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08/05/2003 City Council1 EDMONDS CITY COUNCIL APPROVED MINUTES August 5, 2003 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5d` Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Dave Earling, Council President Jeff Wilson, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT Duane Bowman, Development Serv. Director Stephen Clifton, Community Services Director Jim Larson, Acting Admin. Serv. Director Rob Chave, Planning Manager Stephen Koho, Treatment Plant Manager Brian McIntosh, Asst. Parks & Recreation Dir. Dave Gebert, City Engineer Steve Bullock, Senior Planner Zach Lell, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PETSO, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Marin requested Items B and E be removed from the Consent Agenda. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve Claim (C) APPROVAL OF CLAIM CHECKS #64319 THROUGH #64491 FOR THE WEEK OF Checks JULY 28, 2003, IN THE AMOUNT OF $411,563.43. laim for Damages (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM DRIFTWOOD PLAYERS ($1,555.00). Berson (F) REPORT ON BIDS OPENED JULY 29, 2003, FOR THE FRANCES ANDERSON Center Potable CENTER POTABLE WATER PIPING REPLACEMENT PROJECT, AND AWARD OF Water Pipiny, CONTRACT TO NARDONE MECHANICAL CONTRACTORS ($134,199.65, INCLUDING SALES TAX). itary (G) AUTHORIZATION FOR THE MAYOR TO SIGN ADDENDUM NO. 2 FOR THE er Meter PROFESSIONAL SERVICES AGREEMENT WITH CHS ENGINEERS, INC. FOR THE habilita- SANITARY SEWER METER REHABILITATION PROJECT. ion Pro'ect Edmonds City Council Approved Minutes August 5, 2003 Page 1 SR 104 Sanitary Sewer ehabilita- (H) AUTHORIZATION TO CALL FOR BIDS FOR CONSTRUCTION OF THE SR 104 ion Project SANITARY SEWER REHABILITATION PROJECT. Sanitary ewer Meter (I) AUTHORIZATION TO CALL FOR BIDS FOR CONSTRUCTION OF THE SANITARY ehabilita- SEWER METER REHABILITATION PROJECT. ion Project Acceptance (J) RESOLUTION NO. 1045 - ACCEPTANCE OF STREET RIGHT -OF -WAY DEDICATION CONTAINED IN APPROVED FINAL SHORT PLAT FOR HELLEREN DEVELOPMENT ceanc of Right -of- COMPANY AT 21506 - 96TH AVENUE W. (FILE NO. S -02 -204 / APPLICANT: LEIF aZ at 21506 HELLEREN CONSTRUCTION, INC.) 6 Ave. W. es# 1046 (K) RESOLUTION NO. 1046 - ESTABLISH A HEARING DATE FOR THE STREET Street VACATION FOR THAT PORTION OF 85TH PLACE WEST NORTH OF BOWDOIN Vacation - WAY ADJACENT TO FIRE STATION #6. Portion of 850' P1.W. Item B: Approval of City Council Meeting Minutes of July 29, 2003 Councilmember Marin requested the minutes reflect his comments regarding the levy lid lift for Police and Fire, that it was not his intent or his sense that the Council or Mayor wanted to play any games by Approve 7/29/03 reducing the budget to capitalize on the le vy lid lift. He assured there was a genuine need , noting these Minutes as programs were vital to the City and it was imperative that the citizens support it. Amended COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCIL PRESIDENT EARLING, FOR APPROVAL OF ITEM B AS AMENDED. MOTION CARRIED UNANIMOUSLY. The item approved is as follows: (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF JULY 29, 2003 uardrail I Item E: Report on Final Construction Costs for the Citywide Guardrail Replacement (Bell Street, 891h Place replacement West, North Meadowdale Road, and Alley Location), and Council Acceptance of Proiect Councilmember Marin pointed out the budgeted amount for this project was $106,000; the completed cost was $46,892. He attributed this to the competitive bidding environment and to Traffic Engineer Darrell Smith preparing the specs and plans which avoided the cost of a consultant. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WILSON, FOR APPROVAL OF ITEM E. MOTION CARRIED UNANIMOUSLY. The item approved is as follows: (E) REPORT ON FINAL CONSTRUCTION COSTS FOR THE CITYWIDE GUARDRAIL REPLACEMENT (BELL STREET, 89TH PLACE WEST, NORTH MEADOWDALE ROAD, AND ALLEY LOCATION), AND COUNCIL ACCEPTANCE OF PROJECT. 3. RECOGNITION OF HEKINAN STUDENT DELEGATION ekinan Student Assistant Parks & Recreation Director Brian McIntosh explained the students from Hekinan arrived on Delegation Friday, August 1 for a seven day tour. He noted the 15 member student delegation was the result of a competitive process; five high school students were selected from twenty applicants; and two middle school students were selected from each of Hekinan's fifteen middle schools. The students were accompanied by two teacher chaperones. Two student leaders presented Councilmembers a color brochure and a small gift. Councilmembers individually greeted the students and teacher chaperones. Edmonds City Council Approved Minutes August 5, 2003 Page 2 1 1 nned 4. PUBLIC HEARING ON A PROPOSED ORDINANCE REPEALING AND REENACTING idential EDMONDS COMMUNITY DEVELOPMENT CODE (ECDC) CHAPTER 20.35 RELATING TO elopment PLANNED RESIDENTIAL DEVELOPMENT (PRD); AMENDING ECDC SECTION 16.20.030, TABLE OF SITE DEVELOPMENT STANDARDS; REPEALING ECDC 20.16.010(A)(4) RELATING TO HEARING EXAMINER RECOMMENDATIONS ; AMENDING ECDC 20.20.15 TO ADD A NEW SECTION (D) PROHIBITING CERTAIN HOME OCCUPATIONS IN PRDs; AMENDING ECDC CHAPTER 20.21 TO ADD A NEW SECTION 20.21.010 PROHIBITING ACCESSORY DWELLING UNITS IN PRDs. THIS ORDINANCE WOULD REENACT THE CITY'S PRD REGULATIONS WITH MINOR CLARIFICATIONS AND REVISIONS AND ESTABLISH THAT THE HEARING EXAMINER MAKES THE FINAL DECISION ON PRELIMINARY PRDs. Planning Manager Rob Chave explained this item represented proposed amendments to the Planned Residential Development (PRD) code. He explained the amendments were initiated at the request of the Council and included review and recommendation by the Planning Board. He noted that this was the third public hearing before the Council on this matter. He explained the draft ordinance, Exhibit 1, represented the consensus developed by the Council to date. Issues that had not yet had a full public hearing were the two additional provisions, to prohibit accessory dwelling units (ADU) in PRDs and prohibit certain home occupations in PRDs. He noted there was also additional information in the packet regarding who made the decision on preliminary PRDs. He pointed out that regardless of who makes the preliminary decision; the final decision was made by the Council. Under the proposed ordinance, the decision on the preliminary PRD would be made by the Hearing Examiner following a public hearing with appeal of the preliminary decision to Superior Court. Mayor Haakenson opened the public participation portion of the public hearing. He acknowledged this was a particularly emotional issue for many members of the public as well as for the Council. He requested speakers direct comments to the PRD ordinance itself and not at particular Councilmembers or their views. In the interest of time, he encouraged speakers not to repeat what a previous speaker had said but instead indicate their agreement with a previous comment. Mayor Haakenson advised the Council received a letter from Barbara Kennedy who was opposed to the Hearing Examiner as the final decision maker in the process. Don Kreiman, 24006 95th Place W, Edmonds, commented the Council appeared to want to give developers a set of rules and allow the Hearing Examiner to determine whether the rules were being followed and if so, the PRD must be approved. Assuming the rules covered all situations, which he indicated they could not, a Hearing Examiner was not always right. He cited the proposed Talbot PRD as an example, recalling the Hearing Examiner recommended approval but the Council rejected it. He questioned whether Councilmember Orvis' vote to reject that PRD was wrong at that time or wrong now? He questioned whether the Council was willing to be silent and allow another PRD to be built if the Hearing Examiner again recommended approval, just to avoid getting their hands dirty. He pointed out Councilmembers should have known that making these type of decisions was required; any Councilmember who was unwilling or unqualified to address these issues, should stand aside and let someone else make the decision. He addressed Councilmember Wilson, pointing out that even though he understood the mechanics of the ordinance, he could not know as much as the collective experience of the residents who could point out where developers may not have complied with rules. He urged that residents be allowed to be heard by the Council. To Council President Earling, he pointed out that as head of the City Council, he was accountable for the health of the City, and alleged the City was "nearly bankrupt." He urged the Council not to vote for the amendment as it restricted residents' right to be heard by the Council. Edmonds City Council Approved Minutes August 5, 2003 Page 3 Mayor Haakenson reiterated his request that speakers direct their comments to the PRD ordinance and not at Councilmembers or their views. He pointed out the City was not nearly bankrupt. Louise Gerth, 1730 Talbot Road, Edmonds, commented when most citizens voted for the Growth Management Act (GMA), they believed it was to protect farmland from being commercially and industrially developed and had no idea developers would take small properties and build many more homes on land suitable for only a few homes. She cited an example where a parcel was suitable for three homes, not the seven that were requested. She asserted that this benefited the builder only and did not give consideration to the surrounding property owners or fire hazards. She noted the Hearing Examiner was to follow the rules in the GMA but there was no consideration for property rights or public interest. She supported the Council considering each appeal on its own merits and listening to citizens' concerns. She expressed concern with Councilmembers who were involved in real estate participating in the vote, noting they could not avoid being biased in their opinion. She recommended Council President Earling and Councilmember Plunkett excuse themselves. She also expressed concern with forcing residents to hire lawyers to appeal to Superior Court. Rowena Miller, 8711 182 "d Place SW, Edmonds, commented decisions regarding budgets and land use were at the heart of city business. She recalled last week several Councilmembers and the Mayor worked on the wording of the tax increase to ensure it did not bypass the "City Council obligations and responsibilities." She pointed out last week the Council cared about appearances and Council responsibilities; however, if the new PRD ordinance passed, the new process would bypass the City Council. If Edmonds citizens disagreed with the Hearing Examiner's decision, this ordinance forced them to sue the City in Snohomish County Superior Court, a more expensive process for both citizens and the city. She questioned how the proposed process encouraged the citizen involvement the Council indicated they wanted, and how the proposed process built trust in government? The Council's rational for removing the Council from this discussion appeared to stem from their opinion that they were not professional enough, that the Hearing Examiner was a professional and could compare a PRD with GMA and city requirements. She questioned whether the Council was unhappy with past PRD decisions. She recalled the Council earlier this year reversed a Hearing Examiner decision on the Talbot Park PRD, questioning whether that was an uninformed, mislead, unethical, illegal Council action. If the Council did not feel knowledgeable enough to make PRD decisions or capable enough to continue the job of Councilmembers, she encouraged them to resign so that others more committed to building trust, to meaningful communication with their constituents, and to fulfilling City Council obligations and responsibilities could serve the community. Finis Tupper, 711 Daley Street, Edmonds, addressed Code Section 20.35.080.A.4, the provision allowing a preliminary decision by the Hearing Examiner only appealable to Superior Court. He asserted this change was against the law of the Supreme Court of the State of Washington, specifically RCW 35A.36.170.0 which allowed the city to adopt the Hearing Examiner system. He noted the city was currently using the option B which allowed a decision to be given the effect of an administrative decision appealable to the City Council within a specific time limit to the legislative body; except in the case of a rezone, the decision may be given the effect of a final decision of the legislative body. He asserted the proposed change would make a final decision on a rezone. He cited court cases where PRDs were determined to be rezones. He noted the City had a legislative branch and an executive branch; the Hearing Examiner and Mayor were part of the executive branch. Thus the reason the statute did not allow rezones to be considered final by the Hearing Examiner because they were legislative decisions. He concluded this was an issue that could be presented to the Growth Management Hearings Board and indicated he would be happy to do so on behalf of the citizens of Edmonds to ensure they had a representative government. He urged the Council not to adopt the proposed change. Edmonds City Council Approved Minutes August 5, 2003 Page 4 Eric Sundquist, 86th Place W, Edmonds, expressed his support for the proposed change to the PRD ordinance, particularly using the Hearing Examiner rather than the City Council to make the final decision. His reason was because such decisions became political and did not follow the laws on the books. He objected to residents who had already exercised their property rights trying to deprive others of their property rights. He favored removing the Council from the process as it would depoliticize the process and allow a land use professional to make the decision. He disagreed with prohibiting ADUs and home occupations in PRDs, indicating it would be unfair to the residents of PRDs who may not be aware those uses were not allowed. He requested a modification to a design standard that required the same building materials on all four sides, explaining this precluded builders from having a brick veneer on the front fagade as it was too expensive to install the brick veneer on all four sides. Eric Heath, 8125 Frederick Place, Edmonds, commented the proposed PRD ordinance was not in the best interest of Edmonds, specifically the provision that appeals of the Hearing Examiner decision would not be heard first by the City Council. He preferred the Council have direct oversight of the Hearing Examiner. He indicated he could read blueprints and build but the building process required constant oversight, not only by those reading the blueprints but also by those who wrote the policies. He noted an appeals process to the City Council would provide direct and appropriate oversight of the Hearing Examiner. Without an appeals process at a lower level, he asserted there would be too many opportunities for gross errors or malfeasance. Patrice Raplee, 21001 Pioneer, Edmonds, voiced her preference for retaining the PRD approval process where she believed it was most effective, in the legislative body. She relayed that her neighborhood recently went through a PRD process and although some aspects did not meet with neighborhood approval, they had the opportunity to voice their concerns and offer suggestions. She emphasized the importance of residents having the opportunity to explain their situation. She urged the Council not to take away residents' ability to have input on the growth and development of their neighborhood, noting the consequences of excluding residents from the approval process would be an unharmomous relationship between communities, the City and developers. She observed that if the PRD process were given to the administrative branch with final approval by the Hearing Examiner, the only opportunities communities would have to voice questions and concerns would be via the court. She concluded prior Council meetings have illustrated what citizens want and she urged the Council to carefully consider before relinquishing important legislative responsibilities to an unelected administrative official. Sandra Nichols, 21508 86th Avenue W, Edmonds, agreed with the comments made by the previous speaker. She recalled the opportunity she had to speak to the Council 20 years ago regarding a development behind her home. Although the development was constructed anyway, she had the opportunity to voice her opinions. She voiced her opposition to the proposed PRD ordinance. Richard Smith, 21007 Pioneer Way, Edmonds, indicated he was opposed to the proposed PRD ordinance. Karen Biermanski, 8129 Frederick Place, Edmonds, observed the City Council was elected by citizens of Edmonds and it was assumed Councilmembers cared about the City's destiny with regard to growth, development, and preservation of its ambiance. She referred to a July 30, 2003, Seattle Times article, agreeing the City Council would be more responsive to the appeals of citizens than a Hearing Examiner who was not an elected official, did not live in Edmonds, and may not have any interest or concern regarding the preservation of its present character. She referred to the PRD her neighborhood was involved in, recalling the Hearing Examiner approved the PRD application based on RS -12 zoning of Edmonds City Council Approved Minutes August 5, 2003 Page 5 properties to the east although the PRD was surrounded on the remaining three sides by RS -20 zoned properties. The Hearing Examiner approved the PRD that allowed clustering of nine houses on a parcel where the buildable area was less than 6,000 square feet. The neighborhood appealed to the City Council and received their support. The opposition then appealed to Superior Court, an experience that should not be forced on citizens. Without legal counsel, the neighborhood would have lost. She did not believe the Hearing Examiner was more qualified to determine whether an application met the requirements of the ordinance than the members of the City Council. If a Councilmember was not qualified to determine whether an application met the requirements, that Councilmember was not qualified to be a member of the Council. She again referred to the Seattle Times article which indicated the proposed ordinance would be an improvement over the old ordinance because a developer would be required to hold a neighborhood meeting before applying for a permit. She disagreed this was an improvement, noting neighborhood meetings have convened in the past when signs were posted stating the intentions of a developer. She urged the Council to accept responsibility for Edmonds destiny and accept the privilege and confidence placed in them by citizens who voted Councilmembers into office. There was more to making decisions than meeting criteria as the specifics of an ordinance were open to interpretation and a Hearing Examiner may interpret an ordinance differently than several elected city officials. David Toyer, Master Builders Association, 335 116th Avenue SE, Bellevue, commented the Association had provided a number of letters to the City regarding the PRD ordinance. He directed his comments to the Hearing Examiner authority, referencing to their March 12, 2003 letter. He explained the Hearing Examiner system was widely used in jurisdictions throughout Washington. The Hearing Examiner based their decision on the land use regulations and Comprehensive Plan policies the Council and citizens have developed to identify the vision for the jurisdiction. The hearing held by the Hearing Examiner allowed citizens to be involved and raise comments, concerns, and objections. He explained the concept of the Hearing Examiner system was to depoliticize land use decisions. The Hearing Examiner system reduced liability for a jurisdiction by avoiding the Council making a political decision rather than a decision based on the code. Land use law is complex and constantly evolving and a Hearing Examiner who had daily contact with the law was more experienced to deal with the specifics.. He referred to RCW 35.63A.170 which states a legislative body of the city may adopt the Hearing Examiner system and the Hearing Examiner may hear and decide applications for amending the zoning ordinance when the amendment applied for is not of general applicability. He noted this was further clarified in RCW 36.70B.020.4 regarding the specific type of applications where there is mention of Planned Unit Developments as well as site specific rezones authorized by Comprehensive Plan or subarea plan. He noted this change in state statute occurred since many of the cases cited by a previous speaker. He referred to RCW 58.17.330.1 that states a decision of the Hearing Examiner may be given the effect of a final decision of the legislative body. He summarized it was clear in State law that the Council had the ability to delegate this authority to the Hearing Examiner. Rich Demeroutis, 921 Pine Street, Edmonds, referred to the opinion of City Attorney Scott Snyder in the Enterprise regarding PRD and the Hearing Examiner issue, where he indicated it was more important to have a code that was definitive regarding what could be built in a PRD and its configuration. He recalled several years ago when the original PRD ordinance was adopted, a former Councilmember did not want to wordsmith the document. He noted one of the results may have been the PRD at 6th & Bell which utilized walkways between structures as common area. He expressed concern with the odd configuration of the lots in the Talbot Park PRD. Mr. Demeroutis concluded the PRD issue was many residents' Brightwater, explaining residents want development that would not devalue their property and would make their area as much as or more livable. He suggested getting citizens involved in the development of the ordinance to ensure it was strict enough to avoid problems with interpretation. Edmonds City Council Approved Minutes August 5, 2003 Page 6 Ray Martin, 18704 94th Avenue W, Edmonds, commented that the Master Builders Association was pushing the Hearing Examiner system countywide and needed a township "dumb enough to be their test case." He suggested the Council retain the existing process for 1 -2 years before reconsidering it. He observed the public was nearly unanimous in its objection. He disagreed that the Planning Board was in favor of the proposed process, alleging that Planning Board Member Crim met with Council President Earling regularly to decide what the Planning Board should do. He questioned the amount of campaign contributions Council President Earling had received from the Master Builders Association. He referred to the Master Builders Association's comment that the Hearing Examiner system depoliticized the issue, commenting the political nature of the system was what citizens wanted. Peter Beck, 723 Hanna Park Road, Edmonds, commented the Comprehensive Plan states that overall approximately 95% of the city is developed and approximately 75% of the remaining undeveloped land is designated for single family residential use, approximately 165 acres. He questioned the economic consequence on the city of Edmonds' coffers of denying ADUs and home occupations in PRDs. Roger Hertrich, 1020 Puget Drive, Edmonds, commented there had been numerous meetings held regarding the PRD regulations where citizens have spoken. He recalled that all citizens, other than those with a self interest such as builders, want the existing system to remain. He asserted that the Planning Board ignored citizen comments and made an arbitrary decision. He pointed out that if the Council did not recognize the citizens wishes, they too would be making an arbitrary decision. The State Supreme Court has ruled that PRDs were rezones and that ruling had not been tested. He noted that any other opinion by staff, legal counsel, or the Master Builders Association was only theory and he was opposed to the city being involved in an expensive court challenge. He suggested asking the City Attorney what guarantee he could provide regarding the City winning a test case. He summarized the cost to appeal to Superior Court was too expensive for the average citizen. Brook Evans, 1214 8th Avenue S, Edmonds, commented Councilmembers were elected by the voters and urged them not to shirk their responsibility. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. At the request of Diane Azar, 8202 Talbot Road, Edmonds, who was unable to attend tonight's meeting, Councilmember Dawson read Ms. Azar's July 1st letter into the record. Ms. Azar's letter stated that in December 2001 a new PRD ordinance was enacted that was ambiguous, difficult to interpret and did not offer adequate protection for existing neighborhoods. The ordinance was further amended in August 2002 so that the City Council made the final approval on PRD applications. She agreed with the prohibition of ADUs and home occupations in PRDs as the ordinance did not provide adequate parking for existing residents and did not provide for the increased traffic that would be created by a PRD. She recalled testimony stating that if PRDs were considered rezones, it was extremely risky to have the Hearing Examiner make the final decision. She recalled a conversation with Councilmember Orvis who indicated his mind was made up and he would vote to approve the ordinance with the Hearing Examiner rather than the City Council making the final decision. She recalled Councilmember Orvis indicated the Council was not qualified to make quasi judicial decisions and if citizens did not agree with the Hearing Examiner's decision, they could appeal to Superior Court. She recalled asking Councilmember Orvis how he voted when the Council overturned the Hearing Examiner's recommendation on two PRD projects in their neighborhood. Ms. Azar's letter indicated it was not a question of the Hearing Examiner being unqualified and recognized he was well qualified and respected for his land use expertise but he was not a judge nor did his resume indicate he was an attorney. Ms. Azar pointed out there were two Edmonds City Council Approved Minutes August 5, 2003 Page 7 attorneys on the Council, a planner, a builder, two realtors and another with a PhD who brought the perspective of several individuals rather than one set of eyes and ears to any issue. She concluded when the Council made land use decisions, they were given deference by the courts, thus who better then to represent citizens than the Council? Councilmember Petso referred to a speakers' request for an estimate of the City's chances at winning litigation if the city became the test case regarding whether PRDs were rezones. City Attorney Zach Lell preferred to answer such a question in Executive Session. He agreed with City Attorney Scott Snyder's opinion that it was the formal legal opinion of their office that the PRD ordinance as currently drafted did not constitute a rezone under Washington law. Councilmember Wilson inquired whether the PRD ordinance, as currently structured, allowed for any increase in density. Mr. Chave answered no, the density was fixed for each zone. Councilmember Wilson asked whether that was one of the criteria the courts would consider in determining whether a PRD was a rezone. Mr. Lell answered the court's primary considerations would be the issue of delegation of legislative power, specifically under the PUD cases cited and that the courts have used as their previous benchmarks, whether there had been a significant change in use authorized or a massive increase in density of the zone. Councilmember Wilson asked whether decisions were appealable to Superior Court under the current PRD ordinance. Mr. Chave answered yes, after the City Council decision on a preliminary or final PRD. Councilmember Wilson referred to the comments regarding the PRD ordinance as it applied to the Talbot Park PRD, inquiring whether the ordinance this evening was the ordinance in effect when the Council considered that application. Mr. Chave answered this would be a new ordinance and no PRDs would have been reviewed using this ordinance. He noted the Talbot Commons PRD was also reviewed under a previous ordinance. Councilmember Wilson observed the proposed ordinance was the outgrowth of a public process at the Planning Board and the City Council. Mr. Chave agreed. Councilmember Wilson asked whether under the current process, where appeals were to the City Council, the Council had the ability via the appeal mechanism to change land use policies or regulations that may not be to the public's liking. Mr. Lell advised the Council was confined to the language in the code. Councilmember Wilson summarized the Council was very limited in what they could/could not do when hearing an item on appeal. Mr. Lell explained that on an appeal of a land use issue, the Council was confined to the record and existing laws codified by the Edmonds code. Councilmember Wilson referred to Ms. Azar's comments regarding courts giving deference to Council decisions, questioning how much deference was actually given to Council decisions on a quasi judicial matter. Mr. Lell answered there was some factual finding deference given by the court but issues of law were reviewed de novo; the courts would not give deference to the Council's legal findings. The factual findings that the hearing examining body made at the City level would be given some deference but any ruling of law would not be given any deference. Further, as the administrators of the city's code, staff's interpretation of the existing code would also be given judicial deference on appeal. Councilmember Wilson commented some of the current case law was based on Planned Unit Developments or PUDs versus PRDs, noting PUDs generally had much greater land use latitude. Mr. Chave answered, from a planning practice standpoint, PUDs were generally a mixture of uses in one development such as a mixture of multifamily, single family, commercial, and industrial and the arrangement of the uses was governed by the PUD. Conversely, a PRD, particularly as applied in Edmonds City Council Approved Minutes August 5, 2003 Page 8 Edmonds, was strictly residential development that provided flexibility in development standards but otherwise the uses conformed to what the zoning allowed. Mr. Lell pointed out the proposed ordinance emphasized residential uses only; therefore, there was no issue of changing the underlying zoning classification from residential to commercial or a mixed use. Councilmember Wilson asked whether there was any mechanism that could be employed via the PRD process that an interpretation of the code could be subject to Council review. Mr. Lell explained the guiding principle would be regulatory reform in which the local municipality was limited to one open record public hearing and one closed record appeal. He opined that what Councilmember Wilson suggested may extend beyond that. Councilmember Wilson clarified his intent was that the interpretation would not be on the substance of the application but an interpretation of a certain phrase or the intent of a certain section and only that interpretation would be reviewed and approved by the Council. Mr. Lell answered he was unfamiliar with any other code provision in another city that utilized a similar mechanism. He advised state statute allowed an applicant to have a code interpretation resolved at the staff level by requesting formal staff guidance on an issue. Mr. Chave advised if an applicant or citizen had a question regarding the interpretation of a code provision, they could request an interpretation which was appealable to the Hearing Examiner and to the City Council. Councilmember Wilson envisioned a situation where an application was predicated on a certain interpretation and resolution of that interpretation was necessary before proceeding to the more discretionary process. Mr. Chave answered it may be possible as long as the interpretation was separated from the application. Hearing no further Council questions for staff, Mayor Haakenson remanded the matter to Council for action. d# 3465 COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO sided sidential ADOPT THE ORDINANCE NO. 3465. evelopment Councilmember Marin commented he was torn with regard to this issue and had changed his position a few times. He noted it would have been easy weeks ago to agree with the audience which may have avoided his having an opponent in the election. He explained much of the issue was the often misunderstood quasi judicial process. He explained whether a PRD proposal was reviewed by the Hearing Examiner or the City Council, it was appealable to Superior Court. Further, he emphasized that whether reviewed by the Hearing Examiner or the City Council, the question must always be whether the proposed PRD satisfied the requirements in the ordinance. As a builder himself, he pointed out the "optical illusion" that often occurred when envisioning how a house could be sited on a property. He explained that when the Council convened a quasi judicial hearing, Councilmembers were not allowed to freely discuss matters with citizens other than in the hearing setting. He recalled being personally and inappropriately attacked. He noted that although the perception is that there should be a forum for citizens to speak with Councilmembers, that was not possible in a quasi judicial setting. Councilmember Marin explained that having PRDs reviewed by the Hearing Examiner allowed the Hearing Examiner to consider the law and the interpretation of the code, making the process more fair and clear for everyone involved. He summarized he supported the proposed ordinance, because it provided the public an opportunity speak early in the process as well as during the Hearing Examiner's public hearing. He concluded the Hearing Examiner was the only way to depoliticize the process. Councilmember Petso noted audience comments provided some new ideas tonight in addition to the previous arguments such as an appeal to the City Council is less expensive and was easier and more accessible to residents. She referred to Mr. Demeroutis' analogy with Brightwater, noting several citizens voiced their desire for the opportunity to speak to their elected officials. She recalled that was Edmonds City Council Approved Minutes August 5, 2003 Page 9 one of the frustrations raised about Brightwater, that residents did not have an opportunity to vote for /against the King County Executive or King County Councilmembers. She urged the Council to consider that several speakers asked for the opportunity to be heard by their elected representatives. She reiterated a comment by Mr. Hertrich and in an editorial opinion by the Enterprise regarding what harm would there be in keeping the Council involved in the process? She noted if the Council was involved in the decision - making process, their decision was still appealable to Superior Court. Councilmember Petso referred to Mr. Sundquist's and Mr. Toyer's comments regarding the need to depoliticize the process, noting it was clear from Councilmember Marin's comments and Councilmember Wilson's questions that it was not a political process because Councilmembers must consider whether an application met the requirements of the ordinance. If an application met the requirements, the Council must approve it. She noted this was not an effort to deny property rights, noting no citizen had a right to develop a PRD; a PRD was an exception. She urged Councilmembers to compare this with Brightwater and give citizens a chance to have a public hearing before their elected officials. Regarding ADUs and home occupations, Councilmember Petso acknowledged that one of her concerns with PRDs was they did not have the same amount of parking per residence that a standard subdivision usually provides, thus the concept of prohibiting ADUs and home occupations with outside employees seemed to be appropriate. However, she shared Mr. Sundquist's concern with residents not being aware that the passage of this ordinance would prohibit their having an ADU or home occupation with outside employees. She concluded she was opposed to the motion. Mr. Lell corrected his response to one of Councilmember Wilson's questions, explaining if a PRD decision were appealed to Superior Court it would be as if it were the first review and would not give deference to the fact finders. Councilmember Dawson commented it was better to have the City Council make the decision for many reasons including since this was a questionable law, there was no way to determine what the courts would do when presented with the issue. She referred to a committee she serves on through the Board of Judicial Administration regarding the delivery of service in courts of limited jurisdiction, noting one of the issues the committee has been considering and is making a recommendation on was that all courts of limited jurisdiction including municipal court judges should all be elected judges. The committee was making this recommendation so that there would be an independent voice on the bench rather than someone subject to another person's control as well as providing accountability for the judges. She _ noted this was parallel to the issue before the Council; residents wanted to have an elected official making the decision. She questioned why the City would want to take the risk of being the test case. She concluded she was opposed to the motion. Councilmember Wilson commented this had been a very tough issue for him and he was still interested in further Council discussion before making a decision. He had been involved in the Hearing Examiner process both professionally and as a Councilmember. He was not afraid as a Councilmember to make a decision on a PRD, noting in his 20 years in the planning profession, he had participated in over 5,000 public hearings. He commented that one of the Council's main responsibilities as a legislative body was to adopt policies and regulations that guide the future of the community. He pointed out the community should be involved in the development of policies and regulations, not in the one -on -one decisions regarding what happened in their backyards. He emphasized the Council was limited in its decision - making in a quasi judicial appeal and must focus on the record and the City's adopted policies and regulations. He noted that even if the Council wanted to take into consideration personal experiences Edmonds City Council Approved Minutes August 5, 2003 Page 10 and how a development might impact a particular individual /property, if it was consistent with the law, the Council did not have that discretion. Councilmember Wilson agreed it had been a 2'/2 year process to reach this point, 2'/2 years for the public to provide input to the Planning Board and City Council at meetings, at the street corner, at the grocery store, etc. However, during the Council's quasi judicial review of a specific development, Councilmembers could not talk with citizens about the issue outside the public hearing. He noted one of the pros of having the Hearing Examiner make the decision was if residents felt there was a flaw in the policies, they could propose the Council reconsider and amend the policies. In that instance, the Council could have an active, participatory process which was not possible in the quasi judicial setting. Councilmember Wilson acknowledged the Hearing Examiner worked on the administrative side; the Mayor offered a selection to the Council and the Council confirmed the appointment. If the Council was not happy with the Hearing Examiner's decisions or felt he was not applying the City regulations accurately, the Council was obligated to take corrective action. Further, the Council reviewed the Hearing Examiner's decisions on an annual basis and sought the Hearing Examiner's input regarding any problems he encountered with the City's regulations. Councilmember Wilson expressed his preference that the public had provided more testimony regarding the substance of the document because that was what protected neighborhoods and the community. He was disappointed that the testimony had not addressed the proposed rules /guidelines for making decisions regarding PRDs. He noted there had been a great deal of effort by the Planning Board and staff to develop the requirements. He concluded there was good in retaining the Council as well as a lot of good in using the Hearing Examiner process. Council President Earling also preferred there had been more discussion regarding the proposed changes to the ordinance. He commented the proposed ordinance would improve predictability regarding design of projects and make better use of green space and buffers. He agreed with the proposal to eliminate ADUs and limit home businesses. He referred to Mr. Martin's comment that implied Planning Board Member Crim met with him (Council President Earling) regularly; Council President Earling emphasized Planning Board Member Crim and he had never had a meeting regarding this issue. He indicated he would support the motion. Councilmember Petso referred to Councilmember Wilson's comment that the time for public input was during the policy phase and not when a development was pending in a resident's backyard, noting there was room in both cases for public input. She explained the neighbors closest to the development could best point out when the requirement had not been met as described in the policy. She did not anticipate there would be any disadvantage in allowing participation at the policy phase as well as when a decision was made regarding whether a specific development met the requirements. Councilmember Wilson responded it was the Council's responsibility to develop definitive, quantitative guidelines that were clear to the applicant as well as residents. Councilmember Petso pointed out her intent was not that the Council determine new standards during their review but rather allow the neighborhood to indicate if they did not feel a proposed project met a requirement such as "provide greater buffering for buildings, parking, and storage areas than would otherwise be provided through the subdivision process." She agreed that argument could be made at the Hearing Examiner level but it should be appealable to the City Council. She referred to the development Edmonds City Council Approved Minutes August 5, 2003 Page 11 at 6"' & Bell, noting that despite an ordinance requiring 10% open space, that requirement was overlooked. Councilmember Dawson suggested as a compromise, retaining the Council process at least for a time. She suggested the reason there had been three public hearings was because there were difficulties with interpreting the ordinance. Although she preferred the Council make these types of decisions as it instilled public confidence, in the meantime, she preferred the Council retain the authority. UPON ROLL CALL, MOTION CARRIED (5 -2), COUNCILMEMBER DAWSON AND COUNCILMEMBER PETSO OPPOSED. Mayor Haakenson declared a brief recess. Rezone at 5. PUBLIC HEARING ON THE PLANNING BOARD RECOMMENDATION TO APPROVE A 8017 - 238" REZONE REQUEST FOR A PARTICULAR PARCEL FROM CG (GENERAL COMMERCIAL) St. sw THROUGH A CONTRACT REZONE TO RM -2.4 (MULTIPLE FAMILY RESIDENTIAL). THE PROPERTY IS LOCATED NORTH OF THE LOT ADDRESSED 8017 238TH STREET SW. (APPLICANT: TONY DIPANGRAZIO / FILE NO. R- 03 -47) As this was a quasi judicial matter, Mayor Haakenson inquired whether any Councilmembers wished to disclose any conflict or ex parte communication. Council President Earling advised Mr. DiPangrazio had contributed to a campaign of his other than the City Council. Although the City Attorney indicated it was not necessary to disclose this, he felt it important to disclose this information. Councilmember Wilson advised that while on City staff, he worked with an employee of the applicant's representative, Mr. Bissell. Councilmember Wilson commented it had been over five years since he had seen Mr. Bissell and their acquaintance would have no impact on his review of the application. Councilmember Petso disclosed that she visited the subject property. Mayor Haakenson inquired whether there were any parties of record who wished to challenge Council President Earling, Councilmember Wilson, or Councilmember Petso's participation. There were no challenges voiced and Mayor Haakenson advised all Councilmembers would participate. Senior Planner Steve Bullock entered the Council Agenda memo into the record, noting that it included a verbatim transcript of the hearing before the Planning Board as well as the Planning Board's Findings of Fact and Recommendation to the City Council. He noted the Findings of Fact included the exhibits submitted at the public hearing. He displayed a vicinity map (page 38 of the Council packet), identifying the subject property on the map. He explained in 1986, the applicant requested a contract rezone to rezone the property from RM -2.4 to General Commercial and stipulating the only use on the property would be parking accessory to the Sunset Building. Mr. Bullock identified properties the applicant owned and leased at that time. Since that time, the applicant sold the Sunset Building property and that individual purchased other surrounding parcels. He explained the nature of the tenants in the Sunset Building no longer required additional parking from the subject property. Mr. Bullock explained that since the sale of the Sunset Building, Mr. DiPangrazio's property has been vacant. Due to the condition of the contract rezone, the only use of the property currently is accessory parking for the Sunset Parking. Mr. Bullock identified other parcels owned by Mr. DiPangrazio, noting Edmonds City Council Approved Minutes August 5, 2003 Page 12 his intent was to consolidate the properties under the same zoning and apply for a single consolidated development. Mr. Bullock noted the Planning Board found that this parcel had limited access to Hwy. 99 and 236t1i and no legal access because the property owner no longer owns those properties nor has any legal easements. Further, because the property was significantly lower topographically, approximately 25 -30 feet below the elevation of Hwy. 99, it was unlikely it would be used for commercial development. Also due to the zoning pattern and the previous RM -2.4 zoning, it was appropriate that the entire area be redeveloped under that zoning classification. He noted the remainder of the Planning Board's Findings of Fact were contained in the Council Agenda memo. At Councilmember Petso's request, Mr. Bullock identified the location of the pancake house and the Sunset Building. She inquired about the ownership of the property to the north of the pancake house. Mr. Bullock identified the owner as Burt Loper, explaining the property was currently vacant. Councilmember Petso asked whether the Council must find that the rezone met each of the rezone criteria or only consider all the proposed criteria. City Attorney Zach Lell answered the language of the code required that the factors be considered, not that they all had to be found. Councilmember Petso inquired whether there were court cases that required they all be found. Mr. Lell answered there must be some benefit that flowed or public detriment that did not flow from the Council decision so that the Council was not bargaining away its zoning power. For Councilmember Wilson, Mr. Bullock advised the parcel did not have legal access to Hwy. 99 through any of the commercial parcels. Mr. Bullock explained the subject property was held in common ownership with parcels to the south and east and the applicant could grant access via those parcels. However, in its current configuration as a commercial lot that could only provide parking for the Sunset Building, it had no legal access. Councilmember Wilson asked whether there was a requirement to provide access through the Sunset Building property. Mr. Bullock answered at that time, both properties were in common ownership and an easement was not granted. Councilmember Wilson inquired whether there were mechanisms for a land locked parcel to gain access. Mr. Lell answered there was a private right of condemnation that was used under very limited circumstances. Councilmember Wilson inquired about an easement of necessity. Mr. Lell agreed that may be an option. David Halinen, 10500 NE 8th Street, Suite 1900, Bellevue, representing Tony DiPangrazio, noted the staff's presentation and the packet contained exhaustive information and supporting data concerning this straight - forward matter. The current zoning was an anomaly, intended for a narrow use that was appropriate when Mr. DiPangrazio's family owned the Sunset Building. He referred to page 19 of the packet, the Planning Board Findings of Fact for the 1986 rezone, specifically paragraph 3 which states, "the applicant's commercial building to the northwest, the Sunset office building, is experiencing problems due to the lack of parking for the tenants." He noted although that was the case at that time, Mr. DiPangrazio no longer owns the building. He concluded there was currently no use available for the property as there was no legal access to the north or west, Mr. DiPangrazio owns the property to the east, the prior zoning was RM -2.4, and RM -2.4 was an appropriate zoning for the subject property as the adjacent properties are zoned RM -2.4. Mr. Halinen explained the Planning Board's report considered all the factors listed in Section 20.40.010. He noted one point that the Planning Board report did not explicitly discuss was subsection E, whether Edmonds City Council Approved Minutes August 5, 2003 Page 13 the property was economically and physically suitable for the uses allowed under the existing zoning, and under the proposed zoning. He pointed out that one factor should be the length of time the property has remained undeveloped compared with the surrounding area. It had been approximately 16 years since the rezone took effect and since 1991 there had not been a need for parking for the Sunset Building. Councilmember Petso referred to page 23, the Contract Rezone, noting the use was not limited to parking for the Sunset Building but rather off - street parking accessory to commercial development to the north and west. She asked whether the property could be used as off - street parking for commercial development to the property immediately to the west. Mr. Halinen answered theoretically yes, practically no, pointing out there had not been any overtures by property owners to the west to purchase /lease the subject property for that purpose. He noted more than ample time had elapsed to justify a change back to the original zoning. He pointed out the rezone request was made by Mr. DiPangrazio in 1987 when a specific need existed; that need no longer exists, therefore, it was appropriate to return it to its previous zoning. Councilmember Petso suggested with the property to the west on the market, the applicant could purchase that property and have a large commercial property using the subject property for parking. Mr. Halinen agreed that could have occurred, however, it had not in many years and his client had waited long enough. In recognition of the Planning Board 5 -1 decision in favor of approval of the rezone, he requested the Council approve the rezone. Councilmember Petso commented one of the rezone criteria was sufficient change in the character of the immediate area or in city policy that justifies the rezone. What change justified the rezone in this instance? Mr. Halinen answered in 1986/1987, there was an extreme demand for parking due to tenants in the Sunset Building which no longer exist. This represented an extensive character change. He noted that that tenant was the justification for the original contract rezone; now that the special parking demand no longer existed, it was appropriate that the property return to its original zoning, RM -2.4. Councilmember Petso referred to the 5 -1 Planning Board decision, noting one Planning Board Member was concerned with Comprehensive Plan policies regarding commercial development on Hwy. 99, specifically that commercial development was to be encouraged to its maximum potential. She questioned how changing the zoning from commercial to residential was consistent with the Comprehensive Plan. Mr. Halinen referred to page 36, Goals for the Highway 99 Corridor in the Comprehensive Plan, which states while commercial uses generally are located along and near Highway 99, appropriate multifamily, single family, and other transitional uses will continue to provide buffering between intensive commercial development along the highway and residential neighborhoods to either side. He pointed out there is also a significant grade change between Hwy. 99 and the subject property. Physically, the subject property does not fit with the property to the west and it was more similar to the other properties Mr. DiPangrazio owns. Mayor Haakenson opened the public participation portion of the public hearing. Ken Nichols- Hoppe, 23710 801' Lane W, Edmonds, identified his property in a cul -de -sac behind the subject property. He agreed with rezoning the property, noting the DiPangrazio property was significantly higher than the property in their neighborhood. He requested that the Planning Board consider the impact of any development on the adjacent property such as providing an adequate buffer due to the slope from Hwy. 99 to their neighborhood. Roger Hertrich, 1020 Puget Drive, Edmonds, noted the City was in the process of considering commercial zoning on Hwy. 99. He envisioned that if this parcel remained commercial, other properties Edmonds City Council Approved Minutes August 5, 2003 Page 14 possibly could be rezoned commercial. He commented there has been commercial development on Hwy. 99 adjacent to residential development with proper buffering. He pointed out the importance of not losing more commercial land. He agreed the property's location adjacent to other commercial properties made it appropriate for combining those parcels. Mr. Halinen reiterated that topographically the subject property did not work with the property to the west. He noted the subject site was approximately 1/3 acre and was not critical to a commercial development on adjacent properties. With regard to Mr. Hertrich's comments regarding the City's consideration of commercial activities on Hwy. 99, he noted that was not an appropriate consideration in tonight's discussion. Councilmember Wilson inquired whether the record contained any information regarding real estate offers, etc. over the past 10 -16 years. Mr. Halinen referred to page 48, the Planning Board verbatim transcript, wherein he asked Mr. DiPangrazio regarding whether the properties to the north and west had been trying to buy his property for commercial use to which Mr. DiPangrazio answered no, explaining those property owners did not have a need for this property. Councilmember Wilson inquired whether the record indicated there were restrictions on the uses in the Sunset Building that would generate a greater parking. Mr. Halinen answered there was no discussion regarding that issue in the record. With regard to Mr. Nichols - Hoppe's request regarding buffering, Mr. Bullock advised any direction should be to the Architectural Design Board. Councilmember Petso inquired regarding the required buffer between commercial and residential. Mr. Bullock answered 15 feet. Councilmember Petso inquired regarding the required buffer between multifamily and single family. Mr. Bullock answered there was no specific buffer requirement; there would typically be a side setback of 10 feet. Councilmember Wilson referred to the contract rezone, page 22 of the packet, inquiring whether the agreement could be amended with the consent of both parties. Mr. Lell answered he would have to research that issue. Hearing no further Council questions for staff, Mayor Haakenson remanded the matter to Council for action. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO APPROVE THE REZONE REQUEST AND DIRECT THE CITY ATTORNEY TO PREPARE AN ORDINANCE TO BE BROUGHT BACK TO COUNCIL ON A CONSENT AGENDA. Councilmember Petso agreed it made perfect sense to rezone the property; the difficulty she had was that it did not appear to meet the requirements for a rezone as it was not consistent with the Comprehensive Plan which indicates commercial development in this area was to be encouraged to its maximum potential. Further, there had not been sufficient change in the character of the immediate area or in City policy but rather a change in ownership and use of one building. The critical requirement she questioned was whether there was public benefit to allowing rezone versus leaving the zoning as is. She was aware of the benefit to the property owner via a multifamily development accessed from 238th. However, for the public, if the property remained commercial, there was less traffic through the residential zigzag, more sales tax revenue, and an opportunity to meet GMA employment goals. She questioned how a rezone could be approved that did not meet the requirements of the ordinance. Edmonds City Council Approved Minutes August 5, 2003 Page 15 Councilmember Orvis agreed with Councilmember Petso, referring to Item F, "the relative gain to public health, safety and welfare compared to the potential increase or decrease in value to the property." He noted there was a large increase in the value of the property. He found the public benefited by retaining commercial space in the city and planned to vote against the proposed motion. Councilmember Wilson spoke in opposition to the motion, noting there were several criteria the proposal was consistent with and several others the proposal was inconsistent with. With regard to whether the proposal was consistent with the Comprehensive Plan, he agreed with Councilmember Petso that the Comprehensive Plan encouraged commercial development. He noted the contract rezone was an impediment to the use of the property, pointing out there was the ability for the property owner to request an amendment to the contract rezone. With regard to whether there had been sufficient change in the character of the immediate area, Councilmember Wilson found there had not. He noted there may be opportunity for commercial development via consolidating the subject property with properties to the west. With regard to whether the property was economically feasible or suitable, he noted it could be used with the adjoining properties via consolidation. He noted properties with topographical changes could be used to great benefit as commercial properties by using the change in grade as an opportunity for additional floor area, providing access, parking, etc. UPON ROLL CALL, MOTION CARRIED (4 -3), COUNCIL PRESIDENT EARLING, AND COUNCILMEMBERS MARIN, PLUNKETT, AND DAWSON IN FAVOR; COUNCILMEMBERS ORVIS, PETSO, AND WILSON OPPOSED. Annexation 6. PUBLIC HEARING ON THE CONSOLIDATION ANNEXATION OF A SMALL TRACT OF (Ballinger LAND COMMONLY KNOWN AS THE ABANDONED BALLINGER LIFT STATION SITE. THE Lift Station Site SITE IS CURRENTLY OWNED BY THE CITY OF MOUNTLAKE TERRACE, BUT IS LOCATED WITHIN THE CITY OF EDMONDS. City Attorney Zach Lell advised this was a seldom used annexation process authorized under RCW 35.10.217, commonly known as a consolidated annexation. The process requires a multi -stage procedure whereby one jurisdiction initiates the process by passing a resolution declaring it has a parcel of property it desires to be annexed by an adjacent municipality. The resolution from that jurisdiction was sent to the County's Boundary Review Board. The other jurisdiction, in this instance, Edmonds, then passes a resolution and sets a public hearing. Depending on the results of the public hearing, the next step in the process was for Edmonds to pass a resolution formally accepting the annexation at which time the parties would execute a quit claim deed transferring the parcel from Mountlake Terrace to Edmonds. Mr. Lell explained the parcel at issue was a small parcel owned by Mountlake Terrace but surrounded entirely by Edmonds. The parcel has historically housed the Ballinger pump station. Councilmember Orvis inquired what the zoning of the parcel would be if annexed. Senior Planner Steve Bullock answered the City would typically adopt zoning comparable to Mountlake Terrace's zoning. He was uncertain what that parcel's zoning was in Mountlake Terrace. Councilmember Orvis asked whether there was any chance the Council would be annexing a multifamily zoned parcel in the middle of a residential neighborhood. Mr. Bullock noted the size of the parcel was small (500 square feet). Councilmember Petso inquired about the location of the property. Mr. Bullock explained it was in the southwest corner of Lake Ballinger on 244"' next to the road. The property had a tiny building on it and was surrounded by houses. Edmonds City Council Approved Minutes August 5, 2003 Page 16 Councilmember Plunkett asked whether the lift station served any purpose for Edmonds. Treatment Plant Manager Stephen Koho answered no, explaining at one time it did but it was abandoned when King County built a new lift station across the street. For Councilmember Plunkett, Mr. Koho explained the building extended approximately three stories below grade. Councilmember Plunkett inquired about the City's environmental burden. Mr. Koho answered the City was contractually bound to assume ownership of the parcel due to an agreement with the City of Mountlake Terrace, Olympic View Water and Sewer District, and the Ronald Wastewater District. He explained that because the station no longer served any purpose, the City needed to demolish the structure. Specifically, equipment would be removed, floors between stores knocked out, walls removed approximately 4 feet below grade, and the space filled. Councilmember Plunkett inquired why the station was the City's responsibility. Mr. Koho answered the City had the responsibility to assume ownership of the parcel, one of the options was then to demolish the structure. Councilmember Plunkett inquired regarding the City's responsibility to assume ownership of the parcel. Mr. Lell answered the City originally initiated this process in 2000 by indicating interest to Mountlake Terrace in the transfer of the property. Mountlake Terrace then passed a resolution bringing the process to this point. He noted there had not been any formal offer /agreement with Mountlake Terrace. Mr. Koho noted except for the agreement itself in 1988 between the mayors of each jurisdiction and the special utility districts agreeing to the terms of the contract. He read from Section 6.4, the city at its convenience but no later than one year shall assume ownership and operational responsibility for the Ballinger Lift Station. Mr. Lell answered the city did not have a responsibility under the annexation statute; this was a separate agreement. The annexation process of which the public hearing was a part, was separate from the agreement to which Mr. Koho referred. Councilmember Plunkett asked whether the city had a legal obligation to take the lift station. Mr. Lell answered the city had an obligation to assume ownership at some point when the Ballinger Lift Station was taken out of commission. Councilmember Plunkett asked whether there was a binding legal obligation for the City to take on the lift station sooner or later. Mr. Koho answered that was his understanding. Mr. Lell answered it was his recollection that was required at some point but he was not entirely certain without further research. Councilmember Plunkett inquired about the cost to demolish the structure. Mr. Koho answered there were two issues, the one before the Council was whether to assume ownership of the property. Assuming that happened, demolition may or may not occur. He noted the Council could approve assuming ownership and later make a decision not to demolish the structure. He believed the City was not contractually obligated to demolish the structure but it was the most practical. Councilmember Plunkett commented the lift station may be an environmental hazard that would need to be removed. Mr. Koho commented it was an attractive nuisance, was prone to flooding, and it would be preferable to demolish it. Councilmember Plunkett pointed out the City could decide not to take it, leave it in Mountlake Terrace, and not assume the costs. Councilmember Wilson referred to Exhibits 2 and 3, specifically the whereas clause in the resolution that states the pump station is no longer in service and therefore said property is surplus to the needs of the City of Mountlake Terrace, noting it was clear Edmonds was to gain ownership of the pump station; the remaining question was whether it must be annexed into Edmonds. He questioned whether the City was Edmonds City Council Approved Minutes August 5, 2003 Page 17 obligated to take ownership of the pump station via the Interlocal Agreement and according to the resolution. Mr. Koho answered it was his understanding that the City was obligated to take ownership of the pump station. Councilmember Wilson asked whether Edmonds could take ownership of the property without annexing it. Mr. Lell answered the annexation process the Council was currently involved in had been initiated by the City in 2000. Mr. Lell advised the Interlocal Agreement may reference annexation but he would need to research the specific language of the Interlocal Agreement. Mr. Koho pointed out the property was important from a utility standpoint as three sewer lines passed through the property, and there were manholes and a metering station on the property. Councilmember Petso asked Mr. Lell if he was aware she was a Commissioner with the Olympic View Water and Sewer District who was a party to the Interlocal Agreement. Mr. Lell answered he was not. Councilmember Petso replied that although she did not believe there was an incompatibility with that position and her position as a Councilmember, she would excuse herself from this item and leave the dais. Councilmember Dawson commented it had already been agreed the City would obtain ownership of the property, the question was whether the property remained in Mountlake Terrace or annexed into Edmonds. For Councilmember Plunkett, Mr. Koho explained there were major sewer lines, manholes for access to those lines, and a flow meter on the property. He noted the future plans included maintaining the flow meter on the property due to telemetry that sent data to the treatment plant. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO EXTEND THE MEETING FOR 20 MINUTES. MOTION CARRIED UNANIMOUSLY. Mayor Haakenson opened the public participation portion of the public hearing. Finis Tupper, 811 Daley Street, Edmonds, recalled there had been significant issues in the past with this lift station including flooding that caused property damage to the surrounding houses. He was concerned with the City taking ownership and annexing a lift station that had experienced problems in the past. He was opposed to taking on another city's problems and burdening Edmonds financially to correct past mistakes. Rich Demeroutis, 921 Pine Street, Edmonds, commented staff did not seem to have all the necessary information with regard to the pump station. He questioned the cost of demolition and potential for damaging the lines on the property. He suggested negotiating with Mountlake Terrace regarding their contributing to the removal of the structure on the property. Roger Hertrich, 1020 Puget Drive, Edmonds, commented staff did not have answers to the Council's questions. He agreed there had been liabilities associated with cleanup from flooding in the past. He recommended the Council obtain further information regarding the cost to correct the problems associated with this property before proceeding. Rowena Miller 8711 182nd Place SW, Edmonds, commented the Council did not have sufficient information to make a good decision. She recommended the Council continue the hearing until further information could be provided. Edmonds City Council Approved Minutes August 5, 2003 Page 18 Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. COUNCIL PRESIDENT EARLING MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO CONTINUE THE PUBLIC HEARING UNTIL AUGUST 26, 2003. Councilmember Plunkett requested staff provide any history of difficulties with this pump station. Councilmember Wilson asked that staff provide the Council a copy of the Interlocal Agreement, with the excerpts regarding the City's obligations highlighted. MOTION CARRIED (6 -0). COUNCILMEMBER PETSO DID NOT PARTICIPATE IN THE VOTE. 7. AUDIENCE COMMENTS Ray Martin, 18704 94th Avenue West, Edmonds, commended Councilmembers Petso and Dawson on another fine performance as Councilmembers. Regarding Council President Earling's denial of a meeting with Planning Board Member Crim, he questioned whether Council President Earling had a telephone conversation, email or communication via another Councilmember or Planning Board Member. He then challenged Councilmember Orvis to indicate how he knew the Council would approve the Hearing Examiner process. With regard to Councilmember Wilson's statement that he was torn, Mr. Martin indicated he did not believe that, alleging Councilmember Wilson already had his mind made up. He referred to Councilmember Marin's statement that he had been personally and inappropriately attacked, requesting he describe how he had been personally attacked and why it was inappropriate. 0 8. MAYOR'S COMMENTS National Mayor Haakenson reported prior to tonight's meeting, from 5:00 to 7:00 p.m., the Edmonds Police Night Out Department and Fire Department were at National Night Out at the Frances Anderson Center. He reported the turnout was very good and expressed thanks to Councilmembers Marin and Dawson for participating. 9. COUNCIL COMMENTS Councilmember Dawson wished her husband a happy birthday. Councilmember Wilson expressed disappointment with the arrogance of Mr. Martin's implications regarding his mind set and how he made his decisions. Councilmember Wilson emphasized he made his own decisions and whether Mr. Martin agreed or not, he was torn. Councilmember Wilson explained he had had his own frustrations with the process but knew from a professional standpoint how to deal with issues and reach solutions. He commented that Mr. Martin had attacked his creditability, qualifications, and thought process. He urged Mr. Martin to have his facts straight before he raised an issue to the Council. With no further business, the Council meeting was adjourned at 10:25 p.m. F bl . . 'ca" - O. , - d. � � ,.� SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes August 5, 2003 Page 19 AGENDA - EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 51" Avenue North 7:00 - 10:00 p.m. AUGUST 5, 2003 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 July 29, 2003. (C) Approval of claim checks #64319 through #64491 for the week of July 28, 2003, in the amount of $411,563.43. (D) Acknowledge receipt of Claim for Damages from Driftwood Players ($1,555.00). (E) Report on final construction costs for the citywide guardrail replacement (Bell Street, 89 ' Place West, North Meadowdale Road and alley location), and Council acceptance of project. (F) Report on bids opened July 29, 2003, for the Frances Anderson Center Potable Water Piping Replacement Project, and award of contract to Nardone Mechanical Contractors ($134,199.65, including sales tax). (G) Authorization for the Mayor to sign Addendum No. 2 to the Professional Services Agreement with CHS Engineers, Inc. for the Sanitary Sewer Meter Rehabilitation Project. (H) Authorization to call for bids for construction of the SR 104 Sanitary Sewer Rehabilitation Project. (1) Authorization to call for bids for construction of the Sanitary Sewer Meter Rehabilitation Project. (J) Acceptance of street right -of -way dedication contained in approved Final Short Plat for Helleren Development Company at 21506 - 961h Avenue W. (File No. S- 02 -204 / Applicant: Leif Helleren Construction, Inc.) Page 1 of 2 CITY COUNCIL MEETING AGENDA AUGUST 5, 2003 Page 2 of 2 (K) Approval of a Resolution to establish a hearing date for the street vacation for that portion of 85` Place West north of Bowdoin Way adjacent to Fire Station #6. 3. (10 Min.) Recognition of Hekinan Student Delegation. 4. (90 Min.) Public Hearing on a proposed ordinance repealing and reenacting Edmonds Community Development Code (ECDC) Chapter 20.35 relating to Planned Residential Development (PRD); amending ECDC Section 16.20.030, Table of Site Development Standards; repealing ECDC 20.16.010(A)(4) relating to Hearing Examiner recommendations; amending ECDC 20.20.015 to add a new Section (D) prohibiting certain home occupations in PRDs; amending ECDC Chapter 20.21 to add a new Section 20.21.010 prohibiting accessory dwelling units in PRDs. This ordinance would reenact the City's PRD regulations, with minor clarifications and revisions, and establish that the Hearing Examiner makes the final decision on preliminary PRDs. 5. (30 Min.) Public Hearing on the Planning Board recommendation to approve a rezone request for a particular parcel from CG (General Commercial) through a contract rezone to RM -2.4 (Multiple Family Residential). The property is located north of the lot addressed 8017 238th Street SW. (Applicant: Tony DiPangrazio / File No. R- 03 -47) 6. (15 Min.) Public Hearing on the consolidation annexation of a small tract of land commonly known as the abandoned Ballinger Lift Station site. The site is currently owned by the City of Mountlake Terrace, but is located within the City of Edmonds. 7. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed as Closed Record Review or as Public Hearings. 8. ( 5 Min.) Mayor's Comments 9. (15 Min.) Council Comments ADJOURN Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771 -0245 with 24 hours advance notice for special accommodations. The Council Agenda as well as a delayed telecast of the meeting appears on cable television Government Access Channel 21.