding items that could be cut from the budget, it appeared there was not consensus to make any further cuts. Ord# 3575 2006 Budget COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO APPROVE BUDGET ORDINANCE NO. 3575 WITH THE AMENDMENTS IN AGENDA ITEM 5A WITHOUT THE REDUNDANT $30,000 FOR TEAM EDMONDS. Councilmember Plunkett commented his hesitation in adopting the budget was to allow Councilmember Dawson to provide a more formal proposal regarding the possible cuts she suggested. Councilmember Dawson answered if four Councilmembers were not interested in considering cuts, it was not worthwhile to make a more formal presentation. If the Council reduced revenues by $142,000 in 2006, she recommended there be corresponding cuts in expenditures. She could not support the budget as proposed due to the $1.42,000 reduction in revenues with no offsetting cuts in expenditures and the additional $30,000 in General Fund expenditures. Councilmember Plunkett supported delaying adoption of the 2006 budget to allow Councilmembers time to reflect on the $142,000 reduction in revenue. Councilmember Moore asked what would be discussed on November 29 that could not be discussed now. Mayor Haakenson asked the cost of the new Street Crime Unit and new vehicle. Mr. Clements estimated it was $150,000 - $160,000; the recapture of half the banked capacity provided approximately $142,000. Councilmember Wilson expressed interest in items Councilmember Plunkett would be willing to cut, assuming Councilmember Plunkett had items in mind to cut if he did not support the recapture of the full banked capacity. He referred to one -time costs in the budget such as the rewrite of the Zoning Code, commenting most cities updated their codes every ten years, Edmonds code was 25 years old. He acknowledged Councilmembers could choose to procrastinate funding that update because it was not as visible an expenditure as police officers, however, it needed to be done to facilitate staff and Council's jobs. He recommended the Council fund the rewrite so that the code was usable for citizens and staff, pointing out that delaying it was not a guarantee it would be funded in the future. He was willing to adopt the budget unless there were Councilmembers willing to propose further cuts. UPON ROLL CALL, MOTION CARRIED (5 -2), COUNCIL PRESIDENT MARIN AND COUNCILMEMBERS OLSON, MOORE, ORVIS, AND WILSON IN FAVOR, AND COUNCILMEMBERS DAWSON AND PLUNKETT OPPOSED. Edmonds City Council Approved Minutes November 15, 2005 Page 13 6. CLOSED RECORD REVIEW OF A CONSOLIDATED APPLICATION BY DON DREW ixx Sunset PROPERTY OWNER AND ED LEE OF THE HOTEL GROUP FOR A CONTRACT REZONE Ave. N — Hotet Uroup MASTER -PLAN APPROVAL AND DESIGN REVIEW FOR THE PROPERTY LOCATED AT 1XX SUNSET AVENUE NORTH. THE CONTRACT REZONE REQUEST SEEKS TO CHANGE THE ZONING FROM RS -6 TO MASTER - PLANNED OFFICE AND RESIDENTIAL (MPOR) TIED TO A MASTER -PLAN AND DESIGN REVIEW PROPOSAL FOR A 2 -STORY OFFICE AND RESIDENTIAL BUILDING WITH A BASEMENT PARKING GARAGE. As this was a quasi judicial matter, Mayor Haakenson asked whether any Councilmember had any disclosures to make under the Appearance of Fairness Doctrine. Councilmember Orvis explained because this was occurring at the same time as the legislative process, he had numerous conversations regarding the legislative issues associated with the MPOR zone. Mayor Haakenson asked whether he would have any difficulty making a fair and impartial decision. Councilmember Orvis advised he would not. Mayor Haakenson asked whether any parties of records had any objection to Councilmember Orvis' participation. There were no objections voiced. At Councilmember Dawson's request, Mayor Haakenson listed the parties of recorded: John Bissell, Doug Dreher, Bernice Dreher, Don Drew, Jonathan Hatch, Roger Hertrich, Robin Koetje, Bud Kopp, Don Kreiman, Ed Lee, Tom Robinson, Brian. Slick, Erik Sonnett and Finis Tupper. He advised the Council did not have this list of parties of records as he had just received it. Councilmember Dawson advised at least one of the parties of record contributed to her campaign. Mayor Haakenson asked whether she could render a fair and impartial decision on the matter. Councilmember Dawson answered she could. Mayor Haakenson asked whether any parties of records had any objection to Councilmember Dawson's participation. There were no objections voiced. Councilmember Plunkett advised he did not believe any of the parties of record had contributed to his campaign. Councilmember Wilson advised Don Kreiman contributed to and worked on his campaign; however, they had not discussed this topic. Mayor Haakenson asked whether he could render a fair and impartial decision. Councilmember Wilson answered he could. Mayor Haakenson asked whether any parties of records had any objection to Councilmember Wilson's participation. There were no objections voiced. Councilmember Orvis commented without an opportunity to compare the list with his campaign contributions, he could not definitively answer whether any of the parties of record had made a contribution. Councilmember Wilson asked whether Mr. Gifford testified at one of the hearings. Senior Planner Steve Bullock advised Mr. Gifford did not testify but was counsel for the applicant. Councilmember Wilson advised Mr. Gifford contributed to his campaign and because he was counsel for the applicant, he would recuse himself. Councilmember Wilson left the dais. Roger Hertrich, Edmonds, challenged the participation of Councilmember Olson, recalling she attended the Planning Board meetings where the Hotel Group were presenting the rezone. He recalled she sat in front of the representatives of the Hotel Group and conversed with them, appearing to be a member of their party. He suggested Councilmember Olson's interaction with the representatives of the Hotel Group influenced the Planning Board to some degree and implied she was in favor of the project. He questioned her ability to participate fairly in the discussion and decision. He also challenged Mayor Haakenson's participation in the event of a tie. City Attorney Scott Snyder explained a rezone was implemented by Edmonds City Council Approved Minutes November 15, 2005 Page 14 ordinance and under RCW 35A.12.100 the Mayor could not vote on the passage of any ordinance therefore he would not be allowed to vote in the event of a tie. Mayor Haakenson asked Councilmember Olson whether she could render a fair and impartial decision. Councilmember Olson answered she was not at the Planning Board for this issue and she merely said hello to the representatives of the Hotel Group. Mayor Haakenson established 20 minute time limits for the staff and applicant presentations, reminding the applicant to retain time for rebuttal. Mr. Bullock explained the proposal before the Council was a consolidated application for a contract rezone that would implement a master plan as well as design review approval for a proposed project. He advised the specifics for the master plan and design review proposal were included in the Council packet as Exhibits 1, 5, and 6. He described the process for this project which included review by the Architectural Design Board (ADB) who reviewed the design of the building for its compliance with the City's urban design guidelines as well as design - related criteria of the MPOR zone and ultimately forwarded a recommendation for approval to the Planning Board. Their recommendation included comments about necessary additional setback on the north side of the building. The Planning Board held a public hearing on October 26, and a verbatim transcript of the public hearing is included in the packet as Exhibit 7. At the public hearing, the applicant offered responses to the ADB's recommendation including adjusting setbacks on the north side of the building as well as offering to improve more frontage than they would typically be required — extending the sidewalk from Main Street to the Sunset bluff. He acknowledged the applicant's response did not necessarily go as far as the ADB recommended but was intended to address their concerns and went further in some respects than the ADB recommended. The Planning Board recommended approval of the contract rezone and the building design. The recommended action is to approve the design of the building and direct the City Attorney and applicant to return with a final ordinance and contract to implement the proposed contract rezone. John Bissell, Higa Burkholder Associates, asked to retain five minutes for rebuttal. He recalled the Council's adoption of the Comprehensive Plan designated the subject site Planned Residential /Office. At the time of adoption, there was no implementing zone for Planned Residential /Office which led to the application for a text amendment to create a zoning district for the Planned Residential Office Comprehensive Plan designation. The Council passed the Master Plan Office Residential (MPOR) zone that created the implementing zone. The MPOR zone allowed for development on a project -by- project basis with a contract rezone master plan which required an applicant to submit for master plan building design showing the building elements and how it would provide a transition. The applicant applied for a consolidated application so that the ADB could review it and forward a recommendation to the Planning Board. Mr. Bissell advised the ADB reviewed the application and recommended approval to the Planning Board. The Planning Board also reviewed the project and recommended approval to the Council. He referred to declarations in Attachment 3, Exhibit 1, that show proof of compliance with the criteria for rezone followed by proof of compliance with criteria for approval of the master plan. The Planning Board found the applicant had shown compliance with these criteria to such an extent that the motion included Attachment 3, Exhibit 1 as a Finding of Fact for compliance. He recommended Council approval. Brian Slick, Weber Thompson Architects, representing The Hotel Group and Barbara & Ed Lee, displayed a photograph of the site on Sunset Avenue, 1/2 block north of Main Street. He advised the proposed building would contain The Hotel Group's offices and a personal residence for the Lees on the upper floor. He displayed an aerial site analysis, identifying the site and surrounding uses that include Edmonds City Council Approved Minutes November 15, 2005 Page 15 commercial and residential. He displayed photographs of the existing vacant parcel, residential property to the north, small office building to the south, and views across and down Sunset Avenue. Mr. Snyder clarified this was a closed record review and the exhibits the applicant was displaying were contained in the record beginning with Exhibit 4. Mr. Slick displayed several neighborhood context photos, examples of contemporary architecture similar to what they planned for the project, and historical precedent photos illustrating coastal architecture. He explained the building was three stories although the third story was only visible from the water side. He displayed a floor plan of the below grade lower floor that contained approximately 24 parking stalls and building services. He noted the code required 21 -24 stalls depending on the final square footage. He displayed a floor plan of the ground floor commercial level where The Hotel. Group offices will be located, identifying the existing setback on the office building to the south, 10 foot setback in the front and further setbacks on the northern portion of the property to match the residential project. He identified the building entry which would also function as the entry to the residences above. Mr. Slick displayed a floor plan of the upper residential level, identifying the Lee's personal residence and a second residence and pointing out the additional setback on the upper floor. He displayed and reviewed a detailed landscape plan for the building as well as concept plan/perspectives illustrating the level of landscaping they were committed to via the contract rezone. He displayed an elevation of the east side, advising building materials included cut stone or masonry at the base, wood shingle on the mid section with stucco detailing above, a slate roof, and copper building accents, downspouts and gutters. He displayed elevations of the west (water) side both square (showing all three stories) and angled (showing the first two stories). He also displayed north and south elevations. Mr. Slick displayed a height limit diagram which was prepared to illustrate how the building met the height requirement, noting the building was actually below the maximum height limit by 6 inches in the peak with the exception of the allowed protuberance for the elevator shaft. He displayed a building section illustrating the setback at the main entry from the property line as well as 3- dimensional views illustrating the proposed perspectives from the north, front, looking south on Sunset Avenue, looking north on Sunset Avenue and views of the water side. He also displayed an artist's rendering of the front of the building. Ed Lee, The Hotel Group, recalled discussion earlier in the meeting regarding the need for pedestrian access, pointing out their plans to extend the sidewalk from Main Street to the Sunset Avenue bluff, one of the most significant public benefits of the project in addition to the removal of the unsightly blackberry bushes. He displayed the artist's rendering of the front of the building, pointing out their previous plan was to have the bulk of the mass near the adjacent residential uses. After a number of public meetings regarding the Comprehensive Plan, that design was altered so that the bulk of the building was adjacent to the commercial use. Mr. Lee displayed a building footprint, explaining the building setback on Sunset would be no less than 10 feet, the building would be highly modulated, the courtyard would be at least 1.6 -17 feet, and the north setback adjacent to the residential uses would be a minimum of 6 feet and modulation made the average setback 8 feet. He displayed views of the existing condition, extended sidewalk, and landscaping. Mr. Lee displayed photographs of existing mixed use buildings within 2 -3 blocks and enumerated common characteristics of mixed use buildings such as 2'/2 -3 stories in height, no setbacks, and 100% lot coverage. He displayed photographs of existing residential within one block, citing common characteristics such as base height several feet above the street, potential height more than 30 feet above street level, and older homes smaller and lower and older homes being redeveloped. He compared the artist rendering of their building to a photograph of a new residence being constructed on a lot where an Edmonds City Council Approved Minutes November 15, 2005 Page 16 older home was demolished. He displayed computer models of the proposed building on the site, pointing out that due to the slope, the residences across the street were higher than their proposed building. The computer model also illustrated the setback in the front, where he pointed out in the courtyard area the setback was 16 -17 feet compared to the adjacent 20 -foot setback on the adjacent property; the lot to the north had a 10 -foot setback. He displayed computer models of the building from the water side, illustrating the scale of the building compared to structures on adjacent lots. Mr. Lee enumerated the significant improvements their building would provide for the neighborhood that included a handsome building with an upscale residential look, elimination of the blackberry patch, landscaping /courtyard visible to the public, completion of the sidewalk from Main Street to the bluff. He requested the Council consider their project as a whole and determine whether it was good for Edmonds. Mayor Haakenson advised the applicant had not retained any time for rebuttal. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO EXTEND THE MEETING 20 MINUTES. MOTION CARRIED UNANIMOUSLY. Parties of Record Don Drew, Edmonds, commented he had owned the lots for 30 years, no development had occurred, and no income was derived from the lots; however, their assessment required the payment of high taxes. He explained over 50 years ago these lots were included in a rezone in which the first two properties on the south and north side of Main Street were zoned BC and the lots beyond were zoned single family residence with no transition between the zones. Through the years the zoning on lots on 5"' —2 d Avenues had been increased but this was not done on Sunset. He pointed out these lots were unique in that they were the closest residential lots to the railroad as well as were at the level of the railroad tracks, 1'/2 stories below Sunset Avenue. Residential homes built on these lots using the standard formula of the average of four corners of the lot would have P/2 stories below Sunset, leaving only 1/2 story and a roof visible from Sunset, a view he envisioned would be very unattractive. Two years ago they were contacted by an intermediary for a party interested in purchasing the property for their offices and residences for the owner. He later met the Lees who lead a successful, nationwide business. With regard to concern regarding two stories above the street, he pointed out virtually all properties in the area could be more than two stories above the street because of the elevated level of the lots. He summarized the master plan was the best opportunity for having attractive development on property that had been unusable for over 50 years. He emphasized this was a rare opportunity not to be lost and requested the Council vote to approve this project which would enhance the waterfront and Edmonds community. Jonathan Hatch, attorney representing several property owners who live in close proximity to the project, advised his previously expressed concerns with regard to the rezone were adequately outlined in the record. He referred to the recommended action, that the Council approve the design of the proposed building and direct the City attorney to prepare an ordinance to rezone the property. He pointed out that despite the ADB's recommendation for approval, the ADB and several Planning Board members expressed concern and reservation about the project as proposed. The October 5, 2005 ADB minutes establish that Boardmembers Lowell, Anderson and others expressed concerns about the massing created by the building design and the failure of the building design to adequately address the transition required by the MPOR zoning relative to the adjoining residential properties. He quoted from the October 5, 2005 ADB minutes, `Boardmember Anderson was also uncomfortable. He felt like they were putting a massive building in a residential neighborhood." Mr. Hatch quoted a statement made in Planning Division Advisory Report Findings, Conclusions and Recommendations, "Based on Findings of Fact, Conclusions and Attachments to this report Planning Staff generally feel the proposed Contract Rezone, Master Plan and Design Review approval can be Edmonds City Council Approved Minutes November 15, 2005 Page 17 supported. However, there may be some elements of the project that could be changed to provide a better transition than what is proposed." Mr. Hatch pointed out in his oral comments to the Planning Board, Mr. Bullock expanded on the ADB's concerns when he stated, "They had some concern about how the project complied with a couple of the MPOR transition requirement elements. They felt like the combination of the mass of the building and the setback of the building on the north side didn't necessarily meet the transition requirements." Similar concerns were expressed by several members of the Planning Board at the October 26 public hearing. He questioned why the ADB and Planning Board members concerns about massing and transition issues with respect to the building design had not translated to a negative recommendation. His clients opposed approval of the application due to the manner in which the proposed project reached this point. Their collective perception was that the "tail had wagged the dog" in this project from the outset and it seemed, prior to Councilmember Wilson's recusal, that the outcome of tonight's review was preordained. Mr. Hatch referred to comments made by Planning Board Chair Young, "we got backed into making this decision by some judgments of the Council who wanted to tailor make a piece of property tailored to some specific needs. And I've got a problem with that and I have shared that one -on -one with any number of members of the Council." He referred to another statement by Chair Young, "we have really been jammed into this by the way the Council has written the ordinance and by the fact that they have by their own, I mean they're the ones who only made this apply on two lots in the entire City, and my conscience is clear on that one because I raised that ever since we've been having a discussion on this a year and a half ago." Mr. Hatch found one of the most compelling statements in the records was made by Planning Board Member Crim, "The Growth Management Act is meant to foster development in urban growth areas. That's what we are. That means infill type development. That's what this piece of property is and yes we have bent a whole lot of rules trying to set it up this way, but it hasn't been developed, and so why not." Mr. Hatch concluded the Council had an obligation to represent all citizens, not only the specific interests represented by this application. If tailor making and bending rules were to become the norm, he opined the greatest loss in the approval of this project as proposed would not be the loss to his clients but the loss of integrity of City government. He urged the Council to seriously consider this application in light of the ADB and Planning Board's concerns and not approve it until the massing and transition issues had been adequately and properly addressed. Roger Hertrich, Edmonds, advised he had followed this application due to his concerns with the change in the method for determining the building height on this property. He pointed out the engineering department had not determined the final traffic impact of this project. He objected to the number of parking spaces provided, envisioning an 8,000 square foot office building could have 50 employees, yet only 20 parking spaces were provided. He concluded staff's analysis of the traffic impacts would determine the building size. He concurred with Mr. Hatch's reference to several comments made by the ADB, pointing out the comment by ADB Member Anderson regarding putting a massive building in a residential neighborhood and doubling the lot coverage of any other residence in the neighborhood. He referred to Planning Board Member Utt's comment that the transition issue bothered him. He noted neither the ADB nor the Planning Board had considered the MPOR zone before and although they felt inclined not to hold it up, they expressed their concern. He referred to the statement by Planning Board Chair Young, "if we vote tonight, I am going to have to vote to recommend its approval and I'm going to have to express some concerns ... I think we've really been jammed into this." Mr. Hertrich commented zoning only two lots in one location in the City with the MPOR zone constituted a spot zone. He referred to remarks made by Planning Board Member Crim, "In my view the ADB is looking at a transition zone, and they are likely to have as big a transition as they can get, and it's a judgment call and I simply disagree with their judgment." Mr. Hertrich referred to the size of the Edmonds City Council Approved Minutes November 15, 2005 Page 18 building, noting doubling up development on two lots resulted in a massive building that was over 100 feet in length. He found the building totally out of character with the neighborhood and provided more transition to the BC zone than the residential zone. Bud Kopp, Edmonds, suggested a better example of massive was the residence under construction at Sunset & Bell on a lot where an older home was demolished. He recalled making a statement at the Planning Board public hearing regarding the contract rezone, indicating his support for the project and finding that it was clearly in the City's interest to pursue it. He was pleased to find the Planning Board agreed and recommended approval by a vote of 7 -1, noting the ADB had also recommended approval. He quoted from the Planning Board verbatim transcript, Chair Young stated, "I think the record is going to be good that there are benefits, substantial benefits associated with this to the community. No question about that." Board Member Cassutt said, "I think the applicant has done absolutely everything we've asked him to do ... I think we are fortunate that it will be a nice looking building from the water. So I think it will be an asset to our waterfront." Chair Young said, "I think the benefits of this all the way around, whatever direction you are coming from are wonderful." Board Member Guenther said, "I'll commend the architect on his building ... I like the way they were able to transition through the setback from the north ... and then transitioning to the south and breaking it up." Boardmember Cassutt said, "with the piece of property the way it is and everything, I've think we have got the best of both worlds." Mr. Kopp agreed with these opinions expressed by the Planning Board, noting the comments were overwhelmingly positive. Even Board Member Dewhirst, the only Board Member who did not vote in favor of the application, said "I think as to the rezone there's all kinds of positive reasons to approve a rezone." Mr. Kopp recommended the Council approve this application and allow the building to be constructed which would replace the troublesome blackberry patch as well as complete the sidewalk from Main Street to the bluff. Don Kreiman, Edmonds, commented he attended every meeting and was very impressed with the Lees and Mr. Drew. He cited the benefits of the proposed project including increased tax base from $1 million to $4 million which would also increase revenue to the City, and construct a gorgeous building housing offices and residences on property that has remained vacant for 50 years. He noted the only negative consequence of the building was to the neighbors across the street, many of whom would be allowed to construct a taller structure. Eric Sonnett, Edmonds, referred to Exhibit 6 which contained selected common characteristics of buildings and residences, noting it omitted residential setback and how construction of new residences including the one referred to in Mr. Lee's presentation increased the previous home's 10 -foot setback from the street to 20 feet. He noted Exhibit 6 also omitted any reference to lost tax revenue from lower residential property values in the area as well as how the proposed massive structure transitioned to smaller and lower homes across the street. He noted the Planning Board voiced concern with the proposed office building's mass, "1.14 to 112 feet long ... an awful long structure." He commented although the proposed building was an excellent design, it was massive and did not fit the neighborhood. He urged the Council to require true transition to a residential neighborhood. He encouraged the Council to respect the approximately 500 petitioners, the majority of whom did not live across the street but enjoyed walking on Sunset, who signed the petition opposing walling off Sunset Avenue. He agreed the Lees would be great neighbors, however, the proposed building did not provide an appropriate transition for their neighborhood. Mr. Snyder advised the petition mentioned by the last speaker was not part of the record. He advised the Council that public sentiment was not a reason to deny an application. Mr. Bullock referred to the quotes by ADB and Planning Board members referenced by parties of record regarding what different members thought during the review of the project. He pointed out the ADB, Edmonds City Council Approved Minutes November 15, 2005 Page 19 although they had concerns about the massing, made a recommendation to the Planning Board. The applicant responded to the ADB's recommendation by modifying their design. He acknowledged the applicant did not completely change their design to meet exactly the ADB's recommendation but in their presentation, modified their proposal in an attempt to address the ADB's concerns as well as include other amenities beyond what the ADB recommended. The Planning Board reviewed the project and via a 7 -1 vote recommended approval to the Council. For Councilmember Dawson, Mr. Snyder explained the building moratorium was on applications that attempted to utilize the specific ADB provisions in the code and was not applicable to this property. Councilmember Orvis inquired about the project's lot coverage. Mr. Bullock referred to page 25 of the verbatim transcript where Mr. Bissell indicates the lot coverage for the project is 67 %. Mr. Bullock advised the BC zone allows up to 100% lot coverage, single family zones allow 35 %; the applicant's proposed 67% lot coverage split the difference. Hearing no further questions for staff, Mayor Haakenson remanded the matter to Council for action. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO APPROVE THE DESIGN OF THE PROPOSED BUILDING. Mr. Snyder advised that was not the issue before the Council, design approval would be incorporated into the contract rezone. He suggested the Council's motion address the required findings. COUNCIL PRESIDENT MARIN WITHDREW HIS MOTION. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO DIRECT THE CITY ATTORNEY TO PREPARE AN ORDINANCE WHICH WILL REZONE THE SUBJECT PROPERTY TO MPOR SUBJECT TO A CONTRACT AND APPROVE THE DESIGN OF THE PROPOSED BUILDING. Councilmember Dawson commented that although this was a very nice building and a great design, she questioned whether it fit in the neighborhood. She questioned whether everyone was jammed into this because of the way the Council behaved in adopting the zone. She recalled she had vehemently opposed approval of the MPOR zone; the question she struggled with during the process was that given the Council created a zone tailor -made to this project, was the Council required to approve the rezone. With regard to a question posed by the applicant regarding whether this project was good for Edmonds, she did not find it was. She did not find the applicant had met the burden of illustrating how their project met the criteria, particularly whether it was an appropriate transition. She was also troubled by the 67% lot coverage in what was really a residential neighborhood. She referred to the new house under construction, noting if more houses in the neighborhood had been demolished and rebuilt, it would be easier to find that the proposed building was consistent with the surrounding neighborhood and that there had been a sufficient change in the character of the immediate area to justify the rezone. She indicated she would vote against the motion as she did not find there had been a sufficient change in the character of the immediate area to justify the rezone and did not find that the proposed building provided an appropriate transition. Councilmember Orvis expressed concern with the transition, recalling the ADB made a specific recommendation regarding what needed to be done to improve the transition which the applicant did not do. He questioned how he could approve the rezone when the ADB had not really approved it. He indicated he would vote against the motion. Edmonds City Council Approved Minutes November 15, 2005 Page 20 Councilmember Moore commented the proposed project benefit Edmonds in many ways. If as the Planning Board suggested Edmonds was destined to provide infill, this was infill of unused property that would assist the City in complying with GMA requirements, increase General Fund revenues, provide public walkways in addition to what was required, would house the headquarters of a nation wide company that had a low environmental impact on the City and complied with the 25 -30 foot building heights. Although she hoped affordable housing could be created in other areas of the city, she pointed out that unlikely in the bowl due to property values. She found the building's size somewhat irrelevant because it was a transition and was surrounded by large buildings. She found the 67% lot coverage an appropriate transition between the 100% lot coverage allowed in the BC zone and the 35% allowed in the residential zone. She pointed out the applicant had complied with everything they had been asked to do; the building would be an asset to the community. With regard to a comment that the building would lower property values in the area, she envisioned property values in the area soaring once this building was completed. She found no downside to development of this building. Councilmember Moore referred to testimony provided by Economic Development Director Jennifer Gerend about the benefits of this type of development. She challenged the Councilmembers who did not want to approve upscale, low impact, compliant development such as this to determine how to stabilize and increase the City's revenue stream. Councilmember Olson pointed out both the ADB and the Planning Board recommended the project. The Council established those boards for their expertise in advising the Council in this type of situation. Although there were concerns expressed by the ADB and Planning Board, they recommended the project because a majority of the members felt this was a worthwhile project for the City. She pointed out this was a perfect example of bringing good economic development to the City. She noted the proposed project was located adjacent to a commercial building that was developed nearly lot -to -lot and was not located in the middle of a residential area. This was a transition area and the transition needed to start somewhere. She referred to the new residential construction occurring down the street, noting that would continue to happen because many of the smaller, older homes were ripe for redevelopment due to the land values. She envisioned in ten years the proposed building would fit with the neighborhood. If development did not start somewhere, the blackberry patch that someone paid the taxes on would remain. Councilmember Orvis clarified the ADB passed a version of the building that imposed conditions on the building, conditions the applicant chose not to meet. Mr. Snyder referred to a State Supreme Court case that held a change in the neighborhood was not required when implementing new ordinances or a change in the Comprehensive Plan. Should the motion fail, he advised that would not be included as a finding. UPON ROLL CALL, MOTION FAILED IN A TIE (3 -3) VOTE, COUNCIL PRESIDENT MARIN AND COUNCILMEMBERS MOORE AND OLSON IN FAVOR; AND COUNCILMEMBERS ORVIS, PLUNKETT AND DAWSON OPPOSED. Mr. Snyder advised he would prepare Findings of Fact that reflected the motion did not receive an affirmative vote of the Council. Noting the findings would require Council approval, he requested an opportunity to research how to address the situation. 7. AUDIENCE COMMENTS Al Rutledge, Edmonds, suggested the City establish an election committee to prevent candidate forum DriveFood moderators from endorsing specific candidates. He then announced the Edmonds Senior Kiwanis annual Drive Edmonds City Council Approved Minutes November 15, 2005 Page 21 Food Drive at Top Foods on November 18-20. He advised the next edition of the Edmonds Beacon would contain an article describing what the Kiwanis club does for the local community. Roger Hertrich, Edmonds, congratulated the winners in the election. He suggested the Council consider department head's salaries including comparing them to the private sector. He noted jobs with the local . government were virtually guaranteed and had the best benefits. He noted there were some department heads who did not have a lot of responsibility but had very high salaries. He referenced a complaint that the November 1 minutes did not accurately reflect the situation. He asserted the City Clerk had a tendency to mold the minutes without some of the controversy. He pointed out the November 1 minutes did not reflect approximately 50 seconds of his testimony. He assumed Mayor Haakenson had directed the City Clerk to omit his comments. Mr. Snyder advised the Council still needed to dispose of the ADB application on the previous item. With regard to the minutes, he advised the Council's minutes were summary minutes of the Council's official actions. If pertinent testimony on a quasi judicial matter or legislative matter were omitted, he agreed it should be included; however, Mr. Hertrich's remarks were not testimony but were public comment. He advised the Council's minutes must contain a summary of every official action the Council took and the basis for that action but there was no requirement for any depth other than someone spoke about something during public comment. The Council was free to amend the minutes but there was no State statutory requirement that public comments at the end of the meeting be anything other than a brief summary of pertinent information and the Council decided what was pertinent. City Clerk Sandy Chase remarked it was absolutely absurd to think the Mayor would direct her in the preparation of the minutes or to remove any comment. Mayor Haakenson commented in the six years he has been Mayor, he had never told anyone to leave anything out of the minutes and found it silly for Mr. Hertrich to say that. Mayor Haakenson commented no one cared that Mr. Hertrich had gotten into a fist fight with Bruce Nicholson, it was not Council business and apparently the minute taker did not find it important enough to include in the minutes. COUNCILMEMBER DAWSON MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DENY THE ADB APPLICATION CONSIDERING THAT THE REZONE WAS NOT GRANTED. UPON ROLL CALL, MOTION FAILED VIA A TIE (3 -3) VOTE, COUNCILMEMBERS DAWSON, ORVIS, AND PLUNKETT IN FAVOR; AND COUNCIL PRESIDENT MARIN AND COUNCILMEMBERS OLSON AND MOORE OPPOSED. Councilmember Dawson commented because the property was not rezoned, the ADB application could not possibly be approved. She asked whether Mayor Haakenson could break the tie. Mayor Haakenson asked what options the applicant would have now. Mr. Snyder answered a Land Use Petition Act appeal or the applicant could refile. He agreed absent approval of the rezone, the applicant was not in conformance with the zoning ordinance which was a required criteria for ADB approval. He reiterated a change in circumstance was not a required finding in this situation. Deny ADB COUNCILMEMBER DAWSON MOVED, SECONDED BY PLUNKETT, TO DENY THE ADB Application APPLICATION AS IT DID NOT MEET THE REQUIRED CRITERIA. MOTION CARRIED (4- Property at 1 XX Sunset 3), MAYOR HAAKENSON AND COUNCILMEMBERS DAWSON, ORVIS, AND PLUNKETT IN Ave. N) FAVOR; AND COUNCIL PRESIDENT MARIN AND COUNCILMEMBERS OLSON AND MOORE OPPOSED. 9. MAYOR'S COMMENTS Mayor Haakenson had no report. Edmonds City Council Approved Minutes November 15, 2005 Page 22 10. COUNCIL COMMENTS Council President Marin reminded that the November 22 Council meeting had been cancelled and a Council meeting scheduled for November 29. Councilmember Dawson apologized for her late arrival, explaining she had been in Everett attending the Human Services Council of Snohomish County 20th annual partnership forum where the South Snohomish County Domestic Violence Task Force received an award for their partnership with Snohomish County. She remarked this was a great program and she was happy to be part of it. She expressed her thanks to the Edmonds Police Depaittuent for their support of the program, particularly Assistant Chief Gerry Gannon. She congratulated the members of the Task Force. Councilmember Moore remarked the Council's decision on Agenda Item 6 was the most pathetic decision the Council had ever made and represented a total loss of common sense. With no further business,the Council meeting was adjourned at 11:02 p.m. i 111 G• 'Y • ENSON, MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes November 15,2005 Page 23 AGENDA !.� EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 5th Avenue North 7:00 - 10:00 p.m. NOVEMBER 15, 2005 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 November 7, 2005. C. Approval of claim checks #83666 through #83822 for the week of November 7, 2005, in the amount of $571,731.44.* *Information regarding claim checks may be viewed electronically at www.ci.edmonds.wa.us D. Acknowledge receipt of Claim for Damages from Don Benson (amount undetermined). E. Authorization for the Mayor to sign a consultant contract with Perteet Engineering, Inc. for the Highway 99 Traffic Circulation and Safety Study. F. Report on bids opened November 1, 2005 for Phase III of the 2004 Waterline Replacement Project and award of contract to Earthwork Enterprises, Inc. ($840,220.14, including sales tax). G. 2006 Non-represented Salary Ordinance. (Approved by the Finance Committee on 11/7/05.) 3. (10 Min.) Hearing Examiner Annual Report 4. (60 Min.) Public Hearing. on the consideration of a possible vacation of a portion of the unopened right-of-way of 8th Avenue South between Alder and Walnut Streets. 5. (30 Min.) 2006 Budget A. Discussion Items • Workshop Follow-up • Council Budget Adjustments B. Remaining Action Items • 2006 Budget Ordinance • 2006 Property Tax Ordinance Page 1 of 2 CITY COUNCIL MEETING AGENDA NOVEMBER 15, 2005 6. (75 Min.) Closed Record Review of a consolidated application by Don Drew, property owner, and Ed Lee of the Hotel Group for a contract rezone, master-plan approval and design review for the property located at 1XX Sunset Avenue North. The contract rezone request seeks to change the zoning from RS-6 to Master-Planned Office and Residential (MPOR) tied to a master-plan and design review proposal for a 2-story office and residential building with a basement parking garage. 7. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings. 8. (10 Min.) Report on City Council Committee Meetings of November 7, 2005. 9. ( 5 Min.) Mayor's Comments 10. (15 Min.) Council Comments ADJOURN I I 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