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08/20/2002 City Council1 EDMONDS CITY COUNCIL APPROVED MINUTES August 20, 2002 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Gary Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds, followed by the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Dave Earling, Council President Jeff Wilson, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT David Stern, Chief of Police Kevin Taylor, Assistant Fire Chief Duane Bowman, Development Serv. Director Stephen Clifton, Community Services Director Peggy Hetzler, Administrative Services Director Noel Miller, Public Works Director Brent Hunter, Human Resources Director Arvilla Ohlde, Parks and Recreation Director Stephen Koho, Treatment Plant Manager Rob Chave, Planning Manager Dave Gebert, City Engineer Frances Chapin, Cultural Resources Coordinator Steve Bullock, Senior Planner Kathleen Taylor, Associate Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Wilson requested Item F be removed from the Consent Agenda. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR APPROVAL OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve 8/13/02 (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 13, 2002 Minutes pprove (C) APPROVAL OF CLAIM CHECKS #57385 THROUGH #57525 FOR THE WEEK OF ]aim AUGUST 12, 2002, IN THE AMOUNT OF $450,649.43 hecks laim for (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM JOYCE LAINIER amages ($421.17) Edmonds City Council Approved Minutes August 20, 2002 Page 1 ne Dept. Surplus (E) DECLARING CERTAIN FIRE DEPARTMENT OBSOLETE ITEMS SURPLUS Surplus (G) AUTHORIZATION TO CONTRACT WITH JAMES MURPHY TO SELL SURPLUS ehicle VEHICLE UNIT #848 (A 1982 DODGE VAN) Electrical (H) AUTHORIZATION FOR MAYOR TO SIGN AN ELECTRICAL UTILITY EASEMENT Utility WITH THE SNOHOMISH COUNTY PUD NO. 1 TO PROVIDE NEW ELECTRICAL Easement SERVICE EQUIPMENT FOR THE FRANCES ANDERSON CENTER Item F: Authorization to Call for Bids for the 2002 Water Main Reulacement Program Councilmember Wilson inquired whether there were plans to coordinate the water main replacement on Olympic View Drive with Lynnwood's project on Olympic View Drive. City Engineer Dave Gebert responded yes, explaining the City's plans to coordinate the work on Olympic View Drive with Lynnwood's project to reduce the cost of the project as well as minimize disruption by having only one project rather than two. 002 COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR Water Main APPROVAL OF ITEM F. MOTION CARRIED UNANIMOUSLY. The item approved is as Replace- follows: ent (F) AUTHORIZATION TO CALL FOR BIDS FOR THE 2002 WATER MAIN REPLACEMENT PROGRAM rd# 3417 3. ORDINANCE NO. 3417 AMENDING THE 2002 BUDGET AS RESULT OF UNANTICIPATED mend TRANSFERS AND EXPENDITURES OF VARIOUS FUNDS he 2002 udget Administrative Services Director Peggy Hetzler explained the packet included a proposed ordinance to amend the 2002 budget for unanticipated transfers and expenditures that occurred in the first half of 2002. She explained the ordinance was presented to the Finance Committee and the expenditures were discussed. The Finance Committee recommended the proposal be presented to the full Council. Ms. Hetzler explained Table 1 in the Council packet was a summary of items the Council had previously acted upon. The largest portion was an $800,000 transfer from the Council Contingency Fund to the General Fund. The total expenditures in Table 1 were $1,437,605; of this amount, approximately $12,000 would require the use of General Fund ending cash. Ms. Hetzler referred to Table 2 that included new, supplemental appropriations for Council consideration. The requests included a transfer from ending cash balance to fund two construction projects for the 74th Place Slope Stabilization Project and final close out costs for SR 99 improvements. She noted the largest request was additional funding for costs associated with LEOFF 1 benefits. She explained the City was required to provide medical insurance for LEOFF 1 retirees; during 2002, two LEOFF 1 employees retired and added to the costs. Further, the LEOFF insurance premiums have increased by 20% since 2001. She noted Table 2 included several carry -forward items included in the 2001 budget, particularly in the Police Department Criminal Justice Fund. These items were budgeted in 2001 but not paid until 2002 and a carry -forward of the funding budgeted in 2001 into 2002 was necessary. She pointed out an unanticipated billing for operating costs on the 800 MHz system had been received of approximately $18,000 and an appropriation from General Fund ending cash was requested to fund it. The total of new items was $180,820. Ms. Hetzler explained the City was required to take public comment prior to amending the budget ordinance. Edmonds City Council Approved Minutes August 20, 2002 Page 2 Mayor Haakenson opened the public participation portion of this item. There were no members of the audience present who wished to provide testimony and Mayor Haakenson closed the public participation portion and remanded the item to Council for action. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR APPROVAL OF ORDINANCE N0. 3417, AMENDING ORDINANCE NO. 3391 AS A RESULT OF UNANTICIPATED TRANSFERS AND EXPENDITURES OF VARIOUS FUNDS, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. MOTION CARRIED UNANIMOUSLY. Edmonds 4. EDMONDS PUBLIC FACILITIES DISTRICT UPDATE Public Facilities District Community Services Director Stephen Clifton introduced consultants assisting the Edmonds Public Facilities District (PFD) Board on behalf of the Edmonds Centre for the Arts, Sherrill Myers, LMN Architects; Lanie McMullen, Operation and Facilities Consultant; and Kjristine Lund, Project Manager. Kjristine Lund explained that over the past three months, the PFD has been refining the numbers on a business plan that will be presented to the Council after August 30 that will address how to make the Edmonds Centre for the Arts a viable project in the community, particularly in light of current economic conditions. She clarified what the project is and is not today, given that this project has some history to reach this point. She explained the project was still about saving a historic landmark and creating a high quality performing arts center. The project was no longer about a mixed use housing development on the site and no longer includes any height changes for the site. The project will be a gathering place for the performing arts and some community meetings, but was no longer envisioned as a conference destination. The growth of the facility will be phased and the requirements for parking will be reduced. She noted the project being considered would require approximately 160 parking spaces, 100 on site and efforts are underway to provide access to nearby parking lots or valet service for the remaining parking. Ms. Lund explained funding for the project would not require new taxing in the City. Efforts are being made to ensure capital expenditures are tracked with available revenue sources, and a business plan is being prepared to illustrate how to manage risks to ensure this was a straight -forward and achievable project. Acquisition of the site was a major component but could not be discussed further due to ongoing negotiations. She noted the Council was kept apprised via the City Attorney and Executive Sessions. Ms. Lund introduced Sherrill Myers, LMN Architects, explaining LMN was nationally recognized for doing performing arts facilities. Mr. Myers was recently the architect working on Benaroya Hall in Seattle and was currently working on the Seattle Opera House renovations. She introduced Lanie McMullen, explaining she was previously a theater director, a consultant for Arthur Anderson and had done independent consulting on performing arts facilities for many years. Ms. Lund noted Ms. McMullen was credited with saving the Everett Theater. Sherrill Myers, LMN Architects, explained LMN was in the process of completing a report that would include an Executive Summary outlining the description of elements of the project, design drawings, cost estimates, schedule for construction, etc. The report will also have as attachments a series of reports regarding mechanical engineering, structural, electrical, theater consultants, etc. Mr. Myers displayed photographs of the Puget Sound Christian College (PSCC) site, explaining the main thrust of the project was renovating the existing theater built in 1939. The project would retain the theater, gymnasium, and music buildings and demolish the remaining buildings. He displayed a site map illustrating buildings to be retained and buildings to be demolished to provide for onsite parking. He Edmonds City Council Approved Minutes August 20, 2002 Page 3 displayed a drawing of phase 1 that illustrated the location of the theater, gymnasium, and music building, and parking, noting the existing boiler house would be retained which would allow the gymnasium and music building to operate while the theater was under renovation as well as provide cost savings by reusing that item. The theater projects included safety/ADA improvements, lobby and audience amenities, acoustics/sight lines/technical system improvements, and improvements to the stage, new dressing rooms/green rooms, new HVAC system, new electrical system, and onsite parking. He displayed drawings of Level 1 and Level 2, identifying the proposed improvements on each. He noted the meeting rooms on the second floor would be retained basically as they exist. Mr. Myers concluded the project would result in the preservation of a historic landmark, fully functional theater, retention of the music building to provide rehearsal space, retention of meeting rooms, and provide a civic landmark as well as provide an opportunity in phase 2 to build a parking structure with a meeting room above it. Lanie McMullen commented she had done cultural planning for at least 89 cities in the past 15 years. She pointed out this was an incredible opportunity for the City for four reasons. 1) Seed monies were available for the capital project via PFD funds returned to the City that could not be used for any other purpose. This was an opportunity to preserve a legacy and building a community amenity that may spark economic development over time. 2) Long term tenant leases were already built in to the plan which offset the cost of art as art rarely pays for itself. 3) This is an opportunity to partner with several entities including the Edmonds PFD, Snohomish County, the City and Edmonds Community College. 4) The location of the building and appropriate programming provides the opportunity to draw people to the downtown core — a huge economic driver. Ms. McMullen explained she was hired to do an Operating Pro Forma that identifies appropriate programming over five years, studies the market feasibility of the programming, and considers the management configuration to determine opportunities for efficiencies and economies. She concluded her analysis indicated this project was absolutely operationally feasible. Council President Earling reiterated the quick timeline this project had, commenting the appraisal and environmental assessment would be provided by Monday, August 26 and reviewed to determine how they would affect the property negotiations. He advised there would be an Executive Session on Tuesday, August 27 at 6:00 p.m.; all available information would be delivered to Councilmembers on Monday. He requested Councilmembers advise where they wanted the information delivered to allow them sufficient time to review it. Councilmember Petso expressed concern about the parking, inquiring about the 94 spaces that appeared to be provided versus 750 seats which equated to approximately eight people per car. She asked whether parking could be expanded and how the additional vehicles would be accommodated. Mr. Myers explained the City's code required 160 spaces for a theater of this capacity. The proposed seating was 725-750. The proposed onsite parking covered the available surface on the site. He explained there were numerous available spaces available at night in nearby City parking lots, approximately 92. He noted it was common in facilities such as this to have valet parking. Councilmember Petso asked whether there were future plans for onsite parking at the site. Mr. Myers noted phase 2 would have a 2-3 story parking structure in the event it was needed and funds were available. He noted there was no more capacity for parking on the site without a parking structure. Councilmember Petso asked whether adjacent properties could be acquired to provide additional parking. PFD Board Chair Terry Vehrs responded that property was zoned residential. Edmonds City Council Approved Minutes August 20, 2002 Page 4 Councilmember Plunkett asked for clarification whether the valet parking and onsite parking met the requirements of the facility. Mr. Myers agreed it did. Councilmember Plunkett pointed out valet parking in facilities such as this was common. Mr. Myers agreed, noting it was very popular at facilities such as the Seattle Opera House particularly for those arriving late. Contract 5. CLOSED RECORD REVIEW ON THE PLANNING BOARD RECOMMENDATION TO Rezone — APPROVE A CONTRACT REZONE FROM SINGLE FAMILY RESIDENTIAL (RS -6) TO Lot East COMMUNITY BUSINESS (BC). THE PURPOSE OF THE REZONE IS TO ALLOW FOR AN f 515 UNDERGROUND PARKING GARAGE AND MIXED-USE DEVELOPMENT ON THE 5'" Ave. S. WESTERN -MOST 15 FEET OF THE LOT. THE PROPERTY IS LOCATED AT THE VACANT (Shapiro) LOT EAST OF 515 — 5TH AVENUE SOUTH. (Applicant: AD Shapiro Architects / File No. R-2002-101) City Attorney Scott Snyder reviewed the rules for a Closed Record Review, explaining an Open Record Hearing had been held previously. The State Statute limits land use applications to one Open Record Hearing and may permit a review. In this instance, the recommendation comes to the Council and the Council makes the final decision on rezones. Speakers were limited to those who were parties of record and their factual comments must be limited to the record. No new information could be presented. Mr. Snyder further explained rezones were both quasi judicial and had a legislative component and suggested the Council abide by the Appearance of Fairness Doctrine. Mayor Haakenson asked whether any Councilmembers had any conflicts or ex -parte communications to disclose. Councilmember Orvis advised he visited the site earlier today and had encountered Rob Driscoll. He and Mr. Driscoll discussed why the hearing was a Closed Record Review but he (Councilmember Orvis) made no commitment regarding his decision. Mayor Haakenson asked if there were any objections to Councilmember Orvis' or any Councilmembers' participation. There were no objections voiced. Mayor Haakenson advised the applicant and staff would each have 15 minutes for their presentations. Associate Planner Kathleen Taylor explained the City received an application for a contract rezone. She displayed a vicinity map of the property. The property proposed as a contract rezone was behind 515 5`t' Avenue South, the location of an existing mechanical facility as well as an existing single family home. The contract rezone was not specific to the area already zoned community business but to the property directly to the east. This was currently a vacant lot zoned single family residential RS6. The applicant proposed a contract rezone that would allow an underground parking garage to occupy the entire site but would not be visible from Holly Drive as well as a portion of the building to function as mixed use. Ms. Taylor displayed a drawing of the property in the proposed contract rezone, identifying the proposed permanent open space area and the proposed mixed use building which would have office/retail on the first floor and residential on upper floors. Ms. Taylor displayed a drawing of what could potentially be put on the site under the existing single family residential zoning, explaining a single family house could be built 5 feet from the side property line, 20 feet from the frontage on Holly Drive and a 15 foot setback on the rear. She explained the width of the property was 60 feet and the applicant proposes the mixed use area occupy 15 feet and the open space area occupy 45 feet. Ms. Taylor explained the Planning Board recommended approval of the proposed contract rezone. She reminded that because this was a Closed Record Review, no new information could be provided. Edmonds City Council Approved Minutes August 20, 2002 Page 5 Councilmember Orvis inquired about the height of the corner elevations. Ms. Taylor advised the elevation on 5`b Avenue was 80.84 feet, the elevation at the eastern property line was 90.17 feet and 87 feet in the center, and 88 feet at the northeast corner. She concluded the average elevation of the four corners of the property was 84.69 feet. Councilmember Petso inquired why a contract rezone was being proposed and whether the reason was that nine additional parking spaces could be provided via a contract rezone. Ms. Taylor responded the applicant did not indicate the number of additional parking spaces. The verbatim minutes from the Planning Board's review includes the applicant's discussion of the length of the property and space for a driveway to access underground parking. Councilmember Petso referred to Attachment 13 (page 13 of the Council packet) noting she counted the parking spaces shown to determine the number of additional parking spaces. Ms. Taylor noted a contract rezone was specific to the contract and there was currently no information in the contract guaranteeing a certain number of parking spaces. The diagram was a proposal but was not written into the contract. Regarding the open space, Councilmember Petso asked if the open space could be maintained as fenced open space for the exclusive use of the property owners or was it publicly accessible open space. Ms. Taylor answered it would depend on how the contract was drafted; at this time it was implied that it would not be publicly accessible. She encouraged the Council to direct such inquires to the applicant as only the applicant could propose changes to the contract rezone. Councilmember Petso referred to "condo creep" and how it could be prevented, particularly if this rezone were approved. Ms. Taylor responded in this case, the boundary of the zoning designation in the Comprehensive Plan was between the area designated commercial and single family residential. This property was on a boundary line, allowing for an interpretation. She emphasized this was a contract rezone versus a request to rezone the entire site to community business and contract rezones were addressed on a case-by-case basis. She noted if the property were not on the boundary between the zones, it would likely require a Comprehensive Plan amendment. Councilmember Petso pointed out that most properties in that area of 5t'' Avenue were on a boundary with a commercial zone on the frontage and other zoning behind. Ms. Taylor displayed the vicinity map and identified commercial, multifamily residential, and single family residential zoning in the area. She noted there were few other areas in the City where single family residential was adjacent to commercial zoning. In response to Councilmember Petso's question regarding dedication of the open space, Mr. Snyder referred to a Court of Appeals case and a State Supreme Court case in recent weeks that were relevant. He explained in order for a city to require dedication to a public use, the city must find in the development permit process that there was an identifiable negative impact to the public that required mitigation and this must be shown in the record by substantial and competent evidence. He noted the State Supreme Court recently found that a blanket requirement in the code that required dedication of a specific portion of property to public use, without the specific finding, was a violation of RCW 82.020, an improper tax. He explained there would be an opportunity in the development process, if there were designated negative impacts, to require mitigation by dedication of this area to the public. There was also an opportunity at this level to provide for dedication. In a contract rezone, the applicant may propose limitations or conditions in order to satisfy code requirements. He explained one difficulty was that the Council could not negotiate with the applicant; the applicant must freely offer conditions and they could not be required. He said the contract rezone as presented had only one binding condition, designating a portion of the lot open space, and the remainder was as the code currently exists. Edmonds City Council Approved Minutes August 20, 2002 Page 6 Councilmember Wilson referred to the map on page 39 of the Council packet, noting the exhibit was not part of the contract rezone. Ms. Taylor agreed it was for illustration purposes only. She identified the required 15 foot setback from the northwest corner due to the adjacent multifamily zoning. She noted it was not part of the contract rezone but was required under the City's existing development code. Councilmember Wilson inquired how the density for the residential portion of the building was calculated. Ms. Taylor answered within the Community Business Zone, there was no limitation on the number of multifamily units in a building but it was limited to the upper floors and behind the first 30 feet of the first floor frontage on 5`1' Avenue. Councilmember Wilson asked whether the portion of the underground parking garage that extends into the single family zoning could be constructed without rezoning the property. Mr. Snyder answered no, a use was not allowed on a property as an accessory use unless the primary use were an allowed use. Councilmember Petso asked the length of the area proposed for mixed use. Ms. Taylor stated the length of the property was 99 feet, there was a 15 foot setback required so the building was 84 feet in length. AAp lip cant Tony Shapiro retained five minutes of his allotted 15 minutes for rebuttal. In response to why they were offering a contract rezone, Mr. Shapiro explained Holly Drive was a residential street and the intent of their project was to minimize the impact on that street. Their proposal would remove the possible impact on the street by not building a single family residence there. He explained the parking garage would be accessible from 5"' Avenue, minimizing impact to Holly Drive residents. Garage pickup for the project would likely occur on Holly Drive but would have a minimal impact on Holly Drive as garage service is already serving residences on Holly Drive. He explained if a single family house were built on the property, it could be as close as 5 feet to the eastern property line; in their proposal, which includes a 15 foot encroachment into the single family zone, the building would be a minimum of 45 feet from the property line. He cautioned that the property had not yet been surveyed and data was taken from tax records, therefore measurements may be slightly smaller or larger. He suggested the contract rezone state that there would be a minimum of a 45 foot setback from the east property line to the face of the building. He pointed out the building was set back from the north property line 15 feet as required by the current zoning. He summarized their intent was to minimize the impact on the surrounding zoning including a below -grade parking garage that did not impact Holly Drive. Mr. Shapiro explained the calculations for the building height would be based on the four corners. They would also like to include the Walnut Street elevation as they are currently in negotiations with the owners of the Hong Kong Restaurant. Should that property become available in the future, it could be part of a phased development, thus the overall building height could be calculated including the corner at Walnut which would result in a lower structure than if the existing four property corners were used. In response to why parking was necessary under the RS -6 zone portion of the property, Mr. Shapiro explained the efficiency of the ramp down to the parking was increased when the garage area was maximized. He summarized their intent was to enhance the economic viability of the project as well as minimize the impact on adjacent properties. Councilmember Orvis referred to the map on page 39 of the Council packet, noting his understanding was the contract rezone proposed using the corners at the outer edge of the mixed use portion of the building. Mr. Shapiro responded if the zoning code were utilized to its fullest, the eastern corners of the parking garage could be used to calculate the elevation which would enhance the height calculation. He Edmonds City Council Approved Minutes August 20, 2002 Page 7 noted their intent was not to gain building height by maximizing their footprint into an area where the grade was higher. Councilmember Orvis observed that was not included in the proposed contract rezone. Mr. Shapiro pointed out the height issue would be reviewed in the ADB process and they intended to fully comply with the statute as written. They were not seeking any deviation in the height requirements. Mr. Shapiro identified the corners that would be utilized for the height calculation of the building, indicating they would be willing to have that included in the proposed contract rezone. Mr. Snyder inquired whether the applicant voluntarily offered that as a condition of the contract rezone. Mr. Shapiro agreed he had. Councilmember Petso inquired whether the parking garage extended under the proposed open space. Mr. Shapiro agreed. Councilmember Petso inquired whether the building included the mixed use area. Mr. Shapiro answered the above -grade building included that area. Councilmember Petso asked the number of stories for the mixed use area. Mr. Shapiro answered it would be three stories from the existing grade and a basement (parking garage). Councilmember Petso asked whether the garage could be expanded under the restaurant property rather than under the open space area if the restaurant property were acquired. Mr. Shapiro commented parking was a highly desirable asset in downtown Edmonds. They had not yet been successful in acquiring the restaurant property and their intent was to have this project stand on its own. He indicated consideration had been given to integrating aspects in phase 1 that would enable them to access the property to the north should it become available such as expanding the parking garage below grade to the north. Councilmember Petso asked how many units could be constructed with and without the contract rezone. Mr. Shapiro answered that without the rezone, they would have the same number of units but would lack parking. He pointed out the parking garage yields 13 stalls. As the City had reduced the parking requirement to one stall per unit, they could still construct a mixed use building on the site without a contract rezone although the reduced efficiencies may hinder the economic viability of the project. (Note: Ms. Taylor later clarified the one space per dwelling unit was only allowed in multifamily zones.) If the contract rezone was not necessary for parking, Councilmember Petso asked whether it was necessary to provide the mixed use portion of the building and why he could not build the building up to the property line. Mr. Shapiro answered that was a possibility that could be discussed. Mr. Snyder explained the Council must make its decision based on the hearing. Mr. Snyder advised if Mr. Shapiro wanted to voluntarily propose any conditions of approval, this was the time to do it because the Council could not request it. Mr. Shapiro commented if the Council felt the applicant was requesting too much, they would be willing to eliminate the above grade portion that encroaches into the single family residential zone. Councilmember Plunkett clarified the proposal was what was in the packet. Mr. Shapiro agreed. Councilmember Plunkett commented there were a number of "what ifs" such as where parking could go, what land could be purchased, what could be done with the structure, but the proposed contract rezone was as indicated in the packet. Councilmember Wilson asked where in the record it was indicated that the existing grade would not be lowered to the height of the top of the parking garage. Mr. Shapiro answered it was depicted on the map as flush with the existing grade. The contract rezone was contained on two pages and the diagrams were not part of the contract. The contract did not specifically state how the landscaped portion would be Edmonds City Council Approved Minutes August 20, 2002 Page 8 configured. Their intent was to blend with the single family neighborhood to the greatest extent possible. The landscaped "yard" was proposed as it would be more desirable than a single family house. Councilmember Wilson stated the contract rezone did not address backfilling the garage to the grade that existed prior to development to maintain the existing elevation. Mr. Shapiro said the amount of study given to landscaping/configuring the garage was conceptual and minimal; it would be their hope that they could perhaps write into the contract rezone that they will develop the landscaping on the lid in a fashion that was amenable to the surrounding neighborhood and could be reviewed during the design review process. Councilmember Wilson commented he raised this issue because the contract rezone would only include those items that were stipulated; anything not stipulated was left open to interpretation. Councilmember Orvis asked what was proposed as part of the contract rezone and whether the proposal was to require the points be measured along the existing residential/BC zone. Mr. Shapiro indicated they would like to include that in the contract rezone. Mr. Snyder suggested after the conclusion of the public hearing, the applicant may want to request this matter be continued so that he could bring proposals in writing. He cautioned the Council not to appear to be negotiating a contract rezone. Responding to Councilmember Dawson's concerns, Mr. Snyder recommended completing the public comment portion and if the applicant wanted to request a continuance to address Council concerns, that would be appropriate. The Council could begin deliberating their findings and continue the review to a later date in the event the applicant wanted to propose conditions to resolve the Council's concerns. This would separate the Council's deliberation/concems from their response. Councilmember Dawson inquired how this was not negotiating if the Council indicated these were their concerns and they would not approve the contract rezone until those concerns were addressed and then the applicant returned with a revised contract. Mr. Snyder explained the Council's responsibility was to review the criteria and determine whether the proposal as submitted fulfilled the criteria. For example, the Council may wish to continue the matter to clarify what was being proposed. He noted only one additional condition had been proposed tonight, that the height calculation be limited to the structure and not the parking garage. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO EXTEND THIS ITEM FOR 20 MINUTES. MOTION CARRIED UNANIMOUSLY. Mayor Haakenson read from the list of parties of record and the following parties of record provided testimony: Robert Driscoll, 514 Holly Drive, Edmonds, expressed concern with the architect's use of the word "proposed" at the Planning Board hearing. He expressed concern at the Planning Board hearing regarding the proposed plus/minus 15 feet, whether the higher elevation of the vacant lot would result in a taller building, and with the egress/ingress for Holly Drive onto 5t1i Avenue as it was currently only 15- 20 feet wide and the indication that the underground parking would access onto 5th Avenue. He pointed out at the Planning Board that the building south of Holly Drive was required to provide parking behind with access onto 5t'' Avenue and Holly Drive. Mr. Driscoll expressed concern with parking on Stn Avenue that reduced sight distances when exiting Holly Drive onto 5t'' Avenue. There were no other parties of record who wished to provide testimony. Rebuttal Mr. Shapiro indicated they would agree to "be fixed at the 45 foot setback regardless of the width of the proposed property" and would base the height of the building on the comers of the BC zoned property regardless of whether the restaurant property was acquired. Edmonds City Council Approved Minutes August 20, 2002 Page 9 Regarding the parking requirements for a multifamily unit in the Community Business Zone, Ms. Taylor clarified a developer would be required to have two parking spaces per dwelling unit. The one space per dwelling unit was only allowed in multifamily zones. She noted the concerns with sight distances when exiting Holly Drive should be directed to the City's Traffic Engineer Darrell Smith. With regard to comments regarding the 15 feet on the north side of the property, she clarified that within the Community Business zone, the building was required to be setback 15 feet from where the property line was adjacent to single family residential. Regarding whether the zoning code would require a contract rezone or rezone for the underground parking garage, Ms. Taylor advised the code would allow up to five parking spaces as an accessory use. She noted additional parking would require a contract rezone or rezone. She pointed out the building and landscaping would be reviewed by the ADB which was a public process. Councilmember Wilson commented the rezone process included SEPA review and although a theoretical building had been discussed, any building would require its own environmental analysis. Ms. Taylor agreed, explaining State law required the rezone have SEPA review and because the rezone was not specific to any actual building, additional SEPA review would be required at the time of design review. Councilmember Wilson commented that during that timeframe the issue of access and sight visibility on Holly could be evaluated to determine whether any parking restrictions/modifications were warranted. Ms. Taylor agreed. Councilmember Wilson referred to proposed Condition #3, which indicated all parking would be below grade only. As there was no specific use proposed for the property, there was a theoretical assumption regarding the number of required parking spaces based on what has been presented. He asked if the applicant proposed a use that required more parking than was available underground, could that use be prohibited. He clarified would the indication in the contract rezone that all parking would be below grade prevent them from using the in -lieu -of process. Mr. Snyder answered he would need to research that. He pointed out the contract rezone as proposed had no provision for amendment or expiration which was typically provided. In addition to the issue of interpretation raised by Councilmember Wilson, there was nothing in the contract allowing clarification. Councilmember Wilson asked whether the potential for the applicant to acquire the parcel to the north and combining development had any affect on the Council's review. Mr. Snyder explained the Council was limited to the application that had been proposed. He noted it would be very speculative to consider future acquisitions. He -cautioned that conditioning the property to address future purchases that were not in the ownership of the applicant would be difficult to sustain. Councilmember Wilson questioned whether the acquisition of adjacent properties would void this contract as it would be modified via the combination of properties. Mr. Snyder answered the only way to void the contract would be a rezone process. He recalled Mr. Shapiro indicated the height calculation would be from the corners of the building regardless of future acquisitions. Councilmember Wilson reiterated there was no provision in the contract for expiration. Mr. Snyder explained that absent an expiration date, the contract rezone would remain in place until a rezone was completed. He noted typically contract rezones had a specified period of time during which they remained valid without application for amendment by the applicant which allowed the Council to consider how long the assurances provided by the applicant in the contract rezone would remain in place. Councilmember Dawson referred to assurances that the entrance to the underground parking garage would be on 5`" Avenue, noting that was not included in the contract. Ms. Taylor agreed it was not in the Edmonds City Council Approved Minutes August 20, 2002 Page 10 contract but engineering requirements would dictate the access. Councilmember Dawson commented there were no assurances there would actually be landscaping on the open space portion, there could be a driveway in that area. Ms. Taylor explained the contract indicated that area would be permanent open space, and the landscape design would be reviewed by the ADB. Councilmember Dawson asked whether open space could be a parking lot or a driveway. Ms. Taylor pointed out that would not meet the definition in the ECDC. Councilmember Dawson asked what would meet the definition. Ms. Taylor answered a landscaped area, grass, trees, that met the requirements of the ADB guidelines which implied there would be buffering provided between the building and the single family zone. Councilmember Dawson asked if it could be grass with a driveway. Ms. Taylor indicated staff's interpretation would be that would not be acceptable to the ADB. Mr. Shapiro noted the landscaped area proposed as open space was the highest point of the site and would be the last place a developer wanted to put a ramp into a garage as a longer ramp due to the higher vertical drop would result in less area to park. The proposed location for the entrance to the garage at the northwest corner was the lowest point on the site. This location would be more acceptable to the City's Engineering Department due to an existing curb cut in that location. He anticipated Engineering would not find exiting traffic onto Holly Drive acceptable. Ms. Taylor referred to Item #2 in the proposed contract which indicates no access to the property (in the area of the contract rezone). Councilmember Dawson noted there were numerous locations on the building where access to the garage could be provided and there was no indication in the contract regarding the garage entrance location. Ms. Taylor agreed the contract did not address the garage entrance but that was because the area of the contract rezone application was only the portion to the east zoned RS6. Mr. Snyder explained the City's definition of natural open spaces meant public recreation areas, public open space, land, etc. He noted the definition of open was something upon which no building or structure was constructed. Councilmember Dawson stated if the Council agreed to the contract rezone, regardless of what Mr. Shapiro proposed, if it was not contained in the contract, the City could not hold Mr. Shapiro or another developer to it. She asked whether the contract rezone would apply regardless of whether the parcel was developed by Mr. Shapiro. Mr. Snyder answered yes. She noted the City would only get what was stipulated in the contract. Observing the Council had raised a number of questions, Mr. Snyder inquired whether the applicant was agreeable to continuing the matter to allow them (Mr. Shapiro and Mr. Snyder) to clarify some of the issues in the contract rezone document. He noted the items would be volunteered by Mr. Shapiro and he (Mr. Snyder) would assist with clarifying the wording. Mr. Shapiro preferred to conclude the issue tonight but would agree to a continuance if necessary. Mr. Shapiro assured the access to the garage would not be in the single family zoned area. Council President Earling inquired whether Councilmembers should contact Mr. Snyder with their concerns or voice them in the public record. Mr. Snyder preferred any concerns be voiced in the public record so that the members of the public were aware of the Council's concerns. He cautioned against negotiating a contract rezone but if Mr. Shapiro was aware of the Council's concerns, he could voluntarily address them. Councilmember Petso observed there were Comprehensive Plan policies regarding encroaching into single family zones which the proposal does underground, above ground and into the setback area. In the rezone criteria, there was a question regarding relative gain to public safety, health and welfare compared to the gain to the property owner. In the area of the mixed use development plus the area in the setback, the property owner gains 5,000 square feet of downtown Edmonds condominium living space. She noted Edmonds City Council Approved Minutes August 20, 2002 Page 11 the criteria in the Comprehensive Plan also referred to small town character of the downtown area and 5,000 square feet of additional living space would impact her evaluation of that criteria. Council President Earling referred to Edmonds Way and the lack of transition between neighborhoods, noting 5th Avenue has always been a difficult street on which to provide transition. He expressed concern with "zoning creep," questioning how adjustments would be made up and down 5`" Avenue if this contract rezone were approved. Councilmember Dawson shared Council President Earling's concern. There were good notions behind the contract rezone such as providing a buffer but although she understood the need for underground parking and the proposed landscape area to provide a buffer, she did find any reason for expanding the building 15 feet into the residential zone or violating a setback that was required in the zone. She noted the proposed contract rezone would be in conflict with the Downtown Waterfront Plan because it encroached into a single family neighborhood. The Downtown Waterfront Plan also stated the goal of extending the downtown westward, implying not expanding downtown eastward which this proposal did. Councilmember Dawson expressed concern with the theoretical development that had been discussed but not addressed in the contract. She noted someone else may develop the property in the future, particularly as there was no expiration date as currently proposed. She expressed concern the contract rezone did not include drawings that illustrated what the project might look like. Councilmember Wilson concurred with Councilmember Dawson's comments regarding underground parking. He noted the record referred to Comprehensive Plan policies but there was no response regarding how the project complied with those policies. As an example, he referred to a policy, "develop mini parks in the downtown business area," noting open space dedicated to the use of the property owner was not a mini park. Councilmember Wilson stated he liked the applicant's proposal and their attempt to address a significant problem in the downtown area, parking. He commended the applicant for proposing, as part of their contract rezone, below grade parking that was not visible to adjoining property owners and did not have the impact that a surface -level parking lot would have. He noted this was a commendable approach and the City should encourage that type of solution to address parking problems in the downtown area. He recalled the City previously did not allow underground parking to extend to the property line and, via review and amendment to the code, underground parking was allowed to extend to the property line to increase parking without impacting adjoining properties. However, he was concerned with "creep" of commercial uses into residential areas. Councilmember Orvis reiterated his concerns were with height and the view of residents east of the project. He noted the current language indicated the maximum elevation of a new building would exceed the maximum elevation of a house that could be constructed under the existing RS zone. He noted this would change if the points of measurement were moved to the east, allowing the maximum height of a new building to be below the height of a house and, because the rezone eliminated the possibility of a house, the rezone provided more view protection. COUNCIL PRESIDENT EARLING MOVED, SECONDED BY COUNCILMEMBER MARIN TO CONTINUE THE CLOSED RECORD REVIEW TO MONDAY SEPTEMBER 16, 2002. The September 16 date was acceptable to the applicant. Mr. Snyder clarified the applicant could not change any substantive provisions of the proposal without requiring remand to the Planning Board. He noted the applicant would primarily be clarifying the Edmonds City Council Approved Minutes August 20, 2002 Page 12 conditions they were offering. It may be appropriate to take public comment on September 16 from parties of record regarding the clarification in the contract rezone application. Councilmembers agreed parties of record would be allowed to speak at the continued closed record review to respond to any additional conditions. MOTION CARRIED UNANIMOUSLY. Talbot 6. CLOSED RECORD REVIEW OF THE HEARING EXAMINER'S RECOMMENDATION TO Park APPROVE THE APPLICATION FOR A SEVEN LOT PLAT AND PLANNED RESIDENTIAL Estates DEVELOPMENT (PRD), KNOWN AS "TALBOT PARK ESTATES," LOCATED AT 7707 171sT PRD STREET SW. THE SITE IS ZONED SINGLE FAMILY RESIDENT (RS -12). Applicant: Vilcim 7077 l7151 1 St. sw Properties, Inc. / File No. P-02-11 and PRD -02-12) As this was a quasi judicial matter, Mayor Haakenson inquired whether Councilmembers had any conflicts of interest or ex -parte communication to disclose. Councilmember Petso advised in June when she proposed amendments to the PRD ordinance, she met with two citizens, one of whom was a party of record in this matter. She advised they did not discuss anything to do with this project but met only to discuss her proposed amendments to the PRD ordinance. She and the citizen met again to review the videotape of the Council meeting at which the PRD amendments were referred to the Planning Board. Councilmember Orvis advised last week he spoke with Diane Azar regarding the legislative matter the Council discussed last week. He noted this PRD came up along with all PRDs in the Talbot area, regarding how the legislative change would impact how PRDs were reviewed. He indicated their conversation did not go into detail regarding this project. Councilmember Marin recalled a few months ago when another PRD was to be discussed, during a conversation with Tom Sullivan regarding other matters, Mr. Sullivan asked about the PRD and identified Councilmember Marin as the author of the PRD ordinance. Councilmember Marin explained the previous PRD ordinance had been in effect for approximately 20 years and the Planning Board and staff had conducted a lengthy review of a new ordinance that the Community Services/Development Services Committee reviewed, followed by a review by the Council. Councilmember Marin indicated he voted for the revised PRD ordinance, siding with staff's recommendation. He clarified to Mr. Sullivan that he was not the author of the PRD ordinance and when Mr. Sullivan inquired how Councilmember Marin felt about PRDs, he responded that he favored the general concept of PRDs. Councilmember Marin pointed out when that PRD was to be reviewed by the Council, he was challenged by an attorney regarding what he said. Councilmember Marin indicated he chose at that time not to defend himself and recused himself from consideration. Subsequent to that, Mr. Sullivan wrote Councilmember Marin a letter apologizing and indicating the attorney misrepresented/overstated what Councilmember Marin said. Councilmember Marin commented he only recently became aware of the location of the PRD under consideration this evening and had no previous conversations regarding it. Council President Earling recalled at the Talbot Park hearing several weeks ago, he recused himself because he lives in the neighborhood. The application under consideration this evening is for property located approximately two blocks further away from his home than the previous Talbot Park PRD hearing, and after studying the record, he felt he would not be able to make a fair minded decision Edmonds City Council Approved Minutes August 20, 2002 Page 13 regarding the proposal. Council President Earling recused himself from the matter and left the dais and . the building. Councilmember Dawson indicated she had had various discussions with parties of record regarding ■ PRDs in general and concerns regarding the current PRD ordinance. She had not had any conversations regarding this particular PRD application and her concerns with the current PRD ordinance would not impact her ability to make a determination based on the existing law. Mayor Haakenson asked whether there were any challenges to Councilmembers Petso, Orvis, Marin, or Dawson participating in this review. Tom Sullivan, 1740 Talbot Road, Edmonds, read from the June 20, 2002 Edmonds Beacon regarding what Councilmember Marin said, "I admitted to him (referring to Sullivan) that I had a bias." Mr. Sullivan said there was enough discrepancy regarding who said what, and what was said to whom at what time that Councilmember Marin should recuse himself from this discussion. Mayor Haakenson explained the burden of this decision was entirely on Councilmember Marin and suggested Councilmember Marin ask himself whether he could fairly judge this application on its merits. Councilmember Marin stated his belief that he could fairly judge this application and that the bias he admitted to was no more than the same bias that was expressed by a fellow Councilmember a week ago. Mr. Snyder requested Councilmember Marin elaborate on his statement. Councilmember Marin recalled at the conclusion of the Council's deliberation last week, another Councilmember indicated they had an indication already how they would vote in future deliberations, meaning while he may be positive toward PRDs, the other Councilmember may be negative to the general concept of PRDs. Mr. Snyder clarified Councilmember Marin was not indicating he had prejudged the matter or made up his mind before reviewing the record or hearing argument. Councilmember Marin answered "not at all." Mr. Snyder reiterated it was the Councilmember's decision whether to recuse himself. Mayor Haakenson asked whether there were any other challenges. Mr. Sullivan appeared to be interested in renewing his challenge to Councilmember Marin. Mr. Snyder explained Mr. Sullivan's challenge could be the basis for an appeal or arise judicially in the future. He explained the Council had no mechanism and State law provided no mechanism for the removal of an elected official who elected not to step down. While this may be the basis for an appeal, the objection was in the record and he suggested the matter move forward. Mayor Haakenson inquired whether he would be required to vote on this matter if a tie vote resulted. Mr. Snyder advised this matter was akin to a rezone, a decision that was delegated to the Council. He suggested Mayor Haakenson preside but not vote. Mayor Haakenson inquired about the outcome if there were a 3-3 tie. Mr. Snyder advised a tie vote would indicate the proposal was not approved. Mr. Snyder suggested Mayor Haakenson disclose any conflicts or ex parte contacts. Mayor Haakenson advised he used to live in Talbot Park. He explained he has walked the property several times, as recently as last night, and has spoken to all parties of record. He clarified his role would be only to preside over the meeting. There were not objections to Mayor Haakenson presiding over the meeting. Councilmember Orvis advised he had also walked the property. Mayor Haakenson explained that Jonathan Hatch was an attorney who represents a significant number of the parties of record and would be allowed three minutes to provide testimony unless the Council directed otherwise. Councilmembers agreed to allow Mr. Hatch the same amount of time as the applicant Edmonds City Council Approved Minutes August 20, 2002 Page 14 in addition to the testimony from those he was representing. Mayor Haakenson advised Mr. Smith would be allowed 20 minutes for his presentation and Mr. Hatch would be allowed 15 minutes. Senior Planner Steve Bullock displayed a vicinity map identifying the site with 171St Street SW to the south, Talbot Road to the west, and 76"' to the east. He explained the property was triangular in shape except for the curve of 171St. He identified the location of a stream on and adjacent to the property at the northeast corner. The stream ultimately went through the Lynnwood treatment plant and did not provide any habitat to salmon or migrating fish and was considered a Class H stream which required a 25 foot buffer. He identified the steep slope hazard area in the east and northeast corner of the site. He explained a steep slope hazard area had a rise of over 20 feet in elevation and the pitch of the slope was greater than 40 percent. He identified the point where the elevation gain became 20 feet or less and no longer qualified as a steep slope hazard area, explaining everything north and east of that area was a steep slope hazard area. The Critical Areas Ordinance typically required a 50 buffer from steep slope hazard areas but the buffer could be reduced to 10 feet based on the report of a geotechnical engineer. He noted the applicant submitted a preliminary geotechnical report that justifies a reduction of the buffer from 50 feet to 10 feet. He noted that buffer was shown on the vicinity map as the property boundaries for the potential lots although in some areas the property boundaries did not extend to the buffer. Mr. Bullock identified the location of an existing house on the property, explaining the existing drive would be eliminated and a new driveway constructed. The remaining six proposed homes would access from a new proposed street on the west side of the property. The proposal includes an open space along 171St and a larger open space between Lots 6 and 7. The open space on the southern portion of the site would be a garden/arboretum area that would provide an amenity for the neighborhood and the open space internal to the site would be a play area for the benefit of the owners of the development, potentially a location for a lawn area, play structure, etc. A trail would be provided through the edge of the critical area linking the two open spaces and the sidewalk along the perimeter of the proposed road. Mr. Bullock displayed the landscape plan that illustrated the applicant's proposal to enhance the neighborhood and provide amenities. The intent was to strengthen the presence along the street by planting street trees, grading to bring down the elevation and replacing the hedge with vegetation with a taller canopy or with lower shrubs to improve sight distance problems along 171St, carrying the street tree design throughout the interior of the development to provide a specific identity and character to the development, enhancing landscaping on the west side of the proposed street to limit impact to the adjacent property owner, and supplementing landscaping around the perimeter of the open spaces. Mr. Bullock distributed a color version of a map (Exhibit I of Exhibit Q. Mr. Bullock explained the Hearing Examiner reviewed several code sections relating to the proposal including compliance with the Critical Areas Ordinance due to streams and steep slopes on the property and information submitted regarding a possible wetland on the property, as well as the City's compliance with SEPA. There was a SEPA appeal on the original SEPA determination. The Hearing Examiner heard that appeal and denied the appeal. Mr. Bullock pointed out the adequacy of the SEPA determination or process was not under review by the Council but the documentation regarding the determination and appeal could be considered for its factual basis. The Hearing Examiner concluded the City and applicant complied with the requirements of SEPA. Mr. Bullock explained the Hearing Examiner reviewed the project for compliance with the Comprehensive Plan, compliance with the PRD ordinance including the criteria in the PRD ordinance, and compliance with the City's subdivision code. The Hearing Examiner's report and recommendation to the Council (pages 3 — 20 in the Council packet) addressed all the code compliance issues related to Edmonds City Council Approved Minutes August 20, 2002 Page 15 the project. The Hearing Examiner recommended approval of the project with conditions as described on pages 17 — 19 of the Council packet. Mr. Bullock highlighted the following unique conditions: • 3.b.1 Walkways must be added to each lot. Mr. Bullock noted the applicant shows walkways on the most recent site plan submitted to the Hearing Examiner. This was a recommendation from the ADB which the Hearing Examiner included in his recommendation to the Council. • 3.b.2 Street trees must be planted on the front yard along the street of lots 2-7. Mr. Bullock noted the current landscape plan includes these street trees. • 3.b.3. Stormwater facility must be placed underground or in a fashion in keeping with the design of the property. • 3.b.4. Garage setbacks should be at least 18 feet. Mr. Bullock noted this was to accommodate parking in the garage as well as in front of the garage for each lot. • 3.g. A new wetland study, a three party contract between the applicant and the City, to confirm whether what is on the property qualifies as a wetland. Mr. Bullock explained this was recommended by the Hearing Examiner because the wetland issue arose at the end of the hearing process and because of conflicting testimony regarding the status of a wetland on the property. • 3.h.1-6 Statements to be placed on documents. Mr. Bullock noted the remaining conditions were similar to all plats and PRDs. Councilmember Dawson observed that although the Hearing Examiner recommended a wetland study be prepared, there was no indication of the action to be taken if a wetland was identified. She questioned why the Hearing Examiner had provided a recommendation prior to a wetland study being conducted. Mr. Bullock explained the potential wetland was small enough that it would be unregulated. He noted the preponderance of evidence was that was likely the case but that would be confirmed via a three party contract. If the wetland was determined to be of a size that was unregulated by the City, the project could proceed. If the wetland was larger, the "Note" under the Recommendation Section of the Hearing Examiner's report indicates there may be changes between the preliminary plat/PRD approval and the final approval. If a wetland was identified on the property, the applicant may be required to reconfigure the project although the preliminary approval could still apply. Mr. Bullock said if there were substantial differences in the project because a significant wetland was identified and the applicant could not make a final plat proposal that was consistent with their preliminary plat approval, the project would be "for the most part dead." Councilmember Dawson asked the outcome if the Council approved the project without a wetland but would not approve it with a wetland. She questioned how the Council could find compliance with the Critical Areas Ordinance absent a wetland study. Mr. Bullock explained the Council could not indicate they would not approve the proposal simply based on the presence of a wetland as the presence of a wetland did not preclude development. If a significant wetland was identified, the applicant may be required to change the configuration. Councilmember Dawson agreed, noting the revised proposal may be totally different than what was being reviewed tonight. She questioned why the City was not waiting for the outcome of the wetland study. Mr. Bullock agreed if the proposal was revised to be totally different, it could not be approved via the final plat/PRD process. Edmonds City Council Approved Minutes August 20, 2002 Page 16 Councilmember Dawson reiterated the Hearing Examiner's condition did not outline what would be done if a wetland issue existed on the property, only that a study be conducted and that approval was contingent on the study. Mr. Bullock explained if the study concluded there was a wetland, the applicant would be required to modify their proposal. Mr. Bullock said the applicant's modification may be to eliminate Lot 7, the primary location of the wetland, and include the area as a Native Growth Protection Area (NGPA); the remainder of the plat would stay the same. Staff would not consider that a significant change to the project as there would be less units, the access would remain the same, the development of the individual lots would remain the same if one lot were eliminated and placed in a NGPA. However, if the proposal was to completely reconfigure the lots around a potential wetland and the appearance of the PRD was changed significantly, staff would not proceed with the final plat/PRD approval process. Councilmember Dawson reiterated her concern with making a decision when the wetland study had not yet been conducted. She asked whether the wetland would impact the SEPA determination. Mr. Bullock advised the Hearing Examiner's decision was that it would not because the City has a Critical Areas Ordinance to address critical areas and the code establishes development standards to address those features. He noted if the code was not adequate, SEPA could be used to place additional constraints on a project; however, the Critical Areas Ordinance was adopted to address just such features. Councilmember Dawson referred to discussion in the record regarding density and that a traditional subdivision would allow seven lots. She asked whether it was feasible to do a subdivision of seven lots with the critical areas on the site. She asked whether the proposed seven lots was an increase in the number that could be configured in a subdivision. Mr. Bullock referred to page 16 of the Council packet, Lot and Street Layout, explaining the Hearing Examiner addresses the density of a conventional subdivision versus the proposal and how buildable the lots would be with the proposed PRD. Mr. Bullock displayed a map referred to by the Hearing Examiner of a traditional subdivision that also accommodated seven lots that met the minimum 12,000 square foot lot area. Mr. Bullock noted the lot shapes were awkward, pies and reverse pies. He noted this map was submitted by the applicant to illustrate a potential lot configuration that might meet the plat requirements; they did not apply for this to be reviewed. Mr. Bullock explained the extent of his review had been to confirm that it had the required- lot equiredlot areas, frontage areas, etc. but he did not conduct a detailed plat analysis. He concluded it appeared the applicant could do a seven lot plat via a formal subdivision which has no design controls on the homes, extra amenities, etc. Councilmember Dawson said if the Council rejected the PRD proposal, the applicant could pursue a traditional subdivision which would not have the amenities proposed with the PRD. Mr. Bullock agreed. With regard to the final approval process, he explained both the plat and PRD must come back to the Council for final approval to ensure the original conditions were met. Assuming the Council approved the PRD with the conditions recommended by the Hearing Examiner, if a wetland was confirmed on the site and the applicant submitted a proposal that did not comply with the original approval, the Council could object to the proposal. If a wetland was confirmed that was large enough to be regulated and the revised proposal did not comply with the approved proposal, the Council could deny it. Councilmember Petso asked whether the standard subdivision layout included any on -street parking and whether the street would be wide enough to accommodate on -street parking. Mr. Bullock answered the street in the standard subdivision was the same width as the street proposed with the PRD and there was no on -street parking. Responding to further questions, Mr. Bullock stated there was no requirement in the City's code for on -street parking. Edmonds City Council Approved Minutes August 20, 2002 Page 17 With regard to circulation and site access, Councilmember Petso asked whether there were any differences between the layout of standard subdivisions and the proposed layout of the PRD. Mr. Bullock explained there was a subtle difference; the layout of the standard subdivision had a straight road and the PRD had a road that was closer to a 90 degree angle. The PRD also includes street landscaping and efforts to enhance circulation on 171" that were intended to improve sight distances and reduce potential traffic problems in that immediate area. Councilmember Petso observed that was provided in the PRD version but not the subdivision version. Mr. Bullock answered if it was not proposed in a standard subdivision, the City could determine that the impacts justified a condition. Councilmember Petso asked whether the Hearing Examiner considered the rezone criteria. Mr. Bullock answered the Hearing Examiner did not consider the rezone criteria in his report. Mr. Bullock explained a PRD was a special project with its own criteria. Staff's determination has been that if a proposal meets the PRD criteria, it meets the criteria necessary for approval. He summarized there was nothing in the PRD chapter that required a proposal to meet the rezone criteria in addition to the PRD criteria. Councilmember Petso pointed out PRDs were reviewed in that manner until last week when it was discovered they were actually rezones. The case law states it was appropriate and obligatory for a Council to apply the rezone criteria. She asked whether the same case law that required the City to make the Hearing Examiner's decision non -final because it was a rezone, also require the Council to consider the rezone criteria. Mr. Snyder indicated if this was an issue of importance to the Council, he suggested this item be continued to allow him to research the issue and provide a written opinion to be delivered in Executive Session for Council review prior to making a final decision. He explained the Council was always in a solid position if they applied the criteria of the ordinance before them and that was generally the Council's obligation in this instance, applying the PRD criterion. He noted often the legal opinion provided would require the Council do risk assessment, thus the reason for an Executive Session. Councilmember Petso noted one of the PRD criteria was preservation of unique/natural features. She noted the Hearing Examiner identified in his findings that the proposal preserved the stream and the steep slope. She questioned whether that would be preserved and asked staff to identify something else that would be preserved via a PRD. Mr. Bullock explained with a plat or PRD, the steep slope area could be protected. With a conventional subdivision, the steep slope and stream would be protected by all development east and north of the buffer. However, it was protected by a Native Growth Protection Easement on each lot. For example, the property owner owns the entire lot but has a Native Growth Protection Easement on the east third of the property to protect the critical area. Mr. Bullock pointed out that when critical areas were protected on a lot -by -lot basis, property owners may do things they shouldn't do on their own lot. The proposed PRD places the critical area in its own separate tract and not including it in individual lots provided greater protection of the critical area than if protected only via an easement on each lot. He noted this was a benefit considered by the Hearing Examiner during his consideration of that criteria. Councilmember Petso pointed out there were not any additional natural features that would be protected, only better protected. Mr. Bullock stated there were 1-2 significant trees proposed to be retained by the applicant. Due to the late hour, Mr. Snyder suggested Councilmembers hold questions until after the parties make their presentation which may answered many of the Council's questions. He noted this would also allow members of the audience to testify in a timely manner. Edmonds City Council Approved Minutes August 20, 2002 Page 18 Richard Hill, Counsel for Viking Properties (applicant), urged the Council to affirm the recommendation of the Hearing Examiner. He noted the Hearing Examiner heard lengthy testimony, made extensive and thorough findings of fact, and affirmed the thorough analysis of staff. He advised Mr. Smith would address the merits of the applicant but he wished to make the following technical legal points: the Hearing Examiner asked the City Attorney to provide an opinion regarding what procedure to follow, whether the Hearing Examiner's recommendation was the final decision and subject to appeal to the Council, or was a recommendation to the Council with the Council making the final decision. Mr. Hill noted the PRD ordinance provides that the Hearing Examiner's decision is the final decision subject to appeal. After review, the City Attorney concluded that structure was inconsistent with State law and concluded the Hearing Examiner's decision was a mere recommendation. Mr. Hill respectfully disagreed with the City Attorney. Mr. Hill pointed out if the PRD ordinance were followed, a 3-3 tie would result in affirming the Hearing Examiner's decision. Mr. Hill indicated it would be appropriate in the event of a 3-3 tie for Mayor Haakenson to vote in this matter. Regarding rezone criteria, the City's PRD ordinance, Subsection 050, outlines the criteria to be followed and the general rezone criteria were not applicable to this appeal. Michael Smith, Lovell Sauerland & Associates, requested 10 minutes be retained for rebuttal. With regard to the wetland, he explained two delineations had been performed on the wetland. The delineations were done late in the process and were not included in the SEPA review. One of the delineations done on the property to the west, the Andree's property, by the Neighborhood Association identified a small wetland. After learning the wetland was present, a wetland biologist delineated wetland on the subject property and subsequently had a field survey crew locate the survey flags. The conclusion was that the size of the wetland was significantly below the regulatory requirement for size. With regard to improved layout and access, Mr. Smith explained the cul-de-sac would improve circulation internal to the project versus the conventional subdivision layout with a hammerhead -type turnaround. Although both layouts were approvable by the City Engineer, the cul-de-sac was preferable. Mr. Smith noted the new PRD ordinance had one significant advantage, it contained specific criteria in Section 20.35.050. He referred to the language in Section 20.35.050, "because PRDs are providing some incentives to applicants by allowing for flexibility from the bulk zoning requirements, a clear benefit should be realized by the public. To insure there will be a benefit to the public, the city shall approve, or approve with changes, a PRD if the proposal meets the following five criteria." Mr. Smith explained he submitted to Mr. Bullock color copies of Exhibit I as the exhibit was not provided in color as was provided to the Hearing Examiner. He commented the color photographs were valuable to the review of the application as they related to the compatibility of the project with the surrounding area. Exhibit I illustrated this project would be very well screened from the surrounding area and because the lots were progressively further from 1715`, the visibility of the overall apparent mass of the project from 1715` would be reduced. He noted that although the project had much smaller lot sizes than the surrounding area, it would be very compatible. Mr. Smith explained if the open space areas were included in the lot size calculation under a traditional subdivision, the average lot size would be 11,699 square feet. He pointed out this was only approximately 300 square feet short of the required lot size in a subdivision in this area. He concluded the design proposed with the PRD worked better than the seven lot conventional subdivision design and would be a more functional, aesthetic, and beneficial project than the conventional subdivision design. Edmonds City Council Approved Minutes August 20, 2002 Page 19 Jonathan Hatch, explained he represented 24 individual property owners who owned property adjacent to or within close proximity to the subject property who opposed the application. He noted the record on this matter was substantial and hoped the Council had received the record prior to when he received it, yesterday afternoon (Monday, August 19). Mayor Haakenson commented the Council received the record on Friday, August 16. Mr. Hatch urged the Council to take adequate time to review the matter in its entirety as there was a great deal of material in the record. Mr. Hatch pointed out a typographical error in the Hearing Examiner's recommendation, page 6 of the record (page 4 of the Hearing Examiner's recommendation), where there was reference to $12,000 traffic mitigation. Mr. Hatch advised the correct amount was $1,200. Staff agreed with this correction. Mr. Hatch referred to the City Attorney's opinion letter provided last week that indicated this was tantamount to a rezone request. Mr. Hatch commented that every time a PRD was approved, it was tantamount to a spot rezone. He noted the Council was being asked to dramatically alter the underlying zoning for the subject property. A PRD represented "zoning creep" as it involved a change to the existing status of the property in the area and allowed development to proceed on an entirely different basis and differently than other properties in the area. Regarding the concern over why a final report regarding the wetland had not been issued prior to reaching this point and the next step if a significant wetland were identified, Mr. Hatch pointed out the code provided that upon review of this matter, the Council could adopt the recommendation or remand it. He said it was acceptable to remand this to the Hearing Examiner or staff to review the issues associated with the wetland and return at a later date when those issues had been addressed and/or resolved. Mr. Hatch explained the request was essentially to rezone the properties from the existing RS 12 or 12,000 square foot single family to something closer to 6,200 square feet per lot, approximately half of the existing zoning which he concluded was a dramatic change. He noted a PRD was a tool for special circumstances that allowed an applicant to indicate they were unable to develop a property absent "a break" and the PRD was a mechanism they were allowed to use. He noted it had been conceded by the applicant that they could develop the property under the conventional short plat process, so the PRD in this instance was not being used to develop property that was otherwise undevelopable, it was being used to reduce the lot size in the area from 12,000 square feet to approximately 6,000 square feet. He opined the reason was obvious; the property was in a desirable part of Edmonds where property values were very high. He noted the record indicated the developer planned to market the homes in the $450,000 range. The advantage to the developer of having seven homes in the proposed configuration was obvious from a financial standpoint, but was not justified under the PRD based on the reasons for the PRD ordinance. Mr. Hatch referred to his memorandum submitted to the Hearing Examiner, explaining their position was that the application violated several provisions of the Critical Areas Ordinance. He noted much of their concern was a definitional dispute. Although he was mindful that the situation was somewhat unique, the stream buffer ordinance that governs Class II streams provides that the buffer be measured from a point 25 feet from the top of the bank. He noted the ordinance did not define "bank" or "top of the bank" which created significant problems/issues. When one considered protecting a stream or river, the body of water had a very defined bank adjacent to the stream that was distinguishable from the surrounding flat lands such as the Snohomish River or similar rivers. However this was not the case in the City of Edmonds. He explained the stream on the subject property was not configured like the Snohomish River, it lies and flows through the bottom of a ravine. He indicated the purpose of a buffer protecting a stream was to ensure activity that occurred on the downward slope was precluded because that activity damaged the stream. In this instance, the bank of the stream was the steep slope and they were coincident. He noted when discussing this situation, the Hearing Examiner in his report and the applicant also discussed Edmonds City Council Approved Minutes August 20, 2002 Page 20 the top of the bank in reference to the top of the slope. He concluded it was their position that the buffer in this instance which the applicant identified as 25 feet from the edge of the stream should actually be calculated 25 feet from the top of the bank. Mr. Hatch referred to his memorandum which cites State Supreme Court cases that indicate if a statute did not define a term, one looks to the common and ordinary usage of that term in deciding what was intended. He noted the Council passed the ordinance and presumably knew what was meant but now must evaluate what the term means, not in terms of what the Council thought it meant, but by the ordinary and common usage of the term. In numerous dictionary sources, the term "bank" was coincidental with the top of the steep slope. He noted that reference was used numerous times in the materials. Mr. Hatch noted Mr. Smith's testimony to the Hearing Examiner in discussing the impact of the trail on the slope, stated "if you were to walk along the top of the bank as I have a few times and look down the side of it, what you would see is that there's very little underbrush." Mr. Hatch concluded the project was defective because the measurement of the setback of the stream was incorrectly calculated by staff and the Hearing Examiner. He requested the Council carefully consider this and conclude that the buffer of the stream should be calculated from the top of the slope, noting the effect would be to move the developable property 25 feet to the left of the picture (west). Mr. Hatch expressed concern with the buffer for the steep slope, as the ordinance requires a buffer of 50 feet unless it was supported by a geotechnical report. Mr. Hatch commented the materials indicate the ordinances of the City require that the geotechnical report contain certain information to support that change. However, Mr. Hatch pointed out, the geotechnical report conceded that information was not present, yet staff was recommending changing the buffer for the steep slope from 50 feet to 10 feet based on a report that did not comply with the code. Mr. Hatch commented he would not address the wetland issue in detail due to the numerous issues raised by Councilmember Dawson. He concurred that the wetland issue should be resolved prior to the Council's decision. Mr. Hatch referred to the criteria for reviewing a PRD which required that a PRD provide a clear public benefit, not a benefit to the developer, not to those purchasing the houses, but to the public. He acknowledged the proposed design included open space and a trail but the record indicated the developer stated those areas would be under the control of the homeowner's association and would not be available to the public. He questioned what benefit was provided to the public via the open space. Mr. Hatch indicated the record contained evidence that traffic would increase as a result of the increased density. He questioned how this benefited the public. He expressed concern with the limited amount of the $1,200 mitigation fee. He concurred with Councilmember Petso's analysis that there was nothing being protected in the proposed PRD that would not be protected anyway in a conventional plat, thus nothing to be gained and no public benefit via the proposed PRD. A review of the criteria in the PRD ordinance indicated most of the criteria that must be evaluated in a PRD must also be evaluated in a conventional short plat. Mr. Hatch summarized the property owners he represented strongly urged the Council to deny the application or at least remand it back to the Hearing Examiner to resolve issues prior to the Council taking any action. Councilmember Wilson recalled Mr. Hatch referred to traffic impacts, inquiring whether he had submitted a traffic report as part of his testimony to the Hearing Examiner. Mr. Hatch indicated he had Edmonds City Council Approved Minutes August 20, 2002 Page 21 not. Councilmember Wilson concluded there was no analysis that the capacity of the street was insufficient to accommodate the seven additional lots. Mr. Hatch pointed out the short timelines for opposing parties to respond. He commented the only information in the record was the traffic report prepared by the applicant, which he indicated was "sketchy and not terribly complete." Councilmember Wilson referred to Mr. Hatch's definition of a PRD that it should only be for properties that could not otherwise be developed, questioning whether this was the definition of a variance. Mr. Hatch responded that was essentially what a PRD was, it was a comprehensive variance package allowing variance to virtually every part of the development code. Referring to Mr. Hatch's comments regarding the process, Councilmember Wilson inquired whether the Hearing Examiner would be the appropriate reviewer if it were a variance. Mr. Hatch noted until last week, the Council was relying on one assumption and the City Attorney reached a different conclusion. He agreed with the City Attorney's interpretation, as he (Mr. Hatch) felt a PRD constituted a rezone. He commented that PRDs had other components that were essential variances such as setbacks, footprint, design standards, etc. Referring to Mr. Hatch's analysis, Councilmember Wilson noted those components were clearly under the authority of the Hearing Examiner as variance issues. Mr. Hatch agreed they would be if not associated with a PRD. Councilmember Wilson asked if density was the basis for Mr. Hatch's allegation that a PRD was a spot zone. Mr. Hatch disagreed, noting the proposed PRD changed the minimum lot size from 12,000 square feet to 6,000 square feet, a change to the underlying zoning which constituted a rezone. He noted density apparently would not be affected much via one method or the other, the problem was houses would be allowed to be "packed in tighter on a much smaller lot than would be allowed under the current zoning and that is a rezone." He concluded when the Council approved a PRD that substantially reduced the size of the underlying lot requirement, it was essentially a spot rezone. Councilmember Wilson referred to Mr. Hatch's comments regarding considering the top of the slope the top of the bank, asking whether there was any information in the record such as a cross section analysis that identified the bank of the stream. Mr. Hatch answered no, pointing out this was a relatively small stream, but a regulated stream under the City's code. He noted it was difficult to delineate a stream bank from the slopes that contain the stream. He explained it was a V-shaped ravine with a stream running through the bottom. Mr. Hatch said the top of the slope would be viewed by any one as the top of the slope. He concluded there was no other top of the bank than the top of the slope. Councilmember Wilson commented there was no testimony, records or survey information submitted to support the claim that the top of the bank of the stream was the top of the slope. Mr. Hatch noted the term "bank" was not a physical question but a definitional question; the statue did not define "bank" so the common definition must be used which indicates the top of the bank is the top of the slope. He noted the definitions referred to the adjoining slope. He reiterated the term "top of the bank" was not defined in the ordinance. Councilmember Wilson asked whether it would be sufficient if there was a graphic illustration associated with the Critical Areas Ordinance that showed a stream channel and defined top of the bank. Mr. Hatch answered maybe, but there were a number of definitions that could be given to "bank" and since it was not defined in the code, one must use the common, ordinary usage as found in the dictionary. Councilmember Wilson asked where in the records those definitions were provided. Mr. Hatch responded they were in his memorandum, page 226 of the Council record. Mr. Hatch noted the Hearing Examiner visited the site and came to his own conclusions and he urged the Council to do the same. He stated this was not a frivolous issue because the project was contingent upon the definition and application of the buffer. The proposed trail would be built on the steep slope; however, if the top of the slope were used, the trail would be on the top, not on the steep slope. He concluded the entire Edmonds City Council Approved Minutes August 20, 2002 Page 22 configuration of the project would be changed. He noted this issue had significant ramifications for this project as well as others. Councilmember Wilson agreed a critical issue had been raised, and preferred further information had been provided in Mr. Hatch's testimony in context with the definitions he provided. Mr. Hatch reiterated the timelines afforded opposing parties were very short, allowing very little time for response, whereas the applicant has months to prepare the application. Councilmember Dawson referred to Mr. Hatch's indication that the geotechnical report was flawed. Mr. Hatch explained the code currently required in order for a setback to be reduced below 50 feet, the geotechnical report must contain data from a subsurface exploration. The geotechnical report that was prepared states, "The conclusions and recommendations in this report are preliminary in nature based on the geologic and soil conditions shown on the above -referenced geologic map and our ground probing results. The geologic and soil conditions should be verified by a subsurface exploration program prior to the development of the short plat. The conclusions and recommendations in this report may have to be revised pending the soil data obtained from the subsurface exploration." Mr. Hatch pointed out there was no subsurface exploration in the record. Councilmember Dawson asked where in the code it requires a geotechnical report contain a subsurface exploration. Mr. Hatch referred to his memorandum (page 220 of the Council record), explaining the ordinances currently provide that the Planning Director or his designee may reduce the 50 -foot buffer to 10 -feet provided there is a geotechnical report that complies with Chapter 19.05 which states, "The owner shall be responsible to submit a geotechnical report. The owner shall retain a geotechnical engineer to prepare a report and evaluation of the subsurface soil conditions on the site." Mr. Hatch concluded their position was that there was nothing in the record that that had been done, therefore, the Council was being asked to approve reduction of a slope buffer from 50 feet to 10 feet based on a report that was deficient. Councilmember Plunkett pointed out staffs observation was that the wetland did not impinge on the property and therefore did not result in a requirement for the wetlands to be considered. He asked whether there was information that suggested the wetland must be considered. Mr. Hatch explained the City's code requires that wetlands were protected to the degree the total wetland had a surface area of 2500 feet. He noted this did not mean the Council could not consider something smaller as an issue but a wetland of at least 2500 square feet was specifically regulated under the Critical Areas Ordinance. The only reason the wetland issue arose was because they (the neighbors) had someone look at it. He noted they were not allowed onto the subject property to consider the extent to which the wetland extended onto the subject property. A study was done that established a wetland was present on the adjoining property, the Andree property immediately adjacent, and it was apparent the wetland extended onto the subject property. It was impossible to determine the extent of the wetland without access to the subject property. The applicant evaluated the area on the subject property and conceded there was some wetland but were not able to determine the full extent because they could not do a survey on the adjoining property. He noted the ordinance did not indicate the 2500 feet must be on the subject property, only that if part of a wetland at least 2500 feet in size was on the subject property because a wetland was a contiguous process. He noted if 100 square feet were located on the subject property but the total size was enough, it must be considered. As the total size could not be determined, the Hearing Examiner recommended a three party contract to determine the size of the wetland. Councilmember Plunkett pointed out adjustments could be made at the time of final plat approval if it was determined the wetland was more significant than was concluded at this time. Mr. Hatch pointed out Edmonds City Council Approved Minutes August 20, 2002 Page 23 the SEPA review should have evaluated the wetland but in this instance, it wasn't. He noted that until a study of the wetland was conducted, the total size was unknown. Councilmember Plunkett stated that under a standard subdivision, the critical area to the east would be on individuals' private properties, however, with a PRD, it was no longer on private property but common property. Mr. Hatch pointed out it would be managed by an association of the homeowners. Councilmember Plunkett asked whether ownership in common rather than individual ownership would provide a significant public benefit. Mr. Hatch answered it was a matter of perception; to him it was not because his experience did not indicate that area would be any safer managed by an association of homeowners versus individual homeowners. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER MARIN, TO EXTEND THIS ITEM FOR 60 MINUTES. MOTION CARRIED UNANIMOUSLY (6-0). Councilmember Wilson pointed out the wetland in the northwest corner straddled the property line. If the applicant had proposed to preserve the wetland on their portion of the property, even if it was not of sufficient size to be regulated, would Mr. Hatch have considered that to be a public benefit and meeting the criteria for a PRD. Mr. Hatch answered that would potentially be a legitimate argument that there was a public benefit. Councilmember Dawson asked whether Mr. Hatch felt the applicant had failed to demonstrate protection of natural areas and the public benefit, if it had not been determined where the top of the bank or the extent of the wetland. Mr. Hatch answered the Critical Areas Ordinance states that the purpose of the ordinance was to protect natural resources. Further, the language in the ordinance indicates the ordinance is to be liberally construed to carry out the purpose and intent of the ordinance. This meant if there was any question regarding the location of the top of the bank, it should be construed against the applicant and in favor of the environment. Mr. Snyder advised the applicant always had the burden of establishing compliance with criteria in the code by substantial and competent evidence. The applicant must put in the record sufficient evidence to show compliance. He referred to Section 20.1513. 120 which states, "no alteration to the stream or buffer shall be permitted..." and goes on to provide criteria. He noted the issue was whether the wetland qualified for protection and the applicant had the burden of proof of determining that by substantial and competent evidence. When the applicant provides their rebuttal, he suggested they direct the Council to the location in the record that they feel to be substantial and competent evidence showing this was not a regulated wetland and the Council consider whether substantial and competent evidence exists. He noted the Hearing Examiner provided one approach, making that determination later. Mr. Snyder acknowledged there were two other approaches available to the Council, 1) remand, and 2) determine that the applicant has not sustained the burden of proof. Councilmember Dawson referred to the setback from the stream and what constituted the bank of the stream, questioning whether the applicant had failed if there was no evidence in the record regarding the location of the bank of the stream. Mr. Snyder responded this was a mixed interpretation of fact and law, the Council must determine, 1) what's the criteria by which it should be judged such as top of the slope or top of the bank, and 2) what evidence exists in the record to show where the bank is. Councilmember Dawson noted if the Council accepted that the top of the bank was the top of the ravine, then clearly there was not an appropriate buffer. However, the Council could also concede that there could be a slope on a ravine and another slope that was the bank of the stream. She asked what the outcome was if the Council could not determine the location of the bank of the stream. Mr. Snyder answered the Council could conclude the burden of proof had not been met. Edmonds City Council Approved Minutes August 20, 2002 Page 24 Mayor Haakenson opened the opportunity for parties of record to provide testimony. Philip Tiegs, 16911 Talbot Road, Edmonds, commented what he found disturbing about the process was the developer and city planner telling them how thorough the process had been when he thought the process had been sloppy — the PRD was sloppy, the developer's materials were sloppy, and the City's review was sloppy. Mr. Tiegs referred to the Environmental Checklist and item B.l.d, whether there were surface indications or history of unstable soil in the immediate vicinity and if so, describe. The answer was no immediate evidence of sliding is present on-site which Mr. Tiegs indicted evaded the question. He referred to Item B.2.b, whether there were any off-site sources of emissions or odor that may affect the proposal and if so, generally describe. Mr. Tiegs noted there was a sewage treatment plant 300 yards away and the answer indicated there were no off site sources of emission. There was also noise associated with the sewage treatment plant. He referred to Item 12.a which indicated a large Snohomish County park was located approximately 1/4 mile south of the subject property and that the Meadowdale Playfields were '/4 mile east. Mr. Tiegs noted these were actually 3 miles away. Mr. Tiegs referred to Item 14a, identify public streets and highways serving the site and the answer that SR 99 was located approximately 1.5 miles east of the site. Mr. Tiegs pointed out the distance was about 4 miles. Barbara Cohen, 17151 Sealawn Drive, Edmonds, expressed concern with the size of the easement for the number of homes, noting it should be a street rather than an easement. She recommended the access be across from Sealawn Drive due to unsafe conditions when making a left turn which she felt an additional six homes would make more difficult. She expressed concern with the proposal to park two cars in the driveway and in the garage as well as with the lack of on -street parking. She expressed concern with six new homes, and one older home that was not up to today's codes. She also expressed concern with the safety of children on the bank. Tom Sullivan, 17041 Talbot Road, Edmonds, referred to the ADB Staff Report for the Talbot Park Estates PRD which stated on page 4 of 4, recommendation G, retain the cedar tree on Lot 1, the redwood on Lot 3 and the fir on Lot 4 unless this can be shown to be unpractical due to construction requirements. As a general contractor himself, he could show many ways this was impractical and could find a way to remove a mature cedar, redwood, and fir. He noted a developer would be allowed to remove the trees under the ADB's recommendation. He questioned how this was in compliance with the requirement in the PRD ordinance 20.35.050, Design Criteria for PRDs, #6 "preserve, enhance, or rehabilitate natural features of the subject property such as significant wetland, wildlife habitat or streams." He noted in this instance, there was a recommendation by the ADB to not allow the developer to remove these mature trees, but in the end the applicant could remove the trees. He questioned whether this was the City's intent on all other PRDs, to let developers remove whatever trees stood in their way to allow them to develop the property as they wished to get the density they required. This was a poor precedent to set. Roger Hertrich, 1020 Puget Drive, Edmonds, commented that although he did not live in Talbot Park, he was interested in PRDs as well as fairness. The most significant information in the packet was the SEPA appeal as it addressed the way the setbacks, wetlands and trail location were treated. Due to the questions this raised, he suggested this was an automatic remand to the Hearing Examiner because the geotechnical reports and other information necessary to make a decision were missing. He referred to the MDNS (Mitigated Determination of Non -Significance). Mr. Snyder interjected that Mr. Hertrich's comments were not relevant to the Council's current proceeding. Mr. Hertrich indicated he was suggesting the evidence not in the record was not available to staff to issue the MDNS. Mr. Snyder advised the SEPA appeal was not before the Council. Edmonds City Council Approved Minutes August 20, 2002 Page 25 Mr. Hertrich concluded there was not sufficient evidence to make the decision; the Hearing Examiner did not have proper information to make a decision and the Council did not have proper information to make a decision other than denial or remand. Bob Drew, 17024 76th Avenue W, Edmonds (contiguous property owner to the east), expressed concern with the density of the project, seven houses which would have at least two vehicles per house. He noted he frequently had 3-4 cars and a trailer at his house, and there would be problems with parking if on - street parking were not available. He questioned how overflow parking would be handled during holidays or parties, and he assumed they would park on the street and block traffic. He expressed concern with trees in the area that have fallen in recent years, surmising when the topography was disturbed, the large trees that were proposed to remain in the bank area could potentially fall on the houses. He summarized the project was too dense, and was effectively reducing the 12,000 square foot lot requirement to 7,000 square feet. Mrs. Jay Thomas, 18427 43 d W, Edmonds, advised her parents were the former owners of the house. Mayor Haakenson interrupted Ms. Thomas, noting her husband was the party of record. The applicant did not object to Ms. Thomas speaking. Ms. Thomas referred to the comments that the trees on the property were not native. She recalled her parents had planted every tree on the property except for the firs, alders, and maple. As she began to identify the trees they had planted, Mr. Snyder asked whether this information was contained in the record. She summarized the trees on the property were not native. With regard to the objections to the proposed density, she referred to a drawing that indicated the density was consistent with what already existed. Hearing no further comment, Mayor Haakenson closed the opportunity for parties of record to provide testimony. Rebuttal Mr. Smith referred to the comment that all PRDs were spot rezones, pointing out that PRDs were used in all jurisdictions. The general test in Washington for a spot rezone was that it must be different from the surrounding zoning and totally inconsistent with the surrounding zoning which he did not feel a PRD was. Regarding the contention that PRDs were special tools for otherwise undevelopable property, he noted that was a holdover from the last ordinance and that language did not exist in the current ordinance. Regarding the measurement of the stream bank, Mr. Smith recalled this issue was discussed at length during the Hearing Examiner's review; the Hearing Examiner relied on four resources to determine that the proposed stream bank location was correct. First, a definition in Black's law dictionary (page 290 in the Council record), "That part of a stream which retains the water. The elevation of land which confines the waters of a stream in their natural channel when they rise the highest and do not overflow the banks." Second, a drawing submitted by Bill Railton, a wetlands and water resources professional on the City's accepted list of consultants (page 279 of the Council record). Third, Mr. Railton's testimony to the Hearing Examiner (page 319 of the Council record), "In speaking about streams, "top of the bank" is usually defined as the outermost portion of the channel. The channel is carved by what is normal nigh and low flows. The "top of the bank" would typically be the area below which we would not be finding vegetation, or certainly not upland vegetation. The combination of top of bank, low flow, moderate flow, and the high flow would comprise the channel. So as described by both gentlemen, the top of the bank would be that area were you would normally find high annual flows." He noted Mr. Railton's later testimony stated that the line indicated by the applicant was consistent with his understanding of the top of the bank. The fourth resource the Hearing Examiner relied upon was the long-standing consistent City Edmonds City Council Approved Minutes August 20, 2002 Page 26 interpretations. It was clear in the record that the applicant upheld their obligation with regard to identifying the location of the stream bank. With regard to the assertion that the geotechnical report was inadequate, Mr. Smith acknowledged the geotechnical report indicated it was a preliminary report and should be followed up with a specific building permit application. He emphasized there was no building permit application pending and that assessment would be required under ECDC 19.05 when a building permit was submitted, after the plat was recorded. He stated there was no inadequacy with regard to the geotechnical report. With regard to the contention that there was no subsurface exploration, he referred to the geotechnical report where Mr. Liu, who performed the preliminary geotechnical analysis, indicates they probed the subsurface soils by manually pushing a steel T -bar into the ground in random locations within the site to get an indication of the density or consistency of the soils. The probe bar could generally penetrate to depths from 12 to 40 inches. Mr. Smith noted Mr. Liu did a background analysis using maps he knew to be accurate, visited the site to conduct on-site evaluation to ascertain those resources were correct, and his documentation in the report was consistent with how evaluations were conducted on this type of project. With regard to whether a clear public benefit was provided and the indication that there needed to be some public accessibility to provide a clear public benefit, Mr. Smith noted the criteria in ECDC 20.35.050, states because PRDs are providing some incentives to applicants by allowing for flexibility from the bulk zoning requirements, a clear benefit should be realized by the public and describes the criteria for determining what comprises a clear public benefit. He noted none of the criteria required that the public have physical access to the property and therefore that was not a reasonable criteria for determining whether a clear public benefit was provided via the application. Regarding protection of unique natural features, Mr. Smith explained the code states that in order for modification, preservation of unique natural features of the property is required. The code did not require preservation beyond what was required for a standard subdivision or any specific amount of preservation, only that unique, natural features be preserved. The preservation of unique natural features would occur with development of this application. He pointed out there were also two open space areas provided that were not required under the Critical Areas Ordinance. Councilmember Wilson referred to page 279, the cross-section provided by Mr. Railton, and asked whether it was a cross section of the stream on the site. Mr. Smith answered it was taken from a general stream ecologist manual for determination of stream bank. Councilmember Wilson asked whether Mr. Railton provided or surveyed the actual stream corridor to obtain cross-section information. Mr. Smith answered only the topography of the stream was done. A cross-section was not prepared because it was not requested, and the stream channel was only about 2 feet in width which would make it difficult to produce a meaningful cross section. Councilmember Wilson pointed out that would have provided additional information that would support the location of the top of the bank for the stream versus the top of the bank for the slope. Mr. Smith explained they believed it was clear to everyone reviewing the application where the channel was and where the upper reaches of the channel were and the request for more analysis regarding the location of the bank did not arise. Councilmember Wilson commented there was no information in the record that identified the location of the top of the bank based on survey data. Mr. Smith recalled the Hearing Examiner questioned the wetland biologist regarding the top of the bank location identified on the subdivision drawings and whether the depiction of the top of the bank on the subdivision drawings was consistent with his understanding of the top of the bank and his testimony was that it was consistent. Edmonds City Council Approved Minutes August 20, 2002 Page 27 Councilmember Wilson referred to Mr. Railton's testimony on page 319 regarding how the top of the bank was typically defined, and asked whether there was any data in the record to support Mr. Railton's conclusions or his definition. Mr. Smith answered the surveyed location of the stream. Councilmember Wilson noted that was center channel. Mr. Smith noted the channel was less than 2 feet wide at its widest and it was inferred from the stream analysis that because the stream was a type H or 111, it was no wider than 5 feet. Councilmember Wilson questioned where in the record the width of the stream defined the type of stream. Mr. Smith noted stream definitions were in the city's Critical Areas Ordinance. Councilmember Wilson recalled the Critical Areas Ordinance referred to flow but not channel width. Councilmember Wilson noted the geotechnical analysis included probing of the soil but not core samples. Mr. Smith answered the soil was probed with a soil auger, which Mr. Smith indicated was a subsurface evaluation. Councilmember Wilson asked whether the data from the core samples was provided. Mr. Smith answered Mr. Liu's finding was that there was a pervious layer at 12-14 inches and that the soil was pervious to 12-40 inches. Mr. Liu described the soil conditions on the property and that his soil borings confirmed the background research he had done regarding soil typing. Councilmember Wilson asked whether the boring logs were provided. Mr. Smith indicated they were not. Councilmember Wilson observed there was only the conclusion, not the data showing the soil composition. Mr. Smith agreed, noting there would be a detailed geotechnical evaluation performed for each individual building permit to ascertain the conditions on each building permit site were consistent with the assessments done to date. Councilmember Wilson questioned whether, absent the boring logs, there was adequate information to reach the conclusion that the buffer area could be reduced from 50 feet to 10 feet. Mr. Smith explained Mr. Liu was hired as a licensed geotechnical engineer with a PhD in soil science to draw those conclusions for them. He reiterated there would be a second analysis done with the building permit to ensure the evaluations were correct. He concluded there were no inadequacies in any of the work that had been done so far. Councilmember Wilson asked whether increasing the proposed buffer from 10 feet to 50 feet would significantly alter any of the parcels. Mr. Smith answered certainly. Councilmember Dawson referred to Mr. Smith's testimony that the geotechnical engineer probed the subsurface soil, noting the report on page 119 indicated the geotechnical engineer probed the surficial soils which were the opposite of the subsurface soils. She noted on page 118 of the record, the geotechnical engineer indicates he has not done a subsurface exploration. She questioned whether 12 inches was subsurface exploration. She noted Mr. Liu indicated this was a preliminary recommendation subject to a full geotechnical evaluation including a subsurface evaluation. Mr. Smith explained what Mr. Liu had done was consistent with the way the City approached this type of situation. Councilmember Dawson reiterated this was an incomplete report. Mr. Smith speculated that absent an actual building permit to evaluate a specific foundation, it would be impossible for Mr. Liu to do the detailed evaluation the Council appeared to want. Councilmember Dawson pointed out the geotechnical evaluation was not for purposes of a building permit but whether a waiver of the normal 50 foot buffer area would be provided. She noted if a complete geotechnical evaluation of the subsurface was not provided, the reduction of the 50 foot buffer should not be allowed. Mr. Smith disagreed. Councilmember Dawson asked how Mr. Smith could disagree that the code required a geotechnical evaluation prior to a waiver. Mr. Smith noted Councilmember Dawson was referring to two different Edmonds City Council Approved Minutes August 20, 2002 Page 28 sections of the code, first the Critical Areas Ordinance did not require any more detail than what was done. He acknowledged Chapter 19.05, building permits, required specific information. He noted there was no building permit in this instance and the requirements of the Critical Areas Ordinance had been met. Councilmember Dawson asked whether the Code referred to ECDC 19.05 for an explanation of the geotechnical evaluation. Mr. Smith agreed it referred to four portions, but not the entire chapter. Councilmember Dawson asked whether there was any competent evidence in the record regarding the total area of the wetland. Mr. Smith answered two wetland delineations had been done, one on Mr. Andree's property to the west. Mr. Smith explained Mr. Andree had not been informed that the wetland delineation was to be performed on his property and that work was done via trespass. He explained when they discovered the flags on Mr. Andree's property, they called Mr. Andree to ask if they could survey the wetland on his property to determine the actual area. When Mr. Andree investigated his property, he discovered artificial water was being introduced to his property and filed a police report. Mr. Smith explained at the Hearing Examiner review, Mr. Railton believed one of the soil logs in the Terra Association's delineation performed on Mr. Andree's property was probably influenced by the artificial water introduction. Mr. Snyder clarified information regarding the size of the wetlands was in the record on pages 251 and 265. Mr. Smith clarified the 1600 square foot area indicated on page 251 was on Mr. Andree's property and the wetland on the subject property was approximately 500 square feet. He noted it was likely the square footage would decrease if a second evaluation were done. Councilmember Dawson noted if the wetland was less than 2500 square feet it was not required to be regulated by the City. She asked whether the Council could require additional protection for a wetland less than 2500 square feet as a condition of approval of a PRD. Mr. Smith pointed out the Council could not require additional protection if the total area was below the threshold. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO CONTINUE THIS ITEM TO SEPTEMBER 10 (PRIOR TO COMMITTEE MEETINGS). Councilmember Dawson commented everyone would be better served by the Council returning to this issue fresh and continuing it would give Mr. Snyder an opportunity to do the research he had suggested. Mr. Smith preferred to resolve this issue tonight. Mr. Hatch preferred the Council consider this with a clear mind and not in the haze of the late hour. Mr. Bullock indicated continuing this item was acceptable to staff. MOTION CARRIED UNANIMOUSLY (6-0). 7. AUDIENCE COMMENTS Roger Hertrich, 1020 Puget Drive, Edmonds, referred to the comments made regarding the project one lot east of 5th Avenue, suggesting in the future the address of the vacant lot be provided as the subject lot was actually on Holly but had not been described that way. Regarding the possible purchase of the restaurant, Mr. Hertrich indicated he talked with the owner who indicated the offer made was much less than other offers they had received and they were not selling. Jim Stein indicated his sister, brother and he owned the property at 7707 171St Street SW (location of the proposed PRD discussed in Agenda Item 6) which they inherited from their deceased parents. He explained they struggled with how to best use the property. The existing residence was in need of major renovation which they lacked the means and the will to accomplish. They investigated possible use of Edmonds City Council Approved Minutes August 20, 2002 Page 29 the property as a park and although this was of interest to the Parks and Recreation Department, they lacked sufficient resources to acquire the property even at below market prices. He explained inquires were made regarding marketing the property as a single estate but the absence of similar estate property in the neighborhood and prevailing market conditions made this impractical. They were then approached by Mr. Sundquist and Viking Property with a plan for a PRD. He believed the proposal made good use of the unique nature of the parcel and noted the ordinance enabling PRDs was created "just for this kind of property." The natural features that made this property desirable would remain largely intact and new families could grow up in the same surroundings they did. Although he understood why area residents may resist this plan, the fact was that most lived on home sites that were carved from existing large parcels. On behalf of his family and himself, he strongly encouraged approval of the proposed PRD. Councilmember Petso explained to Mr. Snyder that during his absence from the room, the audience comment dealt exclusively with the previous two closed record reviews. Mr. Snyder advised both comments were out of order but anything that would taint the entire Council was not basis for removal. He suggested having the minutes be made available to the opposing counsel and they be allowed an opportunity to respond. 8. REPORT ON CITY COUNCIL COMMITTEE MEETINGS This item was deferred due to the late hour. 9. MAYOR'S COMMENTS Mayor Haakenson advised a 6:00 p.m. Executive Session was scheduled prior to the August 27 Council meeting. In addition, the scheduled work session on the recommendation of the Planning Board to approve proposed amendments to Title 20 of the ECDC in order to establish a review process and guidelines for architectural design review had been rescheduled to September 3. 10. COUNCIL COMMENTS This item was deferred due to the late hour. With no further business, the Council meeting was adjourned at 11:45 p.m. Il. SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes August 20, 2002 Page 30 1 AGENDA EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 5th Avenue North 7:00 - 10:00 p.m. AUGUST 20, 2002 7:00 p.m. - Call to Order Flag Salute 1. Approval of Agenda 2. Consent Agenda Items (A) Roll Call (13) Approval of City Council Meeting Minutes of August 13, 2002 (C) Approval of claim checks #57385 through #57525 for the week of August 12, 2002, in the amount of $450,649.43. (D) Acknowledge receipt of Claim for Damages from Joyce Lanier ($421.17). (E) Declaring certain Fire Department obsolete items surplus. (F) Authorization to call for bids for the 2002 Water Main Replacement Program. (G) Authorization to contract with James Murphy to sell surplus vehicle Unit #848 (a 1982 Dodge Van). (H) Authorization for the Mayor to sign an Electrical Utility Easement with the Snohomish County, PUD No. 1 to provide new electrical service equipment for the Frances Anderson Center. 3. (15 Min.) Proposed Ordinance amending the 2002 budget as a result of unanticipated transfers and expenditures of various funds.* *Public comment will be received. 4. (15 Min.) Edmonds Public Facilities District Update Page 1 of 2 CITY COUNCIL MEETING AGENDA AUGUST 20, 2002 Page 2 of 2 5. (40 Min.) Closed Record Review on the Planning Board recommendation to approve a Contract Rezone from Single Family Residential (RS -6) to Community Business (BC). The purpose of the rezone is to allow for an underground parking garage and mixed-use development on the western -most 15 feet of the lot. The property is located at the vacant lot east of 515 - 5th Avenue South. (Applicant: AD Shapiro Architects / File No. R-2002-101).* This is a closed record review of the Planning Board recommendation. Only parties of record may speak on this matter. 6. (90 Min.) Closed Record Review of the Hearing Examiner's recommendation to approve the application for a seven lot plat and Planned Residential Development (PRD), known as "Talbot Park Estates," located at 7707 - 171st Street SW. The site is zoned Single Family Residential (RS -12). Applicant: Viking Properties, Inc. / File No. P-02-11 and PRD -02-12).* * This is a closed record review of the Hearing Examiner's recommendation. Only parties of record may speak on this matter. 7. Audience Comments (3 Minute Limit Per Person) 8. (15 Min.) Report on City Council Committee Meetings 9. ( 5 Min.) Mayor's Comments 10. (15 Min.) Council Comments ADJOURN Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771-0245 with 24 hours advance notice for special accommodations. The Council Agenda as well as a delayed telecast of the meeting appears on AT&T Cable, Channel 21.