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11/17/1998 City CouncilJ EDMONDS CITY COUNCIL APPROVED MINUTES NOVEMBER 17, 1998 The Edmonds City Council meeting was called to order at 7:02 p.m. by Mayor Barbara Fahey in the Library Plaza. Room, 650 Main Street, followed by the flag salute. ELECTED OFFICIALS PRESENT Barbara Fahey, Mayor Gary Haakenson, Council President Dave Earling, Councilmember John Nordquist, Councilmember Michael Plunkett, Councilmember Jim White, Councilmember Dick Van Hollebeke, Councilmember Thomas A. Miller, Councilmember STAFF PRESENT . Robin Hickok, Police Chief Paul Mar, Community Services Director Jeff Wilson, Planning Supervisor Noel Miller, Public Works Director Scott Snyder,, City Attorney Michael Karber, City Attorney Sandy Chase, City Clerk Jeannie Dines, Recorder 1, APPROVAL OF AGENDA COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER MILLER, FOR APPROVAL OF THE AGENDA AS PRESENTED. MOTION CARRIED. 2. CONSENT AGENDA ITEMS Council President Haakenson requested Item H be removed from the Consent Agenda. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, FOR APPROVAL OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED. The agenda items approved are as follows: Edmonds City Council Approved Minutes November 17, 1998 Page 1 t (A) ROLL CALL Approve (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF NOVEMBER 10, 1998 Minutes of 11/10/98 Approve (C) APPROVAL OF CLAIM WARRANTS #27811 THROUGH #28747 FOR THE WEEK OF Claim NOVEMBER 9,1998, IN THE AMOUNT OF $286,431.21 warrants Pfor (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM BARBARA E. DAHL inages ($262.87) Approve New Maint. (E) APPROVAL OF NEW STORMWATER MAINTENANCE WORKER POSITIONS IN Worker Pos. THE PUBLIC WORKS DEPARTMENT Authorize Repair of (IF) AUTHORIZATION TO CONTRACT WITH WESTERN HARDWOOD, INC. TO REPAIR Gym Floor AND REFINISH THE GYMNASIUM FLOOR ($8,948.64) Edmonds City Council Approved Minutes November 17, 1998 Page 1 t uthorize (G) AUTHORIZATION FOR MAYOR TO SIGN AGREEMENT WITH LUND'S OFFICE Agreement ESSENTIALS TO PROVIDE OFFICE SUPPLIES, FURNISHINGS, EQUIPMENT, AND with Lund's PRINTING SERVICES d. 3232 (1) ORDINANCE NO. 3232 AMENDING THE PROVISIONS OF ECDC 16.50.020(A) TO Amending EXEMPT SUBSURFACE BUILDINGS AND STRUCTURES, PROPERLY 16.50.020A LANDSCAPED, FROM SETBACK REQUIREMENTS AND PROVIDING FOR A PUBLIC HEARING Item H: Approval of Findings of Fact for a Closed Record Appeal Meeting Held on October 20, findings of 1998 and November 2, 1998 - Appeal by Roger Hertrich of the Hearing Examiner's Decision to act, AP -98- Deny His Appeal of a Staff Interpretation (File No. AP- 98 -85) Pertaining to Edmonds Community 5, Hertrich ppeal Development Code Section 20.60 to Consider Gas Pump Island Canopy Logos as "Wall Graphics," Which are Exempt From Height and Area Limitations. The Subject Property is Located at 1011 Puget Drive and is Zoned "Neighborhood Business - BN." Council President Haakenson explained he would abstain from the vote, as he was not present at the Council meeting when this issue was discussed. Councilmember Miller advised he would also abstain as he had recused himself from participation. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, FOR APPROVAL OF CONSENT AGENDA ITEM H. MOTION CARRIED (COUNCILMEMBERS HAAKENSON AND MILLER ABSTAINED). The item approved is as follows: (H) APPROVAL OF FINDINGS OF FACT FOR A CLOSED RECORD APPEAL MEETING HELD ON OCTOBER 20, 1998 AND NOVEMBER 2, 1998 - APPEAL BY ROGER HERTRICH OF THE HEARING EXAMINER'S DECISION TO DENY HIS APPEAL OF A STAFF INTERPRETATION (FILE NO. AP- 98 -85) PERTAINING TO EDMONDS COMMUNITY DEVELOPMENT CODE SECTION 20.60 TO CONSIDER GAS PUMP ,ISLAND CANOPY LOGOS AS "WALL GRAPHICS," WHICH ARE EXEMPT FROM HEIGHT AND AREA LIMITATIONS. THE SUBJECT PROPERTY IS LOCATED AT 1011 PUGET DRIVE AND IS ZONED "NEIGHBORHOOD BUSINESS - BN." City Attorney Scott Snyder introduced Michael Karber, an attorney with Ogden Murphy Wallace, who will be attending Council meetings during Mr. Snyder's upcoming vacation. 3. RESCHEDULED PUBLIC HEARING - REVIEW AND CONSIDERATION OF THE PLANNING BOARD RECOMMENDATION ON AN APPLICATION BY EDMONDS SCHOOL DISTRICT TO Public REZONE THE FORMER EDMONDS - WOODWAY HIGH SCHOOL SITE LOCATED AT 23200 Hearing Edmonds- 100TH AVENUE WEST FROM THE CURRENT "SINGLE FAMILY" DESIGNATION ON oodway APPROXIMATELY THE EASTERN TWO - THIRDS OF THE SITE, AND "OPEN SPACE - OS" Rezone ON- APPROXIMATELY THE WESTERN ONE -THIRD OF THE SITE. TO "PUBLIC - P" IN ORDER TO FULLY IMPLEMENT THE EXISTING COMPREHENSIVE PLAN LAND USE DESIGNATION FOR THE SCHOOL SITE. (File No. R -98 -128) Mayor Fahey explained this item was rescheduled due to confusion with posting the hearing notification (a new staff person was unaware there was an old Edmonds - Woodway High School and posted the signs at the new Edmonds - Woodway High School). There were also some questions regarding notification for the Planning Board hearing. The City Attorney reviewed the matter and concluded since the issue would Edmonds City Council Approved Minutes November 17, 1998 Page 2 1 come before the City Council and because the Planning Board is strictly an advisory board, there was no legal requirement to repeat the process. The Council also dismissed concerns regarding the Planning Board's participation and indicated review at the City Council level was adequate to meet the requirements of Edmonds School District (ESD) and the public. Mayor Fahey asked if any Councilmember wished to make any disclosure. Council President Haakenson advised he serves as a board member on the Public Education Foundation, a non - profit organization that raises money that is distributed via grants to Edmonds School District teachers. The organization is not affiliated with ESD in any way. There were no other disclosures made by any Councilmember. Mayor Fahey asked if there were any challenges to the participation of any Councilmember. Lora Petso, 10616 237"' Place SW, Edmonds, said the City Council minutes from the June 6, 1998, (correction: June 30) meeting show the rezone was suggested by Council President Haakenson and she questioned his ability to participate. Council President Haakenson said he believed Ms. Petso was referring to the joint meeting with the ESD that included discussion of how ESD could proceed. He did not believe it was a suggestion he made, it was the only alternative ESD had at that time. City Attorney Scott Snyder said the Appearance of Fairness Doctrine leaves to each member or a board of commission the final decision regarding whether or not to recuse themselves; there was no requirement under case law for Council President Haakenson to step down. He observed Council President Haakenson's statement in the minutes was an observation regarding the applicant's procedural options. Ms. Petso provided a copy of the June 30, 1998 minutes. Mr. Snyder said the Council's minutes are summary minutes and Ms. Petso's objection would be noted for the record. He reiterated there was no absolute. requirement for Council President Haakenson to step down. Council President Haakenson said he spent six hours reviewing this material and still had not made up his mind. Any comment he made at the joint meeting with ESD would not influence his judgment. Mayor Fahey explained 90 minutes had been scheduled for this hearing. Her intent was to allow staff to give a ten - minute presentation. She observed there were a total of 20 people signed up to speak to this issue at three minutes each. As there would be over an hour of public testimony, she suggested ESD be given up to 15 minutes to state their case. This would be followed by public comments and depending on the time, the matter would be returned to Council for deliberation. She asked if this was acceptable to the Council. There were no objections voiced. Kevin Clarke, 23924 10711 Place W, Edmonds, expressed concern with Council President Haakenson's participation. He said on September 16 the Edmonds School Board documented that the Edmonds City Council advised ESD to undertake this zoning classification. On October 20, he requested the School Board clarify that was incorrect, that the City Council did not provide any written or oral information to suggest they undertake the rezone to Public - P. Dr. Torrens corrected the minutes to indicate it was Council President Haakenson who hadfmade that suggestion. Dr. Torrens also indicated they had private meetings with the Mayor and staff regarding the "P" rezone. Mr. Clarke said the minutes clearly state that following Council President Haakenson's comment, Dr. Torrens stated "they would be glad to apply for a rezone to "P ", noting that they were previously advised not to do that." Mr. Clarke said staff in the Planning Department had advised ESD not to request a rezone to "P" but it was done as a result of Council President Haakenson's suggestion. Mr. Clarke said Mayor Fahey also made similar suggestions Edmonds City Council Approved Minutes November 17, 1998 Page 3 to the School Board regarding this action. Mr. Clarke said issues regarding ESD's mailing list also need to be clarified; ESD requested the hearing be rescheduled when they realized their mailing list was inadequate for the public hearing for the Planning Board. It had nothing to do with the posting; he brought up the posting at the next meeting. He said he explained to Council President Haakenson that there were residents within 300 feet who had not been notified and Council President Haakenson said he would work with ESD to ensure the mailing list was correct. Council President Haakenson recalled the School Board and the City Council held a joint meeting on June 30 and the School Board outlined their desires for some school sites. What he heard the Board members say was the only alternative they had was to request the "P" zone, that it was the only choice they had to accomplish what they would like to accomplish. Council President Haakenson said the intent of his comment was, "if that's what you want to do, then you better apply for a "P" zone." Mr. Clarke pointed out Mr. Wilson indicated at the beginning of the June 30, 1998, meeting that there were other alternatives. Mr. Clarke said the Community Services Committee is exploring zoning of churches, schools, and other public uses in non - conforming areas. Council President Haakenson said he did not believe his judgment to deliberate on this matter had been affected. Mr. Snyder said the basis for Ms. Petso and Mr. Clarke's objection were comments made in a meeting before the application was filed, therefore, those discussions were not ex -parte. The basis for disqualification would be 1) whether Council President Haakenson's comments constitute pre judgmental bias (he had already made up his mind) which Council President Haakenson indicates he has not, 2) the Appearance of Fairness Doctrine includes whether participation would appear unfair to a member of the public in the audience. He said the City Council's rules and State law indicate no one can make that determination but Council President Haakenson. Regarding dialogue Mayor Fahey and staff have had, Mr. Snyder requested any ex -parte contact Mayor Fahey has had with ESD or any member of the public must also be disclosed. Mayor Fahey said to her knowledge she has not discussed this zoning issue with ESD since the joint meeting. She did not plan to vote or take a position on this issue. She recalled the meeting was to determine ESD's options and recalled ESD specifically asked what their best course of action would be in order to move forward with their plans for the site. Her response was that requesting a "P" zone was probably the best way given the complexities of the other alternatives and the timelines associated with them. She recalled the decision to request a rezone to "P" appeared to be due to the timeliness with which a decision could be made regarding the use of the property. She agreed it appeared to be the best course of action for ESD to pursue but that it did not in any way indicate her position. She reiterated she did not plan to vote on this issue. Mr. Snyder explained the Appearance of Fairness Doctrine applies to Mayor Fahey's actions as chair and any rulings she may make; therefore, disclosure is necessary. At Mr. Snyder's suggestion, Mayor Fahey asked Councilmembers whether they had any ex -parte communication since the application has been pending. There were no disclosures made. Mark Quehrn, attorney for ESD, said he would like to address the procedural issues raised two weeks ago by Mr. Clarke. Mr. Snyder said the Appearance of Fairness Doctrine requires any ex -parte contact be revealed and the party impacted by the contact have an opportunity to address it. While Mr. Clarke's comments and Council discussion occurred during a public meeting, it was not part of an advertised hearing regarding this rezone. Edmonds City Council Approved Minutes November 17, 1998 Page 4 Mr. Quehrn understood the procedural concerns raised were in regard to whether notice of this hearing was sufficient as determined by the City's ordinances. Mr. Snyder commented the issues raised by Mr. Clarke addressed procedural requirements for this hearing as well as the hearing before the Planning Board. Regarding mailings, Mr. Quehrn offered to describe the steps taken to comply with the City's ordinance and any deficiencies ESD or the City was aware of. If the Council was still concerned that notice has been insufficient, he suggested whatever is necessary be done to rectify the problem so that the.public hearing on this matter would be the final one. If the Council was satisfied the steps taken to meet the City's notice requirements for the Planning Board meeting and the Council meeting were sufficient, ESD would like to proceed. He stressed they do not want to proceed this evening and have someone later state the notice was deficient. Councilmember Plunkett asked whether someone could allege whatever was done was unfair regardless of ESD's demonstration of proper notice. Mr. Snyder responded the test the courts have applied is not one of precision, but substantial compliance. While someone who is not aware of this meeting could challenge the decision in the future, anyone who did receive notice and had an opportunity to be present or is present would be bound to state his or her position at this hearing. He suggested Mr. Clarke's written materials be incorporated into the record. Laura Brent, Shockey Brent Inc. (consultant to ESD), 2924 Colby Ave, Everett, explained the original mailing list was submitted in July with the application. Her staff then advised there were errors on the original mailing list including seven parcels that had been omitted, three'additional site addresses, vacant parcels, and an open space tract owned by a homeowner's association. The addresses of nine residents who provided testimony at the Planning Board public hearing (beyond the 300 feet) and 13 property owners beyond the 300 feet the City's Code requires were also added to the mailing list. Once it was determined the mailing list was incorrect, she immediately called ESD and the City. ESD requested a postponement of the hearing and the mailing list was updated. In addition to the City's notification of the hearing, ESD also provided notification to residents. After those notifications, ESD indicated three addresses had returned notifications (one address no longer existed and two parcels were vacant property). She was also informed that notice was mailed to physical addresses but not to post.office box addresses; an attempt was made to notify these individuals in person and a letter from her office with the attachment from the City regarding the hearing was mailed. Mr. Snyder asked how many total persons were notified. She estimated approximately 175. Council President Haakenson said Mr. Clarke provided a copy of the mailing labels; there were between 175 - 200 labels. Mr. Quehrn said it is their understanding the issue regarding posting the property had been addressed and the property was correctly posted within the required time frame for this hearing. Further, the publication requirement for the hearing has also been met. He agreed not to request the testimony from Mr. Clarke two weeks ago be removed from the record and said the information ESD representatives provided is sufficient rebuttal to that testimony. Regarding any Councilmembers' suitability to participate, he said their application was filed on July 24; all allegations regarding inappropriate contacts occurred before that date. He said ESD did not object to the participation of any Councilmember or Mayor Fahey. Councilmember Van Hollebeke recalled he chaired the Council meeting when Mr. Clarke raised his objection and that the Council considered his concerns as an agenda item. Mr. Snyder suggested the Edmonds City Council Approved Minutes November 17, 1998 Page 5 Council's record developed by Mr. Clarke on November 2 be incorporated into the record by reference, along with his written materials, the City Clerk's response of November 17, 1998 and the response by ESD. Unless a Councilmember wished to continue the matter for further notice, he suggested the Council move forward with the hearing. Councilmember Earling said the testimony from ESD illustrates the extraordinary effort to adequately notify for tonight's meeting. He observed no matter how thorough a jurisdiction attempts to be, there is always the chance someone may not be notified. However, it appears there has been extraordinary notification on the property, advertising in the newspaper, as well as articles in the newspaper. He recommended the Council move on with the hearing. Council President Haakenson and Councilmember Miller agreed. Mr. Snyder suggested the Council open the hearing and incorporate Mr. Clarke's verbatim comments from the November 2, 1998 meeting, his written submission of November 2, 1998, and the report from the City Clerk of November 17, 1998, into the record by reference. Jeff Lewis, 2362192 -d Avenue W, Edmonds, said Council President Haakenson should not participate in the vote on this issue due to 1) the amount of time he spends with ESD, and 2) the minutes which indicate Mr. Wilson described other options. He quoted from the June 30, 1998 minutes, noting Council President Haakenson's comment was not preceded by a question from ESD regarding what should be done, "Council President Haakenson said it appeared the "P" zone was what the ESD needed and recommended they apply for it and go through the process. He agreed the City's codes are old and need to be updated." Mr. Lewis questioned whether Council President Haakenson meant the "P" zone was old and needed to be updated or that the single - family zoning was old and needed to be updated to "P." Mr. Lewis said he was not 100% sure Council President Haakenson would be unfair but neither was he 100% sure Council President Haakenson would be fair. He recalled Mr. Snyder stated if any reasonable person in the audience thought a member could be unfair, that could meet the Appearance of Fairness Doctrine test. He said there may be people in the audience who believe Council President Haakenson shouldn't participate. Council President Haakenson observed any Councilmember would be glad to have the opportunity to step down from participation in this hearing. He asked, based on previous conversations, whethef Mr. Lewis honestly believed he would not make a fair decision in this hearing. Mr. Lewis answered he did not know; he felt Council President Haakenson would be fair but he was not certain. He said he called Council President Haakenson to apologize for comments he made publicly. Although he has heard from others that Council President Haakenson is a good, honest person, there may be members of the audience who do not know him. Council President Haakenson said he was concerned about the second part of the Appearance of Fairness Doctrine. He believed he could make a fair assessment of this issue but was concerned about what a reasonable person in the audience may think. Mr. Snyder explained there are two issues with challenge of this type, 1) a Constitutional issue - someone who has already made up their mind should not participate, and 2) the Appearance of Fairness Doctrine is an administrative standard that makes an objective assessment of the circumstances. He reiterated it was the discretion of the individual Councilmember to make the decision whether to recuse themselves. He stressed a long standing legislative process has been ongoing regarding an amendment to the "P" zone, originated by the staff to the Planning Board and discussed by the Council on more than one occasion. If that were a basis for challenge, no member of the Council could participate. Edmonds City Council Approved Minutes November 17, 1998 Page 6 Council President Haakenson recalled all Councilmembers were present at the joint meeting with ESD. He asked if the summary minutes showed any other Councilmember disagreed with the assessment that ESD should proceed with the "P" zone to accomplish their needs. City Clerk Sandy Chase answered a complete copy of the minutes was not available. Council President Haakenson said this was an uncomfortable position for him; he believed he could make a fair decision and would participate. Al Rutledge, 7101 Lake Ballinger Way, Edmonds, objected to Council President Haakenson's participation. He said although the minutes are probably accurate, he recommended the tapes be reviewed. Kurt Olden, 9117 238`h Street SW, Edmonds, said at the June 30, 1998, meeting it appeared Council President Haakenson's comments to the School District Superintendent stated clearly that a "P" zone was the only way ESD could deal with this issue. Mr. Olden said it appeared Council President Haakenson . had already made up his mind and recommended he not participate. Council President Haakenson recused himself from participation in the hearing. Councilmember Nordquist recalled Mayor Fahey indicated she did not plan to participate in the vote but now there could be a tie vote. Mr. Snyder said Mayor Fahey's role as chair of the meeting raises the Appearance of Fairness issue, she does not have to vote for the issue to be raised. He understood Mayor Fahey's comments were in the context of a meeting prior to the submission of an application by ESD in which options were discussed and therefore were not ex -parte contacts. He pointed out residents who initially bring issues to the Council may ultimately appear before the Council on an appeal. He agreed Mayor Fahey must undergo a challenge to her participation in order to participate in the vote. Planning Supervisor Jeff Wilson explained the application is a request by ESD to rezone the former Edmonds - Woodway High School site from its present RS (eastern two- thirds of the site) and OS (western one -third of the site) designation to "Public - P." He displayed a transparency of the property, noting it is approximately 40 acres. The request ESD submitted is a non- project rezone request; it is not associated with any specific development proposal and only reclassifies the current zoning designation. This request was sought to fully implement the proper zoning designation for the property under the. City's present Comprehensive Plan designation for the site which is "Public - P." The "Public" designation has a broad listing "of classification, which both a zoning designation of "Public - P" and "Open Space -OS" are consistent with. Mr. Wilson said the request for rezone was submitted to the City on July 24, 1998. The review of the request by the Planning Board, who conducts a public hearing and issues a recommendation to the City Council, is done pursuant to the regulations /criteria established in ECDC Section 20.40.010. On August 19, 1998, the Planning Board conducted a public hearing to hear the staff advisory report and take testimony from the applicant and from the public. At the conclusion of that hearing, the Planning Board closed the public participation portion of the.hearing and continued it to August 26 to continue deliberation. On August 26, the Planning Board completed its deliberations and voted 4 -3 to recommend approval of a rezone on the eastern two- thirds of the property from "RS" to "P" but to maintain the "OS" designation for the western one - third. The Planning Board incorporated language in their recommendation to allow consideration, along with future ESD redevelopment of the site, of a redistribution of the OS around the property to allow ESD to best use the property and to maintain the same ratio of OS to P designations for the 40 acre site. Edmonds City Council Approved Minutes November 17, 1998 Page 7 Mr. Wilson said the Council's public hearing was originally scheduled for October 6. The Council's packet includes exhibits from the October 6 packet and additional materials submitted since then. These include the minutes of the October 6 City Council meeting (Exhibit 10); a memo from Laura Brent, consultant for ESD, requesting postponement of the hearing (Exhibit 11); a memo from Scott Snyder, City Attorney, regarding inquiries raised by Mr. Clarke (Exhibit 12); materials submitted by Mr. Clarke to the Council on November 2 (Exhibit 13); relevant testimony from the draft November 2 Council meeting minutes (Exhibit 14); and a letter from Mark Quehrn, attorney for ESD (Exhibit 15). Mr. Wilson referred to the criteria in Section 20.40.010 that is used by the Planning Board in evaluation of a rezone request, noting this criteria was also used by staff to make their recommendation to the Planning Board. These criteria are as follows: (a) Comprehensive Plan. Whether the proposal is consistent with the Comprehensive Plan; and (b) Zoning Ordinance. Whether the proposal is consistent with the purposes of the Zoning Ordinance, and whether the proposal is consistent with the purposes of the proposed zone district; and (c) Surrounding Area. The relationship of the proposed zoning change to the existing land uses and zoning of the surrounding or nearby property; and (d) Changes. Whether there has been sufficient change in the character of the immediate or surrounding or in city policy to justify the rezone; and (e) Suitability. Whether the property is economically and physically suitable for the uses allowed under the existing zoning, and under the proposed zoning. One factor could be the length of time the property has remained undeveloped compared to the surrounding area, and parcels elsewhere with the same zoning; and (f) Value. The relative gain to the public health, safety and welfare compared to the potential increase or decrease in value to the property owners. Mr. Wilson explained the site is identified in the Comprehensive Plan as "Public - P." As the City implements the Growth Management Act, the City is required to bring consistency between the Comprehensive Plan and the development regulations of the City. The purpose of the rezone, as submitted to the City, was to bring about that consistency. The existing zoning designation is RS on the eastern two- thirds of the property and the Comprehensive Plan designation is Public. The OS designation on the western one -third is consistent with designations outlined in the Comprehensive Plan for Public. Mr. Wilson explained the site as it currently exists is a .legal non - conforming use. Under the RS designation, only elementary schools are permitted as long as 1) the subject property is adjacent to a collector /arterial street and 2) the use receives a Conditional Use Permit (CUP). Mr. Wilson said this site gained a legal non - conforming use status upon annexation because the high school use already existed on the property. As long as ESD maintains a presence on the site and uses the property as a high school type use, they are permitted to continue the legal non - conforming status. The Planning Board discussed what uses could occur on the site and whether it could continue to be used as a high school if the property were not rezoned to Public. Mr. Wilson explained ESD could maintain its legal non- conforming use and continue to use the property, or a rezone application could occur by 1) the City initiating a rezone to bring consistency with the Comprehensive Plan, or 2) the property owner initiating a request. Edmonds City Council Approved Minutes November 17, 1998 Page 8 For Councilmember Plunkett, Mr. Wilson said if the property was rezoned, any permitted use would be allowed outright, and secondary uses would be permitted with a CUP. Councilmember Plunkett observed he should then consider ESD's application based on the rezone criteria for a Public zone and not for a school. Mr. Snyder suggested one of the questions the Council may wish to direct to ESD is what uses are permitted under their ownership from the Department of Natural Resources (DNR) and what limitations there are on the uses of the property. Generally, a non - project rezone considers the full range of uses that could be applied to the property under that zoning. Councilmember Plunkett asked if the applicant must meet all six criteria. Mr. Wilson answered the language in Section 20.40.010 states, "at the minimum, the following factors would be considered:" (the six criteria outlined above). Mr. Snyder explained the criteria can be considered by the Council, but they are not exclusive; others could be added but there is no requirement that all be met. He commented it is difficult to apply the criteria, as the Council cannot consider the programmatic responsibilities of a school district. He explained a school district has the sole statutory authority to determine what programs are appropriate for school district property. Councilmember Nordquist referred to criteria "e" - the property is economically and physically suitable for the uses allowed under the existing and proposed zoning, and asked how the physical suitability could be determined without a specific project. Mr. Wilson agreed it would be difficult to determine economic suitability with a non - project rezone. As the property currently exists in a developed state, the majority of the site is physically suitable for development. Mr. Snyder suggested the question regarding ownership of the property and restricted uses be directed to the applicant. Councilmember Earling asked who owns the property. Mr. Wilson answered ESD is listed as the owner. He suggested the applicant address their legal relationships with any other owners of the property. Mr. Wilson was aware of a relationship with DNR but was not aware of the specifics. Mayor Fahey asked if ESD could modify the school building under the existing zoning. Mr. Wilson answered ESD has limited ability to modify the buildings such as expansion. The non - conforming use section contains limited provisions for maintenance of the facility but there is a prohibition on expansion of non - conforming uses. Mayor Fahey asked if a CUP would be required for improvements beyond those allowed under the non - conforming use. Mr. Wilson explained as a legal non - conforming use, the criteria states expansion of the building is not permitted which includes hours of operation, types of equipment and machinery, etc. ESD would be permitted to do improvements within the existing building footprint only. The only way expansion of the floor area could be accomplished would be to seek to rezone the property from RS to a zoning classification that would allow a different type of school use. Councilmember White inquired about the criteria regarding equipment modification. Mr. Snyder read from Section 17.40.010(b), "a non - conforming use may continue unless required to be abated by subsection c of this section but it may not be expanded in any way including additional lot area, floor area, height, number of employees, equipment, or hours of operation." He said Washington courts generally establish an historic use for the property and limit the use of the property to that historic use. He said non - conforming use provisions are intended to be restrictive and limited so that over time, if a use cannot be expanded, it will go away or the owner will seek a more appropriate site. Councilmember White said his understanding of the issue is the school currently exists via a DNR Quit Claim Deed, which authorizes the property to be used for school purposes. If the school use ceases, the property reverts to DNR. He asked whether the non - conforming use status would be lost if the site Edmonds City Council Approved Minutes November 17, 1998 Page 9 ceased to be used for school purposes for any 12 -month period. Mr. Wilson answered ESD had the ability under the present zoning classification to use the site as an elementary school; their location on a collector /arterial street would require a CUP. However, the non - conforming use section states if a use is rendered non - conforming because the classification changes to require a CUP (when it did not in the past) a CUP would not be required to allow the use to continue. If the facility were expanded, a CUP would be required. Councilmember White observed ESD is prohibited from expanding the equipment, number of teachers, or changing the hours of operation whether it is used as a high school or elementary school. Mr. Wilson responded as long as the site was used as a high school. Councilmember White asked how the hours are determined since no use currently exists. Mr. Wilson answered hours would be based on the last school year. Mr. Snyder said case law on non - conforming uses looks at normal recurring cycles of use. Mark Quehrn, attorney representing ESD, 411108" Avenue NE, Bellevue, requested five minutes be reserved for rebuttal. He said the Comprehensive Plan designates the subject school site as Public on page 11 of the Comprehensive Plan. The only two compatible zoning designations for the Comprehensive Plan designation, P and OS, are also shown on that page. Page 10 of the Comprehensive Plan incorporates by reference the ESD Capital Facilities Plan. The Capital Facilities Plan designates the entire property, including the portion designated OS, as a school site through at least 2014. He said that is the only use of this property that would be consistent with the Comprehensive Plan. This is relevant because GMA requires development regulations be consistent with and implement the Comprehensive Plan. The RS designation is inconsistent as it does not allow a full range of school uses. The OS designation is also inconsistent as allowed uses under the OS designation do not include school uses. He stressed the only available designation to implement and be consistent with the Comprehensive Plan for this site is P. He said this is a decision the Council made when they adopted the Comprehensive Plan for this site and this is a technical amendment to implement that decision. Mr. Quehrn addressed the first criteria (whether the proposal is consistent with the Comprehensive Plan) and said it is the only zoning designation consistent with the Comprehensive Plan in light of the incorporation of the ESD Capital Facilities Plan. He said ESD's proposal is consistent with the second criteria (whether the proposal is consistent with the purposes of the Zoning Ordinance, and whether the proposal is consistent with the purposes of the proposed zone district) because the purpose of the zoning code is "to assist in the implementation of the Comprehensive Plan." RS does not implement the Comprehensive Plan, and OS does not implement the Capital Facilities Plan because it does not allow school uses. Regarding the third criteria (the relationship of the proposed zoning change to the existing land uses and zoning of the surrounding or nearby property), he pointed out there has been a high school on this site for over 30 years and therefore is consistent with the existing use. He said a high school is one of the most intensive school uses and has been established with the surrounding community for over 30 years (status quo). Mr. Quehrn addressed the fourth criteria (whether there has been sufficient change in the character of the immediate or surrounding or in city policy to justify the rezone), stating the sufficient change that warrants the rezone is the Comprehensive Plan. The City is required to bring its Comprehensive Plan into compliance with the zoning regulations. He referred to the fifth criteria (whether the property is economically and physically suitable for the uses allowed under the existing zoning, and under the proposed zoning) and reiterated the site has been used in this manner for over 30 years and ESD's Capital Facilities Plan indicates it will be used in that manner until at least 2014. He provided a letter dated November 4; 1998, sent by ESD to residents in the community. The letter identifies specific uses for the Edmonds City Council Approved Minutes November 17, 1998 . Page 10 site through 2001 - a transitional site while other schools are renovated and then another school use within the parameters identified in the Capital Facilities Plan. Under the current ownership, he stressed ESD can only own and operate property for school purposes. Mr. Quehrn said ESD owns the property but it is subject to a recapture provision by DNR. Therefore, ESD would have no incentive to discontinue school use of this site. He said the sixth criteria (the relative gain to the public health, safety and welfare compared to the potential increase or decrease in value of the property owners [of the site]) is met because there is public benefit from ESD making full and efficient use of an existing school site. He said maintaining the status quo will not affect the value of the property to ESD and will protect the value in the surrounding community because it is the status quo. He concluded all six criteria had been satisfied. Based on the requirements of the GMA, the Council's actions in adopting the Comprehensive Plan, and the fact that the proposal satisfies the criteria, ESD requests the City Council adopt the Planning Board's recommendation regarding changing the RS designation to P and reject the Planning Board's recommendation regarding the OS designation and approve ESD's proposal that the OS designation conform to the Comprehensive Plan by changing it to P. Mr. Quehm said ESD does not want to be a non - conforming use and that is the reason this application was submitted. He said ESD is entitled to have the proposal heard based on these criteria and not what can occur under a non - conforming use. Councilmember Plunkett asked if the property could be sold in 15 years. Mr. Quehrn said the site could be sold if it were declared surplus but that would be inconsistent with ESD's Capital Facilities Plan and would cause the property to revert to DNR. He said ESD could declare the property surplus tomorrow but would be subject to challenge because it would be inconsistent with the Capital Facilities Plan. He stressed ESD would lose title to the property if it were surplused, therefore, they have no intention of surplussing it. He said it was an incorrect inference that the planning horizon somehow suggests that is the end of ESD's intent to use the site for a school site. Councilmember White asked whether the property would be available for purchase if ESD lost title to the property or if it reverted to DNR who would determine what do with it. Mr. Quehm referred to an opinion letter he authored that addresses this issue. He explained this was trust land that came into the hands of the state at statehood to be distributed for school purposes. There are other school districts throughout the state with property conveyed to them via deed with the reversion clause that the property reverts to the DNR if it fails to continue to be used for school purposes. The DNR would continue to hold the property in trust for school purposes until some other school made an appropriate use of the property. Councilmember Miller asked why the open space designation that the Planning Board recommended is inconsistent. Mr. Quehrn answered a school facility could not be constructed in the OS zone as it is not an allowed or a conditional use. He said ESD is charged with owning and operating property for school purposes, not for open space or park purposes. ESD cannot make school use of the OS area under the zoning code. He appreciated the Planning Board allowing them to move the OS zoning around on the property but a substantial portion of the property, approximately one - third, could still not be used for school purposes which is inconsistent with the Capital Facilities Plan. Mr. Snyder said the OS designation permits the use of the open space for playfields. Since this request was submitted as a non - project application and no use was specified, the Planning Board concluded the existing use of the property as playfields was consistent with the OS designation. The Planning Board indicated they were open to considering a project - specific rezone in the future but felt OS was consistent Edmonds City Council Approved Minutes November 17, 1998 Page 11 with the current use and economic status. Mr. Quehm said a playfield with an open grassy area could pass as open space; however, a stadium with bleachers, a roof, and lights may not. Further, if ESD wanted to construct a school building on the site, it could not be on the portion zoned open space. He stressed they have no current plans for that portion of the site. However, this site is designated for school uses for the entire planning horizon. He could not guarantee that by the end of this planning horizon or the next, that a school building would not need to be constructed on portions of the site that are currently open space. This is not permitted by the OS designation in the zoning code and therefore is inconsistent with the Capital Facilities Plan. Councilmember White asked if the property reverted to DNR, what would restrict it to use the property only for school purposes? Mr. Quehm answered if the property were surplused and reverted to DNR, it would be subject to the trust. Councilmember White inquired about the parameters of the trust status. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEMBER MILLER, TO EXTEND THE HEARING FOR UP TO 45 MINUTES. MOTION CARRIED. (Council President Haakenson did not participate in the vote.) Mr. Quehm said he did not brief this issue other than his opinion letter in 1997, he did not believe the title was relevant to the issue currently before the Council. If ESD owned the property without the DNR restriction, the situation would be the same -- ESD can only own and operate property for school purposes. The Capital Facilities Plan indicates that is what the property will be used for. Councilmember White asked if the property reverted to DNR, could they also only use it for school purposes. Mr. Quehm said DNR's disposition of the property, which could include sale he believed, would be used for the betterment of schools. He stressed he was disinclined to address DNR's interpretation of their trust responsibilities. Mr. Snyder suggested Mr. Quehm address Councilmember Plunkett's earlier question regarding other uses (police station, postal facility, etc.) for the property if it was rezoned to Public. Mr. Quehm said as long as ESD owns the property, it can only be used for school purposes. Establishing other uses on the property would be inconsistent with the Comprehensive Plan (in the Capital Facilities Plan) which designates the property as a school site. He agreed the title restrictions, in this case, conveniently provide further limitations on ESD's or a successor's use of the property. Councilmember White asked for further definition of "for school use" such as could ESD erect a for - profit cell tower? Mr. Quehm answered not if the site is being actively used for school purposes. ESD has other property it owns in other areas that have been declared surplus and leased to various private uses. He stressed in this instance, ESD cannot declare the property surplus and still retain title. Any use of the property must be directly related to ESD's responsibility for providing education and support services to students. He said construction of an administration building would be appropriate under the statute definition of school purposes, but he was not certain it would be consistent with the DNR restriction, which has a more narrow definition of "for school purposes." Councilmember Nordquist referred to a statement drafted in 1990 that indicated the Woodway High School is not currently planned for a specific use after 1997. Mr. Quehm said the 1990 Capital Facilities Plan is superseded by the new Capital Facilities Plan. Councilmember Plunkett asked if ESD would continue to use the property as a school site if it were rezoned to Public. Mr. Quehm answered yes. Councilmember Plunkett asked whether DNR could sell Edmonds City Council Approved Minutes November 17, 1998 Page 12 the property if it were surplused by ESD, resulting in a property with a Public zoning where other uses could occur. Mr. Quehrn said any use would be subject to the Capital Facilities Plan, which indicates the property is a school site. DNR could not use the site in a manner that was inconsistent with the Comprehensive Plan. Mayor Fahey opened the public participation portion of the hearing. She requested participants limit their comments to three minutes due to the significant number of people signed up to comment. Mr. Snyder advised a copy of ESD's November 4, 1998 letter, which Mr. Quehrn provided to the Council, is available on the table for public review. Kevin Clarke, 23924 1071 Place West, Edmonds, distributed a copy of the City's website, "Edmonds City Council Meeting Procedures," and Resolution 463 "Rules of Procedure and Conduct for Hearings." He said Mr. Snyder and Councilmember Nordquist advised him to pursue this issue. Mayor Fahey asked . if it was appropriate to address procedural issues.at this time. Mr. Snyder responded that Mayor Fahey, as the Chair, could rule Mr. Clarke's comments out of order, subject to being overruled by the Council. Mayor Fahey asked if Councilmembers wished to hear Mr. Clarke's procedural comments. Councilmembers did not object. Mayor Fahey advised Mr. Clarke he would be allowed three minutes. Mr. Clarke referred to the back side of the agenda which lists meeting procedures as well as to Resolution 463, which he said indicates the three minute rule does not apply to public hearings. Further, this information indicates people testifying have the opportunity to testify a second time after everyone has had an opportunity to testify the first time. He referred to paragraph 15 of Resolution 463, which states every member of the audience has an opportunity to ask a question, through the presiding officer, to everyone. He read from the first page, "Councilmember Nordquist requested that these be prepared as a booklet and be placed in the compartment at each Councilmember's place on the roster." Mr. Clarke said each Councilmember should know the adopted rules for conducting public hearings. The objective is to ensure the hearing is fair and three minutes is not sufficient to cover a complex, technical issue, particularly when ESD has had at least 30 minutes to state their case. He referred to Mayor Fahey's November 14 letter to him that states she does not have the responsibility of adopting rules, only carrying them out. He said these rules are also contained in the ECDC under public hearings. He urged the Council to follow the rules; if insufficient time was available tonight, the hearing should be extended. Mayor Fahey read from the meeting procedures on the reverse of the agenda, "Further testimony from those who have spoken will be taken in the remaining time." She said this assumed time remained in the total time established for the hearing had not been utilized. Mr. Clarke requested she read the next sentence, "The public hearing will be continued to another date to take additional testimony when the existing available time is not sufficient." Mayor Fahey said this meant when all the people had not at least had an opportunity to speak for three minutes and did not indicate the hearing would be extended to allow more than three minutes for each person. Mr. Clarke said Resolution 463 clearly states the procedures and there is no three - minute rule. He stressed the three - minute rule applied only to the audience comment portion on the agenda. Mayor Fahey said it is within the Council's authority to establish an amount of time for a hearing. She said this time was originally established as 90 minutes and the Council concurred with the amount of time each person would be allowed to speak. Mr. Snyder said the times allotted are consistent with the Council's past practices. The purpose of the rules is to give an equal opportunity for all persons to speak within the time allotted. Edmonds City Council Approved Minutes November 17, 1998 Page 13 Mayor Fahey said the amount of time each person would be allowed to speak was established at the beginning of the hearing and that Mr. Clarke's objections were not within the parameters set for the hearing. Councilmember Plunkett said he has read Resolution 463 and did not care how long the hearing took. He wanted everyone to have as much opportunity to speak as they needed. COUNCILMEMBER PLUNKETT MOVED TO OVERRULE THE CHAIR AND ADHERE TO RESOLUTION 463. MOTION DIED FOR LACK OF A SECOND. Kevin Clarke, 23924 107h Place, Edmonds, said ESD has specifically stated this will be a school site until 2014. He referred to Councilmember Nordquist's reference to page 160 that indicates the long - range plan for this property is discontinued use as a high schools site after 1997. Mr. Clarke distributed materials used for the 1998 bond issue which references the 1990 long range plan in the Capital Facilities Plan that was utilized to make a presentation to request funds from the voting public. He said Mr. Carlstadt's letter indicates this school has not been designated for any use other than a transition school for elementary students. Mr. Clarke said there is no public record establishing this will be used as a high school, and in the late 1980s and 1990, ESD spent a great deal of money to convince voters that this school site was physically, economically, and functionally inadequate to serve as a high school. The cost of remodeling because of carpenter ants, water damage, and the .poor soils made it impossible to remodel the school or build a new school on the playfield and ESD recommended a new school be constructed at 76' and 2121. Mr. Clarke referred to the 1998/1999 ESD calendar which shows the location of schools within the district (the same calendar used in the Capital Facilities Plan) and pointed out there is no elementary, secondary, or high school at 232°' and 100' Avenue West. He said school . #86, Edmonds - Woodway is at 76' and 212`''. He said this represented to the public that this property was not a school site. He stressed there is not a school on the site now and the phone number does not reach the school. No students attend school there other than 11 -13 auto shop students awaiting a new facility at Meadowdale. He urged the Council to reject the concept in the Capital Facilities Plan that this site must be rezoned Public. In reality, the Comprehensive Plan must be changed to single family because ESD does not intend to use this as a high school. Councilmember White asked Mr. Clarke what his concerns were. Mr. Clarke said ESD presentations document this school is unsafe, it is not earthquake safe. The architect who designed the school performed a study that indicated it was economically and physically unfeasible to remodel the school. As a result of a bond, a new $45 million high school was built on the site of the old Edmonds high school. He stressed ESD has no plan to use the site as a high school. Thus, the only use is an elementary or middle school or K -8. He said the demographics in the Capital Facilities Plan indicate the population is decreasing in this area and schools will need to be closed. The population is increasing in the north and east. The Capital Facilities Plan indicates there are sufficient sites to construct new schools in the areas where they are needed in the north and east through 2014. He said this site disappears from the inventory, similar to Alderwood, Melody .Hill, Esperance, and Woodway Elementary. He said the schools are "surplused" by removing them from the inventory and are then leased. He recommended ESD develop a plan for the community as well as the voters because Lynnwood High School will need to be remodeled or rebuilt in 2002. He said if ESD alienates the voters by their actions, the result is failed bonds and levies. Councilmember White clarified Mr. Clarke's concern is ESD will do something other than what they say they will do. Mr. Clarke said his concern is ESD is representing to the public they will do something Edmonds City Council Approved Minutes November 17, 1998 Page 14 with the site when in fact their only plans are to use it as a transitional school for two elementary schools that will be reconstructed (Chase Lake and Maplewood). Councilmember White asked how rezoning to Public would impact Mr. Clarke's concerns. Mr. Clarke said he has asked for that legal opinion on several occasions. He said Madrona and Woodway Elementary Schools have the same clause but both were closed and ESD did not lose them. He was concerned ESD has property they have leased, including property on which an apartment project has been constructed. He pointed out closing the middle school and moving the high school indicates there are too many schools in that area. He said ESD projections indicates populations decrease rather than increase resulting in a high probability this property will become excess, particularly with the structure problems that exist. Councilmember White asked whether Mr. Clarke believed the property would revert to DNR if ESD proposed to lease the site. He agreed it could but that this was a gray area. He said DNR has sold surplus school sites to raise funds for schools rather than allow them to remain vacant. Councilmember White clarified Mr. Clarke's concern appeared to be the property could be sold and an objectionable use could occur if the property was surplused with a P zoning. Mr. Clarke said a wide variety of uses could occur if it was zoned Public but not if the RS zoning remained. He said it has been stated that governments cannot determine which programs can be placed where. However, Snohomish County is requiring ESD to apply for a program specific CUP for Esperance because they leased it for a. non - school use which resulted in the loss of their vesting. Councilmember Plunkett asked about Mr. Clarke's reference to ESD property that is an apartment site. Mr. Clarke said that property is listed in the Capital Facilities Plan. Councilmember White asked if that property was acquired via DNR. Mr. Clarke answered no, but it is owned by ESD. Larry Norgaard, 24102 77 "' Place W, Edmonds, said the Edmonds community does not have many large areas that can be used as open spaces. He preferred the site be developed as a community center with baseball and soccer fields. If the property is rezoned Public, the fields could disappear and he questioned where youth would play then. He objected to distributing the open space as it would result in the loss of the fields. He preferred the zoning remain as it is and the fields are improved. Alan Bates, 23217 100 " Avenue W, Edmonds, (the driveway into Woodway High School), questioned whether the traffic would continue to access in one place if the property was rezoned. He asked if the public would continue to have input on the use of the property if it is rezoned to Public. Mayor Fahey advised staff would address his questions following public testimony. Lora Petso, 10616 237" Place SW, Edmonds, said the six criteria have not been met. The rezone would violate the Comprehensive Plan provisions protecting open space and quality of life (first criteria). She said the Comprehensive Plan is internally consistent and the map may not be consistent with those provisions. She suggested this be corrected by changing the map and not the policies regarding open space and quality of life. The proposal is not consistent with zoning laws (second criteria) which offer protection from incompatible uses (she submitted her August 17 letter which contained more details). The proposal is not consistent with surrounding zoning (third criteria) which is 100% residential. She said rezoning this property at the request of the property owner, which is totally inconsistent with surrounding property, would constitute illegal spot zoning. No changes in the character or the area are in City policy (fourth criteria). She submitted data indicating enrollment in the area is stable. The property Edmonds City Council Approved Minutes November 17, 1998 Page 15 is suitable for residential development and K -8 education (fifth criteria). She said the review of the Community Facilities Plan may increase ESD's possible uses for the property while still protecting the. neighbors. She urged the Council not to accept ESD's historical use argument, because the property had been a neighborhood high school, which ESD voluntarily gave up. This should not allow them to put in a mega high school, an alternative high school, a district warehouse, a community college, or other uses allowed under public zoning. She said as a non - project rezone, the Council must consider all possible P zone uses, including what would occur if the property were sold to Olympic Water District and a sewer /water plant were constructed on the property. Regarding the sixth criteria, she said there is no gain to the public health, safety, morals, or welfare. She said crime has decreased in their area this fall by 83% (she submitted the statistics). Ms. Petso said in addition to the six criteria, there are other issues upon which she would base an appeal if the City allowed the rezone. She challenged the entire process as unfair under the Appearance of Fairness Doctrine, referring to a letter from School Boardmember Sally Fabro stating City officials told the School Board to pursue the rezone. Mr.. Clarke has stated Mayor Fahey was one of those officials; having her in a position to participate in a tiebreak vote was inappropriate. Further, per Citizens vs. Mt. Vernon, zoning regulations prevail over a contradictory Comprehensive Plan. Other cases indicate the Comprehensive Plan should not be used as a way to circumvent zoning regulations. She said a rezone cannot be granted absent a showing of benefit to public safety, health, morals or welfare. She stressed there can be no benefit to a rezone to a designation the Council has already stated is inappropriate for schools. ESD does not have .a project for the property or a current need for a rezone until at least 2001. When ESD has a need for a rezone, they may be able to show that a rezone would be in the public benefit. Councilmember White asked the basis for her belief ESD would sell the property to the Olympic View Water District for a sewer plant. Ms. Petso answered as a commissioner for Olympic View, she would be interested in considering whether a water tower on this site would assist in regulating pressures throughout the district and, should the property become available, would inquire about this use. Councilmember White asked if as a commissioner she has any basis for believing this would occur. Ms. Petso answered no. Richard Miller, 23623 107 " Place W, Edmonds, a resident in the vicinity of this property for approximately 17 years, recommended the Council vote against the rezone of the former Edmonds - Woodway High School property from RS8 and OS to Public. He said the public should have an opportunity to review and provide input regarding a specific proposed use. A non - project rezone left too much variability ,in the negative impacts to the surrounding community. He was most concerned about possible use of the property for programs similar to Options or Scriber Lake. He said impacts caused by those types of programs on this site without public review and input were not acceptable. He said these programs escalate crime in the surrounding community and are not compatible with the residential area surrounding this property. He explained the property is ' surrounded by, but not separated from, residential and heavily wooded areas on three sides. This lack of separation and resulting lack of visibility would make it easier for students intent on engaging in criminal activity to move into the surrounding neighborhoods. He said this occurred when Options was located in the old Woodway Elementary school. While be believed ESD wanted to be good neighbors regarding their properties, their previous actions such as placing the Options program in the old Woodway Elementary without notifying the surrounding neighbors, cause concern over their future actions if the Public rezone is approved. He said any increase in crime in a neighborhood surrounding a school property due to a change in the school program on that property was inappropriate. He said although staff has indicated zoning must match the Edmonds City Council Approved Minutes November 17, 1998 Page 16 Comprehensive Plan, he preferred the Council change the Comprehensive Plan rather than the zoning code if a change was necessary. Councilmember White asked to what extent the Council could consider the issue that the City can prevent a use of the property (i.e. the Options program) by restricting zoning. Mr. Snyder answered the City is currently in the process of reviewing the Public zoning, including the Planning Board's consideration of impact -based criteria. As it currently exists, the City's Code describes school uses in general categories in the Public zone. It has been .recommended that the City adopt more sophisticated requirements to allow the City to consider and mitigate the impact of development from traffic, noise, light, and other impacts to a neighborhood. However, the City currently does not have such requirements. The applicant is vested under the current City ordinance and has the right to be considered under the current code criteria. His opinion was the Council did not have the right to designate what programs ESD could operate from a site. He summarized there are tools the City could adopt to improve their ability to mitigate school development but that would not give the City the ability to dictate programs or perform the functions of ESD as provided by statute. He reiterated the Council was obligated to consider ESD's application under the current code. Councilmember White clarified if any of the Council's deliberation expressed distaste for the Options program, the decision would be subject to challenge on appeal. Mr. Snyder said the Council should not use that as a basis for their decision and reference to specific programs should be avoided. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEMBER MILLER, TO EXTEND THE HEARING UNTIL 10:30 P.M. AFTER A FIVE - MINUTE BREAK. MOTION CARRIED (Council President Haakenson did not participate in the vote.) James Young, 23730 107 " Place W, Edmonds, said he was opposed to changing the zoning to Public. He said for the safety of their neighborhoods and the children, the residents need the ability to provide input into how the old Edmonds - Woodway property is used in the future which would be eliminated if the property is rezoned to Public. Gail Young, 23730 107`h Place W, Edmonds, said she was also opposed to the rezone to Public and hoped the Council would vote against that action. Jim Orvis, 23529 93" Avenue W, Edmonds, was opposed to P zoning for school property in general. He said ESD's representative appeared to indicate this meeting was irrelevant because the Council had no choice. He did not object to schools in their neighborhood but did object to zoning which allowed an organization that is not responsive to the neighborhoods carte blanche with respect to a major piece of the neighborhood. He said if the property is rezoned Public, the public is limited in its ability to provide input regarding its use. He said this would result in Edmonds taxpayers funding the cost of necessary infrastructure changes. He referred to Mayor Fahey's annual budget address which stated "eliminating services that would negatively affect the lifestyle we all love is not a desirable alternative to a budget increase" and questioned how a rezone to Public could be approved with this feeling toward Edmonds. He said this hearing was for only one school but there are many others in the City ESD would like to have rezoned public. Only one is being considered because considering them all would result in a great public outcry. He said zoning ESD property Public was "the easy way out" for ESD staff, City staff, the Council, and the community. Loren Rex, 23329 Robinhood Drive, Edmonds, a land owner on the tract since 1971, said in 1972/1973, there was an attempt by ESD to cut the trees in the greenbelt between the land separating the Edmonds City Council Approved Minutes November 17, 1998 Page. 17 houses on Robinhood Drive and school property. Landowners protested to the Commissioner of Lands for the State of Washington and an easement was granted by the State preserving the right of the homeowners who abutted the school property to access the existing alleyway. He recalled the owners of lots 11 -15 paid $200 -300 each to obtain the easement for 99 years. As part of the easement, the greenbelt, (a mandatory agreement with the school by the DNR) was to remain uncut for 99 years. In intervening years, the Legislature has allowed school districts leasing land such as this property, to purchase those lands. He assumed any encumbrances would pass with the sale. He was unable to verify this easement at Snohomish County except as an unrecorded easement for ingress and egress along the easterly line of the property but had not yet researched the DNR's records. He said any existing easement should be honored. He recommended none of the open space designation be changed due to the possibility of slides on the hillside as a result of development. He was also concerned rezoning the property would allow ESD to sell the property for housing. Al Rutledge, 7101 Lake Ballinger Way, Edmonds, said there are no plans for the site although it had been considered for the aquatic center. He has encouraged ESD to establish more athletic facilities and was told to work on the next bond issue to have more funding included for fields. As ESD has no intent to do anything with the property, he recommended the existing zoning remain. Ted Smits, 22830 102nd Place, Edmonds, a resident for 22 years whose children graduated from Edmonds - Woodway High School, said tonight was the first time he saw the letter from ESD stating they will use the site for a rotating school. He said this was a concept he could support. Since the RS designation would allow this use, he questioned the need to change the zoning from RS to P. As they do not know why the change is necessary, they are opposed to the rezone to Public. Mary Kay Westmorland, 9917 232nd Street SW, Edmonds, said she had not heard any information tonight in support of the rezone. Based on ESD's November 4 letter stating the site would be used for elementary schools, which the current zoning allows, she recommended the current zoning remain. Kurt Olden, 9117 238 Street SW, Edmonds, said ESD is requesting a rezone because the Comprehensive Plan shows the property zoned Public. The Planning Board meetings indicated this change is only to bring the property into compliance with the map. He did not recall any other reason for the rezone. He questioned how the Council could approve a rezone based on this request. He said the, Comprehensive Plan map can be changed to show the school district property as it currently exists, RS and OS. If the property is rezoned to Public, ESD can place any use there in the future. Mr. Olden said there has been an overwhelming amount of testimony at the public hearings he has attended regarding secondary impacts of a high school or an Options -type program. He said ESD and even the Police Department are powerless to prevent all the secondary impacts associated with these schools. He recalled testimony regarding the original CUP from Edward Weigelt in his letter of August 6, 1998, that the original CUP was granted on the condition that a greenbelt be created and maintained around the perimeter of the property. Privacy was also a major concern. Mr. Olden referred to Mr. Snyder's June 5 letter which states the City has the right to establish building codes and zoning laws and the right to address secondary rights associated with schools and other facilities that could be placed in a neighborhood. The Council cannot limit the content of a school program, it can only limit the type of program. Mr. Olden said prohibiting ESD from placing a high school or alternative school in a neighborhood is not limiting the content of a program only the type. He was opposed to the rezone based only on the incorrect designation in the Comprehensive Plan map. Edmonds City Council Approved Minutes November 17, 1998 Page 18 Rochelle Smith, 23812 107" Place W, Edmonds, had concerns with ESD's agenda, particularly whether some of their requests are necessary or relevant. She was not aware of ESD's letter until tonight and a neighbor also indicated she had not seen it. She questioned whether ESD could show a demonstrated need for the rezone or if they were requesting carte blanche to do as they saw fit. She said the quality of life for the surrounding neighborhood is greatly impacted by ESD's decisions yet it appears ESD is asking residents to trust them to put in a use that will be appropriate. She said the population in this area is decreasing and was not convinced a rezone was necessary. Starla Bowmen, 23906 1061 Place W, Edmonds, was against the rezone to Public on any property currently zoned single family. She said the rezone would give ESD no accountability for the use on the site. She recommended public hearings and CUPs be required for the site and permits issued as program uses changed. She said rezoning property to Public would eliminate citizens' ability to provide input and allow ESD to determine the fate of her neighborhood. Colin Southcote, 10616 237 " Place SW, Edmonds, objected to rezoning the 40 -acre former Edmonds - Woodway High School. He said this agenda item is unnecessary as the Planning Board is meeting tomorrow to consider the issue regarding community facilities as directed by the Council earlier this year. He questioned why it took seven months for this issue to be reviewed by the Planning Board and why City staff and Council President Haakenson (according to the Council minutes) advised ESD to file for rezone when the Council has promised action on this matter via the Planning Board. He urged the Council to deny the rezone on the basis that the Public zone is inconsistent with the surrounding community and to move forward with consideration of community facilities. Roger Hertrich, 1020 Puget Drive, Edmonds, said a CUP is the public's best option to control future use and a CUP is required under the current zoning of the property. This would not be the case if the zoning was changed; there would be no opportunity for public input. He referred to the Environmental Checklist (page 22 -61) and said "not applicable" is stated in numerous places because there is *no project to base the answer on. He referred to the statement that future projects will be reviewed during project - specific environmental review, pointing out this would be done by ESD, not the City if the zoning is changed. He referred to other information in the Council packet's including ten pages of letters from citizens (pages 65 -75), the Capital Facilities Plan which is not convincing, an informative letter from Mr. Snyder, and the Planning Board minutes that contain public comment. He suggested there was no reason to rezone the property, pointing out the criteria requires significant change in the character of this area, which has not occurred. He said it would be difficult to justify the rezone utilizing those criteria.. He recommended the Council refuse the rezone because there is no reason to make a change. Charlynne Herman, 23911 107 " Place W, Edmonds, a resident of the area below the old Edmonds - Woodway High School site and a teacher in the ESD for the past six years, said her first priority is to her family. The area they live in is also a high priority. She said one of her children attends Sherwood Elementary, which has a high enrollment, and a new school will soon be necessary. She said ESD may not be consistent with the information they provide. For example, levies are approved for certain projects and ESD later changes the projects. She said the P zone would allow ESD to do what they want with the property. She said the RS zone is appropriate for the property because an elementary school would be allowed. Brad Butterfield, 23108 102 "" Place W, Edmonds, said he was confused with many of the answers provided by ESD's representative. He said ESD is not being a good neighbor and does not appear to care about the neighborhood. He referred to ESD's response to the fifth criteria (suitability) which indicates Edmonds City Council Approved Minutes November 17, 1998 Page 19 this site will continue to be part of the district's education facilities and used as a high school. However, ESD's recent letter indicates the school will be used as a transitional site. He said ESD appears to be confused about what they want to do with the site. He felt this was not an appropriate time to rezone the property as the current zoning allows elementary schools. He recommended the rezone request be "shelved" until ESD provides a specific project plan. He said residents support ESD but ESD does not support neighbors. Diana Plumis, 23120 102 "d Place W, Edmonds, recalled residents recently voted on a bond to acquire open space in Snohomish County to preserve the quality of life. Yet, ESD's proposal would eliminate the open space because they feel that is incompatible with the Comprehensive Plan. She said the Comprehensive Plan is not to be driven by ESD's facility needs; their needs should be considered but it is not an imperial school district. She stressed once the open space is gone, it is gone forever. She urged the Council not to rezone the open space to Public. She said the Comprehensive Plan is a work in progress and is continuously revised. Jeff Lewis, 23621 92 "a Avenue W, Edmonds, said Council President Haakenson showed the most integrity he has ever seen in a public official by stepping down based on the appearance of unfairness from those who do not know him. Mr. Lewis complimented Council President Haakenson for his action as well as Councilmember Plunkett for attempting to bring fairness to the public hearing process. Mr. Lewis observed since this issue has been under consideration (March), no one other than ESD representatives have spoken in favor of the rezone. He questioned why the rezone was necessary at this time when they planned to use the site as an elementary school until at least 2001. Mr. Lewis wished Mr. Clarke could have had more time to speak, particularly since ESD had 40 minutes. Hearing no further comment, Mayor Fahey closed the public participation portion of the hearing. Mark Quehrn, attorney for ESD, said his client (ESD) asked him to reaffirm that they have absolutely no intention of selling the site or declaring it surplus. He said the references made by Mr. Clarke that this site would no longer be useful as a school site appeared to have been taken from a 1990 long term plan which was superseded by the 1995 plan he (Mr. Quehrn) quoted from. He recalled Mr. Clarke said there was not a projected enrollment growth in their plan; however, the 1995 Capital Facilities Plan includes enrollment growth projections. He referred to the suggestions that if the rezone is granted, ESD would have carte blanche to do anything it pleased. He said although this was not part of the criteria the Council is to consider, a SEPA review and Architectural Design Review (with appeal to the Council) is required for any proposed project. Mr. Quehrn said he was not aware of the easement referred to by Mr. Rex but said a rezone would, not revoke it. He offered to research that issue with Mr. Rex. Mr. Quehrn disagreed with the statement that the City has the ability to determine whether an elementary, middle, or high school is placed in a particular location and said ESD chooses the program, the City can only indicate how to mitigate the impacts of the program. Mr. Quehrn said the "non- applicable" answers in the environmental checklist were in the project - specific section. The non - project section is complete. In answer to "why now rather than when there is a project - specific proposal" he said that was a decision ESD could have made but chose to bring this issue to the Council now. He said ESD's request must be considered based on the criteria in the existing code and the GMA mandate that states the Comprehensive Plan must be consistent with the zoning code. Councilmember Van Hollebeke asked Mr. Quehrn to respond to Mr. Clarke's questions regarding the structural integrity of the existing building and the substantial costs to modify the building. Edmonds City Council Approved Minutes November 17, 1998 Page 20 Councilmember Van Hollebeke said a big part of the problem is that the School Board and ESD in general appears to be arrogant by not being responsive to the neighbors' concerns. Councilmember Van Hollebeke stressed ESD's plans are the residents' plans. He applauded ESD for the November 4 letter they prepared that stated ESD's plans for the site, although it was unfortunate this was not done earlier. He questioned why the rezone could not be delayed if ESD only had plans to use the school for transition for the next 2%2 years and had no other plans for the site. Mr. Quehrn said as mentioned in their application, this was initially brought to the City as a technical amendment. It is appropriate to request the City zone the property consistent with the Comprehensive Plan and does not need to await a specific project. He said the transitional use of the site is an efficient use of the site that is available now while ESD awaits anticipated enrollment growth that will dictate the use of this school and others. He said ESD would not be a good steward of their property if they did not take steps to ensure they have maximum flexibility to address the district's future needs. He acknowledged the future need on this site may be something other than an elementary school. In response to allegations that ESD is arrogant, he said they have tried to make every effort in this proceeding to address the land use issue, both before the Planning Board and the Council, as openly and fully as possible. He said they have also made an effort in this proceeding not to confuse the land use issue with the other legitimate concerns expressed. However, although the concerns are legitimate, most are not germane to the rezone and should be directed to the School Board. COUNCILMEMBER WHITE MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO EXTEND THE HEARING FOR 20 MINUTES. MOTION CARRIED. (Council President Haakenson did not participate in the vote.) Bret Carlstadt, ESD Property Manager, 20420 68`h Avenue W, Lynnwood, said one of the elements in the appendix to the Capital Facilities Plan is the 1990 Long Range Capital Facilities Plan. This was included to show the evolution to the current planning documents. He referred to page 155 of the Council packet (page 8 of the 1990 Long Range Capital Facilities Plan) which looks into the future including a statement about future construction underway at Lynnwood High School with transition at Woodway High School. He said although this may not be the current plan, Lynnwood High School is the only remaining ESD high school that has not been renovated. He said ESD has been fortunate to have excess facilities to use for transition while students' home facilities are reconstructed. He said transition saves money and construction time as well as provides a high degree of safety for students. One of the possibilities, with voter approval of a bond, would be to use Woodway High School for transition of Lynnwood High School students. He said his letter to the community was an attempt to address issues ESD knew with certainty and to leave open elements yet to be determined. In response to the question regarding structural problems at the old Edmonds - Woodway High School site, Mr. Carlstadt said he was not aware of structural problems at this site. Trevor Hart, an architect in ESD Capital Project's Office, was also not aware of these problems. Mr. Carlstadt said they knew of a carpenter ant problem although the extent of the problem was originally unknown. This problem was not as bad as expected and has been corrected. He said there may be confusion with the demolished Edmonds High School site, which was closed by ESD due to structural problems. He said the old Edmonds - Woodway High School does not have any structural problems to his knowledge. He clarified he is not a licensed engineer. Councilmember Van Hollebeke asked if there was any reason to believe that substantial renovations or changes would be needed if (hypothetically) the Lynnwood High School population was moved to the site in three years. Mr. Carlstadt said it likely would not require significant renovation to serve as a transitional site for high school students as it was recently used as a high school. ESD's plans are to use Edmonds City Council Approved Minutes November 17, 1998 Page 21 the site for elementary school students and some facility modifications will be made to accommodate those students. He said a detailed analysis has not been made of the plans that would be necessary in the event there were funds available to renovate Lynnwood High School. Councilmember Van Hollebeke asked Mr. Carlstadt to address the population trends for ESD and trends for the immediate geographic area (provided by Ms. Petso via the office of Superintendent of Public Instruction). Mr. Carlstadt said ESD does two enrollment projections, a more conservative one for staffing, and a second more aggressive enrollment projection for facility planning. He said their enrollment is currently on a modest growth slope, approximately 1+ percent.. He said residential development that may occur on the former Chevron property in Woodway would place additional student demands in the southwest quadrant of ESD but has not been factored into enrollment projections. He agreed the major growth in ESD is occurring in the north and east portions of the district, which is primarily, unincorporated Snohomish County. However, there are not the same physical assets in this area because historical growth has been in the southern portion of the district. He said boundary adjustments are made based on the physical asset inventory of the district although the facilities may not be in the perfect location. Mayor Fahey asked what opportunities ESD would have for the facility if it was still in Snohomish County. Mr. Carlstadt said Snohomish County's definition of schools is broader with little consideration to whether it is an elementary or high school. Laura Brent (consultant for ESD) said in most residential zones in Snohomish County, a CUP would be required for a school but there is no distinction between a high, middle, or elementary school. Mayor Fahey referred to comments regarding the public process if the use on the property changed if the property was rezoned Public. She asked Mr. Wilson to clarify the comment in a memo from the Planning Board to the City Council (page 6 of the Council packet), "If the rezone is approved, it will not I est the School District with the right to do whatever they want" and to clarify the alternate uses ESD would have for the site if it were zoned Public. Mr. Wilson said the comment meant if the rezone was approved, ESD would still need to adhere to City processes such as building permits, SEPA, Architectural Design Board (ADB) review, etc. Although the rezone may provide ESD additional flexibility regarding how they could use the interior of the building, they would still be subject to City regulations regarding changes to the site and/or buildings. He noted the ADB review is a public process that is subject to appeal to the City Council. Mayor Fahey asked whether ESD was precluded from implementing their short-term two -year plan to rotate elementary populations into the site if the rezone did not occur. Mr. Wilson said Mr. Snyder previously indicated ESD would retain their vested non - conforming rights to use the property for a school and an elementary program would be an appropriate program for the site. Mayor Fahey asked whether ESD would lose their right to use the site as a high school after using it to transition elementary school students. Mr. Wilson answered they would be vested at what the highest use of the property at the time (a high school). If it was used during the intervening time to transition elementary school students and the upper parameter of a high school program was not exceeded, they would be allowed to reinstitute a high school program as long as a school program did not cease for a 12- month period. Mayor Fahey recalled staff had previously stated that once ESD stopped using it as a high school, a CUP would be required to return to that use. Mr. Snyder said if a use has been legally established and a CUP is later required, that use would not require a CUP (the use would be vested). Edmonds City Council Approved Minutes November 17, 1998 Page 22 Mr. Snyder said the comments provided by citizens ate excellent examples of the need to change the Public zone requirements to regulate secondary impacts. However, ESD is vested in the right to have the City's ordinances applied to this application as they currently exist. He said the City's existing zoning ordinances assume ESD will do what is best for citizens and placed little or no control over what, where, how and when they do it. He acknowledged applying a P zone to the property would recognize that broad discretion. He said the best protection citizens have is to hasten the development based requirements that regulate secondary impacts (currently being reviewed by the Planning Board). Although ESD has a vested right to have their rezone application heard under the existing regulations, they do not vest in the development requirement rights until a building permit application is submitted. Having revised development requirements in place would allow the City to regulate and review changes in the program through the CUP process. If the Council's decision was appealed, as has been threatened, the Court would determine whether the Council's decision was arbitrary and capricious. Although citizens have raised legitimate concerns to change the way the City addresses uses, that issue is not before the Council. The record indicates this property is public trust land designated for school uses, has been used as a high school for 30 years, and has been in continuous school use. It would not be an example of spot zoning which is a change inconsistent with the Comprehensive Plan and zoning requirements on a small scale that would intrude on neighborhood uses. He said the property is designated in the Comprehensive Plan as Public; the Capital Facilities Plan, adopted by the Council in the Comprehensive Plan, designates it as school use; and the GMA requires that the City's Comprehensive Plan be consistent with its zoning code. He offered to explain the cost of being wrong in Executive Session. He observed it was difficult for the Council to do something a roomful of people want them to do, but that the Council has little or no authority to do. If ESD declared the property surplus, the City could impose zoning moratoria or interim zoning regulations to lock in the use of the property to allow review of the Comprehensive Plan designation. Councilmember Van Hollebeke recalled Mr. Snyder previously stated the site must remain an active high school site (shop class, etc.) within a school year to continue ESD vesting. It now appears any school use would .not result in the loss of the high school use designation. Mr. Snyder said if there are any ambiguities in the City's Code, the law requires they be interpreted to honor an individual's common law property rights (give the broadest use). He read from Section 17.40.010 which states "a non - conforming use is one that was once allowed by applicable land use regulations but is no longer allowed due to the passage or later change in the zoning ordinance. A non - conforming use may be continued unless required to be abated. It may not be expanded in any way including additional lot area, floor area, height, number of employees, equipment or hours of operation." He said there would be a consistent educational use of the property although the City's Code does not define "continuation." Councilmember Van Hollebeke clarified as long as the site is used as a school (whether it is elementary or high school) and the student/teacher population is not exceeded, ESD would be allowed to use it as a high school in future years without a CUP. Mr. Snyder said the development regulations and/or non- conforming use regulations could be changed to not allow a use to expand again without a review" or CUP process. The number .of students /teachers are easy to calculate and regulate based on historical figures, only the students are punished by restrictions on installation of new equipment or reconfigurations to accommodate students. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER WHITE, TO EXTEND THE HEARING FOR 15 MEN -UTES. MOTION CARRIED. (Council President Haakenson did not participate in the vote.) Edmonds City Council Approved Minutes November 17, 1998 Page 23 Councilmember Nordquist said his understanding was a change to the zoning had to be justified by a change in the circumstances. Mr. Snyder said ESD has not indicated any plans that are inconsistent with the current use of the property or its projected use. Based on the Capital Facilities Plan, ESD wants to maintain the right to move programs to the facility to suit the overall needs of the district, which the Comprehensive Plan, their enrollment population projections, and the Capital Facilities Plan support. He summarized the argument raised by citizens regarding the OS zoning is more compelling than the argument for RS. Mayor Fahey asked if athletic fields were allowed in a Public zone and if not, would the rezone to P eliminate the ability to maintain playfields on the site. Mr. Wilson answered a P zoning would allow more intensive athletic fields such as a stadium. The OS zoning, the current zoning for most of the athletic fields at the old Edmonds - Woodway site, would allow the playfields to continue to exist. Mr. Snyder said the City Code does not define playgrounds or playfields so Webster's definition is used. Playfields and playgrounds are outright permitted uses in the OS zone. Under the P zone, parks, playfields, open -air recreational facilities are outright permitted uses. More intensive . uses such as stadiums, bleachers, playfield lighting, clubhouses, require a CUP. Councilmember Van Hollebeke asked Police Chief Hickok to address the suitability of the site and problems that have occurred in the past as a high school site. Councilmember Van Hollebeke said numerous citizens have expressed concern with the Options program and other programs that could be located on the site. Chief Hickok answered there were problems a year ago at the Options program, which the Police Department felt they controlled, although he acknowledged the neighbors might feel otherwise. He said the crime statistics in the neighborhood were relatively low, most problems were on campus. He said there were the typical problems at the old Edmonds - Woodway High School, the same as exist at the new high school. He said if the site was used to as a transitional site for Lynnwood High School students, the Police Department likely would have the same problems with kids on the street, loitering, and smoking but did not anticipate any new problems that have not been addressed and handled in the past. Councilmember White asked ifanything prevented ESD from locating the Options program on the site now. Mr. Wilson answered no. Mayor Fahey asked if there was a City process that would permit public input if another use occurred on the site. Mr. Wilson answered the P designation is geared toward public use. ESD's sale of the property for a private school use would not be consistent with permitted uses in the P zoning classification. Any new facility would be subject to regulations applicable to that facility such as Architectural Design Board review, the SEPA process, etc. He stressed only limited uses were permitted outright. As an example, Councilmember Earling asked if it would be permissible to use the site for the International Baccalaureate program following the use of the site for elementary students for the next two years and Lynnwood High School students if Lynnwood High School were rebuilt. Mr. Wilson assumed that would be permissible since it is a program offered at the high school level. Mr. Snyder said the limitations for people, floor space, equipment are worded numerically and not what occurs on the site. Councilmember Earling said this was an example of a specialty program that could be located on the site that may be more acceptable to the community. Mayor Fahey remanded the matter to Council for deliberation. Edmonds City Council Approved Minutes November 17, 1998 Page 24 J Councilmember White appreciated the zeal with which citizens participated. He recalled he asked Council President Haakenson before the meeting what his opinion was on this issue and Mr. Haakenson replied he did not know. Councilmember White said one of the challengers to Council President Haakenson's participation indicated he had a great deal of integrity, yet he is not participating in this decision because he recused himself based on challenges to his lack of integrity. Councilmember White said the lack of communication by ESD has created many of the problems. He observed the group of citizens at the meeting have stated their opinion that ESD cannot be believed. He observed although ESD has stated they have no intent to sell the property, their credibility is an issue for the public. He said the fact that ESD could move the Options program into the site now but have not is an important fact to consider. He said the most offensive statement ESD made to the public this evening was ESD's response to why the rezone was being requested now -- "because we can." He agreed this was a good answer from an attorney but not from ESD and the School Board representatives. Councilmember White said his decision is based on his belief that there will be a diminution in property values based on the fear factor created by ESD's conduct. Based on that fear, he believed the property values surrounding the site may be in jeopardy, which is a criteria the Council is to consider. He questioned why ESD did not wait to rezone the property as they can currently use the site for the uses indicated in their current plan for the next several years. When ESD determines they want to use the site for something else, they could submit a project - specific rezone request. However, although ESD can use the site for the next several years, they must do so within staffing, equipment, geographic, and structural parameters. ESD has not indicated this would be problematic. There also has not been information submitted indicating the building is structurally unsound or will need major renovation. Although the building cannot be upgraded, it may be maintained. Therefore, there did not appear to be a prohibition for ESD use of the site for the uses they currently anticipate. He said although ESD may choose to appeal the Council's decision, he suspected it would be less costly for ESD and the City for ESD to re- evaluate their position and submit a project - specific request or wait a few years and communicate better with the community. COUNCILMEMBER WHITE MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO NOT ADOPT THE PLANNING BOARD'S RECOMMENDATION. Councilmember Miller shared Councilmember White's concerns, commenting ESD has requested the rezone to Public as a technical amendment, a non - project rezone, without further reason. ESD has indicated beyond 2001, they have no plans for the facility and plan to use it as a transitional site for elementary students and possibly high school students. ESD has indicated the OS designation is inconsistent with the Comprehensive Plan and their intended uses for the future of that school but that is in conflict with their plans beyond 2001. He said ESD has not met the burden of proof for criteria C (surrounding areas) or criteria F (values) and have done a dismal job of meeting that burden as well as communicating to the community. Councilmember Plunkett said although he would have welcomed even more public participation, he stressed all Councilmembers have worked hard to be fair and open about this process, including Council President Haakenson. He said rezoning this property Public would be inconsistent with the Comprehensive Plan by eliminating the open space. Further the P zone would allow various school district facilities such as a bus barn, stadium, administration building to be sited on the property, which is a clear contradiction to the suitability criteria. For these reasons, he said ESD failed to meet the rezone criteria regarding consistency and suitability. He supported the. motion to deny the application and Edmonds City Council Approved Minutes November 17, 1998 Page 25 encouraged ESD not to seek remedy in the court but instead 1) return to the community with a site - specific plan, and 2) to provide input on the revisions to the community facilities requirements. Councilmember Van Hollebeke said after reading the materials, he came to the meeting with the belief the Council had a very narrow possibility in its choice. He was saddened Council President Haakenson recused himself and the balance and wisdom he brings to the Council was not included in the discussion of this issue. He agreed Council President Haakenson was a man of highest integrity and it was a shame that as soon as someone is elected, they become suspect. He stressed Councilmembers work extremely hard because they care about the community. He indicated he would support the motion. Councilmember Nordquist said the question is whether the action is compatible with the area around it. He felt the Council's decision had to be made based on a document that is insufficient and leaves much to the imagination - the Capital Facilities Plan. He appreciated citizens' input and indicated he would support the motion. Councilmember Earling said this hearing process has highlighted the best and worst of having a public hearing. He has stepped down on issues when he knew it was appropriate and said Councilmembers instinctively know when it is appropriate to step down. The challenge made to Council President Haakenson's participation was an attempt to change the outcome of the vote. However, it appeared the vote would be unanimous and he said Council President Haakenson likely would have voted the same. Councilmember Earling commended ESD's attorney for keeping his professional composure in the heat of battle and although he did not agree with ESD's position, Mr. Quehm did an excellent job of representing his client. Councilmember Earling observed there was a lot of terrific, heartfelt, factual information provided by citizens. However, there was also misinformation presented. He wished the public would not state misleading information. Councilmember White said the degree to which any member of the public speaks is controlled by each Councilmember. Mayor Fahey presides over the hearings and sets a time frame that the Council agrees to such as the three- minute time limit. However, it is clear any member of the public could be kept talking for a substantial length of time. He said it should not be suggested that Mayor Fahey has somehow curtailed the Council's ability to hear the facts and listen to public testimony. MOTION CARRIED UNANIMOUSLY. (Council President Haakenson did not participate in the vote.) Mayor Fahey commented she was troubled by the perception that she entered this process with a pre- determined belief in what the outcome should be. Any comment she made to ESD to suggest they should move forward with a P zone was made because in the context of the discussions at the time, it appeared a change in the zoning was necessary for them to proceed with their plans. She was surprised to discover ESD's plans for the site were not on a timeline that required an immediate change in the zoning. She said, despite legal counsel that ESD was within its legal parameters to make this request, the information ultimately presented casts the decision of ESD in a different light. Like other members of the Council, she began to look at this issue from a different perspective. This was not due to a few citizen activists but because so many residents felt so strongly about what was occurring in their neighborhood. She was heartened to see so many people participate in a process to make their opinions known. She thanked citizens for sharing their opinions, noting it did make a difference in the outcome of the process. Edmonds City Council Approved Minutes November 17, 1998 Page 26 COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER EARLING, TO EXTEND THE MEETING FOR 10 MINUTES. MOTION CARRIED. ings of 4• APPROVAL OF FINDINGS OF FACT REGARDING A CLOSED RECORD APPEAL MEETING Fact, wame HELD ON .00TOBER 20, 1998 - APPEAL OF THE HEARING EXAMINER'S DECISION TO ppeal DENY A FOUR -LOT SHORT SUBDIVISION, WHICH INCLUDED: A REASONABLE USE EXCEPTION FOR ENCROACHMENT INTO A STEEP SLOPE CRITICAL AREA BUFFER; TWO SETBACK MODIFICATION REOUESTS; AND ENGINEERING SITE IMPROVEMENT ALTERATIONS. THE DECISION RESULTED IN APPROVAL OF A THREE -LOT SHORT SUBDIVISION. (Property Location: 9222 - 240TH Street SW / Applicant: Charles Warner) (Council President Haakenson returned to his seat on the Council.) City Attorney Scott Snyder said the Council's motion on October 20, 1998, affirmed the Hearing Examiner's recommendation. The Applicant/Appellant in his argument said the Hearing Examiner failed to make a required finding, whether his application was consistent with the City's zoning ordinance, a required finding under the subdivision ordinance. The Applicant/Appellant further indicated his back two lots could be served by a more narrow width road. The Findings refer to this as the "telescoping road theory" which is something staff has addressed in the past. Mr. Snyder said the Findings were not placed on the Consent Agenda for approval because this issue had not been addressed in the Council's motion. If the Council finds the rationale he provided in the Findings is appropriate, they can be passed by motion. If further deliberation is desired to discuss this issue, it would require re- notification. COUNCILMEMBER WHITE MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, FOR APPROVAL OF THE FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR ITEM 4. MOTION CARRIED. 5. AUDIENCE COMMENTS dmonds- Kevin Clarke, 23924 107" Place W, Edmonds, complimented Mayor Fahey and Council President oodway Haakenson for their conduct under fire. He was thankful he had an opportunity to speak on issues and Rezone caring thanked the Council for their lengthy review of the materials. He recalled City Attorney Scott Snyder wanted to ensure there was an accurate record on this issue. Mr. Clarke said his goal was to make this process appeal -proof to ensure every issue was raised and discussed so it would be a fair hearing with everyone notified. His goal is to make the community and ESD better, including a viable use for the old Edmonds - Woodway High School. He stressed his challenge was not intended to imply Council President Haakenson did not have integrity. He commended Council President Haakenson for recusing himself based on what the public might think. Code Marilyn Parry, 9016 242 "a Street SW, Edmonds, said on November 2, her neighbor, Dave McDowell, Enforcement brought a problem to the Council's attention. She referred to a three -page document she distributed to Issue the Council and explained Mr. McDowell lived on his property for over 40 years "when the area was country." She purchased her private, serene property in June 1988 due to health problems that require a stress -free environment. She said Mr. McDowell does not like her but must treat her courteously. She said he has harassed her in numerous, intolerable ways including allowing his dog to wander on her property. She explained in spring 1996, Mr. McDowell got "lots and lots of chickens," which proceeded to make her life a misery. She recalled Mr. McDowell requested the Council grant him a variance to allow him to keep the chickens and to allow him to continue his illegal behavior. She said the City has clear ordinances against chickens. She described damage caused to her property by the chickens. Edmonds City Council Approved Minutes November 17, 1998 Page 27 Code . John Snowden, 1561136 1h Avenue NE, Lake Forest Park, said in June 1988, he and his wife became Enforcement co- owners of a property in Edmonds with their daughter. Her neighbor, Dave McDowell, stated in his Issue appeal to the Council that he has lived in his residence for 49 years and has had chickens for 40 years; however, when his daughter purchased the property in 1988, there. were no. chickens. He disputed comments Mr. McDowell made in his appeal to the Council regarding comments an animal control officer made. Mr. Snowden referred to the fencing Mr. McDowell says he has erected and said it contains various materials such as scrap wood, metal, tree branches, and wire fencing that allows chickens to walk through. Mr. Snowden referred to allegations Mr. McDowell has made such as removal of plants that were intended to restrict the chickens, that he had been threatened and feared for his safety, that has not seen damage caused by his chickens, and that he had no prior knowledge his chickens caused any problems. Mr. Snowden said his daughter has been caused a great deal of emotional distress that triggers migraines. He said the City has requirements in its Code that Mr. McDowell must be required to comply with. Mayor Fahey said this problem is being worked on. She acknowledged the issue of grandfathering had been raised as the City's rules were not in effect until after the annexation and a time period must pass before abatement can occur. ood Drive Al Rutledge, 7101 Lake Ballinger Way, Edmonds, encouraged the public to donate food to the Kiwanis food drive at Top Foods on Friday and Saturday from 10 - 6 to benefit the Edmonds Food Bank. findings of Charles Warner, 2002188' Avenue W, Edmonds, addressed the inclusion of the additional Findings Fact, Warner regarding the closed record appeal meeting held on October 20, 1998 (Item 4). He said Mr. Snyder's Appeal Findings are not true and are not supported by his request. He recommended the Council consider how certain sections of the Code are being implemented as he felt there is a disparity between new, expensive development and spot development that is less expensive. He said there was no attempt in his proposal to telescope a road and no precedence was being set. His proposal was a defined roadway with an ending and a defined turnaround and a shared driveway. He said the design criteria states all proposals shall be designed to minimize grading including shared driveways. He stressed a shared driveway was not a street and had no ability to become a street. He said the Findings discourage the type of development he does in order to provide homes at the lower end that will bring kids back into the neighborhood. Lora Petso, 10616 237'h Place SW, Edmonds, encouraged the City to amend the Comprehensive Plan amp Plan map to make it consistent with the existing zoning and with the intention of other areas of the P Comprehensive Plan regarding quality of life and open space. Correction Roger Hertrich, 1020 Puget Drive, Edmonds, said he hoped his comments during the hearing to Minutes regarding the description "wall graphics exempt from height" were considered and that the description had been corrected. He also requested his reference in the minutes to ARCO be corrected to Texaco. City Clerk Sandy Chase said the tapes were reviewed and Mr. Hertrich had stated ARCO. She said an additional correction Mr. Hertrich requested had been made (liability changed to livability). Edmonds- Jeff Lewis, 23621 92 °d Avenue W, Edmonds, thanked Mayor Fahey and the Council for their oodway participation in the hearing. He stressed he did not question Council President Haakenson's integrity, he Rezone only felt people who didn't know him might question it. Mr. Lewis said Council President Haakenson's Baring recusing himself was a supreme act of leadership and humility that is not often seen in politics. He complimented Council President Haakenson for stepping down for the betterment of the process even though he knew he had integrity. Regarding Councilmember Earling's comment that citizens may have Edmonds City Council Approved Minutes November 17, 1998 Page 28 intentionally stated misinformation, he was not aware of anyone who intentionally tried to mislead the Council. onds- Carolyn Bacon, 10133 236th Place SW, Edmonds, said thanks to citizen activists, she researched the woodway rezone of the old Edmonds - Woodway High School. She said they have lived in Edmonds for 11 years I-learine after living in Seattle. She said her pursuit of this issue has made her a better citizen and she was proud g to be a member of the Edmonds community. 6. REPORT ON COUNCIL COMMITTEE MEETINGS Due to the late hour, the reports were postponed to a later date. 7. MAYOR'S REPORT Budget Mayor Fahey advised there is a budget work session scheduled for Thursday at 5:30 p.m. in the meeting Work Session room at City Hall. 8. COUNCIL REPORTS Council President Haakenson said he wanted to be clear he did not take the challenge to his participation in the hearing personally. He agreed there were numerous people who do not know him; he stepped down because of the perception the audience may have had regarding his involvement. He thanked the Council and citizens for their kind words. COUNCILMEMBER MILLER MOVED, SECONDED BY COUNCILMEMBER EARLING, TO ADJOURN. MOTION CARRIED. The meeting was adjourned at 12:13 a.m. etilee� � C�ta.t� BARBARA S. FAHEY, MAYOR "SANDRA -S. CHASE, CITY CLERK Edmonds City Council Approved Minutes November 17, 1998 Page 29 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM - LIBRARY BUILDING 650 MAIN STREET 7:00 -10:00 P.M. NOVEMBER 17, 1998 7:00 P.M. - CALL TO ORDER FLAG SALUTE APPROVAL OF AGENDA 2. CONSENT AGENDA ITEMS (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF NOVEMBER 10, 1998 (C) APPROVAL OF CLAIM WARRANTS #27811 THROUGH #28747 FOR THE WEEK OF NOVEMBER 9, 1998, IN THE AMOUNT OF $286,431.21 (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM BARBARA E. DAHL ($262.87) (E) APPROVAL OF NEW STORMWATER MAINTENANCE WORKER POSITIONS IN THE PUBLIC WORKS DEPARTMENT (F) AUTHORIZATION TO CONTRACT WITH WESTERN HARDWOOD, INC. TO REPAIR AND REFINISH THE GYMNASIUM FLOOR ($8,948.64) (G) AUTHORIZATION FOR MAYOR TO SIGN AGREEMENT WITH LUND'S OFFICE ESSENTIALS TO PROVIDE OFFICE SUPPLIES, FURNISHINGS, EQUIPMENT AND PRINTING SERVICES (H) APPROVAL OF FINDINGS OF FACT FOR A CLOSED RECORD APPEAL MEETING HELD ON OCTOBER 20, 1998 AND NOVEMBER 2, 1998 — APPEAL BY ROGER HERTRICH OF THE HEARING EXAMINER'S DECISION TO DENY HIS APPEAL OF A STAFF INTERPRETATION (FILE NO. AP- 98 -85) PERTAINING TO EDMONDS COMMUNITY DEVELOPMENT CODE SECTION 20.60 TO CONSIDER GAS PUMP ISLAND CANOPY LOGOS AS "WALL GRAPHICS," WHICH ARE EXEMPT FROM HEIGHT AND AREA LIMITATIONS. THE SUBJECT PROPERTY IS LOCATED AT 1011 PUGET DRIVE AND IS ZONED "NEIGHBORHOOD BUSINESS — BN." (1) PROPOSED ORDINANCE AMENDING THE PROVISIONS OF ECDC 16.50.020(A) TO EXEMPT SUBSURFACE BUILDINGS AND STRUCTURES, PROPERLY LANDSCAPED FROM SETBACK REQUIREMENTS AND PROVIDING FOR A PUBLIC HEARING 3. (90 Min.) RESCHEDULED PUBLIC HEARING — REVIEW AND CONSIDERATION OF THE PLANNING BOARD RECOMMENDATION ON AN APPLICATION BY EDMONDS SCHOOL DISTRICT TO REZONE THE FORMER EDMONDS - WOODWAY HIGH SCHOOL SITE LOCATED AT 23200 100T" AVENUE WEST FROM THE CURRENT "SINGLE- FAMILY" DESIGNATION ON APPROXIMATELY THE EASTERN TWO- THIRDS OF THE SITE, AND "OPEN SPACE — OS" ON APPROXIMATELY THE WESTERN ONE -THIRD OF THE SITE, TO "PUBLIC — P" IN ORDER TO FULLY IMPLEMENT THE EXISTING COMPREHENSIVE PLAN LAND USE DESIGNATION FOR THE SCHOOL SITE. (File No. R -98 -128) 4. (5 Min.) APPROVAL OF FINDINGS OF FACT REGARDING A CLOSED RECORD APPEAL MEETING HELD O OCTOBER 20, 1998 — APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY A FOUR -LOT SHOR SUBDIVISION, WHICH INCLUDED: A REASONABLE USE EXCEPTION FOR ENCROACHMENT INTO STEEP SLOPE, CRITICAL AREA BUFFER; TWO SETBACK MODIFICATION REQUESTS; AND ENGINEERING SITE IMPROVEMENT ALTERATIONS. THE DECISION RESULTED IN APPROVAL OF A THREE -LOT SHORT SUBDIVISION. (Property Location: 9222 — 2401' Street SW / Applicant: Charles Warner) 1 CITY COUNCIL MEETING AGENDA NOVEMBER 17, 1998 Page 2 of 2 5. AUDIENCE COMMENTS (3 Minute Limit Per Person) 6. (15 Min.) REPORT ON COUNCIL COMMITTEE MEETINGS 7. (5 Min.) MAYOR'S REPORT 8. (15 Min.) COUNCIL REPORTS 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 appears on Chambers Cable, Channel 32. Delayed telecast of this meeting appears the following Wednesday, Friday and Monday at noon on Channel 32.