Loading...
10/07/2003 City Council1 EDMONDS CITY COUNCIL APPROVED MINUTES October 7, 2003 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5`" Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Dave Earling, Council President (arrived 8:00 p.m.) Jeff Wilson, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember ELECTED OFFICIALS ABSENT Deanna Dawson, Councilmember ALSO PRESENT Alex Brent - Fielding, Student Representative STAFF PRESENT Al Compaan, Assistant Police Chief Duane Bowman, Development Serv. Director Stephen Clifton, Community Services Director Dan Clements, Administrative Services Director Rob Chave, Planning Manager Dave Gebert, City Engineer Star Campbell, Planner Zach Lell, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder 1. APPROVAL OF AGENDA hange to I COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO Benda CHANGE AGENDA ITEM 5 TO ITEM 3A AND AGENDA ITEM 3 TO 3B. MOTION CARRIED UNANIMOUSLY. (Council President Earling was not present for the vote.) COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, FOR APPROVAL OF THE AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. (Council President Earling was not present for the vote.) 2. CONSENT AGENDA ITEMS COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. (Council President Earling was not present for the vote.) The agenda items approved are as follows: (A) ROLL CALL Approve /23/03 (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF SEPTEMBER 23, 2003. inutes (C) APPROVAL OF CLAIM CHECKS #65534 THROUGH #65706 FOR THE WEEK OF pprove SEPTEMBER 22, 2003, IN THE AMOUNT OF $166.988.54. APPROVAL OF CLAIM laim hecks CHECKS #65707 THROUGH #65872 FOR THE WEEK OF SEPTEMBER 29, 2003, IN THE AMOUNT OF $159,359.48. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #36773 THROUGH #36859 FOR THE PERIOD SEPTEMBER 16 THROUGH SEPTEMBER 30, 2003, IN THE AMOUNT OF $780,123.51. Edmonds City Council Approved Minutes October 7, 2003 Page 1 laims for ID amages (D) ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM JOHN E. TARDIFF (AMOUNT UNDETERMINED) AND NATALIE SHIPPEN ($384.00). Liquor tool (E) APPROVAL OF LIST OF EDMONDS BUSINESSES APPLYING FOR RENEWAL OF oard THEIR LIQUOR LICENSES WITH THE WASHINGTON STATE LIQUOR CONTROL BOARD. F (F) AUTHORIZATION FOR THE MAYOR TO SIGN AN INTERLOCAL AGREEMENT WITH THE CITY OF LYNNWOOD FOR OLYMPIC VIEW DRIVE WATER MAIN AND SEWER LATERALS INSTALLATION DESIGN AND CONSTRUCTION. E rs (G) REPORT ON FINAL BID CONSTRUCTION COSTS FOR THE CITY COUNCIL CHAMBERS VIDEO SYSTEM AND COUNCIL ACCEPTANCE OF PROJECT. rd# 3471 (H) ORDINANCE NO. 3471 AMENDING EDMONDS CITY CODE CHAPTER 5.05 ANIMAL Animal Control — CONTROL; CLARIFYING THE NONREFUNDABILITY OF CERTAIN VETERINARY Veterinary FEES FOR THE ADOPTION OF CATS AND DOGS. Fees 3A. PROPOSED INTERLOCAL OPERATING AGREEMENT #2 BETWEEN THE CITY OF dmonds EDMONDS AND EDMONDS PUBLIC FACILITIES DISTRICT AS IT RELATES TO ublic acilities REIMBURSEMENT OF FUNDS FOR CITY - RENDERED SERVICES istrict On behalf of the Edmonds Public Facilities District (PFD), Community Services Director Stephen Clifton presented Interlocal Operating Agreement #2. He explained in May 2001, the Council created the PFD via Ordinance No. 3358 and in June 2001, an Interlocal Agreement between the City and the PFD was adopted that required the PFD to repay funds the City contributed in the amount of $34,000 for start-up costs, commencement of the feasibility study, and miscellaneous expenditures. The Interlocal Agreement also called for the City to contribute the services of the City Attorney and the Finance Director and that the PFD pay back the reasonable cost of the associated expenditures when practicable. The proposed Interlocal Operating Agreement #2 proposes the PFD pay approximately $98,000 for years 2003 and 2004 pro -rated and provided to the City on a monthly basis. He noted the PFD wanted to present the Interlocal Operating Agreement to the Council sooner but wanted to complete the audit first. He explained the audit has been completed and there were no findings. The Interlocal Operating Agreement would assist both the City and the PFD in their budgeting as it indicated the exact amount the PFD would provide the City. The funds would purchase the services of a half -time employee, the Finance Department's assistance in developing quarterly reports and attending semi - monthly PFD Board meetings, and the services of Executive Assistant Cindi Cruz and himself, whose hours varied. Councilmember Petso asked whether the funds were paid to the General Fund and if the use was unrestricted. Mr. Clifton answered yes. Councilmember Petso recalled when the PFD was established, a local match was required which was provided via the services of City personnel. She asked how the local match would be provided if the PFD would be paying for the services of City staff. Mr. Clifton answered the City exceeded the local match via the $2 million contribution from the Real Estate Excise Tax (REET). Councilmember Plunkett asked staff to. describe Section 3 and 4 of the agreement in more detail. City Attorney Zach Lell explained Section 3 was the termination provision of the Interlocal Operating Agreement that established the mechanism by which either party may terminate the agreement. Section 4, Integration/Amendments, was the integration clause which defines the parameters of the parties' contractual relationship and excludes any document not specifically incorporated by reference. Edmonds City Council Approved Minutes October 7, 2003 Page 2 For the audience, Councilmember Marin requested staff explain what it meant when an audit had no findings. Mr. Clifton explained as a municipal entity, the PFD was required to be audited by the State Auditor. The audit reviewed the accounting practices of the PFD since their creation in 2001 and no findings indicated there were no fatal flaws in the PFD's accounting practices. He noted there were recommendations which have been implemented. Councilmember Wilson inquired about the number of hours each party provided. Mr. Clifton explained the only hours identified were for the half -time employee. The Finance Department estimated they would expend $7500 per year, the total of the half -time employee and the Finance Department was approximately $50,000 per year. The remaining, approximately $50,000, would fund the services of the Executive Assistant and himself, regardless of the number of hours they contributed to the PFD. He explained the time he contributed to the PFD had diminished this year as compared to 2001 and 2002. He estimated in 2001, approximately 60% of his time was devoted to PFD matters which decreased to 40% in 2002 and 20 % -25% in 2003. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO APPROVE INTERLOCAL OPERATING AGREEMENT #2 AUTHORIZING THE CITY AND EDMONDS PFD BOARD TO EXECUTE THE AGREEMENT. MOTION CARRIED UNANIMOUSLY. (Council President Earling was not present for the vote.) COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO MOVE AUDIENCE COMMENTS UP ON THE AGENDA. Councilmember Petso suggested the opportunity for public comment be offered again to audience members who may arrive later. MOTION CARRIED UNANIMOUSLY. (Council President Earling was not present for the vote.) 3B. AUDIENCE COMMENTS uilding Laurie Dressler, 15714 75`h Place W, Edmonds, recalled two weeks ago, a presentation was made at eights the Council meeting with respect to buildings in the downtown core. She appreciated the effort to educate the public regarding the chronology of building codes and heights, commenting she was unaware that four story buildings were common in the past. She was not certain it was necessary to modify codes to allow residential use of the first floor of new buildings near the downtown core. However, she was certain residents needed to elect Councilmembers who were willing to go beyond complaining and work together to find solutions, to attract sales tax- generating businesses to Edmonds, both along Hwy. 99 and in the downtown area. When watching the slides at the Council meeting, she was impressed with the beauty of new buildings and how well they fit the character and flavor of the City. She noted the modulated designs did break up large, boring, square buildings. She thanked the Mayor and staff for the educational presentation and urged them to continue making such presentations, particularly in areas where false rhetoric was rampant. ampaign Rich Demeroutis, 921 Pine Street, Edmonds, referred to a letter sent to residents regarding the Issues spay /neuter policy that solicited funds for a campaign and used scare tactics to entice contributions to the candidate. He noted the mailer made false claims that the sender's opponent was backed by people opposed to the mandatory spay /neuter policy. He noted the newspaper reported Roger Hertrich contributed to his campaign; however, at no time did any donor mention the spay /neuter policy nor did he raise the issue. He referred to a false claim in a letter sent by the Dog and Cat Committee and Councilmember Plunkett which indicated 5,200 Edmonds voters were united in their belief, however, the newspaper reported 2,183 signed the petition. He referred to letters Councilmember Plunkett has sent to Edmonds City Council Approved Minutes October 7, 2003 Page 3 residents commending them for participating that included both his Council business card as well as his real estate business card. He noted the Dog and Cat Committee letter, paid for by the Dog and Cat Committee, of which Councilmember Plunkett is the sole officer, also included a copy of his real estate business card. He recalled his opponent sent a letter earlier this year that the pro- casino interests would have a candidate running against him this fall. Ray Martin, 18704 94th Avenue W, Edmonds, commented on a daytime variance hearing he attended recently regarding the new development in Shell Valley. Development Services Director Duane Bowman cautioned the Council not to hear any testimony regarding the matter as it was a quasi judicial matter that could be appealed to the City Council. Mr. Martin noted the hearing was postponed due to a problem with recording and would be held again on October 15 at 7:00 p.m. in the Brackett Room. Building Mr. Martin referred to the history of Edmonds buildings that was provided recently, recalling the 35 foot Heights building heights were raised to 45 feet. The Council later lowered building heights to 35 feet and then to 25 feet, allowing 30 feet with a pitched roof. He noted there were attempts by developers every 3 -4 years to raise building heights. He recalled Council President Earling's campaign literature promised not to raise building heights, but he later voted in favor of allowing 30 feet with a pitched roof. Mr. Martin also objected to candidate endorsements by the Fire Department. Roger Hertrich, 1020 Puget Drive, Edmonds, commented that Councilmember Orvis used ssues misinformation in his advertising and referred to the Enterprise article containing misinformation. He acknowledged donating to Rich Demeroutis' campaign, explaining he felt Mr. Demeroutis would make a better Councilmember than Councilmember Orvis. He recalled Councilmember Orvis has indicated during his term that he would not raise building heights; however, his vote at the July 2 Council meeting regarding the Unocal MP zones raised building heights. He urged Councilmember Orvis to offer a disclaimer to his advertising. Building I Leslie Haan, 750 Edmonds Street, Edmonds, stated as a citizen of Edmonds, she was tired of what was Codes being built. She referred to previous comments regarding Councilmembers who say one thing and do another, noting she and others were watching Councilmembers and were tired of the monoliths that were being built. She noted Mayor Haakenson explained to her that issues regarding buildings were guided by codes and if she had concerns, they needed to be brought to the attention of the Council. She recalled at the Council meeting two weeks ago, the Council asked a City Planner how the ADB felt about what was being built. In her opinion the ADB was not happy with what was being built but felt helpless. She noted she was approached after the ADB meeting and told she needed to speak to the Council. She disagreed with the Planner's indication that the ADB supported what was being built. She urged the Council to help citizens be able to have a future in the City that was not so massive and unappealing. Mayor Haakenson declared a brief recess to await Council President Earling's arrival. 3C. CLOSED RECORD REVIEW ON AN APPEAL OF THE ARCHITECTURAL DESIGN BOARD'S Mixed Use DECISION TO APPROVE AN APPLICATION FOR A NEW MIXED USE BUILDING. THE wilding at PROPERTY IS LOCATED AT 215 (CURRENTLY ADDRESSED AS 207 AND 211) 5TH AVENUE is s's NORTH AND IS ZONED BC (COMMUNITY BUSINESS). (APPELLANTS: DARRELL MARMION AND LESLIE HAAN, STEPHEN BERNHEIM AND SUSAN BAUER / APPLICANT: MJ AND MP INVESTMENT LLC / FILE NO. ADB -03 -56 AND AP -03 -142 Mayor Haakenson advised that when Council President Earling arrived, he would be allowed to participate in this matter as he has read all the materials. Edmonds City Council Approved Minutes October 7, 2003 Page 4 Mayor Haakenson asked staff to describe the procedures for a closed record review. City Attorney Zach Lell explained this was a closed record appeal of an Architectural Design Board (ADB) decision. In a closed record review, the Council sat in quasi judicial capacity, as a judge, and only parties of record from the lower proceeding were allowed to submit testimony. The only factual information that could be discussed was what was contained in the record created by the ADB; no new facts were allowed to be presented. He noted new legal arguments were permissible but not new facts. He explained in making its determination on appeal, the Council used the same criteria for its decision as the ADB used. Mayor Haakenson advised the City received a letter from Stephen Bernheim, one of the appellants in this matter; the City Attorney determined the Council could consider the letter in their deliberations as it contained no new information. Mayor Haakenson established a 20 minute time limit for staff, the applicant, and appellant. He advised the applicant could retain time for rebuttal. In accordance with the Appearance of Fairness Doctrine, Mayor Haakenson asked whether any Councilmember had any ex parte communication or conflicts to disclose. Several Councilmembers asked to review the list of parties of record. Councilmember Plunkett inquired how Councilmembers who had not seen the list could make disclosures regarding the parties on the list. Planner Star Campbell advised the list was not contained in the Council packet. City Attorney Zach Lell advised Mayor Haakenson, as the presiding officer, had the list and would serve as the gatekeeper of that information and would prevent anyone who was not a party of record from testifying. Acknowledging Councilmembers may be concerned regarding campaign contributions from parties of record, Mayor Haakenson declared a brief recess to allow Councilmembers to review the list.. Councilmember Orvis advised after reviewing the list, to the best of his knowledge, no one associated with any of the companies had donated to his campaign. He clarified he was unsure who worked for all the companies listed as parties of record. He advised he and Mr. Mallonee had talked several times regarding the issue of height limits in Edmonds but not specifically regarding this project. He advised he had copies of City ordinances to which he would be referring during the review as was allowed. Councilmember Plunkett advised the list included Bell Street Building Associates; although he had had no contact with them or campaign contributions, he was unaware of all the principals of that firm. He noted the list also included First Baptist Church, again he was unaware who all the principals were. He advised he had worked with Darrell Marmion on the Historic Preservation Commission but had had no discussion with him regarding this topic and he had not made a contribution to his campaign. Councilmember Petso advised to the best of her knowledge and without knowing all the principals of the firms on the list of parties of record, she did not have any disclosures with regard to the parties of record. She noted one or more of the parties of record may have her campaign signs in their yards. Councilmember Wilson advised after reviewing the list, to the best of his knowledge, he did not have any disclosures. He noted there were three parties on the list with the last name of Wilson, but they were not related to him. He noted two had the first name of Gregory, his brother's name, however, his brother lived in Tacoma and had not testified regarding this matter. Councilmember Wilson noted the applicant's son and he were employed by the same firm in Bellevue. They met on one occasion several months ago, however, he worked in a different division, and they had had no further contact. Councilmembers Orvis and Petso disclosed they had visited the site. Edmonds City Council Approved Minutes October 7, 2003 Page 5 Mayor Haakenson asked whether any of the parties of record had any objection to any of the five Councilmembers participating in the closed record review. There were no challenges voiced. Planner Star Campbell advised this was an appeal of the ADB's decision regarding a design review application filed by Warren LaFon for MJ and MP Investment LLC for a mixed use building to be located at 215 5"' Avenue North, currently addressed as 207 and 211 5t' Avenue N. She displayed a vicinity map, contained on page 237 of the record and referred to another vicinity map on page 6 of the record. She identified the site on the map, west of 5t' Avenue, north of Bell Street, and south of Edmonds Street. Ms. Campbell explained the proposal was for a four floor mixed use commercial building with the entrance from 5"' Avenue into the ground commercial floor. She described the below grade parking, ground level commercial, and two floors of multifamily. She displayed a drawing of the new building from the east and a view of the west elevation (page 128 of the record). Ms. Campbell explained the first hearing for this application was held by the ADB on August 6, 2003. The staff report submitted at that hearing can be found on pages 169 -257 and the transcript of that hearing on pages 35 -59 of the record. She advised the ADB voted at that hearing to table the application to allow the applicant an opportunity to return with an alternative building design that fit the character of the neighborhood and incorporated comments made at the public hearing. To address the ADB's concerns, the applicant submitted new plans addressing the visual relationship of the ground commercial floor to the sidewalk and the appearance of the modulation on the west side of the building. She referred to revised plans contained on pages 123 -128 of the record. She advised the ADB considered the revised application at a public hearing on September 3, 2003 (staff report and exhibits submitted at that hearing on pages 60 -168). The ADB approved the application with conditions (verbatim transcript on pages 18- 34 and motion for approval on page 34). Following the ADB's decision, an appeal was submitted by Darrell Marmion, Leslie Haan, Stephen Bernheim and Susan Bauer (letter of appeal contained in the record as Exhibit 2 on pages 7 -17). The reasons stated in the letter of appeal were the proposal was in violation of the Comprehensive Plan and the intent of the BC zoning requirements. She advised that the appeal issues and staff responses were detailed in the agenda memo on pages 2 -5. (Council President Earling arrived at 8:00 p.m.) Mr. Lell advised Council President Earling would be allowed to participate. He noted for the record that only a few minutes had elapsed since Ms. Campbell began her presentation. Mayor Haakenson provided Council President Earling the list of parties of record and inquired whether he had any ex parte communication or conflicts of interest to disclose. Council President Earling advised he had no disclosures. Mayor Haakenson advised now that there were six Councilmembers participating, there was the possibility he would be required to vote in the event of a tie. He disclosed Dr. Schuetz and his wife donated to his campaign and likely displayed his signs in their yard. He advised he had spoken with Susan Bauer, Stephen Bernheim, Leslie Haan, Darrell Marmion over many months and not on only this particular topic. He advised he would not have any conflict if he were required to participate in the vote. Council President Earling advised one of the parties of record contributed a fairly modest amount to a past campaign. No objections were raised to the participation of Mayor Haakenson or Council President Earling. Edmonds City Council Approved Minutes October 7, 2003 Page 6 Ms. Campbell made the following corrections to the Agenda Memo: on page 3, second paragraph, first sentence, change reference to E.8 to G.8, and on page 4, last paragraph, first sentence, change the reference to G.3 to G.6. Ms. Campbell explained the appeal listed a variety of general Comprehensive Plan goals and policies. She advised the policies were general policies that were specifically implemented with the development regulations. The ADB considered the issues in the appeal letter and ultimately approved the design of the project on the basis that it met the development regulations. She explained the alternatives for the Council included 1) denying the appeal and affirming the ADB's September 3, 2003 decision to approve the proposal, 2) modifying the ADB's decision, 3) reversing the ADB's action, or 4) remanding the matter back to the ADB for further consideration. Councilmember Orvis observed the record indicated the top of the building was 30 feet and that it had a flat roof. He questioned how the flat roof design was a reasonable interpretation of the code. Ms. Campbell explained the maximum building height allowed was 30 feet if the ADB approved it as part of an overall modulated design. She referred to page 170 of the Staff Report for the August ADB meeting that addressed development standards for the BC zone and how the project complied. She read from the table on page 170 (required/allowed building height 25 feet from average grade, roof and vertical parapet walls may extend an additional 5 feet to a maximum of 30 feet if part of an approved modulated design). Mayor Haakenson noted it was also addressed on page 173 under Size, Height and Bulk. Ms. Campbell also referred to paragraphs b, c, d, and e on pages 173 -174 which describe how modulation could be achieved. She referred to a more detailed explanation made by staff at the August ADB meeting (page 39 of the record). She commented the Agenda Memo (page 3 of the record) also addressed the topic of building height and massing. Councilmember Plunkett referred to the drawing on page 146, inquiring whether both were views of the same building. Ms. Campbell advised one illustrated a view of the building from the west, the other attempted to identify the modulation. Councilmember Plunkett inquired whether the modulated design must encompass the entire building or only one side. Ms. Campbell answered the modulated design must encompass the entire building. She offered to identify in the Staff Report how the west elevation was modulated. She noted that was one of the topics of the ADB's discussion at the September hearing. Councilmember Plunkett commented it appeared to be a flat building with balconies. Ms. Campbell referred to the Shapes and Forms section of the August Staff Report (page 173 of the record) which addresses the different shapes and forms on the building including how they were incorporated into the west elevation. She also referred to the Details and Fenestration section and the Materials /Colors section of the August Staff Report (page 174 of the record) which described how details and fenestration and colors and materials were used throughout the building. Ms. Campbell again referred to the drawing on page 146 of the record which illustrated the west elevation after the applicant submitted the revised plans in response to the ADB's concerns and to clarify the modulation on the west side of the building. The drawing included a view of the west elevation as well as a portion of the site plan lined up with the west elevation view identifying the points where the west elevation moved in and out. She noted the modulation was difficult to see on a 2- dimensional view. Councilmember Wilson asked whether modulation was defined in the code with regard to the goals to be achieved, a percentage of modulation, change in depth, etc. or was it up to the interpretation of the ADB to consider each building on its own merits to determine whether the project met the definition of a modulated design. Ms. Campbell answered there was not an actual definition of modulation in the code. Edmonds City Council Approved Minutes October 7, 2003 Page 7 She explained the ADB was responsible for reviewing the design of each building and determining whether it was a modulated design. There were no specific requirements regarding the amount of physical modulation. She explained the design guidelines identify the different ways modulation can be achieved in a building (pages 173 and 174 of the record). Councilmember Wilson referred to the reference in the appeal letter to preservation of natural topography, inquiring whether this referred to the natural or built environment. Ms. Campbell answered it did not specifically state. She pointed out preservation of natural topography was a general statement from the Comprehensive Plan and was only one of many goals and policies in the Comprehensive Plan. Councilmember Wilson summarized there was no specific definition that differentiated between the natural and built topography on a site. Councilmember Wilson commented modulated design as described in the Staff Report referred to the building as a whole and did not require a modulated roof design for the roof or other specific element. Ms. Campbell agreed. For Councilmember Wilson, Ms. Campbell referred to building elevations illustrated on page 128 of the record. Councilmember Wilson observed there were several planes on the west elevation. Ms. Campbell agreed. She referred to the rear wall outline which depicted the modulation on the west elevation. With regard to lighting and noise review which were reviewed as part of the building permit, Councilmember Wilson inquired about the process for making alterations if the noise or lighting did not meet the performance standards. Ms. Campbell explained it would be the applicant's responsibility regarding how to respond; for example if HVAC equipment did not meet performance standards, the applicant would be asked to demonstrate how the equipment could meet the performance standard. If the applicant chose a different design, it would be reviewed as any other change in the design during the building permit process. Councilmember Petso referred to the underground retail, recalling staff did not address that as the appeal cites only general Comprehensive Plan policies. She noted the appeal indicates the code refers to ground level retail, and asked how the proposal provided ground level retail. Ms. Campbell answered that was a portion of the policy stated in the Comprehensive Plan; a project would not necessarily meet every policy in the Comprehensive Plan. The way the development code implemented that policy was what was considered by the ADB. She referred to staff's response to the concern expressed in the appeal regarding the location of the office space (Item 1 in the Agenda Memo) which described how ground floor was calculated via the definition in the code, explaining this was not a staff interpretation. She noted there was nothing in the code that required retail space but rather commercial space on the ground floor to a minimum depth of 30 feet. She noted this project proposes the ground floor to be entirely commercial. Councilmember Petso commented the result of the development code did not meet the Comprehensive Plan policy. Ms. Campbell explained when the ADB considered consistency with the Comprehensive Plan, they did not identify specific parts of the Comprehensive Plan and compare aspects of the specific development to each policy in the Comprehensive Plan; they considered overall compliance with the Comprehensive Plan. Councilmember Petso referred to the letter from Mr. Bernheim regarding protection of views, explaining that according to the letter, staff advised the ADB to ignore the code provision on protecting views. Mr. Lell explained the code provision referenced, ECDC 2O.1O.O7O.C.3, which states, "buildings taller than two stories shall be reviewed to determine the extent to which they will block views from surrounding Edmonds City Council Approved Minutes October 7, 2003 Page 8 properties. Substantial view blockage should be avoided by alternative roof designs or location or imposition of special height limits." He noted his interpretation of the Washington Supreme Court Pierce v. Sewer & Water District case cited in the letter was that there was no legal right to the preservation of a view under Washington law absent a controlling, contractual obligation or statute. He noted the statement in 2O.1O.O7O.C.3 was not a specific requirement and only required that substantial view blockage should be avoided by alternative roof designs or location or imposition of special height limits. He noted the modulated roof discussed by staff would satisfy that issue. Councilmember Petso pointed out there was not a modulated roof in this instance; it was a modulated building but a flat roof. She asked whether that changed his analysis. Mr. Lell answered it did not, noting the operative word was "should" which did not carry the force of "must." The command in that subsection was for the ADB to review the extent to which the building proposal would block views. Responding further to Councilmember Petso, Mr. Lell explained the Council was not technically bound by the ADB's decision. The Council could give deference to the ADB's interpretation as the entity charged with interpreting this chapter of the code. Councilmember Petso noted the ADB record contained reference to concerns about massing, specifically a code provision that the bulk should not be out of character to the neighborhood. She asked how that was addressed and whether this was considered an excessively bulky building for the neighborhood. She referred to a specific comment in the verbatim transcript of the August 6 ADB meeting by Boardmember Nielsen, "But I really do feel that the bulk of the building is out of place for the neighborhood ... Icannot vote for this." Ms. Campbell advised the ADB's decision at the August meeting was to give the applicant an opportunity to revise their plans to demonstrate how the building fit the character of the neighborhood. She noted the BC zone allows lot line to lot line development with zero setbacks. She suggested when considering the relationship to adjacent buildings, the Council consider the zoning and recognize the allowed setbacks for the zone. Councilmember Petso questioned how that could be done in view of Section 20.10.70 which required bulk consistent with the character of the neighborhood. Councilmember Petso asked what revisions were made in the design between the August and September hearings to lower the massiveness of the building. Ms. Campbell explained when the ADB gave direction to the applicant to make plan revisions that showed how the building fit the character of the neighborhood, they did not specifically request a reduction in the mass or bulk. The ADB's focus was on the physical relationship of the commercial floor to the sidewalk and the modulation of the west side. In comparing the old and new west elevation drawings, she explained the old drawings did not illustrate the west elevation well; the different materials were not specified well, the depth was not illustrated well, and the modulation on the west side was not apparent. The applicant made changes to the plans to demonstrate the modulation on the west side. Further, design changes were made to the east side including widening the central arch by 8 feet and moving the steps down to the commercial floor to the east so that they were directly adjacent to the property line improving the relationship of the commercial floor to the sidewalk. Councilmember Wilson asked how the Council should apply the character of the neighborhood when it was zoned BC but was an area in transition where there was a mixture of old and new. Should the Council consider what was intended or what existed? Mr. Lell answered both. In response to questions regarding the physical movement in and out of the west side of the building, Ms. Campbell referred to the fifth paragraph on page 29 of the record where Mr. Bullock describes the movement of the building and that the distance from the property line varied from 2 to 15 feet. She noted Edmonds City Council Approved Minutes October 7, 2003 Page 9 the following paragraph on page 29 contained a staff explanation of the Comprehensive Plan direction regarding relationship to adjacent property. Applicant Warren LaFon, 546 Paradise Lane, Edmonds, project architect, asked to retain five minutes for rebuttal. He explained staff determined this project met the code established by the City in this zone. He noted this zone was a transitional zone and the proposed building was part of that evolution. The BC zone had existed in this area for 20 -25 years and it was only just beginning to redevelop. He advised the ADB approved the application based on the City's codes. He sited elements of the building such as the courtyard and building modulation that responded to design guidelines. Mr. LaFon explained the parking on the lower floor was setback 5 feet from the alley and the alley was 21 feet wide. The office space on the next level was also setback 5 feet. The upper two floors modulate in and out over the lower levels. He noted the outside walls were heavily modulated and on each side the upper walls were 10 feet from the property line. He advised the south wall of the park was setback 1.9 feet; the dance studio extends onto their property 9' /z inches. He described different materials used on the front and back of the building. Mr. LaFon recalled a concern expressed by the appellant that the alley was too small and cars could not pass in the alley. He explained the 16 foot alley remained; however, there were existing garbage cans, hedges, garages that impacted the alley. He recalled comments made regarding kids playing in the alley, noting the alley was not a playground. Mr. LaFon stated there were portions of the appellant's letters that were flawed in their interpretation. Staff had done a good job addressing each item and applying the code in its entirety to this project. He then described the courtyard and its relationship to the other floors and connection to the street. Councilmember Petso inquired about the underground retail /commercial. Mr. LaFon answered the Planning Department determined that the floor closest to the grade was the ground floor. Councilmember Petso noted the commercial floor was consistent with the definition in the code but produced a result that was not consistent with the Comprehensive Plan. Mr. LaFon reiterated it was determined based on the code. Councilmember Petso inquired about the roof height and massing. Mr. LaFon explained the entire building was modulated in and out and 1 -2 areas were modulated up and down. He noted this created the modulation for the roof also. Councilmember Plunkett recalled the building was designed to the facts of the code but the modulation was not based on fact but rather interpretation. He referred to McGregor Place which had a flat roof but also had a fagade that hid the flat roof. He noted that and the building modulation established a precedent. The proposed development appeared to request the Council continue to interpret and accept a building with what was undeniably a flat roof that was not disguised. He acknowledged the building was modulated but did not meet the "McGregor precedent." He asked whether the proposed building was in keeping with the "McGregor precedent" and that Council interpretation. Mr. LaFon asked whether the interpretation was part of the code. Councilmember Plunkett answered modulation was interpretation. Mr. LaFon responded the ADB and staff interpreted the proposed building as a modulated design. Councilmember Petso noted that may be their interpretation but the Council had established a precedent. Mr. LaFon commented he was unaware the Council had established a precedent. Edmonds City Council Approved Minutes October 7, 2003 Page 10 Councilmember Marin pointed out the drawings provided were two dimensional drawings and no one viewed the building in that manner once constructed. He referred to page 127, floor plan of the top floor; it appeared the patios were approximately 8 feet deep. Therefore, for anyone looking at the building from the west, there would be the illusion of a modulated roof as there would be five different roof levels and it would appear to move up and down as much as McGregor Place. Councilmember Marin commented on the possibility of leaks in roofs by requiring different roof levels. He did not support the City dictating the appearance of a modulated roof by requiring different levels and potential for leaks. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCIL PRESIDENT EARLING, TO EXTEND THIS ITEM FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Councilmember Marin pointed out a great deal had been done to dress up the appearance of the building on the west side; in the previous drawing, it appeared to be a flat building. He concluded the drawing illustrated there was a great deal of detail and there would be a tremendous amount of movement both in and out and vertically. For Councilmember Wilson, Mr. LaFon displayed page 78 (drawing of the east elevation) and explained the main courtyard archway had been widened and the other arch had been modified. He explained the building was otherwise essentially the same. Councilmember Wilson noted the three entryways provided relief, however the relief provided by the columns did not appear to be extremely deep. Mr. LaFon described the in and out modulation along the east elevation. He advised the courtyard was 3'/2 feet below the street level. He explained the concept was to simulate a series of smaller buildings. Councilmember Wilson asked whether the lower windows were for the commercial space. Mr. LaFon agreed. Councilmember Wilson asked how the design guideline for storefront windows was achieved with the proposed design. Mr. LaFon answered in the courtyard, all the office walls were glass and one could look through the courtyard, into the neighboring office, and up to the sky. Councilmember Wilson asked whether there had been any discussion by the ADB regarding a change in elevation such as the upper floor not extending property line to property line to further the illusion of two separate buildings. Mr. LaFon answered there had not been such a discussion. Appellant Steve Bernheim, 216"' 4"' Avenue N, Edmonds, referred to Councilmember Marin's comments regarding the illusion of modulation on the building. He referred to page 124 -127 of the record, the four floor plans, pointing out there was no modulation on the lower floor, the wall that was on the alley would be a flat wall. He referred to page 125 and noted the floor plan of the main floor also reflected a flat wall. He commented that was a mitigating factor against the illusion of modulation. He noted page 126, the floor plan of the second floor, also reflected a straight plane on the west wall because the balconies mitigated the modulation. He urged the Council to stand firm on the lack of modulation. Although he favored development, Mr. Bernheim noted there were many ways the building could be developed without impairing anyone's property rights. The code stated flat roofs were not allowed to extend above 25 feet unless they were part of an approved modulated design. He pointed out this did not mean any modulation but an approved modulated design. He questioned whether the proposed modulation was sufficient to be approved. The modulation was only visible from the top looking down, pedestrians walking by in the alley would see a flat wall and the garbage cans behind a chain link fence. Mr. Bernheim recommended the building design include a requirement to locate the garbage cans inside the structure. Edmonds City Council Approved Minutes October 7, 2003 Page 11 Mr. Bernheim stated the west elevation did not show any lighting and hoped there were no plans for lights on that side. With regard to cut and fill, he noted the entire site would be excavated 40 feet. He referred to Section 20.10.070.13.1 which states large cut and fill should be avoided. He concluded the code also states buildings taller than two stories shall be reviewed to determine the extent to which they will block views from surrounding properties. Substantial view blockage should be avoided by alternative roof designs or location or imposition of special height limits. He pointed out this code provision provided the Council the flexibility to require alternative roof designs, locations, or imposition of special height limits. Councilmember Wilson asked whether Mr. Bernheim's primary concern regarding modulation was the west elevation. Mr. Bernheim answered his major concerns were height and view blockage of the west elevation and the modulation as a justification for the extreme height. Councilmember Wilson recalled Mr. Bernheim's comment that the decks on the west elevation were on the same plane, noting unless the deck was an enclosed structure, it provided relief in the plane. Mr. Bernheim referred to pages 126 and 127 which illustrate a flat plane on the west side. He agreed the walls on the corners moved in, noting that if decks were not provided, the modulation would be more apparent than it was with the decks. He viewed the deck as an impediment to modulation. Councilmember Wilson commented the deck itself created modulation and Mr. Bernheim's argument was with the degree of modulation. Mr. Bernheim answered the decks impaired modulation. He referred to the drawing on page 126, the floor plan of the second floor, pointing out the plans showed a straight line on the west side where the decks were located. Councilmember Wilson referred to page 128 which included the west elevation, pointing out there was a flat plane for approximately two stories and then the first deck and then another deck. He noted although there may be a flat plane created by the railing, it did not extend to the ceiling. He concluded it appeared there was modulation. Mr. Bernheim urged the Council to adopt an approach that the degree of modulation in the proposed building was not acceptable. Councilmember Wilson asked whether there was modulation on the west elevation created by the decks. Mr. Bernheim acknowledged there was modulation but the code required in 16.50.020 an approved modulated design. The question for the Council was whether this was adequate modulation. If the Council found it was, he anticipated the next building design would be a box with 2 inch cuts on each side to achieve modulation. Councilmember Wilson referred to Mr. Bernheim's letter regarding view blockage, inquiring what views were being blocked. Mr. Bernheim answered he lived across the alley from the chain link garbage area. The four story building and a 16 foot alley was more than a 3:1 elevation; the view that would be blocked was the sun until approximately 11:00 a.m. and light and air all day. He noted across the narrow alley would be the garage door, garbage area, and the flat roof of the offices. Councilmember Wilson pointed out the code was non - specific regarding view blockage. He asked whether Mr. Bernheim kept his garbage on the alley. Mr. Bernheim answered no, it was on the side of his garage. Susan Bauer, 216`h 4th Avenue N, Edmonds, requested the Council reverse the ADB's decision because the building was too high, too massive, and put too many people on the lot space. She expressed her support for aesthetically pleasing and sensitive real estate development, noting the property owner did Edmonds City Council Approved Minutes October 7, 2003 Page 12 1 not focus enough on those subjective ideas. She pointed out the Edmonds code was written to encourage the conservation of a desirable and aesthetic environment. She commended staff for their clear presentation of their line of reasoning in arriving at their approval of the project from a purely regulatory standpoint. She noted staff acknowledged many aspects of the project could not be arrived at by averaging numbers. She noted the Code and Comprehensive Plan mentioned street level; it was difficult to reconcile that with the proposed building design. She recalled during the August 6 public hearing, Mr. Bullock admonished the ADB, explaining they had a fair amount of latitude in implementing the urban design guidelines and the guidelines provided a fair amount of flexibility and left a great deal of discretion to the ADB to determine whether something was consistent. Ms. Bauer explained the proposed building would block the eastern and southern light from her home and carriage house office space as well as air and views of the sky. She noted neighbors were aware they could each submit commercial mixed use and multi -unit residential plans for development of their own BC zoned land. However, she trusted that each submittal would be held to the highest standard of design review. She recommended codifying a development rule that no developer may inflict on anyone else anything he /she would not inflict on themselves. She urged the Council to reverse the ADB's decision and deny the applicant the right to develop the proposed building based on several factors including that there was no street level commercial space. Darrell Marmion, 750 Edmond Street, Edmonds, explained six months ago he learned the property was proposed for development and obtained preliminary sketches from staff (page 77 of the record). He noted this represented a blatant violation of what the BC zone was intended for. He referred to the appeal letter and the issue of below grade retail, explaining the code clearly defined ground floor and the calculation was not an interpretation. He read from the definition section of the Community Development Code, "ground floor of a structure is the floor which is closest in elevation to the finished grade along the width of the side of the structure that is principally oriented to the street which provides primary access to the property." He noted the definition did not allow for the use of the average elevation to determine the floor closest to the finished grade, commenting that was an interpretation. His understanding of the intent of the Comprehensive Plan and why ADB review was required was to show compliance with code requirements per Section 20.10.060. He noted the code referred to ground level and the Comprehensive Plan referred to street level; however, the drawings were clearly not in compliance with shops and storefronts on street level. Mr. Marmion quoted from the verbatim transcripts of the August ADB hearing, such as "it did not say first floor it says first level, it sets a dangerous precedent, express my concern with changing the direction of the interpretation of the BC zone, up until this evening I have never seen pedestrian level interpreted quite this way, my concern is regarding precedent, and setting a precedent regarding retail in downtown Edmonds." Mr. Marmion noted if this project were approved, a property owner at 5`h and Main could propose similar subterranean retail. He noted there were similar comments at the September ADB hearing. He expressed concern with the apparent change in the ADB's perception between the first and second public hearings that they could turn their concerns into a decision. He recalled the first public hearing concluded with a 5 -1 rejection of the proposal. He speculated that ADB members were chastised for making comments at the public hearing that they could not accept the project. Next Mr. Marmion expressed concern with the massing and modulation, explaining it was the Council's responsibility to determine whether this was an approved modulated design and until that decision was made, it was not approved. He again quoted from the ADB public hearings, "this does not reflect the concerns for overall modulation of the building, I don't think it meets the intent of the particular section of the site development standards, I feel the same way about the vertical modulation of the roofline, I Edmonds City Council Approved Minutes October 7, 2003 Page 13 think we need to make something clear in regard to our design intent or we're going to see a lot of flat buildings springing up all over, the bulk of the building is out of place with the character of the neighborhood." He disagreed with the staff comments that there were no concerns raised by the ADB with regard to wall modulation and following the first meeting, they were asked to approach the Council for assistance. He recalled before the motion was made, it was apparent they had to show compliance with the general massing and zoning code requirements and did not have the latitude of expressing their other concerns. He recalled the ADB asked that their concerns be expressed to the Council emphasizing that this was setting a dangerous precedent. Councilmember Wilson questioned why the ADB voted unanimously for approval. Mr. Marmion referred to the verbatim text which reflected several boardmembers' concerns but that they felt their concerns were outside their latitude. Councilmember Wilson referred to the motion on page 34 of the record which reflected unanimous approval of the project with minor changes. He questioned why there was unanimous approval if boardmembers had significant concerns regarding compliance with the code or setting a dangerous precedent. Mr. Marmion recalled the ADB rejected the proposal 5 -1 at the first public hearing. At the second hearing, the only change in the design was the arch was 8 feet wider and the stairs were moved closer to the sidewalk. He noted the vote at the second meeting was unanimous with one member absent. Councilmember Wilson clarified the ADB did not reject the proposal at the first meeting but voiced concerns and allowed the applicant to return with revisions. The applicant then returned at the September meeting with revisions which the ADB unanimously approved. Mr. Marmion recalled there was discussion at the first hearing regarding whether to table the issue or reject it; the decision was made to table it to allow the applicant to return with revisions to address the ADB's concerns. Sue Bauer presumed the reason the ABD tabled the issue at the first hearing was because the submersion of the commercial level confounded the ADB as well as the Planning Department because of the impact it had on the mixed use criteria including the height, building's primary access, etc. She noted the applicant used great materials on the building in an attempt to make it an era - specific building but there were many more things that could have been done. She reiterated her request that the Council reverse the ADB's decision and asked the applicant to consider some obvious design alterations such as terracing the west fagade. Parties of Record There were no parties of record who wished to provide testimony. Rebuttal Mr. LaFon recalled the ADB required trellises on the back wall with plantings. He advised no lights were shown on the west elevation other than lights from the doorways to the parking to prevent lights shining onto adjacent properties. With regard to the 40 foot excavation, he noted the property only dropped 13 feet. He referred to Ms. Bauer's comment regarding having to be on hands and knees to look into the office space, explaining the office areas would be visible from the sidewalk. He acknowledged there would be no retail space, only office space as the site was not close enough to the retail core to be viable for retail use. Regarding speculation that boardmembers had been coached, he emphasized that was only speculation not fact. He noted most of the comments that were quoted were from one person, not different ADB members. He noted the eight steps into the commercial area had been reduced. He summarized the adjacent property owners had the same property rights and he hoped they would allow this owner his property rights. Edmonds City Council Approved Minutes October 7, 2003 Page 14 Councilmember Orvis inquired about the difference between reversing the ADB's decision and remanding back to the ADB. Mr. Lell explained reversing would be to undo the decision of the ADB and impose the Council's own decision. Remanding would be to send the matter back to the ADB for further reconsideration with instruction from the Council. Councilmember Orvis inquired about the affect on the applicant. Mr. Lell answered in the case of a reversal, the application would be terminated unless a land use petition act appeal was filed. Councilmember Petso referred to the verbatim transcript of the ADB meeting and staff's explanation regarding the history of modulated roof ordinance (page 39 of the record), observing the extra 5 feet on the Spee building was based on a roof that moved up and down and had different levels. The second case cited was the McGregor building. She asked whether the McGregor building was reviewed by the Council or approved by the ADB. Development Services Director Duane Bowman advised the McGregor building design was not appealed to. the Council. As the Council did not make the decision regarding the McGregor building, Councilmember Petso asked whether the Council could make its own interpretation regarding a modulated roof. Mr. Lell agreed, explaining the Council was the final interpreter of the City's code. His understanding was that the McGregor building was never, before the Council, therefore the Council was not bound by an administrative stare decisis. Councilmember Wilson asked Mr. Lell to explain the interpretation of the code with regard to the use of "should" versus "shall." Mr. Lell explained the general rule of code interpretation was that the development code should be interpreted to further its purposes. He advised that "shall" was a more mandatory term than "should." He explained there was sufficient leeway within the definition of "should" to support a contrary interpretation. Councilmember Wilson noted if the code language was "should," it was not an obligation, only that it should be considered. Mr. Lell answered the Council would have more latitude when the code used "should" than when it used "shall;" the degree of discretion was dependent on the context of the specific issue and the intent of the code section. Councilmember Wilson noted there had been a great deal of discussion regarding modulated roof design as in the Spee or McGregor buildings, however, that was not the code requirement. The ADB was only required to consider the modulated design of the building. Ms. Campbell agreed the ADB was required to consider only the overall modulated design of the entire building. If the ADB found the building was an approvable modulated design, it could be 30 feet high. Councilmember Wilson noted the roof of the proposed building was one plane with possibly one exception where there was a slight modulation. He noted roof modulation was not required if the ADB found the building as a whole was a modulated plan. Ms. Campbell agreed it was the entire building. Councilmember Marin referred to page 77, prospective drawing of the east elevation, asking whether the west elevation reflected the same roof variation at the central arch. If the matter was remanded to the ADB, he recommended requesting a prospective drawing of the west side of the building. Councilmember Plunkett asked whether this was viewed as a neighborhood in transition and if so, was there an additional burden on an applicant designing a building in a BC zone in transition. Ms. Campbell answered this neighborhood was zoned BC. The existing development was not all built when the neighborhood was zoned BC and includes single family homes as well as multifamily buildings. If one Edmonds City Council Approved Minutes October 7, 2003 Page 15 considered what the neighborhood was now, the zoning, and what the BC zone allowed, it could be considered a neighborhood in transition and what existed was not up to the potential allowed by the code. Councilmember Plunkett asked whether there was additional burden on a developer building in a transition zone. Ms. Campbell answered there should not be any additional burden. Hearing no further questions for staff, Mayor Haakenson remanded the matter to Council for action. Councilmember Orvis indicated he would be unable to approve the proposal but was undecided regarding reverse and remand. He explained after reading Section 16.50.020 numerous times, it was not his impression that a building such as this met the code. He observed staff's conclusion was that modulated design meant modulated building design; if any part of the building was modulated, the height could be 30 feet. However, the statement in the code regarding modulated design was in a paragraph regarding roofs and followed by photographic examples of modulated roof designs. His interpretation of approved modulated design meant approved modulated roof design and the code as currently written required a roof to be modulated to achieve a 30 foot building height. Councilmember Plunkett explained he found the building compelling and that it included a modulated roof. However, the applicant had the burden of proving to the Council that the entire building was modulated and the west side did not appear to be sufficiently modulated. He concluded the west side may be as compelling as the east side but it was not visible on the drawings in the record. He supported an action other than approval. Councilmember Wilson noted there were good elements of this building and there were elements with which he had concern. He preferred there had been more in the recommendation from the ADB regarding how the proposed design was consistent with the code. He preferred remanding the matter back to the ADB to allow them to provide a more detailed discussion and content in their decision regarding appropriate modulation. He recommended the ADB be asked to consider impact on adjacent property with regard to light, air, and noise; provide alternate trash screening that would make the area more aesthetically pleasing to the neighbors, and provide specific discussion and conclusions regarding how the design complied with the requirement for modulated design and commercial space. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER MARIN, TO REMAND THE MATTER TO THE ADB TO CONSIDER THOSE SPECIFIC ITEMS (IMPACT ON ADJACENT PROPERTY WITH REGARD TO LIGHT, AIR, AND NOISE; PROVIDE ALTERNATE TRASH SCREENING THAT WOULD MAKE THE AREA MORE AESTHETICALLY PLEASING TO THE NEIGHBORS; AND PROVIDE SPECIFIC DISCUSSION AND CONCLUSIONS REGARDING HOW THE DESIGN COMPLIED WITH THE REQUIREMENT FOR MODULATED DESIGN AND COMMERCIAL SPACE). Councilmember Petso commented the code could easily be read that a modulated roof design was required to attain a 30 foot tall building. If a modulated roof design were not required, she would expect substantive modulation such as a building that stepped back from the property line. She noted the shoebox with a flat roof was a design the City was trying to avoid with the additional 5 feet. She agreed with remanding the matter to the ADB for further discussion. Another issue of concern was the underground commercial, noting the code stated the design must be consistent with the Comprehensive Plan and the Comprehensive Plan states street level commercial in the downtown. She suggested the ADB consider the Comprehensive Plan statement that required street level commercial. With regard to massing and how big /long buildings in the downtown should be, Councilmember Petso recalled there was a code provision that stated buildings shall be designed to comply with the purposes of Edmonds City Council Approved Minutes October 7, 2003 Page 16 this chapter and to avoid conflict with existing or planned character of the nearby area. She recommended in addition to the roof height, the ADB consider underground commercial and massing. Councilmember Marin recommended the applicant provide a prospective drawing of the west elevation. Although there were some improvements that could be made to the garbage area, trellising, etc., he was satisfied that substantial modulation had been incorporated into the design. He noted there were only a handful of modulated roof structures that were possible. Council President Earling disagreed with the neighbors implying the developer did not have as much property rights as they did or that their property rights included what was being constructed across the alley. He agreed the developer needed to meet the. code but disagreed a neighbor must enjoy the property rights of an adjacent property. He agreed with remanding the matter to the ADB rather than reversing the ADB's decision, commenting it was a great project in the making. He recalled voting in favor of the Spee building because he was convinced there were a series of plateaus in the roofline. He acknowledged the proposed building was modulated but preferred plateaus in the roofline. Mayor Haakenson recalled in November 1999 as a Councilmember, when he voted in favor of the Spee Building, it was because of the modulated roofline. He recalled Councilmember White's statement at the time that that was not the code he intended. Mayor Haakenson recalled recommending to the Council that they pursue an amendment to the code to agree with the Council's interpretation of the code. He noted since November 1999, staff and the ADB have been awaiting clarification on what modulation, lot line to lot line development, and the 30 foot commercial space really meant. He concluded this issue would continue to haunt the Council until they clarified the policy for the ADB. MOTION CARRIED UNANIMOUSLY. 6. MAYOR'S COMMENTS Mayor Haakenson wished Councilmember Wilson a happy birthday tomorrow. 7. COUNCIL COMMENTS udget Council President Earling requested Councilmembers reserve November 8 and 15 for Council budget ork Shop workshops. In view of the Council's remand to the ADB, Councilmember Petso inquired about the Council's ability Closed to discuss the matter with the parties of record. Mr. Lell advised against discussing the matter until the Record Review 21 day land use petition act appeal deadline had expired. Councilmember Petso asked whether the Council could speak with the press. Mr. Lell advised the Council could speak with the press. Councilmember Petso suggested the Community Services/Development Services Committee initiate a review of the development regulations for downtown. Councilmember Wilson advised the issue of development regulations was on the Committee's next agenda. With no further business, the Council meeting was adjourned at 10:24 p.m. . Aale- - G Y ENSON, MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes October 7, 2003 Page 17 v AGENDA - EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 51" Avenue North 7:00 - 10:00 p.m. OCTOBER 7, 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 September 23, 2003. (C) Approval of claim checks #65534 through #65706 for the week of September 22, 2003, in the amount of $166,988.54. Approval of claim checks #65707 through #65872 for the week of September 29, 2003, in the amount of $159,359.48. Approval of payroll direct deposits and checks #36773 through #36859 for the period September 16 through September 30, 2003, in the amount of $780,123.51. (D) Acknowledge receipt of Claims for Damages from John E. Tardiff (amount undetermined), and Natalie Shippen ($384.00). (E) Approval of list of Edmonds businesses applying for renewal of their liquor licenses with the Washington State Liquor Control Board. (F) Authorization for the Mayor to sign an Interlocal Agreement with the City of Lynnwood for Olympic View Drive water main and sewer laterals installation design and construction. (G) Report on final construction costs for the City Council Chambers video system and Council acceptance of project. (H) Proposed Ordinance amending Edmonds City Code Chapter 5.05 Animal Control; clarifying the nonrefundability of certain veterinary fees for the adoption of cats and dogs. Page 1 of 2 CITY COUNCIL MEETING AGENDA OCTOBER 70 2003 Page 2 of 2 3. (60 Min.) Closed Record Review on an appeal of the Architectural Design Board's decision to approve an application for a new mixed use building. The property is located at 215 (currently addressed as 207 and 211) Stn Avenue North and is zoned BC (Community Business). (Appellants: Darrell Marmion and Leslie Haan, Stephen Bernheim and Susan Bauer / Applicant: MJ and MP Investment LLC / File No. ADB -03 -56 and AP -03 -142)* *Note: This matter is a closed record review: state law allows only parties of record to speak. 4. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed as Closed Record Review or as Public Hearings. 5. (15 Min.) Proposed Interlocal Operating Agreement #2 between the City of Edmonds and the Edmonds Public Facilities District as it relates to reimbursement of funds for city- rendered services. 6. ( 5 Min.) Mayor's Comments 7. (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.