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08/19/2003 City Councilhange to Benda Approve 8/5/03 Minutes EDMONDS CITY COUNCIL APPROVED MINUTES August 19, 2003 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5`h 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 (arrived T:04 p.m.) Lora Petso, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember APPROVAL OF AGENDA STAFF PRESENT Dan Clements, Administrative Services Director David Stern, Chief of Police Duane Bowman, Development'Serv. Director Arvilla Ohlde, Parks and Recreation Director Rob Chave, Planning Manager Dave Gebert, City Engineer Steve Bullock, Senior Planner Kathleen Taylor, Associate Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. (Councilmember Plunkett was not present for the vote.) CONSENT AGENDA ITEMS Council President Earling advised Councilmember Plunkett had requested an opportunity to vote on Consent Agenda Item G. COUNCIL PRESIDENT EARLING MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO PLACE CONSENT AGENDA ITEM G ON THE AGENDA AS ITEM 3B. MOTION CARRIED UNANIMOUSLY. (Councilmember Plunkett was not present for the vote.) COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE CONSENT AGENDA WITH THE EXCEPTION OF ITEM G. MOTION CARRIED UNANIMOUSLY. (Councilmember Plunkett was not present for the vote.) The agenda items approved are as follows: (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 5, 2003. (C) APPROVAL OF CLAIM CHECKS #64492 THROUGH #64666 FOR THE WEEK OF Approve AUGUST 4, 2003, IN THE AMOUNT OF $256.743.49. APPROVAL OF CLAIM CHECKS laim becks #64678 THROUGH #64780 FOR THE WEEK OF AUGUST 11, 2003, IN THE AMOUNT OF $82,375.67. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #36231 THROUGH #36390 FOR THE PERIOD JULY 16 THROUGH JULY 31, 2003, IN THE AMOUNT OF $823,626.56. `J Edmonds City Council Approved Minutes August 19, 2003 Page 1 laim for ,.age., (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM SUSAN DURR ($150.28). Ave. W (E) REPORT ON FINAL CONSTRUCTION COSTS FOR THE 76TH AVENUE WEST ockery ROCKERY REPAIR SOIL NAIL RETAINING WALL PROJECT AND COUNCIL epair ACCEPTANCE OF PROJECT. 003 (F) REPORT ON BIDS OPENED JULY 15, 2003 FOR PHASE II OF THE 2003 WATERMAIN atacem Replacement REPLACEMENT PROGRAM AND AWARD OF CONTRACT TO D &G BACKHOE, INC. ($244,424.34 INCLUDING SALES TAX). rd# 3466 3. ORDINANCE NO. 3466 CREATING NEW EDMONDS CITY CODE CHAPTER 3.16 PARKS Parks Trust TRUST FUND Fund Parks & Recreation Director Arvilla Ohlde explained the ordinance would allow the community to contribute to a fund with principle protection options for the benefit of the flower program, Yost Pool, and the Beach Ranger/Environmental Education program. She explained the Parks Trust Fund would allow the principle of donors' contributions to be protected and annually the interest could be used to offset the costs of those programs. She explained a similar fund was the Cemetery Perpetual Care Fund in which the principle was protected and the interest used to offset the cost of cemetery operations. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WILSON, TO ADOPT ORDINANCE NO. 3466. MOTION CARRIED UNANIMOUSLY. THE ORDINANCE READS AS FOLLOWS: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, AMENDING THE EDMONDS CITY CODE TO CREATE A NEW CHAPTER 3.16 PARKS TRUST FUND, AND FIXING A TIME WHEN THIS SAME SHALL BECOME EFFECTIVE. rd# 3467 3B. APPROVAL OF AN ORDINANCE FOR A CHANGE IN ZONING FOR CERTAIN REAL iPangrazio PROPERTY COMMONLY KNOWN AS THE DIPANGRAZIO PROPERTY FROM A LIMITED Rezone CONTRACT GENERAL COMMERCIAL (CG) ZONE TO RESIDENTIAL MULTIFAMILY — 8017 238" S1 RM -2.4 (FILE NO. R- 03 -47) COUNCIL PRESIDENT EARLING MOVED, SECONDED BY COUNCILMEMBER DAWSON, FOR APPROVAL. Councilmember Petso advised she planned to vote against the motion, recalling when this rezone was discussed a few weeks ago, she voted against it because although the rezone made sense, it did not meet the rezone criteria. Councilmember Wilson advised he would also vote against the motion as he did a few weeks ago. MOTION CARRIED (4 -3), COUNCILMEMBERS ORVIS, PETSO, AND WILSON OPPOSED. THE ORDINANCE READS AS FOLLOWS: ORDINANCE NO. 3467 OF THE CITY OF EDMONDS, WASHINGTON, AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF EDMONDS TO CHANGE THE ZONING DESIGNATION OF CERTAIN REAL PROPERTY IMMEDIATELY NORTH OF THE PARCEL ADDRESSED 8017 238TH STREET, COMMONLY KNOWN AS THE DIPANGRAZIO REZONE, FILE NO. R- 2003 -47, FROM CG TO RM -2.4; AND FIXING A TIME WHEN THE SAME SHALL BECOME. EFFECTIVE. Levy Lid Lift Voter Pamphlet Statement 1 li anft d d Con ft Council President Earling advised the November ballot will offer an opportunity for voters to consider a mmittees Public Safety property tax levy lid lift. He advised the deadline to apply to participate on a committee to Edmonds City Council Approved Minutes August 19, 2003 Page 2 prepare a statement for the voters pamphlet for or against the levy lid lift was August 30 and appointments would be made on September 2. Addition to 4. CLOSED RECORD REVIEW ON AN APPEAL OF THE HEARING EXAMINER'S DECISION Rory's Pub TO APPROVE THE DESIGN OF AN ADDITION TO RORY'S PUB & BOILER. THE 105 Main St. PROPERTY IS ZONED BC (COMMUNITY BUSINESS) AND IS LOCATED AT 105 MAIN STREET. (APPELLANT: PARIS PARTNERSHIP / APPLICANT: TAYLOR GREGORY BUTTERFIELD ARCHITECTS / FILE NO. ADB -03 -32 AND AP -03 -117) As this was a quasi judicial hearing, Mayor Haakenson inquired whether any Councilmembers had any conflicts of interest or ex parte communication they wished to disclose. Council President Earling advised Brad Butterfield, Peter Bennett, and Albert Dykes have contributed to previous campaigns. Councilmember Plunkett advised Brad Butterfield contributed $100 to a campaign unrelated to the City Council election. Councilmember Wilson advised Brad Butterfield contributed $100 to his last election campaign and Tammy Miller, a party of record, contributed $25. Mayor Haakenson asked whether any parties of record had any objection to the participation of Council President Earling, or Councilmembers Plunkett or Wilson. There were no objections voiced. Mayor Haakenson advised all Councilmembers would participate in the Closed Record Review. Mayor Haakenson advised the Council received a letter from Jonathan Hatch, the appellant's attorney which was provided to Councilmembers. Time limits were established as follows: ten minutes for staff's presentation, ten minutes for the applicant's presentation with time reserved for rebuttal, and ten minutes for the appellant's presentation. Associate Planner Kathleen Taylor stated this was an appeal of an application for a second story addition to Rory's Pub & Broiler located at 105 Main Street. She advised the appellant was Paris Partnership who own the property immediately east of Rory's. She referred to issues contained in the appeal which were detailed on pages 4 and 83 of the record as well as in the recent letter from Jonathan Hatch. Ms. Taylor explained the appellant was appealing the design of the addition to Rory's which will extend the building to the property line as allowed in the Community Business zone. The appellant's building was constructed under different Uniform Building Codes (UBC) in the 1980's and as a result of the addition to Rory's, the appellant will be required to make modifications to their building. The Hearing Examiner addressed this issue in his decision, which begins on page 20 of the record and specifically addresses this issue on page 26. The Hearing Examiner's decision was that this issue was unrelated to design review of the building. Staff recommends the City Council uphold the Hearing Examiner's decision. Councilmember Petso observed that parking for the building would be leased elsewhere and inquired where. Ms. Taylor answered that issue was not related to the appeal. She explained the parking agreement had not been finalized but would be completed prior to issuing a building permit application. Councilmember Petso observed the adjacent building became nonconforming if the Rory's addition were constructed as proposed. Ms. Taylor agreed. Councilmember Petso asked what would need to be done Edmonds City Council Approved Minutes August 19, 2003 Page 3 to the proposal so that the adjacent building did not become nonconforming. Ms. Taylor answered that was detailed in letters from Building Official Jeannine Graf beginning on page 88 of the record. Councilmember Wilson observed the nonconformance was not related to zoning standards or design review standards. Ms. Taylor agreed, only the UBC. Councilmember Wilson observed the issue was created by to a change in the UBC from the 1979 version to the current version. Ms. Taylor agreed. Councilmember Plunkett commented there was a difference between what the subject property could do to ameliorate the nonconformity of the adjacent property and what it had to do, noting the subject property did not have to ameliorate the impact on the adjacent property. Ms. Taylor answered the property owners of the adjacent property, the Paris Partnership, would be required to make changes to their building; the subject property was not required to make changes to their design. City Attorney Scott Snyder referenced the letter from the appellant's attorney on page 87 of the record, explaining the intent of the appeal appeared to be to preserve a claim that has been filed against the City and preclude any viable argument that they have failed to exhaust their administrative remedies before pursuing a claim against the City. He advised the Council that the information regarding the adjacent property was irrelevant to the decision made by the Architectural Design Board (ADB) as it addressed none of the criteria the ADB was required to review. He noted zoning statutes are derogation of common law property rights and therefore required to be strictly construed. Property owners have the right to fully develop their property in accordance with common law property rights unless expressly limited by the terms of the code. Mr. Snyder summarized that downtown zoning permitted lot line to lot line development; the building code required burn walls and other protections to prevent the spread of fire. If the City began denying applications based on impacts to other properties created by the State UBC, it would create a sub -series of unwritten setbacks within the downtown area. His advice has always been to enforce the code as written; if a problem was created via an approval 25 years ago, the City will defend any claim on its merits. He referred to Attorney Zach Lell's memo, indicating it was intended as staff advice. Mr. Snyder concluded that if neighboring property rights were considered, since those rights were not protected or affected by any of the criteria the ADB considers, the decision would be based on irrelevant information not germane to the criteria. Applicant Pete Bennett, representing Rick and Julie Colgan, 400 Dayton, Ste A, Edmonds, summarized this was a closed record review and all information necessary for the Council to uphold the Hearing Examiner's decision was contained in the record. He stated they applied for the ADB permit for building design, staff agreed the design met the zoning code, ADB provided an advisory opinion agreeing the design met the requirements of the zoning code, and the Hearing Examiner agreed. The only issue on appeal was whether approval of the project could make the neighboring property out of compliance. As Mr. Snyder indicated, there was nothing in the ADB criteria regarding the impact on the neighboring property. He noted this issue should be resolved via a lawsuit with the City or as a code compliance issue. He concluded that to deny the Colgans their legally entitled right under the zoning code for no other reason would likely be considered a reversible error. Mr. Bennett pointed out the appeal did not contain specific citations of error because there were none. He commented the impact on the Paris building was unfortunate and the Colgans want to be good neighbors but it was necessary for them to maximize the usage due to the cost of property and building. Edmonds City Council Approved Minutes August 19, 2003 Page 4 Appellant Harvey Ries, representing the Paris Partnership which consists of Denise and Jean Branaa, his wife Cecile and himself, explained the building at 109 Main Street was built in 1983 with Cafe De Paris as the first floor tenant along with a south - facing studio apartment and office, a 2- bedroom apartment on the second floor that has been occupied as an office and apartment in the past. He explained that the second story addition to Rory's would have a significant impact on their building, reducing the second floor apartment from a 2- bedroom apartment to a 1- bedroom apartment. Further, significant changes would be required to alter the configuration of the roof to meet the requirements for ventilation and light. Costs have now been calculated that indicate the changes will be very expensive. Further, they will incur the negative impact on rental rates of a 1- bedroom apartment rather than a 2- bedroom apartment. He emphasized the changes were related solely and as a result of Rory's addition and there had been no request for a change to their building or its current use. He concluded they were long -time property owners who had made a significant investment in the community and Rory's getting exactly what they wanted at their expense was clearly in error. Mr. Ries indicated the Council had a responsibility to protect the property interest of all property owners without favoring one over another. He requested the City Council require modification of the Rory's plans to eliminate this negative impact on their property or compensate them for the impact. Cecile Ries appealed to the Council to understand that the second floor addition to Rory's would create an incredible and unusual problem for them. Although it was an unusual problem, it deserved fair and impartial consideration by the Council. Councilmember Plunkett explained in a quasi judicial matter, the Council must adhere to the laws. Therefore, he requested the Reis refer to a code provision, ordinance, policy, etc. that entitles them to require that the subject property be constructed in a different manner. He also requested the Reis cite a code provision, ordinance, policy, etc. that required the Council grant them relief. Mr. Ries answered they were allowed to build this building and they met all the conditions required at that time. He noted that if this project was not allowed to occur, they would be able to continue to use their building as is for an indefinite period into the future. He concluded they should not be required to change their building as a result of the City's action to allow a project on the adjacent property. Councilmember Marin inquired about the changes that would be required to be made to their building. Mr. Ries advised they prepared a summary of the changes with costs to present to the Council but were informed they would not be allowed to provide that additional information. Mr. Snyder requested Mr. Ries reference the record of the prior proceeding. Mr. Ries stated he was uncertain whether the specifics were in the record. Mr. Snyder reiterated the Council was limited to the record of the prior proceeding. Ms. Taylor advised the record before the Hearing Examiner was not very detailed on the changes. Mr. Ries stated the required changes included changing the apartment from a 2- bedroom to a 1- bedroom in a manner that ensured no one will use the room not supposed to be a bedroom as a bedroom due to problems with egress to that room. In addition, they must install numerous skylights and roof changes in order to maintain required lighting and ventilation which requires changing the structure of the building. Mr. Snyder advised that information was contained on pages 89 and 90 of the record. He explained the changes were necessary to allow the rooms to be used as sleeping rooms; they could be used for other purposes such as office or sitting room. Parties of Record There were no parities of record in the audience who wished to provide testimony. Edmonds City Council Approved Minutes August 19, 2003 Page 5 Rebuttal Mr. Bennett commented that if the Council considered evidence regarding the adjacent property, it would create further problems and represent a reversible error as there was no code section that allowed them to do that. He referred to his letter on page 14 of the record that addressed the zoning law and derogation of common law and allowing property owners to use their property. If the Council were to consider it, they must consider the foreseeability of construction occurring on the adjacent property building to a zero lot line when this property built to a zero lot line in 1983. He objected to the introduction of any new evidence, noting Mr. Hatch's letter indicated his client would present new evidence which they were instructed not to do. Mr. Bennett referred to the references in Mr. Hatch's letter and brief regarding reserving his rights and exhausting his administrative appeals. Mr. Bennett encouraged the Council to uphold the Hearing Examiner's decision. Councilmember Petso referred to paragraph 6 on page 50 of the record, which reads, "Site design should take into account the surrounding development. The location of structures, parking, landscaping and other site features should be based on the orientation of the features and structures on adjacent properties." She observed the applicant and staff have indicated the adjacent property was not considered. Mr. Snyder read from the ADB criterion in Section 20.10.070A6, "size and height of buildings should be compatible with the character and existing views of the surrounding area" and Section 20.10.070A, "the buildings shall be designed to comply with the purpose of this chapter and avoid conflict with the existing and planned character of the nearby area." He pointed out that in the design review process, the purpose was to have the building harmonize with the surrounding sites. He noted that was as close as one could get to that issue in the criteria. He noted 20.10.070C referred to community facilities and states, "should not conflict with the existing and planned character of the nearby area." He noted Washington courts have made it clear in their decisions, beginning with Anderson v. Issaquah that if a City adopts design review criteria, it must be very specific and specifically implied and must allow the property owner to exercise their common law property rights. He concluded his advice was that any attempt to limit the use of the property for the reasons given would open the City to a takings claim on behalf of the second party. Councilmember Petso again referred to paragraph 6 on page 50 of the record, which reads, "The location of structures, parking, landscaping and other site features should be based on the orientation of the features and structures on adjacent properties," questioning whether this was the City's law. Mr. Snyder stated it was a summary but was referring to the orientation of buildings, that they should face the same direction. He noted there was nothing that overruled the requirements of the State UBC. The State UBC, which the City was required to adopt and enforce, was what required burn walls and changes to exiting and those were not design criteria. Councilmember Petso concluded paragraph 6 on page 50 was not a design criteria. Mr. Snyder answered any attempt to limit the use of the property beyond design criteria would be a misapplication of the code. In response to Councilmember Petso's question, Ms. Taylor explained paragraph 6 on page 50 referred to ADB guidelines which are not code requirements. Hearing no further questions for staff, Mayor Haakenson remanded the matter to Council for action. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO UPHOLD THE HEARING EXAMINER'S DECISION AND DENY THE APPEAL. Councilmember Marin commented this was an unfortunate situation, yet when the building was constructed in a zero lot line zone with fenestrations that face an adjoining property, they were Edmonds City Council Approved Minutes August 19, 2003 Page 6 constructed at a risk as the owner of the adjacent property also had the ability to build on his property to the line. He planned to support the motion with mixed feelings. MOTION CARRIED UNANIMOUSLY. 5. CLOSED RECORD REVIEW ON AN APPEAL OF THE HEARING EXAMINER'S DECISION Appeal of a Variance for TO APPROVE A VARIANCE REQUEST FOR A MIXED -USE BUILDING. SPECIFICALLY, A Mixed -use VARIANCE FROM EDMONDS COMMUNITY DEVELOPMENT CODE SECTION 16.50.020(B), Building at WHICH REQUIRES COMMERCIAL DEVELOPMENT ON THE GROUND FLOOR TO A 303 Dayton MINIMUM DEPTH OF 30 FEET. THE PROPERTY IS ZONED BC (COMMUNITY BUSINESS), -03 -116 AND IS LOCATED AT 303 DAYTON STREET. (APPELLANT: FINIS TUPPER / APPLICANT: AD SHAPIRO ARCHITECTS / FILE NO. AP -03 -116, ADB -03 -38 AND V- 03 -85) As this was a quasi judicial hearing, Mayor Haakenson inquired whether any Councilmembers had any conflicts of interest or ex parte communication they wished to disclose. Councilmember Plunkett advised Tony Shapiro had contributed $200 to a campaign unrelated to the City Council. Mayor Haakenson asked whether any parties of record objected to Councilmember Plunkett's participation. Finis Tupper noted there were three criteria for the hearing to pass judicial muster, appearance, impartiality, and conflict of interest. He challenged Councilmember Plunkett's participation in the hearing. Mr. Tupper stated he filed a complaint in December 2002 against Councilmember Plunkett for his failure to disclose contributions. Mr. Tupper believed this would preclude Councilmember Plunkett from making an impartial decision. Mr. Tupper noted Councilmember Plunkett also did not respond to his greeting when he encountered him on the street recently. Mayor Haakenson advised that under the Appearance of Fairness, it was up to the Councilmember to determine whether he /she could make a fair decision. Councilmember Plunkett recalled he did acknowledge Mr. Tupper's greeting this weekend. He explained he had given Mr. Tupper's complaint due consideration and did not have any difficulty participating in this decision. Mayor Haakenson advised Councilmember Plunkett would participate in this matter. Time limits were established for the hearing as follows: 15 minutes for staff's presentation, 15 minutes for the applicant's presentation with time reserved for rebuttal, and 15 minutes for the appellant's presentation. Associate Planner Kathleen Taylor explained the application was for a, mixed use building at 303 Dayton which includes design review of the building as well as a variance request. She explained the applicant requested a variance from Edmonds Community Development Code 16.50.020B which requires commercial development on the ground floor at a minimum depth of 30 feet. The appellant, Mr. Tupper, has appealed the design and variance, stating that the variance does not meet the six required criteria to be granted a variance. Mr. Tupper also states the variance should not be granted as the code does not allow use variances as specified in Title 20.85. Ms. Taylor explained the property was located in the Community Business zone; the applicant has proposed office /commercial space, a use allowed in the Community Business zone, as well as multifamily dwelling units on the upper floor. She explained the proposed building had three floors, with Edmonds City Council Approved Minutes August 19, 2003 Page 7 parking on the first floor, primarily commercial space on the second floor, and multifamily dwelling units on the third floor. The applicant has requested a variance that the commercial space not be on the first floor or ground floor as defined in the ECDC but be allowed to be located on the floor above the ground floor. In this instance, the applicant has demonstrated it is not feasible to locate commercial space on the first floor and that it is more feasible on the second floor. She explained the applicant has designed the building to give the appearance that the commercial space is easily accessible from the ground floor. Ms. Taylor explained she determined the application met the requirements of the use and was providing commercial use as required, and merely requesting it be located on a different floor did not constitute a use variance. She referred to the Hearing Examiner's decision on page 20, advising that the Hearing Examiner found the variance criteria had been met and did not constitute a use variance. Ms. Taylor noted one of the variance criteria referenced by Mr. Tupper was special circumstances, which cannot be predicated on the actions of prior property owners. In this instance, it was determined by the Hearing Examiner that special circumstances existed due to the topography of the site that made it difficult to construct parking underground. With regard to whether this was a situation created by the action of a previous property owner, she acknowledged this site was smaller than other lots as it was subdivided and the City could not grant any variance on the basis of subdivision as that would not meet the special circumstances criteria. Councilmember Petso inquired about language on page 17 that was blacked out. Ms. Taylor advised it was not intentionally blacked out and staff would determine what the language stated. Councilmember Petso referred to page 24 of the record which states in Chapter 20.85 that a variance can be requested for unusual and unreasonable hardship, noting she did not find that provision in Chapter 20.85. Ms. Taylor acknowledged the specific language was not in Chapter 20.85; in order for a variance to be granted, the Hearing Examiner has determined that an unusual or unreasonable hardship exists. She noted this was general language required by State law that cities' codes allow for unusual circumstances. With regard to special circumstances, Councilmember Petso observed that from the map on page 3 and visiting surrounding properties, the property was approximately the same size as Rory's. Yet the record indicates the size of the property and the relatively flat nature constituted a special circumstance making commercial development impossible. However, in the previous hearing, Rory's was expanding because commercial development had been so successful. Ms. Taylor pointed out Rory's had little onsite parking and with the addition, would not have any. Granting the variance would allow the applicant to provide onsite parking. Councilmember Petso noted in order to grant the variance, the Council needed to find that a special circumstance existed. She questioned whether the project could provide parking in the manner Rory's proposed. Ms. Taylor agreed the record reflected that the applicant could request to pay in- lieu -of- parking fees. Finis Tupper stated the language in the record that had been blacked out were his comments regarding the definition section, specifically Section 21.80.090, private parking, which means parking facilities for non - commercial use of the occupants and guests of the occupants including garages and carports. Council President Earling observed the front of the building was on the south side of the property fronting Dayton and the parking entrance was off P Avenue. Ms. Taylor agreed. Edmonds City Council Approved Minutes August 19, 2003 Page 8 Councilmember Orvis noted there were two different calculations for the office square footage on pages 49 and 61. Ms. Taylor advised the square footage on page 49 (6,511 square feet) was a typographical error and the square footage on page 69 (2,986 square feet) was correct. For Councilmember Wilson, Ms. Taylor displayed a cross section of the south elevation of the property and proposed building. She identified the finished floor for the garage at 46'6 ", the average grade of 507", and the finished floor for the commercial space. She explained the ground floor was defined as what was closest to the sidewalk which in this instance was the first level where parking was proposed. She advised the definition of ground floor was in staff's recommendation to the Hearing Examiner and in the Hearing Examiner's decision. Councilmember Wilson observed the entrance to the commercial space was from Dayton. Ms. Taylor identified the pedestrian entrance. Councilmember Wilson inquired about the elevation of the parking. Ms. Taylor answered the parking finished floor elevation was 46'6 ". Councilmember Wilson asked whether that was the same elevation as 3rd Avenue. Ms. Taylor answered it was close to the elevation of Yd Avenue. She noted the applicant may have exact numbers. For Councilmember Wilson, Ms. Taylor advised the proposed parking would be accessed at grade at 3rd Avenue. Councilmember Wilson inquired whether there was excavation necessary for the parking. Ms. Taylor suggested the applicant respond to that question. Councilmember Wilson observed the commercial space began at an elevation of approximately 5 feet from the average grade or approximately 6 feet from the sidewalk. Councilmember Dawson asked where in the record the Hearing Examiner determined special circumstances existed. She noted his findings discussed the topography but did not indicate it was unusual. She noted there was no testimony or facts in the record or comparison of the site to other sites on which to base that finding. Ms. Taylor referred to the bottom of page 33 of the Planning Division Advisory Report, special circumstances. Councilmember Dawson noted that paragraph was the same as the Hearing Examiner's finding and did not appear to be a fact but rather a conclusion. Ms. Taylor commented it was standard procedure that if the applicant demonstrated there was unusual topography that influenced development, it met the criteria. Councilmember Dawson questioned how a relatively flat lot was an unusual topography circumstance. Ms. Taylor answered when a property was sloped, it was easier for an applicant to gain overall building height and easier to achieve underground parking and commercial space with two levels above. Councilmember Dawson acknowledged it may be easier but questioned how a flat lot was an unusual topographic feature. She noted the real reason underground parking was not possible was that this was a tiny lot rather than topographic reasons. Ms. Taylor agreed the size of the lot did influence the development as it was not deep enough for underground parking but most of the lots in the BC zone had sufficient slope to allow for underground parking. Councilmember Dawson inquired whether that was reflected in the record. Ms. Taylor agreed to research the record. Councilmember Petso referred to page 26 where reference was made to the Comprehensive Plan for pedestrian scale buildings in Neighborhood Commercial areas, questioning whether this was considered a Neighborhood Commercial area. She noted the Comprehensive Plan specifically stated not more than two stories for buildings in that area. She questioned whether this was a two story or three story building. Ms. Taylor answered it was three stories. Councilmember Petso requested Ms. Taylor indicate how that complied with the Comprehensive Plan. Ms. Taylor advised the Comprehensive Plan had a number of policies related to this area such as a building providing pedestrian scale. She advised staff Edmonds City Council Approved Minutes August 19, 2003 Page 9 and the Hearing Examiner determined the proposal met these criteria. She noted there were other policies and criteria in the Comprehensive Plan that could apply to this project but were not raised in prior proceedings. Councilmember Petso referred to the pedestrian scale policy that reads, "provide for pedestrian scale design of buildings that are two stories or less in height." Ms. Taylor noted a majority of building being constructed in the downtown area were greater than two stories. Councilmember Petso assumed those buildings met the policies of the Comprehensive Plan in other ways or had not applied for a variance. Her concern was that this project did apply for a variance and therefore must meet the Comprehensive Plan. Ms. Taylor concluded that from staff's perspective, the applicant has shown compliance. City Attorney Scott Snyder pointed out that page 85 of the record contained the applicant's response to the special circumstance variance criteria. Ms. Taylor agreed, noting the applicant's response to compliance with the Comprehensive Plan was found on page 86 of the record. Councilmember Orvis inquired how the average height of 507" shown on page 40 of the record met the requirements of Section 21.35.017. Ms. Taylor referred to page 37 of the record where code sections were cited, specifically 16.60.020B, ground floor, and definition of ground floor in 21.35.017, commenting the ground floor was that which was closest in elevation to the finished floor along the side of the structure that was principally oriented to the street or provided primary access to the property. In this instance, the finished floor for the garage was closer to the sidewalk level than the finished floor of the commercial space and therefore the parking would be considered the ground floor. Applicant Tony Shapiro explained the site has unusual conditions; the idea that the site was flat was misinformation. He described the 7 foot elevation gain on the property. He explained their initial intent was to park the building in the center of the structure and multiple options were considered to allow the ground floor facing 3rd Avenue as commercial space. Mr. Shapiro noted most properties in the BC zone had alley access which enabled parking and service access into buildings off the main streets. He noted this site was subdivided in the past and the parking lot sold to U.S. Bank, eliminating their alley access. He noted if that access remained, access could have been provided to the middle of the building, eliminating the need for ground floor parking. Mr. Shapiro explained a workable parking lot required a double loaded corridor and must allow for two - way traffic. He noted those requirements far exceeded the 65 -foot width of this lot. Therefore a concept of a parking garage was prohibitive for this site and the cost of excavation and building a garage was far beyond the scope of this small building footprint. He noted although the definition of ground floor has been discussed and elevation used as the key criteria, the City Code also discusses historical precedence in establishing ground floor or the front of a property. He referred to the former Quintana Roo on the site and its entrance from Dayton, pointing out the entrance on Dayton maintained historical precedence on the site, reinforcing the logic for the final solution. Mr. Shapiro displayed photos of the site via a PowerPoint presentation made to the Hearing Examiner and ADB, which illustrated the grade change on the property. He displayed the option they ultimately chose with parking off 3rd Avenue. He reviewed options that had been considered including Option 1 (page 101 of the record) that illustrated parking if the alley access had not been eliminated. He explained parking with slope greater than 5% was undesirable because car doors hit adjacent cars. Mr. Snyder advised the testimony Mr. Shapiro was providing was contained on pages 13 and 14 of the record. Mr. Edmonds City Council Approved Minutes August 19, 2003 Page 10 Shapiro displayed Option 2 (page 102 of the record) that showed access from the southeast corner of the site with parking on the upper level. He explained this option was not feasible as it did not allow for a 11'6" floor to floor for the commercial space, a minimum they believe necessary, and attaining the 11'6" floor to floor would result in an infeasible garage slope. Mr. Shapiro displayed Option 3 which illustrated parking and commercial space on the ground floor with the commercial space in the southwest corner. He described how the commercial space was impacted by a PUD transformer room. He concluded this option was also not feasible. Mr. Shapiro summarized the base criteria used in the design was to park this building on site as the property owner found it unacceptable to have in- lieu -of parking or provide on- street parking elsewhere. Councilmember Plunkett asked why a special circumstance existed. Mr. Shapiro answered the slope of the site and the inability to park the project in a safe manner and the parking required by the City could not be attained via any other alternative other than parking on the ground floor of the property. He noted that was the fundamental reason for their variance request. Councilmember Wilson referred to page 85 of the record, specifically the response to how the proposal meets the special circumstance criteria, where it states, "In addition, the size does not allow enough length to provide a ramp for below grade parking." Councilmember Wilson asked Mr. Shapiro to explain from a design perspective why that was infeasible. Mr. Shapiro advised a ramp slope that exceeded 5 -7% made parking infeasible. He noted a dedicated 25 -foot wide ramp at a 15% drop would exceed the length of the property. Councilmember Wilson referred to pages 63 and 40 of the record, inquiring whether the finished floor elevation of the parking structure was 46'6" was roughly equivalent to the grade of 3rd Avenue. Mr. Shapiro answered yes. Councilmember Wilson asked whether a grade of less than 5% had been analyzed. Mr. Shapiro answered yes, explaining that option did not achieve significant results to park the building and eliminate parking on the ground floor. Councilmember Wilson concluded that option was not a practical solution and the option selected was the only feasible option. Mr. Shapiro agreed. Councilmember Marin inquired about the differences between pages page 80 and 40 of the record. Mr. Shapiro explained page 40 was their initial submittal; page 80 was ultimately approved by the ADB; the only difference was a materials change on page 80. Councilmember Petso observed the Hearing Examiner found a special circumstance existed because the lot was relatively flat and therefore difficult to provide parking on site. However, the applicant now indicates the lot's slope makes it difficult to provide parking but the special circumstance is the inability to provide parking on site for the building that was designed. Mr. Shapiro answered the only way to achieve the required parking was to park on the ground floor. He referred to the options on pages 100- 103 which indicate a dedicated ramp could not be created to access a parking garage due to the 65' x 75' site. Without the ability to create a dedicated ramp, parking was required to be provided on the ramped deck from the street. He noted option 2 explored that possibility but required an unacceptable grade. Next, a grade of 5% was explored but did not provide the necessary clearance to attain the 11'6" floor to floor to make it a viable commercial space. He concluded the options illustrated that it was physically impossible to create a ramped garage with a sloped deck for parking. Councilmember Petso pointed out the Comprehensive Plan required commercial use in the Community Business Zone and the Code requires the commercial be the first 30 feet. She asked how the project would comply with the Comprehensive Plan if parking were allowed on the ground floor. Mr. Shapiro Edmonds City Council Approved Minutes August 19, 2003 Page 11 answered this building design makes great efforts to embrace the pedestrian on Dayton Street, the historical entry on the site, attaining the spirit of the Comprehensive Plan as well as the Zoning Code. Councilmember Dawson referred to Option 1 (page 101 of the record) which considered parking on the second floor and commercial space on the ground floor. Mr. Shapiro explained Option 1 included access across the U.S. Bank parking lot which would not be possible. Councilmember Dawson noted that could have been done but for the existence of the U.S. Bank parking lot. Mr. Shapiro agreed, noting that portion was sold, eliminating this property's link to the alley access. Councilmember Dawson asked whether that was because this lot was subdivided in the past. Mr. Shapiro agreed, noting but for that, they could have done Option 1. Councilmember Wilson referred to page 100 that illustrated level access from 3rd Avenue, asking whether stall 6 was the ADA stall. Mr. Shapiro answered yes. Councilmember Wilson referred to Option 2, noting this was the design that would be required to provide parking on the second floor. Mr. Shapiro agreed. Councilmember Wilson asked whether parking would be on level grade or sloped. Mr. Shapiro answered it would be a slope of 10% and still not achieve the 11'6" floor to floor for the ground floor commercial space. Councilmember Wilson asked whether a slope of 10% met ADA requirements. Mr. Shapiro answered it did not. Appellant Finis Tupper, 711 Daley, Edmonds, explained he attended the May 7 ADB meeting but did not participate, only listened to staff comments that the application met the requirements of the Comprehensive Plan. He referred to testimony by Roger Hertrich that the application did not meet the definition of ground floor. Following the meeting, he obtained a copy of the Code section and spoke with staff who advised him the ADB had already approved the application, indicating it met the Zoning and Comprehensive Plan requirements. He asserted the application still did not meet the requirements of the Zoning Code or Comprehensive Plan. He recalled Mr. Snyder's comment that courts require strict compliance with land use law and zoning laws, and urged the Council to make a decision based on the Zoning Code, not based on the ability to park on the property or the inability to design a building to provide parking. He questioned the ability to obtain a variance for parking when the Code already offered exceptions for parking. He commented the cost of excavation for underground parking should not affect the Council's decision. He commented the fact that the property no longer included the adjacent parking lot should also not affect the Council's decision as it was a self - created hardship. Mr. Tupper commented he did not object to a building on the site, noting anything built on the site would be better than a vacant lot. He pointed out he did not plan to tell Mr. Shapiro how to design the building, commenting the Council should also not redesign the building. Mr. Tupper recalled staff indicated the project required commercial development. He referred to Section 16.50.020B which states development must have commercial uses for 30 feet. He noted the key words were "must" and "use," pointing out that use variances were not allowed by the Edmonds Community Development Code (ECDC). He concluded the applicant was requesting to substitute the commercial use with a parking garage, noting the ECDC defines parking as a non - commercial use. Mr. Tupper referred to page 2 of the record which stated the Hearing Examiner found in his decision that the applicant was not requesting a use variance. He recalled Ms. Taylor indicated that finding was on page 22 of the record, however, he did not find the word "use" anywhere in the Hearing Examiner's decision. Edmonds City Council Approved Minutes August 19, 2003 Page 12 Mr. Tupper referred to page 26 which states a special privilege would not be provided to the applicant as he would still provide the required commercial space. Mr. Tupper noted the commercial space would not be provided where it was required to be located according to the Comprehensive Plan and the Zoning Code. He noted that requirement appeared to be ignored for the provision of two park benches. The application did not provide commercial space on the ground floor, only access to the commercial space. Mr. Tupper referred to Attachment 2 (page 52 of the record) which defines districts, specifically the Downtown Activity Center. He referred to the definition of pedestrian streets which included 3rd Avenue from Dayton to Bell, noting this was a major intersection in the downtown area and it was important that it be a vibrant, vital, pedestrian oriented, retail commercial area. He referred to historic guidelines for the Downtown Activity Center which state, "Downtown development should be accomplished so as to reinforce the historic character and pedestrian orientation and scale of the downtown buildings and streetscapes. Each building should contribute to the character of the downtown environment in a manner consistent with heights, facades, setbacks, rooflines, signage, and repeating design elements of other buildings found on the street." Mr. Tupper referred to page 57 and the description of pedestrian oriented commercial, specifically shapes and forms which states in part, "However the building forms are employed, buildings should avoid long, unbroken roof and wall lines. Where buildings are located on corner lots, the shapes and forms of the building should accent the corner. Buildings on corner lots must be designed to provide visual interest and modulation on both street frontages." He commented this project proposed a parking garage entrance on 3rd and commercial activity over height on Dayton. He referred to page 58, details and fenestrations, which states in part, "Along sidewalks, storefronts and other features adding visual interest should occupy at least 75% of the wall space to a height of 8 feet above the sidewalk." He referred to the site organization section which states in part, "The building should have a zero foot setback along the street property line with a pedestrian scale entry and common wall, and abutting buildings are encouraged." Mr. Tupper concluded this building was out of scale and did not address the corner. He reiterated this was a use variance. Although staff would argue it was a bulk variance, he asserted that it was not because if the variance were granted, it would not change the dimensions or bulk of the building, only the use would change. The Code specifically requires commercial uses on the ground floor in order to generate sales tax revenue, create a vibrant downtown, and provide shops to serve residents. The Code did not allow for use variances and therefore the Council could not grant a use variance. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO EXTEND THIS ITEM FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Parties of Record Roger Hertrich, 1020 Puget Drive, Edmonds, stated he attended the ADB hearing and was told there was no definition of first floor. He advised there actually was and he appealed the decision but staff denied his appeal, recommending the applicant pursue a variance. He commented staff was pursuing the variance to cover their errors. Mr. Hertrich explained the special circumstances were created by the property owner who sold the property, creating a small parcel. Mr. Hertrich pointed out parking was not an allowed use on the ground floor and the parking requirements could be met partially onsite and partially off -site. This building did not have to be as large as proposed as the amount paid for the property or the amount of development necessary for the project to pencil out was not the Council's responsibility, only whether the variance met the criteria. He concluded the Code specifically stated that a variance could not be granted for a use and parking constituted a use. Edmonds City Council Approved Minutes August 19, 2003 Page 13 There were no other parties of record who wished to address the Council. Mr. Snyder referred to 16.50.01 OB2, Uses in the Business Commercial Zone, Permitted Secondary Uses, which indicated off street parking and loading areas were permitted as a Conditional Use. He pointed out in the uses allowed in the Community Business zone, the word "commercial" did not appear, only a listing of retail stores, offices and services. He concluded that although Mr. Hertrich indicated parking was not a permitted use, this section indicated it was. Rebuttal Mr. Shapiro had no rebuttal. With regard to Councilmember Petso's question regarding the Comprehensive Plan and the Hearing Examiner's indication that the Comprehensive Plan designation was Neighborhood Commercial, she explained this was inaccurate and staff corrected this at the hearing before the Hearing Examiner. She referred to page 18 of the record where staff identifies this area as the Downtown Activity Center. She explained the Downtown Activity Center did not have the two story limitation that Councilmember Petso referred to. With regard to Councilmember Dawson's assertion that the topography did not meet the special circumstance criteria, Ms. Taylor referred to pages 25 and 33 where more than the topography was cited as the special circumstance including the size and shape and change in elevation. She noted the applicant has expanded on this to include the parking lot configuration and parking stall sizes. She concluded the application met the special circumstance criteria. With regard to whether this constituted a use variance, Ms. Taylor referred to Chapter 20.85 regarding allowable uses and development standards for the zone which states a use variance cannot be granted but does allow for variances from development standards. The requirement for the 30 foot minimum depth for commercial space on the ground floor was contained in the development standards. She concluded the applicant was requesting a variance from development standards rather than from the use. Ms. Taylor advised the photographs in the applicant's PowerPoint presentation were provided to the Hearing Examiner and ADB although not included in the Council's packet. With regard to Mr. Hertrich and Mr. Tupper's reference to the ADB meeting, Ms. Taylor referred to page 24 where staff's error in recommending approval to the ADB stating the proposal met all zoning requirements was acknowledged. The ADB withdrew their original decision, reviewed the application as a consolidated permit - design review and variance including design changes and recommended approval to the Hearing Examiner. Ms. Taylor agreed the Hearing Examiner's decision did not specifically state this was not a use variance but his approval of the variance implied he did not find this was a use variance. With regard to whether this constituted the granting of a special privilege, she referred to page 18 of the record, explaining the applicant would still have a mixed use building as allowed by the zone, only one use would be on a different floor. Councilmember Petso asked how the variance satisfied the Comprehensive Plan, particularly Policy 8.10 regarding the creation of off -site parking facilities when the request was for a variance to allow onsite parking. Ms. Taylor referred to page 18 where she describes the applicant's efforts to bring the Dayton fagade to the pedestrian sidewalk level in response to the Comprehensive Plan requirement that the Edmonds City Council Approved Minutes August 19, 2003 Page 14 building be pedestrian oriented. Councilmember Petso asked whether greater pedestrian orientation could be achieved via commercial space on the first floor rather than at a 9 -11 foot height. Ms. Taylor advised the Hearing Examiner reviewed that issue and determined it met the criteria. Hearing no further questions for staff, Mayor Haakenson remanded the matter to Council for action. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DENY THE APPEAL AND UPHOLD THE HEARING EXAMINER'S DECISION. Councilmember Petso advised the Comprehensive Plan to which staff referred did not encourage pedestrian orientation except to preserve the character of the town. She asserted moving the commercial space up and replacing it with first floor parking did not improve pedestrian character. She encouraged the Council to uphold the appeal and find the application did not meet the criteria for a variance. She referred to the Comprehensive Plan which indicates a desire to create offsite parking in this district, a goal that would not be achieved via the granting of this variance. She explained if the variance were not granted, offsite parking was a viable option for this property. She concluded the Council could not approve the variance if it did not meet the Comprehensive Plan. With regard to special circumstance, Councilmember Petso noted the Hearing Examiner found the property had a special circumstance because it was relatively flat; the applicant indicated a special circumstance existed because the site was sloped. She concluded the real reason the property had a special circumstance was because the applicant could not construct the use they wanted and still accommodate onsite parking. She noted this was not special to this property; if every property in downtown wanted to develop to its maximum use, few would be able to accommodate all parking onsite. She noted small, flat lots were not uncommon in downtown and she had yet to talk with a business owner who found parking requirements did not inhibit potential future development of property. She urged the Council to uphold the appeal on the basis of 1) a lack of a special circumstance, and 2) the proposal did not comply with the Comprehensive Plan. With regard to the Comprehensive Plan's indication of creating offsite parking, Councilmember Dawson explained the intent was not that a building should not have onsite parking but rather that some lots be used for offsite parking lots. Councilmember Dawson explained her concern was whether the special circumstances were personal to the owner, resulting from the action of the owner or past owner of the property. She concluded if this was a special circumstance, which she did not find in the record it was, it was certainly a result of the subdivision of the lot. She referred to Option 1, recalling Mr. Shapiro's statement that but for the fact that the property was subdivided in the past eliminating alley access, the variance would not be required and parking could be provided on the second floor. Councilmember Dawson noted the real issue raised by the applicant was the wisdom of requiring 30 feet of commercial use on the first floor of a building, an issue not before the Council. She noted granting the variance, ignoring the requirement for 30 feet of commercial use on the first floor, would not be in compliance with the Code as the only special circumstance was that the lot was too small to provide onsite parking due to the subdivision. She favored granting the appeal and denying the Hearing Examiner's decision. Councilmember Marin cited his background as a builder, indicating he would support the motion as the proposal was a good solution to a site with challenges. Councilmember Wilson agreed with Mr. Hertrich's comment that it was not the Council's responsibility to redesign the project, noting it was the Council's responsibility to determine whether a project Edmonds City Council Approved Minutes August 19, 2003 Page 15 complied with the Code as written. Councilmember Wilson expressed concern with State variance criteria regarding actions of a prior owner, noting it was difficult to determine how far back to go in a property's ownership to determine which actions affected development of the parcel. Councilmember Wilson commented there were special circumstances with regard to topography. He recalled Mr. Shapiro indicated he would be unable to provide parking in the building that would meet ADA access requirements because of the existing topography. There could have been a development proposal where the 30 feet of commercial space could have been provided to barely comply with the code requirements, leaving a "little shoebox of a space" on the street frontage. He noted there were a number of such spaces in the city that were unused. However, the proposed configuration, which provided off - street parking, also provided a full floor of commercial use on the second floor, a benefit to the community in the long run. The proposed solution provided a benefit to the community, was consistent with the variance criteria and met the intent of the Comprehensive Plan as well as the city's interest in fostering economic development by providing reasonable and usable spaces in the downtown. Councilmember Petso commented if not getting as much parking as a property owner would like on a downtown property were determined to be a special circumstance and a variance granted, there would be a great deal of first floor parking in the city. Although she understood the difficulty in designing the project, she pointed out changes could be made to the project or by providing parking elsewhere. She encouraged the Council to consider how many downtown property owners have cited difficulty with providing onsite parking on -site before determining it was a reason for a variance. Councilmember Wilson commented previous conversations with downtown property owners were not part of the record and should not be considered by the Council. Councilmember Petso commented the Council was entitled to take note of the size and slope of properties in downtown when making a decision. MOTION CARRIED (5 -2), COUNCILMEMBERS DAWSON AND PETSO OPPOSED. 6. AUDIENCE COMMENTS There were no members of the audience who wished to address the Council. Mayor Haakenson declared a brief recess. ibrary Roof 7. LIBRARY ROOF REPAIR AND BUILDING WATERPROOFING PROJECT, REQUEST FOR epair PROJECT BUDGET ADJUSTMENT FOR ADDITIONAL WORK TO WATERPROOF PLANTERS City Engineer Dave Gebert commented there had been several challenging construction issues associated with the library roof project. He requested Council approval for an increase in the project budget to waterproof the planters, noting this work was not included in the contract. Mr. Gebert explained that the demolition and removal of the concrete decking, dirt, gravel, and lawn prior to installing the membrane on the plaza revealed a number of issues that were not visible previously. The more significant and immediate issue was related to waterproofing the planters. He explained demolition revealed a significant number of utility and drain penetrations through the planter walls between the planters and the plaza. It was necessary to ensure the planters were watertight in order for the manufacturer of the new membrane to guarantee the product. He noted there was also some Edmonds City Council Approved Minutes August 19, 2003 Page 16 evidence of leaks and lack of drains in the planters. He displayed a plan view of the library, identifying the library roof, the plaza room, the five planters, and the plaza courtyard area. Mr. Gebert explained a waterproof membrane was installed in the planters eight years ago and was still under warranty. Staff contacted the manufacturer's representative who initially indicated responsiveness to fixing warranty issue; however, after inspecting the site, he indicated resistance on the part of the manufacturer, citing that some of the problems were related to damage and not covered by warranty. At a minimum, the manufacturer would require the planters be emptied to allow a thorough inspection and Mr. Gebert anticipated a long and costly process to get the manufacturer to make warranty repairs. Further, the manufacturer of the membrane to be installed outside the planters has indicated they would not provide a warranty for the new product unless they could be assured the membrane in the planters was watertight. He commented on the potential for a dispute between the City, manufacturer of the membrane in the planters and the manufacturer of the membrane outside the planters in the event leaks occurred after this project were completed. Mr. Gebert explained unfortunately time was of the essence to ensure the project was completed before winter and allow the plaza to be used for the 2004 season. He noted the plaza was a major revenue generator for the Parks & Recreation Department and to have it out of service again next year would have a significant budgetary impact. He explained several directors and a consultant evaluated a number of options and recommended installing the same waterproofing membrane inside the planters as was planned to be installed outside the planters. This would seal the entire area outside the building with the same waterproofing membrane and would be covered by the same manufacturer and contractor warranty. The disadvantage was that it required emptying the planters, increased the project cost, and required replacement of landscaping. With regard to whether the funds were available, Mr. Gebert referred to and reviewed Exhibit 1, Library Roof — Budget Estimate Update, explaining the difference between the budget approved in April 2003 ($892,000) and the current estimated budget ($990,762) was $98,762. He referred to Fund 330 Bond Projects Funding Status — Proposed Budget Redistribution, explaining a redistribution of the funding resulted in a $100,000 available balance. He described the status of projects funded via the Fund 330 including the Library Roof, Frances Anderson Center windows, Frances Anderson Center plumbing, Street Overlays, and Sewer Meter Rehab. Mr. Gebert concluded the funds were available for the budget increase and recommended the Council approve the budget increase to $992,000 for the library roof project and authorize staff to negotiate and issue a construction contract for the additional work. Councilmember Wilson asked what could have been done differently to foresee these issues. Mr. Gebert answered more money might have been spent to empty the planters and they may have recommended waterproofing the planters as part of the project. Councilmember Wilson questioned the value of a warranty if the manufacturer did not stand by it. The manufacturer appeared to be implying there were problems but they had not yet documented any problems that voided the warranty. Mr. Gebert referred to issues associated with the warranty, 1) the time to get the manufacturer of the waterproof membrane in the planters to make a determination and do the repairs, 2) if the manufacturer did make repairs, the issue remained with the manufacturer of the membrane outside the planters warranting their product due to the possibility of water going through the planters and underneath the membrane. The more serious issue was if the planters were not waterproofed and a leak occurred, it may be very difficult to determine the origin of the leak. Edmonds City Council Approved Minutes August 19, 2003 Page 17 Councilmember Wilson appreciated the advantage having one manufacturer warranty the entire product, but encouraged staff to be more forceful with the manufacturer of the existing waterproof membrane such as encouraging them to make a contribution to offset the cost of changing the product. He noted if there were no time limit, he would be inclined to argue the manufacturer's responsibility under the warranty. Mr. Gebert advised when the planters were emptied, the manufacturer would be asked to inspect them. He noted that if a leak occurred in the future, it would be difficult to determine the origin and with two different products on different portions of the roof, it may not be resolvable. Councilmember Wilson asked how similar warranty issues would be avoided if the same waterproofing membrane were applied to the roof and planters. Mr. Gebert advised the warranty would cover the entire roof and there would be an excruciatingly detailed inspection process. He noted the contractor installing the product was a certified installer and the manufacturer hired an independent roof/product inspector and would not sign off on the installation until approved by the inspector. Councilmember Wilson asked how confident staff was with the budget for the projects funded via the Fund 330 Bond funds. Mr. Gebert answered he had a high confidence level in the Frances Anderson Center electrical project because it had been completed and a high confidence level in the Frances Anderson Center windows because the $240,000 budget included a $40,000 contingency and the project was approximately 30% complete. He was less confident in the Frances Anderson Center plumbing project as it had recently been awarded and the project had not yet begun. He noted this project would involve some asbestos; he deferred to Public Works Director Noel Miller to provide further details. Mr. Gebert noted the remaining projects on the list had been completed. Councilmember Wilson inquired about the contingency amount on the Frances Anderson Center plumbing project. Mr. Gebert answered he believed it was 10 %. Councilmember Wilson noted the estimated cost of the change order to remove the material from the planters was $35,000. He asked whether there was any other source of labor to offset that cost. Mr. Gebert stated no, but there may be for replacing the dirt and landscaping. He noted Parks & Recreation Director Arvilla Ohlde had agreed to provide the funds for replacing the landscaping. The method used to remove the material was equipment and labor intensive, as the vactor truck was being used to vacuum the material from the planters and significant amounts of labor were required to cut the plant roots. Councilmember Dawson expressed frustration with this project, noting the original budget was $600,000 and it was now was up to $992,000 and the project had barely begun. She recalled Sno -Isle agreed to pay $300,000 of the cost but were not paying any more now although the City's contribution had more than doubled. She noted Sno -Isle did not pay rent for the building and planned in November to ask the City for additional funding for library service. Councilmember Petso pointed out the staff report indicated a number of alternatives had been reviewed including complete removal of the planters, and asked about the cost for that alternative. Mr. Gebert replied the preliminary estimate was approximately $80,000 which included demolishing the planters and installing the new membrane where the planters were. There were other issues that made that not a good solution, including the need to do a thorough review of the impacts, for example, the different levels of elevation on the deck and utilities that go through the planters. He noted a less than thorough review would likely result in more issues that must be addressed once the planters are removed. There was a high potential that removal could not be accomplished until next year, further impacting plaza rentals. Councilmember Petso commented that although the removal of the planters was approximately $45,000 less expensive, it could not be done at this point due to the potential for creating additional problems. Mr. Gebert agreed, anticipating additional costs with that option that could not be foreseen. Edmonds City Council Approved Minutes August 19, 2003 Page 18 Councilmember Wilson recalled other projects where there were significant surprises that impacted the budget. While it was not pleasing to learn of these problems nor was the necessity to increase the budget pleasing, he understood how unforeseen problems arose. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, THAT THE COUNCIL APPROVE AN INCREASE IN THE LIBRARY ROOF REPAIR AND BUILDING WATERPROOFING PROJECT BUDGET BY $100,000. Councilmember Marin commented he visited the project approximately three weeks ago and was amazed by the issues that could not have been predicted. He was confident Mr. Gebert had explored all possibilities and that the proposed adjustment in the budget was necessary. MOTION CARRIED (5 -2), COUNCIL PRESIDENT EARLING AND COUNCILMEMBER DAWSON OPPOSED. Report on City Council Committee 8 REPORT ON THE CITY COUNCIL COMMITTEE MEETINGS OF AUGUST 12 2003 Meetings Due to the late hour, this item was postponed to next week's Council meeting. 9. MAYOR'S COMMENTS Mayor Haakenson had no report. 10. COUNCIL COMMENTS vy Lid Lift Council President Earling advised the contact person for anyone interested in participating on the Pro and Con committee to prepare the pro or con statement regarding the levy lid lift for the voters pamphlet was City Committees Clerk Sandy Chase at 425 -771 -0245. oncerts in i Councilmember Marin commented he had the privilege of introducing a polka band at the Sunday It he Park Concert in the Park, which he enjoyed very much and was the best attended concert ever. He expressed his appreciation to Lynnwood Honda and Acura of Lynnwood for participating in the funding for the concerts. Councilmember Petso agreed the Concerts in the Park were incredible events, noting she introduced the concert the previous week. She also expressed her appreciation for the sponsorship that allowed the City to provide the concerts. arks Trust With regard to the Council action to create the Parks Trust Fund, Councilmember Petso recalled Parks & and Recreation Director Arvilla Ohlde referred to this as the "gift that keeps on giving." The intent of the fund was to protect the principle of donations to the flower program, Beach Rangers, Yost Pool and use only the interest for those programs. Councilmember Dawson expressed her thanks to Councilmember Petso for agreeing to substitute for her as host of the Concert in the Park when she became ill. With no further business, the Council meeting was adjourned at 9:55 p.m. G Y H ENSON, MAYOR ALI SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes August 19, 2003 Page 19 1 AGENDA EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 5' Avenue North, Edmonds 7:00 - 10:00 p.m. AUGUST 19, 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 August 5, 2003. (C) Approval of claim checks #64492 through #64666 for the week of August 4, 2003, in the amount of $256,743.49. Approval of claim checks #64678 through #64780 for the week of August 11, 2003, in the amount of $82,375.67. Approval of payroll direct deposits and checks #36231 through #36390 for the period July 16 through July 31, 2003, in the amount of $823,626.56. (D) Acknowledge receipt of Claim for Damages from Susan Durr ($150.28). (E) Report on final construction costs for the 76th Avenue West Rockery Repair Soil Nail Retaining Wall Project and Council acceptance of project. (F) Report on bids opened July 15, 2003, for Phase 11 of the 2003 Watermain Replacement Program and award of contract to D &G Backhoe, Inc. ($244,424.34, including sales tax.) (G) Approval of an ordinance for a change in zoning for certain real property commonly known as the DiPangrazio property from a Limited Contract General Commercial (CG) Zone to Residential Multifamily - RM -2.4. (File No. R- 03 -47) 3. ( 5 Min.) Proposed ordinance creating new Edmonds City Code Chapter 3.16, Parks Trust Fund. Page 1 of 2 CITY COUNCIL MEETING AGENDA August 19, 2003 Page 2 of 2 4. (60 Min.) Closed record review on an appeal of the Hearing Examiner's decision to approve the design of an addition to Rory's Pub & Broiler. The property is zoned BC (Community Business) and is located at 105 Main Street. (Appellant: Paris Partnership / Applicant: Taylor Gregory Butterfield Architects / File No. ADB -03 -32 and AP -03- 117).* *Note: This matter is a closed record review state law allows only parties of record to speak. 5. (60 Min.) Closed record review on an appeal of the Hearing Examiner's decision to approve a variance request for a mixed -use building. Specifically, a variance from Edmonds Community Development Code Section 16.50.020(6), which requires commercial development on the ground floor to a minimum depth of 30 feet. The property is zoned BC (Community Business), and is located at 303 Dayton Street. (Appellant: Finis Tupper / Applicant: AD Shapiro Architects / File No. AP -03 -116, ADB -03 -38 and V- 03 -85)* *Note: This matter is a closed record review: state law allows only parties of record to speak. 6. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed on the Agenda as closed record review or as public hearings. 7. (10 Min.) Library Roof Repair and Building Waterproofing Project, request for project budget adjustment for additional work to waterproof planters. 8. (15 Min.) Report on the City Council Committee Meetings of August 12, 2003. 9. ( 5 Min.) Mayor's Comments 10. (15 Min.) Council Comments Parking and meeting rooms are accessible for persons with disabilities. Please contact the City Clerk at (425) 779 -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 29.