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06/02/1992 City CouncilFINAL VERSION ADOPTED BY CITY COUNCIL JUNE 9, 1992 EDMONDS CITY COUNCIL MINUTES June 2, 1992 FINAL ADOPTED VERSION The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Laura Hall at the Library Plaza Room, 650 Main St., Edmonds. All present joined in the flag salute. PRESENT Laura Hall, Mayor Jeff Palmer, Council President Steve Dwyer, Councilmember Dave Earling, Councilmember Michael W. Hall, Councilmember William Kasper, Councilmember Tom Petruzzi, Councilmember Dianna Phillips, Student Representative ABSENT STAFF Art Housler, Admin. Serv. Brent Hunter, Personnel Manager Bob Alberts, City Engineer Rob Chave, Planning Manager Tom King, Facilities Supr. John Wallace, City Attorney Rhonda March, City Clerk Barb Mehlert, Recorder John Nordquist, Councilmember (Councilmember Nordquist announced at the May 26 Council Meeting that he would be unable to at- tend the June 2 Council Meeting due to the fact he would be out of state). rnNCFNT aapmna Item (B) was pulled from the Consent Agenda. COUNCIL PRESIDENT PALMER MOVED, SECONDED BY COUNCIL - MEMBER EARLING, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items are as follows: (A) ROLL CALL (C) APPROVAL OF CLAIMS WARRANTS FROM #922568 to #922655 FOR THE WEEK OF MAY 25, 1992 AND PAYROLL WARRANTS FOR MAY 20, 1992 54 ,"� ,r (D) RESOLUTION #746 COMMENDING STUDENT REPRESENTATIVE DIANNA PHILLIPS (E) RESOLUTION #747 TO SET HEARING DATE OF JULY 7, 1992, FOR VACATING A PORTION OF THE UNOPENED 174TH ST. S.W. RIGHT-OF-WAY, LYING WEST OF MEADOWDALE BEACH ROAD AND ADJACENT TO 6830 vi'IMEADOWDALE BEACH ROAD (APPLICANT: CITY OF EDMONDS AND MARK VAN DEYACHT/FILE NO, ST-92-100) C� w (F) PROPOSED ORDINANCE #2884 AMENDING ORDINANCE #2749 TO INCLUDE SALARY REVIEW COMMITTEE AS A PAID COUNCIL COMMITTEE MEETING, EFFECTIVE JUNE 15, 1992; AND ALLOCATION OF $900 FROM COUNCIL Cµ�� CONTINGENCY FUND. D APPROVAL OF MINUTES OF MAY 26, 1992 (Item (B) on the Consent Agenda) k Councilmember Petruzzi referenced a memo from the Council Assistant which contained his requested amendment to the May 26, 1992 Council Minutes: Page 7, Paragraph 5 under "COUNCIL" "Councilmember Petruzzi clarified that while he is still associated with the Town Forum, he has not moderated a meeting for Town Forum since become a Councilmember". The minutes currently reflect that Councilmember Petruzzi is no longer associated with the Town Forum. With this correction made, COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER EARLING, TO APPROVE THE MINUTES OF MAY 26, 1992, AS AMENDED. MOTION CARRIED. AUDIENCE Roger Hertrich, 1020 Puget Lane, Edmonds, said the Council Minutes of May 26, 1992, do not accu- rately reflect the statements he made during that meeting. Mr. Hertrich said he called the Coun- cil Assistant with the requested corrections, however, they were not amended as he requested. Mr. Hertrich said he mentioned that a boardwalk along the waterway, all the way to Brackett's Landing would be a good item to include in the City's Comprehensive Plan. Regarding the testimony on the City Park Master Plan, Mr. Hertrich said he thinks a ground level entrance for the handi- capped at .the northeast corner should be included in the City Park Master Plan, as well as an en- trance/exit to the walkway along SR104. Mayor Hall suggested Mr. Hertrich contact the Council President in the future. Earl Darrison, 210 3rd Ave. South, Apt. C, asked about the disposition of the Maintenance Facili- ty in City Park, should it be relocated. Mayor Hall said Mr. Darrison is welcome to visit her office or Public Works office to view the proposed plans. Mr. Darrison asked if the property would be retained by the City, and Mayor Hall replied affirmatively. With no other member of the audience coming forward, Mayor Hall closed the audience portion of the hearing. PRESENTATION OF RESOLUTION OF COMMENDATION TO STUDENT REPRESENTATIVE DIANNA PHILLIPS �dL,(Council President Palmer read Resolution #746 into the record which commended Student Representa- tive Dianna Phillips for her contributions while serving as Student Representative. Council Presi- dent Palmer said Ms. Phillips has been a dedicated Student Representative, and even attended special Council Meetings that were held on Saturdays. The City Council and Mayor thanked Dianna for her participation and dedication. PRESENTATION AND ADOPTION OF "AMERICANS WITH DISABILITIES ACT" CITY POLICY Staff Report and Recommendation A.Q k. Brent Hunter, Personnel Manager, reported on the City's compliance with the new Americans with Disabilities Act. Mr. Hunter's report contained a brief background on the new law, recommenda- tions on the initial compliance steps to be taken, and a preliminary review of the accessibility improvements, which are required in the City's facilities. Mr. Hunter said a City policy, enti- tled "Accommodation of the Disabled, is included in Council packets for Council review and approv- al. Mr. Hunter said the Americans with Disabilities Act (ADA) was passed into law in 1990. Mr. Hunt- er said the ADA became effective for all local governments on January 26, 1992. Mr. Hunter stat- ed by January 26, 1993, all public entities will be required to make the non-structural changes necessary to comply with the employment, services, and accommodation provisions of the law. The structural changes for accommodations have to be completed by January 1995. Mr. Hunter said a preliminary survey of the City's facilities has been conducted to determine the additional improvements which will be needed in order to provide the level of accessibility re- quired by the ADA. The preliminary cost estimates for these improvements are $640,000. Tom King, Facilities Supervisor, reviewed with the Mayor and Council, a detailed chart showing each facility, the improvements required, and the estimated cost. Mr. Hunter said the City currently has some HUD monies available, and if additional HUD monies become available, the City will submit new grant requests for additional ADA compliance improve- ments. The Policy entitled "Accommodation of the Disabled" contained five major components: 1) ADA Coor- dinator. The Mayor shall appoint the Personnel Manager as the ADA Coordinator; 2) ADA visor Committee. The Mayor shall appoint three members, who must be residents of Edmonds, to the ADA Advisory Committee. The members must be either disabled or representing a non-profit organization of disabled persons; 3) Implementation. The City shall conduct a Self Evaluation of its services, facilities, public announcements, an employment practices to determine any barriers or other restrictions, that limits reasonable access to qualified disabled persons; 4) Public Awareness. City announcements, such as public meeting notices, job advertisements, recreational program guides, and other general announcements, will proclaim the City's interest in accommodating dis- abled persons, and; 5) Grievance Process. Any person, who believes that they have been discrimi- nated against by the City on t e basis of their disability, may submit a written grievance, out- lining the facts of their complaint, to the ADA Coordinator. Council Discussion and Deliberation Councilmember Petruzzi asked if the work that has to be done to comply with ADA requirements is broken down into classes. Mr. Hunter replied negatively. Councilmember Kasper asked Mr. Hunter to keep the Space Needs of the City in mind when complying with the ADA requirements. Councilmember Kasper said some City buildings will not be able to exist because they don't meet the earthquake standards that have been placed upon them. City FINAL COUNCIL APPROVED MINUTES Page 2 June 2, 1992 Council President Palmer said the ADA is extremely far reaching and the cost that the City is looking at today is a fraction of what the City will end up spending in the future. Council Presi- dent Palmer said this underscores the need for moving ahead on the City's Space Needs Analysis. Councilmember Dwyer referenced the informational pamphlet entitled "A Citizen's Guide to Your Rights under the Americans with Disabilities Act". Councilmember Dwyer said the pamphlet should reflect the phone number of the Personnel Office, rather than the main City number. Mr. Hunter concurred. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER PETRUZZI, TO APPROVE THE CITY POLICY ENTI- TLED "ACCOMMODATION OF THE DISABLED". MOTION CARRIED. HEARING ON HEARING EXAMINER'S RECOMMENDATION FOR VACATING A PORTION OF THE UNOPENED 184TH STREET IS.W RIGHT-OF-WAY LYING WEST OF OLYMPICDRIVE AND SOUTH OF 7704L EW DRIV L- 6UL CANT: SELL KIM/FILE NO. S -92-38 ��Vp'�S ,,/ Staff Report and Recommendation IV- Rob Rob Chave, Planning Manager, said the Applicant, Russell Kim, has petitioned to vacate a portion 5 of the undeveloped 184th Street Southwest right-of-way lying west of Olympic View Drive. Mr. J Chave said the Hearing Examiner held a public hearing on this request, and Staff prepared an Advisory Report and Recommendation which was presented in the public hearing to the Hearing Exam- iner. Mr. Chave said the Hearing Examiner issued a recommendation on May 13, 1992, to approve the pro- posed right-of-way vacation subject to certain conditions, which were included in the Council Packets. In addition, Mr. Chave said the Applicant would also be giving the City utility ease- ments. Mr. Chave recommended that he City Council adopt the recommendation of the Hearing Examiner. Councilmember Dwyer inquired on the process used to make the determination that the City would never have a use for this street right-of-way from Olympic view Drive up to 80th. Mr. Chave said one of the principal concerns was the change in topography in the area. Mr. Chave said the Applicant's property fronting on Olympic View Drive is in places, 50 feet below the property to the west. Mr. Chave said this is a significant change in elevation.. Bob Alberts, City Engineer, said there is a 30% to 40% grade at the subject location, which would make it very difficult to construct a road. Mr. Alberts discussed a future road that is designat- ed on the Official Street Map, however, said it would be difficult to build since a dwelling exists in the same area. Other than what is listed on the Official Street Map, and the subject right-of-way, Councilmember Dwyer asked if there is any other possibility for anything in this vicinity where the City would build a road that would connect to Olympic View Drive to an access to Seaview Park. Mr. Alberts said he was not sure, as most of hillside in the area is developed. Councilmember Dwyer asked if anyone has discussed with the Post Office, if they would like to have access from Olympic View Drive up into the Seaview area, and Mr. Chave said he did not think that subject ever came up. Councilmember Kasper asked if the City is talking about substituting a right-of-way or an out right sale, and Mr. Chave replied the latter. Councilmember Hall verified that the City is asking for compensation from the property owner as well an easement across the property, and Mr. Alberts replied affirmatively. Testimony of the Applicant Councilmember Hall asked Russell Kim, Applicant, to re -state his position on the subject. Mr. Kim said the street has not been open for several years. Mr. Kim said the subject area has difficult terrain which would make constructing a road very difficult. Mr. Kim said he is willing to justly compensate the City for the right-of-way. FINAL COUNCIL APPROVED MINUTES Page 3 June 2, 1992 Public Testimon Max Meyring, Meyring & Associates, 23423 Highway 99, Edmonds, said he is in favor of the proposed right-of-way because it would help one of his clients procure a vacation for the rest of the street. James Thompson, 18305 80th Ave. W., said the traffic on 80th W. has become atrocious. Mr. Thomp- son said the City needs to construct a road to take some of the traffic off of 80th. Betty Smith, 18208 80th West. feels a road could be placed in the subject area, and said the City should use the subject property for City purposes and construct a road. Ms. Smith said the traf- fic is going to get worse with the opening of the new Post Office. With no other member of the audience wishing to come forward, Mayor Hall closed the public por- tion of the hearing. Council Discussion and Deliberation Councilmember Petruzzi said he doesn't have an objection to the vacation, however, does have an objection to selling it and not getting the requested street vacation. Councilmember Petruzzi said to give up the right-of-way for the purpose of maximixing an area for development, might not be consistent with good judgement. Councilmember Dwyer said he is not convinced that the City has no need for a street that links the general Seaview Park Area and Olympic View Drive. Councilmember Dwyer said if the City wanted an access at the right-of-way, they wouldn't be able to purchase it for the price that it is recommended it being sold for. Councilmember Dwyer said he is not convinced that the City does not have a need for an access through there. Councilmember Dwyer said given the fact that there isn't another plan, as Staff informed the Council the other access shown on the Official Street Map has a house on it, Councilmember Dwyer said he doesn't see why the City would be willing to give up the only potential the City has for an access road. Councilmember Kasper agreed with Councilmember Petruzzi and Councilmember Dwyer. Councilmember Kasper said he doesn't feel the City should give up the right-of-way, and feels the City needs to look at the issue of access more closely. Councilmember Hall asked the City Attorney if he is correct to assume that if the Applicant wants a vacation of the property, he has a right of purchase it for a certain amount of money. City Attorney John Wallace said the Code states the Council has the right not to grant a vacation if the proposal is not consistent with the Comprehensive Plan, it's usefulness or potential useful- ness of the street to the general public. Mr. Wallace said in order to grant the vacation, the Council must make a finding that the City has absolutely no need for the street. Mr. Wallace said at this time, Councilmembers have indicated their opinion that there is a need for an access to connect 80th and the Seaview area with Olympic View Drive. Councilmember Hall feels the Council may be trying to penalize the Applicant. Councilmember Hall said the property is not needed by the City, therefore, the Applicant should be allowed to attain the right-of-way. Council President Palmer said the Council is not trying to penalize the Applicant, as there may be a future need for the right-of-way, and since the property is publicly owned, he does not feel comfortable with giving up the right-of-way. Councilmember Dwyer agreed with Council President Palmer, and said rather than viewing it as penalizing someone, the decision should be based on the premise that nobody has the right to own public land except for the public, and the City should not sell it unless they are convinced there is no use for it and never will have a use for it. Councilmember Hall said he is convinced that the City will never use the subject property as an access road. COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER DWYER, THAT THE COUNCIL REJECT THE HEAR- ING EXAMINER'S RECOMMENDATION FOR VACATING A PORTION OF THE UNOPENED 184TH STREET S.W. RIGHT-OF- WAY LYING WEST OF OLYMPIC VIEW DRIVE AND SOUTH OF 7704 OLYMPIC VIEW DRIVE AND FURTHER, THAT THERE IS A NEED FOR AN ACCESS BETWEEN 80TH AND OLYMPIC VIEW DRIVE. Under discussion, Councilmember Dwyer feels the relative part of the motion only needs to reflect that the Council is not convinced that there will never be a need for an access between 80th to Olympic View Drive. FINAL COUNCIL APPROVED MINUTES Page 4 June 2, 1992 COUNCILMEMBER DWYER MOVED TO AMEND THE MOTION, SECONDED BY COUNCILMEMBER PETRUZZI TO READ THAT THE RELEVANT PORTION BE CHANGED TO READ THAT "THE MAJORITY OF THE COUNCIL IS NOT CONVINCED THAT THERE WILL NEVER BE A NEED FOR AN ACCESS BETWEEN 80TH AND OLYMPIC VIEW DRIVE". City Attorney John Wallace said a motion for disposition should be made, since he would be preparing a Findings of Fact to be adopted by the Council at a future Consent Agenda. Mr. Wallace said the Findings of Fact would reflect Council discussion. Council President Palmer asked if the word "Reject" should be changed to "Deny". City Attorney John Wallace said the correct terminology would be reflected in the Findings of Fact. THE MAIN MOTION, AND THE AMENDMENT TO THE MAIN MOTION THEN CARRIED, with Councilmember Hall vot- ing no on the Main Motion as well as the Amendment to the Main Motion. Mr. Wallace said the Findings of Fact and Conclusions regarding this subject would appear on the June 16 Consent Agenda for Council review and approval. HEARING ON APPEAL OF ADB FINAL APPROVAL FOR A NEW 3-STORY MIXED USE OFFICE/5-UNIT APARTMENT BUILD - Mayor Hall asked if any Councilmembers had any Appearance of Fairness or other Ex-Parte communica- tions to reveal prior to the start of the hearing. Councilmember Dwyer said he has decided to step down from participating in the hearing. Council - member Dwyer said this is a project which the Council has had under several other occasions under different circumstances. Councilmember Dwyer said this is the first hearing as an appeal from the final decision of the A.D.B. In this appeal, Councilmember Dwyer said the parties have changed from those parties that were under prior circumstances, and said in this instance, the Appellant is the Edmonds Council of Concerned Citizens. Councilmember Dwyer said he is a former member of the group, however, left the group as he was elected to the Edmonds City Council. Coun- cilmember Dwyer said his parents have been very active in the group over the years, and although, neither one of them is presently an officer or trustee of the group, both of them have served as one or the other over the years. Councilmember Dwyer said after searching his conscience, he feels he can be fair on this subject, however, feels there might be a problem with Appearance of Fairness. Councilmember Dwyer said there is a possibility that a member of the audience could believe that it is unfair for him to participate in light of the facts he has disclosed. Councilmember Dwyer said he is not convinced that a disinterested citizen in the audience would totally agree with his participation in the hearing. Councilmember Dwyer said a disinterested citizen might view his participation as being unfair or have an appearance of being unfair. Councilmember Dwyer left Council Chambers for the duration of the hearing. Councilmember Hall said his brother-in-law's father-in-law is the owner of the subject property. Councilmember Kasper said he was approached by Hearing Examiner James Driscoll and Robert Butterfield's father. Councilmember Kasper said the discussion did not contain any Ex-Parte commu- nications. Councilmember Kasper said both parties simply asked him to be fair on the subject. Council President Palmer noted for the audience that the City Attorney present tonight is not the same City Attorney present when the appeal from the preliminary ADB decision was heard before the Council. Council President Palmer said he had a previous conversation with the Applicant, Mr. Butterfield. Council President Palmer said Mr. Butterfield asked him when the Council's decision was to be made, at which time, Council President Palmer referred him to the City Attorney. Councilmember Earling said since he works in downtown Edmonds, he sees many people. Councilmember Earling said he did come into contact with Mr. Bennett on a couple occasions, Mr. Driscoll on one occasion, and Mr. Butterfield's father on one occasion. Councilmember Earling said there was no specific discussion on the subject hearing, nor did they try and influence him in any way in any of those conversations. Councilmember Petruzzi said he came into contact with Mr. Bennett's mother, in which no conversa- tion took place regarding the subject hearing. Mayor Hall said in the past she had two telephone calls to her office from the Applicant's Attor- ney, Mr. Bennett. Mayor Hall said she referred him to the City Attorney one time, and the neigh- bors of the subject property another time. FINAL COUNCIL APPROVED MINUTES Page 5 June 2, 1992 Mayor Hall asked the audience if they had any challenges to the participation of any Councilmem- bers in light of the facts disclosed. Finnis Tupper, Trustee of the Board, and representative for the Edmonds Council of Concerned Citizens, challenged the participation of Councilmember Hall and Mayor Hall. Mr. Tupper said Councilmember Hall is indirectly related to the Applicant, and the Mayor is related to Councilmem- ber Hall. Mr. Tupper said there could be an Appearance of Fairness, and a member of the audience might view their participation as being unfair. Mr. Tupper strongly objected to the participation of Councilmember Hall and Mayor Hall, and feels at the least, one or the other should step down. Roger Hertrich, 1020 Puget Drive, challenged the participation of Councilmember Hall. Mr. Hertrich said in the Fall of 1991, which was during the election process, Mr. Hertrich said he was in an interview with the Herald Newspaper which included Michael Hall. Mr. Hertrich alleged at that time, Michael Hall made negative comments with regards to the existence of the Edmonds Council of Concerned Citizens. Mr. Hertrich said Michael Hall specifically keyed in that "it was bad for the community that a few people like that have so much effect". Mr. Hertrich feels in light of this information, and the facts already disclosed by Councilmember Hall, he should step down from participating in the hearing. Mr. Hertrich said considering the conscious effort that Councilmember Dwyer has made, Councilmember Hall should do the same. City Attorney John Wallace clarified with Mr. Hertrich that the subject interview was held during a campaign in which Michael Hall and Roger Hertrich were both candidates for Councilmember. Jenny Anttilla, 710 7th Ave. South, said Councilmember Dwyer was very eloquent in his speech, and I challenged the participation of Councilmember Hall. Ms. Anttilla asked Councilmember Hall if he has also "searched his conscience". Councilmember Hall replied affirmatively, and said he has no compunction that he could be fair in this hearing. Ms. Anttilla said this is debatable since he � riJQ/ is so close to the issue. , No other challenges to Councilmembers were made. City Attorney John Wallace clarified that Councilmember Hall's indirect relationship consists of his wife's brother's wife's father who owns the subject property. Mr. Wallace said in his opin- ion, the relationship is too remote to have any effect on his participation. With respect to the challenge of Mr. Hertrich to Councilmember Hall's participation, Mr. Wallace said the State Stat- ute is very specific that any statements made during a campaign period are not a basis for an Appearance of Fairness challenge. Mr. Wallace said in light of this, it is his opinion there is no disqualification issue of Councilmember Hall participating in the hearing. With respect to having a mother and son sitting on a deliberative body, it is a City Council decision, in which Mayor Hall is the Chair and not a voting member in this issue, since there cannot be a tie vote which would necessitate a vote from the Mayor. Councilmember Hall said if there was a consensus of the Council that he should step down from the hearing, he would in fact step down. With regards to Mr. Hertrich's previous statement, Council - member Hall said the statement was not true. Councilmember Hall said he did not specifically reference the Edmonds Council of Concerned Citizens. Councilmember Hall clarified that his state- ment to Mr. Hertrich was that he doesn't like a small group of individuals in the City of Edmonds dictating for the rest of the City, what should be done. Mr. Wallace referred to the appeal response statement by Mr. Bennett. Mr. Wallace said general- ly, the City's requirement for the written appeal are extremely general. Mr. Wallace said it does not require the City to set down the precise code section or facts or erroneous conclu- sions. Mr. Wallace said in terms of who can appeal, Mr. Wallace said any person can appeal. Mr. Wallace said when you are dealing with an administrative appeal with as broad and general written appeal requirements the City has, the City basically applies the same rules. Mr. Wallace said the posi- tion Mr. Bennett has to the adequacy of the appeal statement is not well founded and recommended the City not uphold that. With respect to the exhaustion of administrative remedies, Mr. Wallace said in reading the Code, there was no basis for appealing a preliminary decision from the Architectural Design Board. Mr. Wallace said the fact that the present appellant did not appeal the preliminary decision of the A.D.B., is irrelevant because the A.D.B. preliminary decision was not appealable. Mr. Wallace said the final decision is appealable, which is before the Council tonight. With regards to the allegations that the A.D.B. Code is unconstitutional, Mr. Wallace said the predecessors to the Ordinance was defended twice successfully by the office of Ogden, Murphy and Wallace, and contained the exact same challenges as alleged at present. Mr. Wallace feels the ordinance is indeed constitutional. FINAL COUNCIL APPROVED MINUTES Page 6 June 2, 1992 Council President Palmer said one of the concerns he has from reading through Mr. Bennett's let- ter has to do with a fair hearing. Council President Palmer said without having the membership list from the organization of Edmonds Council of Concerned Citizens, how can the Council assure that speakers under the public portion aren't already permitted time under the Appellant's por- tion. City Attorney John Wallace said it is appropriate to ask both the Applicant and Appellant to designate a single representative to make their presentation, and request that no other members of their organizations stand up on behalf of that organization. It was noted that Finnis Tupper was the designated speaker for the Edmonds Council of Concerned Citizens. Mr. Wallace said mem- bers of the Edmonds Council of Concerned Citizens could speak under the public portion if they had new testimony that wasn't covered by the designated speaker for the group. Council President Palmer said there has been at least three processes concerning this subject. Council President Palmer said Staff made determinations that were not appealed, which became final decisions. After the A.D.B. reviewed the preliminary plan and it was appealed to the City Council, the City Council made some decisions and those were not appealed to Superior Court, and should be at this time, final decisions according to City Code. Council President Palmer said that it seems to him that this narrows the scope to only those issues that were referred back to the A.D.B. for deliberation that were not previously reviewed by the Council. Council President Palmer asked City Attorney John Wallace if these statements were correct. Mr. Wallace said he believes the appeal statement and the clarification letter submitted by the Appellant frames the issue. Council President Palmer said his question is whether that frame encompasses issues that were already made as final decisions. Mr. Wallace said if in fact it is a final decision, and if the time period has run out for appealing that decision, Mr. Wallace said if one of those issues was raised during the hearing process, he would not recognize the issue. Staff Report and Recommendation Rob Chave, Planning Manager, said on May 6, 1992, the Architectural Design Board voted to approve a new 3-story mixed use office/5-unit apartment building at 504 Holly Drive. On May 13, 1992, Mr. — Chave said the Edmonds Council of Concerned Citizens submitted an appeal of the project for the following reason: "The proposed use of the structure is inconsistent with the comprehensive plan• - and fails to satisfy the requirements of the zoning ordinance". Mr. Chave referenced a six page letter from the Edmonds Council of Concerned Citizens in Counci•1-- packets. Mr. Chave said the Planning Department did not have a chance to review the letter as it was recently distributed. Mr. Chave said he received a list from the County Assessor's Office which contained information relating to the number of existing 3-story buildings currently located in the BC zone and within one half mile radius of the subject property. Council President Palmer asked Mr. Chave if it is his report that Staff finds that the Appli- cant's proposal meets the requirements of the zoning ordinance. Mr. Chave replied affirmatively. Testimony of the Applicant Peter Bennett, Attorney for the Applicant, Presented Exhibit 1 to City Clerk Rhonda March, which was a floor plan and elevation drawing of the proposed building at 504 Holly Drive. Peter Bennett, Attorney for the Applicant, Presented Exhibit 2 to the City Clerk, for distribu- tion to the Mayor and Council. Exhibit 2 was a letter from an individual pl,edging his support for the project and indicating the fact that he has signed a reservation agreement to purchase the first floor of the proposed building to be used as an accounting office. Mr. Bennett presented Exhibit 3 to the City Clerk, for review by the City Council and Mayor. The Exhibit was a Metro -Scan Property Report performed by Mr. Bennett, from records of the County Assessor's Office. Mr. Bennett said he did a search on two-story or more buildings with basements within a half mile of the proposed building, and said the list contains 154 buildings that fit into this category. FINAL COUNCIL APPROVED MINUTES Page 7 June 2, 1992 Mr. Bennett discussed the main issues of the appeal. Mr. Bennett said the first issue is the 2-story issue versus 3-story issue. Mr. Bennett said the City Council previously made a ruling that the Code states there is no restriction to stories. Mr. Bennett said this ruling is binding, and since the Appellant did not appeal that decision to Superior Court, that decision should remain final. Regarding the Appellant's testimony regarding the 1980 City Council Minutes, Mr. Bennett said those minutes are not relevant for a number of reasons. Mr. Bennett said the Code is objective and not subjective. Mr. Bennett said the Code section clearly states "stories" under the definition section, therefore, the subjective intent of what somebody thought it meant in 1980 has no relevance. Regarding primary versus secondary use, Brad Butterfield, Applicant, said the present proposal is a re -design of the project in accordance with the final decision of the Architectural Design Board. Mr. Butterfield said the first floor of the proposed building is entirely commercial, the second floor has two condominiums, and the third floor has two condominiums and two office spac- es. Mr. Butterfield said he has really tried to apply the Code to have a mixed use project. Mr. Butterfield asked the City Council for a final decision. Testimony of the Appellant Finnis Tupper, Trustee of the Board and Representative for the Edmonds Council of Concerned Citi- zens, said this is the first appeal. Mr. Tupper said many members of the Edmonds Council of Con- cerned Citizens question whether a preliminary decision was in fact, appealable. Mr. Tupper gave a brief history on the Edmonds Council of Concerned Citizens. Mr. Tupper presented Exhibit 4 to the City Clerk, which contained a list of 104 families and their addresses who live in the vicini- ty of Holly Drive. Mr. Tupper presented Exhibit 5 to the City Clerk, which contained the Articles of Incorporation of the Edmonds Council of Concerned Citizens. Mr. Tupper read excerpts from the Articles of Incor- poration to the Mayor and Council. Mr. Tupper read Article II, which in part stated that the corporation was organized to retain the residential, small town atmosphere of Edmonds Washington, and protect it from harmful development, including the spread of multiple residential dwellings into new areas. Mr. Tupper presented Exhibit 6 to the City Clerk, which contained Mr. Tupper's interpretation of the construction of the Edmonds Community Development Code. Mr. Tupper said the issue before the Council is one word which is the word "story". Mr. Tupper said on September 2, 1980, the Edmonds planning staff presented to the Edmonds City Council, a new Edmonds Community Development Code for their review and corrections. Mr. Tupper said after public comment and deliberation, the Council voted 6 to 1 to change the word "stories" to the singular "story" Mr. Tupper said in the record of the present hearing, the applicant has provided the Council with a list of 154 buildings in Edmonds. Mr. Tupper said not one building listed and located in the Business Commer- cial Zone is a 3 story or greater structure with habitation or multi -dwellings or more than the one story above the commercial use, the street floor. Mr. Tupper said in the past 12 years, the Edmonds Planning Board and the City Council have not held any public hearings or discussions regarding the amending of the wording of the sentence "Multiple dwelling units, in the story above the street level" Over the same past 12 years, Mr. Tupper said Staff has not allowed any buildings with more than one story of multiple dwelling units above the street floor. Three buildings have been constructed with one floor of multiple units above the commercial floor. Mr. Tupper said there exists no legal or political justifica- tion not to apply the Edmonds Code as it was written, adopted and applied by the Planning Staff since 1981. Mr. Tupper said that the Council should uphold the Code and deny the final approval of the design at 504 Holly Drive. Public Testimony Betty Mueller, 209 Caspers Street, said she is here on behalf of citizen Lloyd Ostrom, 711 Puget Lane, Edmonds. Ms. Mueller said Mr. Ostrom has taken ill, therefore is unable to attend the hearing. Ms. Mueller read a letter into the record that Mr. Ostrom had prepared. In the letter, Mr. Ostrom said since the hearing is of a quasi-judicial nature, the Council must view the pro- ceedings and evidence in much the same way as a court of law would. Mr. Ostrom's letter indicated that the Council is required to interpret the written law, in this case the Community Development Code, as accurately as possible. However, Mr. Ostrom said there is another aspect of the law which must be addressed, which is the intent of the law. The letter referenced the City Council Meeting of September 2, 1980, in which "Councilman Larry Naughten specifically called for a change in the wording. of Section 16.50.010 B.3 so that the wording read "story" rather than "sto- ries" so residential units can only be on the story above the street floor" The letter was marked Exhibit 7 by the City Clerk. FINAL COUNCIL APPROVED MINUTES Page 8 June 2, 1992 As a point of clarification, the Applicant pointed out that Ms. Mueller is the Vice -President of Edmonds Council of Concerned Citizens. Councilmember Hall requested speakers identify whether they are a member of Edmonds Council of Concerned Citizens. Mayor Hall concurred. Muriel Medina, 19817 Maplewood Drive, Edmonds. Ms. Medina said she is not sure if she is a cur- rent member of the group. Ms. Medina said as an individual, she has business interests as well as community interests. Ms. Medina asked the Council to remember that the Edmonds Council of Con- cerned Citizens formed because they might have felt they were loosing voice in the greater af- fairs of the city, and asked the Mayor and Council to listen to them. Roger Hertrich, 1020 Puget Drive, asked the Mayor and Council to place the City's zoning map before the audience so it could readily be viewed. Rob Chave, Planning Manger, obliged. Mr. Hertrich said he not a member of any group and is here as a citizen. Mr. Hertrich said in 1980, the City Council voted for clarification of the word "stories", which resulted in the singular. Mr. Hertrich said the City has restricted uses in various zones in the City, which was not even discussed at the A.D.B. level, resulting in approval of the project. Mr. Hertrich challenged the Council to find one mixed use in the BC zone, which is the only zone that is being relevant. Mr. Hertrich said the key items in this issue are mixed use, BC zone, and story. Rob Chave, Planning Manager illustrated the BC zone on the Zoning Map for the audience. Dick VanHollebeke, 580 Hemlock Way, said although he is not a member of the Edmonds Concerned Citizens, he is a concerned citizen. Mr. VanHollebeke said the concern of citizens is that the Council in 1980, intended that the word "stories" be changed to "story". Mr. VanHollebeke urged the Council to live up to their sworn oath to uphold the City Code. Mr. VanHollebeke said if the City is going to maintain the small town feeling of Edmonds, the City Council has to live by what the Code says. Conclusion of Testimony by Applicant Peter Bennett, Attorney for the Applicant, said the Applicant went to the City six months ago with this project and reviewed it in detail with Staff. Mr. Bennett said either the Code is clear and allows the Applicant to construct the proposed structure or it is ambiguous, in which case the Applicant's proposed project would be favored in court. Mr. Bennett said he is also a citizen in Edmonds, but asked the Council to also consider the rights of the property owner. Mr. Bennett said Staff and the A.D.B. have both approved the project as submitted. Brad Butterfield, Applicant, said he feels it is important that there are residential dwellings in downtown Edmonds. Mr. Butterfield said the Traffic Department reported if the project was totally dedicated to commercial use, there would be over 69 car trips to the site as opposed to 6.4 car trips under the present proposal. Mayor Hall closed the public portion of the hearing Council Discussion and Deliberation Councilmember Petruzzi said he would like to specify what the City Council is to rule on. Council - member Petruzzi said he believes the only issue to rule on is the issue of use, and asked City Attorney John Wallace if he concurred. Mr. Wallace said the City Council has two issues to rule on: 1) Primary versus Secondary Use, and; 2) Whether or not the Code, by virtue of the Council Minutes of September 2, 1980, where the word "stories" was changed to the word "story" - does that mean that the proposed building, if residential uses are placed in it, is limited to a 2 story structure. Mr. Wallace said he believes there are ambiguities that do exist in the particular ordinances. Mr. Wallace said the ambiguity is introduced by a motion changing the word "stories" to "story". However, Mr. Wallace said the ambiguity that has been created is not that you would reach a con- clusion as the Appellants have, that this means it can only be a 2 story building. Mr. Wallace said it takes a strained reading of the Code to reach the conclusions that the Appellants have reached. Mr. Wallace said when you have to strain to reach conclusions, you begin to get in the situations where restrictions which are not clear on uses, otherwise permitted on the property, will not be favored. Mr. Wallace said while the Council may have intended to change the word from "stories" to "story" in the 1980 motion, Mr. Wallace said he doesn't think the amendment that they proposed accomplished that intention. Mr. Wallace asked for a two minute recess so he could review the second version of the Findings of Fact. The City Council and Mayor recessed at 9:52 p.m, and reconvened at 9:54 p.m. in order to allow the City Attorney time to review the second version of the Findings of Fact. FINAL COUNCIL APPROVED MINUTES Page 9 June 2, 1992 As a procedural matter, COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER PALMER, TO DELETE ITEMS 7, 8, and 10 FROM THE COUNCIL AGENDA SO CONTINUED DISCUSSION COULD BE HELD ON THE PRESENT ISSUE. MOTION CARRIED. Council President Palmer said he would reschedule those items for another Council Meeting. As a procedural matter, COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL TO EXTEND THE MEETING. MOTION CARRIED. Council President Palmer said the issue before the Council is not an easy decision. Council Presi- dent Palmer said many of the speakers talked about legal rights, letter of the law, and intent of the law. Council President Palmer said the Council has received a list containing a number of buildings in town in various zoning with various configurations and said what is on the list or if there is a list is not the issue. Council President Palmer said 1980 and 1981 interpretations have been discussed, which also isn't the issue. Council President Palmer said the City Attorney has stated that whatever amendment was attempted at that time really didn't accomplish what they set out to do. Council President Palmer said how the Code got the way it is also is not the issue - it may be the problem, but it is not the issue. Council President Palmer said what the Code says today, in 1992, is what he has to utilize, not what the Code said in 1980 or any changes to it prior. Council President Palmer said when you become a Councilmember, you are handed the Code and instructed to apply it - some sections are better written than others, but you have to use them all. Council President Palmer said some areas of the Code are clear and others are ambigu- ous, but you have to look at what it says. Council President Palmer said if the Code has flaws in it, it can be corrected, however, it cannot be corrected this evening. Council President Palmer said the laws state Councilmembers must administer the Code as it is written and as it is con- structed presently. Council President Palmer said his reading of the Code says that in a mixed use building, multi -family units are allowed on the story above the ground floor. In the defini- tion section, Council President Palmer said it states clearly, without question, that "story" also means "stories". Council President Palmer said what the Applicant has before the Council is permitted under the City's Code. Council President Palmer said whether or not the Code is changed in the future, is another action, separate from the decision before the Council. As there was no other discussion amongst the Council, Council President Palmer said he assumed Councilmembers were in concurrence with his statements. COUNCIL PRESIDENT PALMER MOVED, SECONDED BY COUNCILMEMBER KASPER, TO DENY THE APPEAL, AND TO DIRECT THE CITY ATTORNEY TO DRAW UP THE NECESSARY DOCUMENTS. MOTION CARRIED. The City Attorney noted he would try and have the Findings of Fact before the Council on the June 16 Consent Agenda for their review and approval. Councilmember Dwyer returned to Council Chambers. DISCUSSION ON PREPARATION OF COUNCIL MINUTES AND APPROVAL TO TRANSFER $1,720 FROM COUNCIL CONTIN- GENCY FU—N-D--FDEFERRED FROM MAY 26, 1992 i CJ,J� Councilmembers discussed the proposed method of preparing the City Council Minutes as suggested 0 qq by the Council Assistant. Councilmembers were in concurrence that the proposed method of distrib- uting draft copies of the Council Minutes to Councilmembers only for their edification prior to CO►A' dissemination to the public was the preferred method. Councilmembers felt it was important that the Council Minutes not be disseminated to the general public until they are officially adopted by the Council, so that the public could be assured of receiving the correct information, and not ►L have to rely on amendments or corrections. CD 5 Mayor Hall asked City Clerk Rhonda March if she had any concerns with the proposed method. Ms. nl March said it might be an inconvenience to the public in receiving the minutes a week later than usual. Councilmember Petruzzi said the proposed method would assure the public that the informa- tional receive is the correct information, therefore, should not mind waiting a week to receive the final minutes. COUNCILMEMBER PETRUZZI MOVED, SECONDED BY COUNCILMEMBER HALL, TO ALLOCATE $1,720 FROM THE COUNCIL CONTINGENCY FUND TO COVER ADDITIONAL BENEFITS ASSOCIATED WITH MINUTE TAKING AND TO APPROVE THE PROPOSED METHOD OF COUNCIL MINUTE PREPARATION. MOTION CARRIED. MAYOR Mayor Hall referenced a memo to the City Clerk from the Council Assistant regarding the Reid - Middleton presentation to the public. Mayor Hall asked for clarification in the memo where it states that Council President Palmer wants to make it clear to the public that the presentation 1� is no way associated with a City Council Meeting". FINAL COUNCIL APPROVED MINUTES Page 10 June 2, 1992 Council President Palmer said the Council just wants to make it clear that when notices go out to publicize the presentation, they are free from interpretation that because the presentation is on a Tuesday evening in the Plaza Room, it is associated with a Council Meeting. It was noted Reid - Middleton would conduct the presentation, as it is part of their contract. Council President Palm- er suggested posting notices in the newspaper, as well as through general circulation throughout the City, including postings at the waterfront. Rhonda March, City Clerk, suggested utilizing a Display Ad. Councilmembers were receptive, and Councilmember Earling suggested placing the Display Ad in the Enterprise Newspaper. Council Presi- dent Palmer said the Display Ad cost should come out of Reid-Middleton's budget if possible, and if not possible, should be allocated from the Council Contingency Fund. COUNCIL µ. • Councilmember Petruzzi suggested placing a discussion on the Extended Agenda regarding �reestab- % lishing the past practice of publishing City Council Agendas in the newspaper. Council President at. I,- Palmer said he would put this discussion on the June 23 Council Meeting. Council President Palmer referenced a memo he sent to the Council regarding his reconsideration of his vote at the May 26 Council Meeting on the issue of eliminating parking on portion of 76th. Council President Palmer said he voted on the prevailing side, however, has reconsidered that vote. As a procedural matter, and at the suggestion by City Attorney John. Wallace, COUNCIL PRESIDENT PALMER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO SUSPEND THE RULES FOR THE LIMITED PURPOSE OF RECONSIDERING HIS VOTE ON THE PROPOSED ORDINANCE 2883 ELIMINATING PARKING ON 76TH AVENUE WEST IN THE VICINITY OF 220TH STREET S.W. WHICH WAS ADOPTED AT THE MAY 26, 1992 COUNCIL WORK MEETING. MOTION CARRIED. COUNCIL PRESIDENT PALMER MOVED, SECONDED BY COUNCILMEMBER PETRUZZI, FOR DISCUSSION, TO RECONSIDER THE ADOPTED ORDINANCE 2883 ELIMINATING PARKING ON 76TH AVENUE WEST IN THE VICINITY OF 220TH STREET. Under discussion, Council President Palmer said his reasons for reconsidering his vote is as while some of the spaces described were a result of the construction of Top Foods and that mitiga- tion, not all of them were. Council President Palmer said he recalls from a Community Services Committee Meeting, that there were some spaces to the south of 220th that were a natural exten- sion of the prohibition but were not directly related to Top Foods. Council President Palmer said he would like to vote in favor of holding a public hearing. Councilmember Petruzzi said he was under the impression that a public hearing was already held. MOTION CARRIED. As Councilmembers had questions pertaining to whether or not a public hearing was held on the parking that was eliminated on 76th through Ordinance 2883, COUNCILMEMBER PETRUZZI MOVED, SECOND- ED BY COUNCILMEMBER EARLING TO TABLE THE ISSUE. MOTION CARRIED. Council President Palmer referenced the memo to the Mayor requesting Noel Miller to provide a tour of the proposed Public Works Site to Councilmembers prior to the Council Meeting of June 9, 1992. City Clerk Rhonda March said she has been in contact with Noel Miller, and said he is plan- ning on providing that tour s,t,-t_1 µ C0IPt'Council President Palmer re -appointed Councilmember Kasper, Councilmember Earling, and Councilmem- ber Nordquist to the Salary Review Committee, as it is now an official Council Committee. Councilmember Earling said hopefully by the next Council Meeting, there would be a hearing sched- p A uled in Edmonds for the High Capacity Transit issue. + C1.r Councilmember Kasper said he would not be present at the June 9 meeting. Regarding the Council tour of the Proposed Public Works Facility, Councilmember Kasper asked the Council to consider ��( how the project is designed. Councilmember Kasper said he feels the project could be "flip- Vj, flopped" so the equipment and noise is on 212th, instead of bordering the residential area. P'With no further business, Mayor Hall adjourned the meeting at 10:32 p.m. A PERMANENT RECORDING OF ALL COUNCIL MEETINGS ARE KEPT IN THE CITY CLERK'S OFFICE E OFFICIAL SIGNED COPY OF THESE MINUTES IS ON FILE IN THE CITY CLERK'S OFFICE. onda l March, ity Clerk FINAL COUNCIL APPROVED MINUTES LauraNjjiali, Ity6r, Page 11 June 2, 1992 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM - LIBRARY BUILDING 7:00 - 10:00 p.m. JUNE 2, 1992 CALL TO ORDER FLAG SALUTE CONSENT AGENDA (15 MINUTES) (A) ROLL CALL (6) APPROVAL OF MINUTES OF MAY 26, 1992 (C) APPROVE CLAIMS WARRANTS FROM #922568 TO #92-2655 FOR WEEK OF MAY 25, 1992, AND PAYROLL WARRANTS FOR MAY 20, 1992 (D) PROPOSED RESOLUTION #746 COMMENDING STUDENT REPRESENTATIVE DIANNA PHILLIPS (E) PROPOSED RESOLUTION #747 TO SET HEARING DATE OF JULY 7, 1992, FOR VACATING A PORTION OF THE UNOPENED 174TH ST. S.W. RIGHT-OF-WAY, LYING WEST OF MEADOWDALE BEACH ROAD AND ADJACENT TO 6830 MEADOWDALE BEACH ROAD (APPLICANT: CITY OF EDMONDS AND MARK VAN DEYACHT / FILE NO. ST-92-100) (F) PROPOSED ORDINANCE #2884 AMENDING ORDINANCE #2749 TO INCLUDE SALARY REVIEW COMMITTEE AS A PAID COUNCIL COMMITTEE MEETING, EFFECTIVE JUNE 15, 1992; AND ALLOCATION OF $900 FROM COUNCIL CONTINGENCY FUND 2. AUDIENCE 3. PRESENTATION OF RESOLUTION OF COMMENDATION TO STUDENT REPRESENTATIVE DIANNA PHILLIPS (5 MINUTES) 4. PRESENTATION AND ADOPTION OF 'AMERICANS WITH DISABILITIES ACT' CITY POLICY (30 MINUTES) 5. HEARING ON HEARING EXAMINER RECOMMENDATION FOR VACATING A PORTION OF THE UNOPENED 184TH STREET S.W. RIGHT-OF-WAY LYING WEST OF OLYMPIC VIEW DRIVE AND LYING SOUTH OF 7704 OLYMPIC VIEW DRIVE (APPLICANT: RUSSELL KIM/FILE NO. ST-92-38) (15 MINUTES) 6. HEARING ON APPEAL OF ADB FINAL APPROVAL FOR A NEW 3-STORY MIXED USE OFFICE/5-UNIT APARTMENT BUILDING AT 504 HOLLY DRIVE (APPELLANT: EDMONDS COUNCIL OF CONCERNED CITIZENS / APPLICANT: ROBERT BUTTERFIELD/TASO CHRISTOPHILIS/FILE NOS. AP-92-117/ADB-107-91) (30 MINUTES) 7. UPDATE ON SNOHOMISH COUNTY TOMORROW COUNTY -WIDE PLANNING (CONT'D FROM MAY 12, 1992) (30 MINUTES) 8. REPORT ON INTERIM CRITICAL AREAS ORDINANCE IMPACTS AND RECOMMENDATION (CONT'D FROM MAY 18, 1992) (15 MINUTES) 9. DISCUSSION ON PREPARATION OF COUNCIL MINUTES AND APPROVAL TO TRANSFER $1,720 FROM COUNCIL CONTINGENCY FUND (DEFERRED FROM MAY 26, 1992) (10 MINUTES) 10, INDIVIDUAL COUNCIL REPORTS AND UPDATES ON RESPECTIVE BOARD MEETINGS (DEFERRED FROM MAY 26, 1992) (10 MINUTES) 11. MAYOR 12. COUNCIL THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE HANDICAPPED ACCESSIBLE (5 MINUTES) (15 MINUTES)