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02/05/1985 City CouncilTHESE MINUTES SUBJECT TO FEBRUARY 11 APPROVAL EDMONDS CITY COUNCIL MINUTES February 5, 1985 The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Larry Naughten in the Plaza Meeting Room of the Edmonds Library. All present joined in the flag salute. PRESENT ABSENT STAFF PRESENT Larry Naughten, Mayor Doug Reuble, Dan Prinz, Police Chief Jo -Anne Jaech Student Rep. Bobby Mills, Actg. Pub. Wks. Supt Steve Dwyer Art Housler, Admin. Svcs. Director Laura Hall Jack Weinz, Fire Chief Bill Kasper Steve Simpson, Parks & Rec. Dir. John Nordquist Mary Lou Block, Planning Director Lloyd Ostrom Pat LeMay, Personnel Director Jack Wilson Peter Hahn, Community Svcs. Dir. Jack Parrett, City Clerk Scott Snyder, City Attorney Shirlie Witzel, Recorder CONSENT AGENDA Items (B), (E), (F), (J), (M), and (N) were removed from the Consent Agenda for discussion. COUNCILMEMBER NOROQUIST MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items on the Consent Agenda included the following: (A) Roll call. (C) Adoption of Ordinance 2478 relating to parade permits. (D) Adoption of Ordinance 2479 adopting barrier free design standards ($75.00). (G) Authorization to advertise for bids for 1985 cold water meters ($32,677). (H) Passage of Resolution 612 finalizing Sidewalk Improvement District 81-1. (I) Authorization to accept easements from Sam and Adell Swanson and estate of Olga Espeland for extension of water main. (K) Authorization to advertise for proposals for design and installation of an irrigation system in Edmonds Cemetery. (L) Authorization to contract for Meadowdale drainage extension ($2,678.83). APPROVAL OF MINUTES OF JANUARY 22, 1985 AND JANUARY 28,.1985 [Item (B.) on Consent Agenda] Councilmember Hall asked that the January 22 minutes, page 6, paragraph 9 reflect the correct spelling of Governor Gardner's name and page 4, first full paragraph, line 11, concerning Community Services Director Peter Hahn's remarks be corrected to read: "'He indicated that the non -field management responsibilities are performed mostly by himself, with the help of the Office Administrator, Rhonda march." Councilmember Kasper pointed to several instances in the minutes where the question asked was not specified and only the answer was given. He noted that this made the minutes difficult to follow and also gave no indication whether the answer corresponded to the question. Councilmember Jaech corrected page 3, first full paragraph, to include Parks & Recreation Director Simpson's reply that: "the contribution of the land by the School District was equivalent to the contribution of the other agencies involved in the EDMONDS CITY COUNCIL MINUTES Page 1 February 5, 1985 agreement." COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE THE MINUTES OF JANUARY 22, 1985 AS CORRECTED. MOTION CARRIED. Councilmember Jaech noted there had been no motion concerning her absence on January 28. Councilmember Nordquist asked that the minutes of that meeting be corrected to include his motion to excuse Councilmember Jaech's absence. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER DWYER, TO APPROVE MINUTES OF JANUARY 28, 1985 AS CORRECTED. MOTION CARRIED. PROPOSED ORDINANCE 2480 AMENDING SALARY RANGES AND SALARIES FOR EXEMPT AND NONREPRESENTED NONEXEMPT PERSONNEL [Item (E) on Consent Agenda] City Attorney Scott Snyder explained that there is a large difference between the average merit increase of 2 percent and a merit pool of 2 percent of the salaries. He said the Council has budgeted 1 percent, which is equivalent to an average merit increase of 2 percent. Therefore, the first paragraph of the proposed ordinance, last sentence, now reads, ...pool equal to an average merit increase of 2 percent..." to conform to the body of the ordinance. Councilmember Jaech asked if the title of Exhibit B should not be changed to indicate nonexempt-nonrepresented personnel. Personnel Director Pat LeMay said there were 5 positions that are nonexempt-nonrepresented in the City and these positions are covered by this ordinance. Councilmember Kasper said, "I am pulling this because I was away on business on the night of the vote on the 4 percent wage increase. I've been on the Council 5 years and every year we say we are going to do something about these high wage and benefit.increases. We never do! On our retreat this year, we again agreed - let's do something!!! Yet here we are at 4 percent. These CPI wage increases are 20 percent over the Seattle Metro CPI of 3.3 percent and on top of that, we are granting merit increases and steps in most cases. How long can this keep up. We are compounding the compound. Our staff is well paid. Benefits are high. Yet our pay scale is up to 107 percent of 1984 overall pay in general fund. In executive session last month, the cry was just one more year. The only good thing was to set the record straight by agreeing unanimously that the Mayor would not get a raise after the 1st 12 months and not until we review our 1986 salary posture and then the salaries of all elected officials before the filing date. Maybe we'll have to set the example and start with the Mayor and ourselves!" Mr. Snyder noted that the Council had instructed him to delete the reference to step increases and therefore there is no provision in the ordinance for a step increase. Councilmember Hall asked for clarification of Section 5 of the ordinance. Mr. Snyder said this section repeals the prior salary ordinance, which contains the Mayor's salary, and this section will continue that salary at the same rate. He said section 2 of Ordinance 2309 established the position of Personnel Director, setting a range that is being amended here. COUNCILMEMBER OSTROM MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE SALARY ORDINANCE. MOTION CARRIED WITH COUNCILMEMBER KASPER VOTING NO. PROPOSED ORDINANCE 2481 RELATING TO DWI'S [Item (F) on Consent Agenda] Councilmember Kasper asked why this item is scheduled on the Consent Agenda since there has been no discussion regarding the proposed ordinance and no request from the Council for a brief on the subject. Mr. Snyder said they felt the subject should be addressed as quickly as possible because of the importance of the matter. He explained that a South District Court judge is overturning DWI cases because the existing penalty provision was not identical to that established by State statute. He said they were not imposing penalties above what had been set but, as a general rule, the City cannot permit what the State prohibits. Councilmember Kasper asked why this was being presented when the Council has not decided whether they want to consider an appeal and have not discussed the subject. He said they knew the penalties when the ordinance was passed and they chose to have their own procedure. He is not indicating approval or disapproval, but believes it should be considered in executive session. Councilmember Hall asked if Chief Prinz had been included in consideration of the problem. Chief Prinz replied that there are over 20 cases being held in abeyance until a decision is made on the situation. He said the City penalties are so much lower than the State's, the District Court says the City cannot do that and DWI cases will be lost if the ordinance is not passed. He said it is an emergency situation. Councilmember Dwyer asked why the police cannot cite under the State statute. Chief Prinz said some of the Counties in the eastern part of the State are doing that because they believe the cost of DWI prosecution exceeds the fines received. However, he does not believe that is the solution to the problem and mentioned some solutions being worked on at the State level. COUNCILMEMBER KASPER MOVED TO PLACE THIS ITEM ON THE AGENDA FOR DISCUSSION ON FEBRUARY EDMONDS CITY COUNCIL MINUTES Page 2 February 5, 1985 11. He said he does not remember all of the details involved when the ordinance was passed, but he said the Council knew they were contrary to state law when it was passed. Chief Prinz said there is a problem with waiting, since officers are citing DWI's and they are being thrown out of court. Councilmember Dwyer said these drivers could be cited under the RCW. Chief Prinz said there are about 27 cases that are being held in abeyance. Councilmember Dwyer did not see how any action taken by the Council at this point will affect the cases that are being held. Mr. Snyder said the Court has not cited above what the City penalties set forth, they are saying the penalty provisions should be the same as the State provisions. He does not see that a correction of the ordinance would have any effect on the penalties imposed. He said if there is a Council policy reason for setting these penalties, there could be an appeal of the ruling; however, he felt an ordinance revision would the quickest and easiest way to handle the situation. MOTION FAILED FOR LACK OF A SECOND. Councilmember Jaech asked if the State penalties had changed during the past two -three years. Mr. Snyder said there was a change two years ago. She then added that discussion of the City ordinance was prior to that change and the proposed ordinance is referring to those changes. Chief Prinz said when the present ordinance was passed, it was in compliance with State law; when the State law changed, the ordinance was not updated. Because of the strong feelings regarding DWI, the advice of the City Attorney that City regulations should correspond to State regulations and the fact that State regulations have changed since passage of .the present ordinance concerning DWI's, COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER KASPER, THAT ORDINANCE 2481 BE APPROVED. MOTION CARRIED UNANIMOUSLY. AUTHORIZATION FOR MAYOR TO SIGN CONTRACT FOR COMPREHENSIVE WATER SYSTEM PLAN ($33,000) Item J on Consent genda Councilmember Jaech said it is her understanding that Reid -Middleton had been the qualified bidder on this contract and the greater liability coverage requested by the Council in prior discussion had been included in the contract. She asked if the City Attorney had reviewed the contract and the attached exhibits and if he were satisfied with the language and the liability. Mr. Snyder said he had reviewed the contract and had made several changes in the language which are incorporated in the contract before the Council. Councilmember Nordquist said he and Councilmember Hall were on the review committee that considered the contract, eliminating the second and third part of the bid, taking part one at this time with review of the other sections when the first part is completed. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE THE CONTRACT. MOTION CARRIED. CONFIRMATION OF JOHN GALT AS HEARING EXAMINER PRO TEM AND AUTHORIZATION FOR MAYOR TO SIGN CONTRACT [Item (M) on Consent Agenda] Councilmember Jaech asked if an alternate Hearing Examiner were being chosen for one particular hearing or if the appellant had a problem with Mr. Driscoll and was requesting someone else. Mr. Snyder replied that the matter had been heard by Mr. Driscoll and the Council in the past. He said there was a request for appointment of another Hearing Examiner and he felt two things could be accomplished with Mr. Galt's appointment; there would be a skilled and experienced back-up for the Hearing Examiner, and a basis for appeal could be eliminated. Councilmember Jaech agreed that a back-up would be a good idea but does not believe a precedent should be set in that someone, feeling Mr. Driscoll would not look at their case favorably, could request another Hearing Examiner for particular issues. Mr. Snyder said some of the allegations to be considered in this appeal are that some misinformation was considered and new information is now available. He said it is difficult to eliminate prejudgmental bias and the easiest thing is to offer a new hearing officer. Councilmember Kasper asked if the current alternate Hearing Examiner had resigned. Mr. Snyder said the present alternate does not possess the experience and skill of Mr. Galt. Planning Director Mary Lou Block added that Mr. Driscoll had recommended Mr. Galt. Councilmember Kasper observed that, in his experience, Mr. Galt will not hear an appeal if the Code is out of line. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER OSTROM, TO CONFIRM THE APPOINTMENT OF MR. GALT AS,HEARING EXAMINER PRO TEM AND AUTHORIZE THE MAYOR TO SIGN THE CONTRACT. MOTION CARRIED. REPORT ON AUTOMOBILE POLICY, INVENTORY, AND RESERVES [Item (N) on Consent Agenda] Since there had been no opportunity to discuss this, COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO PLACE THIS ITEM ON THE MARCH 12, 1985 AGENDA FOR EDMONDS CITY COUNCIL MINUTES Page 3 February 5, 1985 PRESENTATION OF CERTIFICATE OF APPRECIATION FROM USMC AIR GROUP 42 REGARDING TOYS FOR TOTS PARTICIPATION Sergeant Lawrence Cretin presented a certificate of appreciation to the City for support of the Toys for Tots campaign last Christmas. Over 5000 toys were collected for distribution to children in the local area; in addition, 40 Christmas trees donated by Dr. Sandall were distributed to needy families. The certificate was signed by Lt. Col. J. D. Weber, USMC. Mayor Naughten said the Marine Corps Reserve does a good job each year and is to be congratulated. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING 2-LOT SUBDIVISION AT 18023 ANDOVER ST (APPELLANT: COOMER/5-12-84) Planning Director Mary Lou Block reported that this subdivision was originally approved by the staff and appealed to the Hearing Examiner. On October 18, 1984, the Hearing Examiner held a public hearing on the appeal of the staff decision. The Hearing Examiner issued his decision on November 19, 1984, upholding the staff decision, with conditions. Subsequently, the Applicant submitted an appeal to the Hearing Examiner's decision on December 28, 1984. The Applicant is appealing the conditions of approval, as set forth in the Hearing Examiner's report. The point of contention is the legality of the access easement to the Applicant's property and the requirement that the Applicant go to court to determine the status of the easement. She said the staff recommends that the City Council uphold the appeal of Mr. Coomer and approve his short subdivision, subject to complying with all the conditions established by the staff on September 9, 1984. Ms. Block then summarized the contents of the memorandum from the City Attorney dated January 30, 1985, in which he discusses the complexity of the issue and the reliance upon title reports by the Planning Department in considering subdivision requests. Several transparencies of the property location were shown. Councilmember Ostrom asked if this were originally one property and at what point the Browns had acquired their property. Ms. Block said the property was all one piece and Mr. Snyder replied that that the Browns acquired their property prior to the 1971 subdivision. Mr. Snyder explained that the legal issue stressed in the memo is that only one body in the State has jurisdiction to determine who owns a piece of property, Snohomish County Superior Court. Since the Council cannot decide whether the easement exists, the question before the Council is, given the information, on whom should the burden of establishing that easement fall in the subdivision process. The appeal before the Council, he said, is an appeal of a grant of the subdivision but conditionally requiring them to establish the existence of the easement by quiet title action; an alternative would be to grant the subdivision without the condition, placing the burden on the Browns, across whose property the easement lies. Mayor Naughten advised that 60 minutes had been allowed for the hearing; if at the end of that time a decision has not been reached, the matter will be continued to another date. He opened the hearing. R. M. Coomer, 2111 Thorndyke Rd., Port Ludlow, displayed a transparency which showed the relationship between his property, the Brown property and previous subdivisions. He noted that S-18-71 was a 3-lot subdivision and the later 5-19-71 was a 2-lot subdivision. In addition, he said 5-19-71 was developed in reliance upon a 30 ft. easement across the Brown's property, which was approved by the City as the sole access to the property. He asked the Council to approve S-12-84 as previously approved by the Planning Dept. staff and City Attorney and deletion of the requirements by the Hearing Examiner. The condition requires Mr. Coomer to obtain Superior Court validation of the easement across the Brown property; he feels this is an unfair condition as it retroactively revokes City approval of short -subdivision 5-19-71. He said the keystone of their argument is the fact that the 2-lot short -subdivision 5-19-71 was approved by the City, lot B of that subdivision is the same one described in 5-12-84 and and they are using the same easement described in 1971. He said acknowledgment of the easement by the City in 1971 was for a perpetual easement with no conditions or restrictions imposed by the City for use of the easement, no time limits or usage frequencies were set. As a direct result of the City approval of 5-19-71, Lot A of 5-19-71 and Lot B of 5-18-71 were sold, irreversibly cutting access to lot B of 5-19-71 except for the easement over the Brown property. He feels the condition imposed by of the Hearing Examiner retroactively revokes City approval of 5-19-71. Since the lots sold in 1972 cannot be retrieved, there is no alternative access to Lot 8 of 5-19-71, leaving it EDMONDS CITY COUNCIL MINUTES Page 4 February 5, 1985 landlocked without the easement across the Brown property. He said a recent title report states there is a vested easement over the southern 30 ft. of the Brown property. Councilmember Hall asked how a measurement of 30 ft. was determined. Mr. Coomer said this was established in the original deed when purchased in 1949 by Wood. The easement was also contained in the deed to Mr. Coomer from Wood. The tract of land owned by the Browns was sold by Mr. Coomer to Mr. Carlson and the easement was maintained in that deed. He said the easement was never questioned when he subdivided the property in 1971. He noted that the Browns had acknowledged, during the first hearing, that they had purchased their property with the easement as a condition of purchase. Councilmember Kasper asked how Mr. Coomer was able to short -plat twice in the same year. Mr. Coomer said there was never any problem, he was limited to a 4-lot division. He said the property was sold to the Browns before it was part of the City. Mr. Block interjected that this occurred prior to the short -subdivision ordinance and both were heard by the Planning Commission as standard subdivisions.' Mayor Naughten asked the following speakers to limit their comments to 5 minutes each. George Brown, 18019 Andover Rd., owner of the property over which the alleged easement runs, referred to a letter dated January 31, 1985 from him and his wife addressed to the City. He said S-19-71 was conditionally approved on August 18, 1971. A condition of that approval was receipt from Mr.. Coomer, within 90 days, of information relating to an easement for utilities, which was supplied on May 25, 1972, he said. He raised the question relative to whether there is a public easement across the property, noting that the City Attorney had found no dedication of the property by the owners or acceptance by the City. Mr. Brown said a request for vacation of the easement across Mr. Coomer's property had elicited a response from the City Attorney that there is nothing to vacate since there is no public easement. Mr. Brown described the properties under discussion, using the former transparencies. He said Mr. Coomer owned all of the property with access to Andover Rd. with access from that road along a 30 ft. access on the north side of the property. Mr. Brown quoted a law which states that merging of property erases an easement. He maintained that Lot 8, the property that is currently under consideration, has been landlocked by Mr. Coomer since he had previous access to Andover Rd. Mr. Brown mentioned a doctrine of implied reservation of easements which holds that a landlocked piece of property reserves access across the property from which it was cut. He said this would provide access to Andover Rd. without the use of the alleged easement on his property. In summary, Mr. Brown noted that a document was provided to the Hearing Examiner, within the time allowed for submission of documents , which contained arguments supporting his view; these were never indicated in the Hearing Examiner's report. Also, Mr. Driscoll and Mr. Snyder seem to be in agreement that according to a recent ruling in the Court of Appeals determination of the title of the land is vested in the Superior Court. Since the questions raised for both subdivisions seem to be critical legal points, he urged the City Council to deny any appeal of the Hearing Examiner's report of November 19, 1984. Susan Brown, 18019 Andover Rd., agreed with her husband's statements. She referred to a letter from City Attorney Snyder to Bruce Finke of the Planning Dept., dated October 18, 1984, which concludes on page 3 that the easement is private, not public, and that Mr. Coomer probably has that easement because of the doctrine of merger that states where a fee ownership and an easement are in common ownership that the easement merges with the fee and ceases to exist. She asked the Council to look at the displayed property and imagine another property to the right of that shown; she said the 30 ft. easement ran over both the Brown property and the property next to it which were both owned by Mr. Coomer wiping out the easement in 1956. She suggested that Mr. Snyder should look at their documents as well as Mr. Coomer's. Councilmember Wilson asked how the Browns felt about the easement when it appeared on the title report. She replied that they did not know what it was. When they questioned it, they were told it was an old easement to the .public that might be used by the City for utilities. She said they accepted that explanation since they knew nothing about easements at that time. Councilmember Kasper asked if the Browns were there when the 1971 short -plat took place. She replied that they owned the land but had no knowledge of it until September of 1984. They were not living on the property and received no notification. Councilmember Kasper asked if the short -plat for 5-19-71, Lot B, was recorded. Ms. Block replied that the EDMONDS CITY COUNCIL MINUTES Page 5 February 5, 1985 easements were recorded, but very few subdivisions were recorded at that time. Ms. Brown reiterated that the one easement was not filed until May of 1972, after the condition set for the subdivision had lapsed. Ben Brodie, 8209 181st P1., lives just below the 30 ft. easement. He said it appears that the Planning Commission want the City Council to determine what they should rely upon, a title report or what. He said the Council should rely on the decision of the Hearing Examiner which was against Mr. Coomer. He said the legal questions were the reason for the Hearing Examiner's decision. In addition, he said the easement goes all the way across, it does not stop there, and a question is raised as to whether that is a public or private easement. A decision as to the easement affects the number of lots that can be developed on the property in question. He suggested that the Council should not attempt to decide legal matters and should leave them to the Court. He said there will be many upset citizens if people's private property is being grabbed and given to someone else. Robert Hall, 18106 Andover Rd., said his driveway is across Andover from the hypothetical easement. He said there is a house in front of his house that is on a substandard lot because it slipped through the cracks. He objects to approval of the question on the basis of creating 2 substandard lots. In response to a question from Mayor Naughten in regard to the substandard lot, Mr. Hall said he owns a 16 ft. strip of land from his lot to Andover Rd. and the lot fronting that 16 ft. strip used the 16 ft. as part of the square footage of his lot to obtain a building permit. He said there is now a problem of a hostile adversary proceedings for access over his property and a house on a substandard lot directly in front of his house. He said he is faced with decisions regarding whether he should create problems for his neighbors but does not want to grant anyone an easement across his property. At this time he is allowing them to use it on a $1.00 a year basis, but wonders what will happen when they attempt to sell the property. Nancy Brodie, 8209 181st Pl., just south of the 30 ft. easement, is disturbed about who must pay for the legal costs. As a private citizen, she feels the City is against her and on the side of the big developer. She believes the City .has retained the City Attorney to fight on the side of Mr. Coomer. She said the City goes ahead with subdivision, placing the legal burden on the poor taxpayer who happens to be involved. She said the issues are very complex and should be decided in the courts; whether the easement exists and if so, if it is private or public. She said the City has no right to pay Mr. Coomer's court costs in order to fight Mr. Brown. Mayor Naughten gave Mr. Coomer an opportunity for rebuttal. Mr. Coomer referred to the alleged lack of approval for S-19-71 and stated he could never have sold the lots if there were no approval. He said the subdivision had legal merit and lots could not be sold without City approval. In reference to the easement, he said Mr. Snyder indicated it was a private easement; therefore the easement would not extend across his own property since it dissolves into the property. Mr. Coomer said there is adequate square footage on the tract to allow 2 lots and a hammerhead turnaround and satisfy the 12,000 square footage requirements. He said he stands on the record; the City admitted the existence of the easement in 1971. If there had been a problem in 1971, he could have had access across lot A of S-19-71 and lot B of S-18-71. However, he relied on the City and expected to use the easement on the Brown property to access Lot B of S-19-71. He said he believes the City is responsible for landlocking the property if that question is raised at this time. Councilmember Kasper asked why the easement was not filed within the 90 day period on the S-19-71 subdivision. Mr. Coomer said the 30 ft. easement was filed immediately, the easement filed in May 1972 was a crooked 10 ft. easement for utilities, and he believes the requirement for filing that easement was requested after the subdivision hearings. The access easement was filed as requested. Ms. Block clarified that the utility easement was filed after the 90 day condition. Councilmember Jaech asked if the easements described on the deeds refer to the 30 ft. easement under question since they all refer to public use of the easement. Mr. Snyder said he would be glad to give his opinion, but he cautioned the Council not to attempt to determine the ownership of the property. He said the question regarding the wording on the deeds has to do with the use of the word "reservation." A public easement cannot be reserved, it must be both dedicated and accepted; a private easement can be reserved. Councilmember Jaech asked if the Council has the option of upholding the Hearing Examiner's decision, or going against the Hearing Examiner's decision, and wished to EDMONDS CITY COUNCIL MINUTES Page 6 February 5, 1985 know what would happen in each option. Councilmember Hall asked if the Council could not refuse to hear the appeal until there has been a clarification of some of the issues. Mr. Snyder said there is no way within the City to determine the necessary issues. The Council must make a decision to confirm or deny the subdivision application or approve it conditionally. He said the title report has been accepted at the staff level of the City. One issue is what the staff should accept initially and another issue is who has the burden of proof before the Council on the issues raised. He said there is a something that has created a cloud on Mr. Brown's title. The City subdivision code requires basically that the issue of access is one that must be determined. He disagreed that it is the City's fault since the information provided is from the person making the application. He recommended that the Council base their decision on the burdens of proof and whether the facts have been established rather than on whether an easement does or does not exist. Councilmember Kasper asked if Mr. Coomer had provided a deed from himself to the Browns. Mr. Coomer replied that he had not sold directly to the Browns but to Mr. Carlson, who then sold to the Browns. Mr. Coomer included the easement in the deed to Mr. Carlson but the deed from Mr. Carlson to the Browns did not include the easement. However, he said the title insurance shows the easement as an encumbrance. He said he did not know the circumstances of the transfer but was approached by Mr. Carlson to see if Mr. Coomer would relinquish his interest in the easement, which he was not willing to do. Mayor Naughten said Councilmember Kasper had asked if Mr. Brown has any comments. Mr. Brown commented that presumably the easement was not included in his deed because the easement was never accepted by the City and hence probably does not exist. Mayor Naughten closed the hearing. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO UPHOLD THE APPEAL OF MR. COOMER AND APPROVE THE SHORT SUBDIVISION, SUBJECT TO COMPLYING WITH ALL THE CONDITIONS ESTABLISHED BY THE STAFF ON SEPTEMBER 9, 1984. Councilmember Hall noted that similar action had been taken on another matter and there are still repercussions 4 years later. She is not sure the Council is ready to make a wise decision at this point. Councilmember Kasper said he supports the appeal because this is an impasse; the City and Mr. Coomer as well as Mr. Brown have acted in.good faith. He said the deeds should be defended by the title company since title was supplied to Mr. Brown and the court must make the decision. Councilmember Jaech asked if the motion intends to uphold the staff position versus the Hearing Examiner decision. She asked for reiteration of the difference between the two positions. Ms. Block said the staff conditions were to comply with Engineering requirements, make a flag lot determination of Lot B, and the south edge of the roadway is to be located at least 3 ft. from the south property line. Councilmember Jaech asked if that meant the road would be in the same place as the easement shows and is a condition of the subdivision. On the other hand, she asked if the Hearing Examiner is saying the subdivision will be approved if the road is there. Ms. Block said the Hearing Examiner said the matter should be resolved in court. Mr. Snyder elaborated that accepting the staff position would mean that the Browns would have the burden of instituting a quiet title action; the Hearing Examiner position would require the Coomers to assume that burden. Councilmember Dwyer asked if Mr. Coomer had made application for approval of the egress and ingress and produced a deed showing an easement. Ms. Block said during the course of this issue the Planning Dept. has had title reports from two companies, which showed the easement, and eventually deeds were produced but are not normally required. Councilmember Dwyer continued that the burden of proof was on Mr. Coomer, and he produced necessary documents. At a later date, the Browns came in and produced a deed, which did not include the easement. Ms. Block said she was not sure who furnished the deed, but it does not show an easement; however, there is a deed from Carlson that does show the easement. A ROLL CALL VOTE WAS TAKEN WITH COUNCILMEMBERS KASPER AND WILSON VOTING YES; COUNCILMEMBERS NORDQUIST, DWYER, HALL, JAECH, AND OSTROM VOTING NO. MOTION FAILED. Councilmember Dwyer explained that it appears that Mr. Coomer has the burden of proving ingress and egress, which he has done by providing a facially valid document. Countervailing this, he said, the Browns have produced a facially valid document showing he cannot have ingress and egress across their property. Not believing the Council can EDMONDS CITY COUNCIL MINUTES Page 7 February 5, 1985 go further than that to resolve the dispute, he sees it as a tie. Being a tie the burden is again upon Mr. Coomer to prevail, and he believes the Hearing Examiner made the correct decision. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER OSTROM, TO APPROVE THE SUBDIVISION IN ACCORDANCE WITH THE CONDITIONS SET FORTH BY THE HEARING EXAMINER. Councilmember Kasper noted that he would vote against the motion for the same reasons stated for making his motion. He said it appears the title company admitted an easement and in light of that it is incumbent on the title company to support Mr. Brown's position and Mr. Coomer does not have that luxury, since he depended on the City. MOTION CARRIED WITH COUNCILMEMBERS KASPER AND WILSON VOTING NO. Mr. Snyder asked for instruction to reduce the Council decision to writing and have the Mayor sign it:. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER DWYER, TO INSTRUCT THE CITY ATTORNEY TO REDUCE THE DECISION TO WRITING AND AUTHORIZE THE MAYOR TO SIGN IT. MOTION CARRIED. PRESENTATION BY EDMONDS ARTS FESTIVAL Harry Hutchins, member of the Board of the Edmonds Arts Museum, expressed appreciation for the opportunity to speak to the Council on their behalf. He said the visible aspects of the Edmonds Arts Museum are the Museum in the Anderson Center and the annual Edmonds Arts Festival. He noted that the Festival had found a home in the Anderson Center and has been able to grow and attract artists as well as patrons. The Museum is now in a position to do long range planning and expend some of the moneys taken in. He expressed the concern that the growing competition for the Anderson Center may impact their ability to conduct the Arts Festival as they wish. He indicated that there has been excellent support from the Staff. He said the festival would like to call the Anderson Center its home and asked for a commitment or statement from the Council as to their position. Will the City assure that the Arts Festival can call the Anderson Center its home and have priority for use of that facility during the period of time in May and June needed for the Festival? Mayor Naughten asked how long they wished to assure that use. Mr. Hutchins replied that 8-10, or 99 years would be appreciated. In response to a question from Councilmember Wilson, Mr. Hutchins said they are not having problems with space, but there can be changes in staff and councils as well as organizational changes. He said the demands on the staff are to fill the Anderson Center and the Festival would like to have a priority during the time needed. Councilmember Jaech suggested that a long-term lease may be appropriate to provide the assurance they seem to be seeking. Mr. Snyder said short of an actual lease, there would be no way the Council could commit itself or any future council. Councilmember Jaech asked the staff to work with the Festival to formulate a lease that could be presented to the Council. Councilmember Hall said there have been some problems in the past regarding ball games or lack of room space, which she attributes to lack of communication. She said certain rooms would have to be set aside for certain days prior to the Festival and the field will have to be non-scheduled. She suggested that the lease be very explicit. She supports the Festival as a community wide effort that brings people into Edmonds. Councilmember Nordquist asked how large .the Festival plans to grow, since size parameters should also be a part of any lease. Mr. Hutchins said they have determined they are about the size they wish to be; the consensus being they wish to grow in quality. He said they believe the size of the Anderson Center is just about right. Councilmember Wilson noted that the Festival had used from 11,000 to 16,000 square feet in the past and suggested they determine the amount they will need to be included in the lease. Mr. Hutchins said they have determined when they need certain rooms and believes they will be able to do that. Councilmember Wilson added that the Edmonds Arts Festival is a most favored customer and their efforts are appreciated. Mr. Snyder asked that guidelines be given on maximum length of the commitment, whether a monetary commitment is wanted from the Festival, any maximum limitation on the size, etc. Councilmember Ostrom asked that the staff formulate a recommendation and return to the Council. Mayor Naughten said Parks and Recreation Director Steve Simpson and he would work with the Edmonds Arts Museum Board and draft a lease to be presented to the Council on February 26. Mr. Hutchins said there may have been some problems verbalized in the heat of production, but there has always been a very good relationship with the staff and the City. He said there are no negative feelings on the part of the Board. REQUEST BY CHAMBER OF COMMERCE FOR ADVERTISEMENT IN "TRAVEL WASHINGTON" PROMOTION ($1,1§ JoAnn Stevens, Chairperson of the Tourism Committee of the Edmonds Chaiaber of Commerce, was present to request funding of advertising in the Travel Washington directory. She believes choice of the publication was a wise and considered judgement. She noted that EDMONDS CITY COUNCIL MINUTES Page '8 February 5, 1985 tourism will make a great impact upon Edmonds during the coming era; a major source of income in the State of Washington. Development of tourism must be a partnership between the public and private sector, she added. Emphasizing the need for proper planning, she mentioned the cooperative efforts of the Chamber and the Arts Festival. The placement of this advertisement in the Travel Washington directory will move toward continuation of that effort. There would be 500,000 copies printed and distributed, they are free since the advertising pays for publication. She expects that advertising from Edmonds will fill 2 pages in the publication. Councilmember Wilson asked if Edmonds had helped with this in the past. Ms. Stevens said this is the first and that this is a target year since the publication will go out to all the planners of Expo 86. She corrected the amount needed to fund the advertisement, $1,187.50 which represents a 5% discount. Councilmember Kasper asked what part the City has played in such projects in the past, such as the Christmas decorations matching funds. Mayor Naughten said the City has paid part of the costs. Ms. Stevens responded that mostly City funds were used in producing the Edmonds brochure. She added that in her study of the responsibility of tourism, she has found it is a Chamber responsibility to promote tourism and it is usually funded by the City. Councilmember Wilson said the Governor had increased his budget for tourism from $11 million to $19 million today. Councilmember Hall asked if this were a one year project or if the Council should be considering this on an annual basis for budget consideration. Ms. Stevens said she was requesting a one time funding but could be returning next year with another request. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO MATCH THE CHAMBER OF COMMERCE OR ANY OTHER SOURCE FOR 50% OF THE FUNDING FOR THE ADVERTISEMENT, AND TO DRAFT AN APPROPRIATE CONTRACT. MOTION CARRIED WITH COUNCILMEMBER WILSON AND OSTROM VOTING NO. Councilmember Hall explained that she had voted yes because she felt half was better than none. Councilmember Wilson said he had voted no because he felt the City should pay the entire amount. Ms. Stevens said the Chamber does not have the money for the matching portion, but she believes in it so strongly she will accept half and will fund raise to find the other half. Councilmember Nordquist said when the Council receives the contract, they will fund the other half. Councilmember Ostrom said he may still be stinging from the budget discussions of 1984. He voted against the motion because he does not believe there is any money to be given to the Chamber or any other group. He believes the tax money given to these groups should be directed toward City projects. He does not believe money should be going to the Chamber or similar groups and will continue to vote against such motions in the future. Councilmember Wilson disagreed since the Council represent the people of the City and have an obligation to enhance the City through means including supporting the Chamber and their efforts. He said the City represents a larger source of funds from the taxpayers and many of the taxpayers are interested in what the Chamber is doing. He said the Council should take a leadership position. Councilmember Kasper said he had made the motion because he believes the City should step out and be a catalyst in these matters. Councilmember Hall suggested that Councilmember Ostrom will get over the sting and consider how the money is returned to the City, seven -fold. She said it does take seed money to reap money and expressed her hope that he would not shut everything out automatically but would weigh each request on its merit. Councilmember Ostrom said the funds in question are public funds and the City is subsidizing .private enterprise and that is not the function of City government. APPROVAL OF MEADOWDALE PLAYFIELD AGREEMENT WITH CITY OF LYNNWOOD AND EDMONDS SCHOOL DISTRICT ($120,000) Parks and Recreation Director Steve Simpson noted that RCW 39.34 provides the ability to sign interlocal agreements with other public entities to provide public services and share resources. The agreement discussed last week was such an agreement. The changes suggested by the Council last week have been incorporated into the agreement before the Council, he said. Councilmember Jaech asked if the City Attorney were satisfied with the contract. Mr. Snyder said the contract says what it will do; its weakest point is the indemnification agreement and he can see no way to clean it up. Councilmember Jaech asked if the value of the land had been determined. Mr. Simpson said the value was established at $800,000, on a lease contract over the period of 40 years it would come to over $2.5 million. EDMONDS CITY COUNCIL MINUTES Page 9 February 5, 1985 Councilmember Kasper favors the agreement but pointed out this is not a real estate transaction. He said it is conceivable that the School District could, at any time, cancel the agreement with appropriate compensation. He added that the only time the fields can be controlled will be after 6 p.m. and on weekends. He said he is bothered that lights will be installed toward the end of the project and new housing will be built, conceivably presenting a problem similar to that experienced at the Civic Center playfield. He also noted that an EIS clause has been added. In measuring the values being invested by all parties, he said the $620,000 being invested over 5 years compares favorably with the $750,000 to $850,000 value of the property. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO ACCEPT THE AGREEMENT AS PROPOSED AND AUTHORIZE THE MAYOR TO SIGN THE AGREEMENT. Councilmember Jaech noted that the Council should be aware they are agreeing to funding $120,000 over the next 5 years. MOTION CARRIED. Mayor Naughten announced that the City has received notification of approval of $148,000 for the Meadowdale Athletic Complex Handicapped improvements for the rest rooms. APPROVAL OF CITY PARTICIPATION IN METRO SECONDARY TREATMENT FACILITIES STUDY ($25,510) Community Services Director Peter Hahn said there had been 2 occurrences since the last discussion of this subject. The Council had approved participation of the City in the Coalition for Clean Water, he said; one platform of the Coalition was support for a $450 million bond issue that would help with funding of secondary treatment. Mr. Hahn said the Governor has developed a policy in support of a nearly identical bill. With bills favored by both the legislative and executive branches of government, it provides a better opportunity for help in the future. A second occurrence was contact from the Department of Ecology that the order to go to secondary treatment on a specific schedule will be issued on May 15. He said Metro is on a compliance schedule and he has had conversations with them regarding converting Edmonds' sewage to Metro in order to be able to make a decision. Former studies have concluded both that it was favorable to go to Metro and that it was not a good idea. Two important assumptions have changed since the 1979 unfavorable report. The economic feasibility arguments in the 1979 study were based on the availability of 90% outside funding for secondary treatment. The option compared had very high construction costs of which 90% was paid, leaving very small payments for Edmonds rate players. The option of going to Metro did not have 90% funding and did not look good in comparison. Today, he said, funding is different and there may be 50% available and these numbers should be reconsidered. A second change is the fact that going to secondary treatment was a somewhat discretionary action and today the City is specifically directed and required to go to secondary treatment. A study of the Metro option would be required in doing a facilities plan, he noted, and the best way to study the option is through their consultant. They will be looking at two factors: 1. That the rates Metro customers will be paying will not be higher by including Edmonds; 2. That Edmonds rates will not be higher than if Edmonds stayed in their own plant. He said his discussion with Metro was to determine the minimal study that could be done to enable Edmonds to make a decision in 1985 of go, no go. At some point both Metro and Edmonds will see the break out and be able to make a choice. He said for $25,000 Edmonds will get to that point. A description of the tasks involved are complete and detailed in the agreement, as well as the costs. If this agreement is approved, Edmonds will still have their side of the analysis to complete for comparison to the Metro option, he added. In the event the Council felt there was no possible likelihood they would go with the Metro option, he said, this would be a high risk option and they would not want to spend this much. He said there is no guarantee that this option would work. He said he was attempting to demonstrate the risks as well as the benefits. He recommended that the Mayor be directed to execute the contract with Metro. Councilmember Jaech said the City Attorney had had a chance to look at the agreement. Because of the expenditure facing the City in the near future, she believes it is necessary to have all the information that can be gathered brought before the Council in order to make a good decision. Therefore, because Metro is one of the options that must be considered, whether that option is chosen or not, COUNCILMEMBER JAECH MOVED, SECONDED FOR DISCUSSION 8Y COUNCILMEMBER KASPER, TO APPROVE THE EXPENDITURE OF $25,510 FOR THE STUDY AND AUTHORIZE THE MAYOR TO SIGN THE AGREEMENT BETWEEN METRO AND THE CITY. Councilmember Kasper supports the request because Edmonds has become the largest sewerage processor in South County. Because of the growth to the north and east, he believes Edmonds is quickly reaching its capability to take care of the problem or be the lead agency. He does not think a Metro should be formed in Snohomish County. This study will reveal whether Metro will provide an opportunity for Edmonds to divert some EDMONDS CITY COUNCIL MINUTES Page 10 February 5, 1985 sewerage to them. Mayor Naughten added that Edmonds might be able to sell some surplus property if Metro accepted some of the sewage. Councilmember Wilson asked if this study will be superficial and a more in=depth study will be done later if the option looks good. Mr. Hahn said it is not superficial, the numbers will provide a sensitivity analysis which can be used to correct changing factors. The study will provide the figures necessary to determine whether the Metro option is viable. He said if the proposal makes sense it will be developed more fully with a total cost of $56,000 for both studies. If Metro Edmonds should join Metro, the rates would include the cost of the total engineering package, with the proviso that Metro will study the option to the County line; a modification has been made that may include a "dowry" of Edmonds going a little over the County line. This "dowry" may make the rates attractive to Metro. Councilmember Ostrom asked if the figures for secondary treatment in Edmonds would be developed at the same time and who would be doing that work. Mr. Hahn replied that that was correct, both studies will be done simultaneously. He said solicitations for letters of interest have gone out and the consultant selection will be done. He noted that an update of the 1979 facilities plan will be used as a basis. Councilmember Ostrom asked the location of the Metro plant. Mr. Hahn said the study will determine the best way to tie in; there are two options, the McAleer trunk or a larger Richmond Beach plant, which both go to West Point. He added that if a Kenmore plant should be built, that might be a third option. MOTION CARRIED. COUNCIL COMMITTEE ASSIGNMENTS Council President Nordquist asked the Council's pleasure in deciding the committee assignments. He explained that a list of assignments could be included in the Council packets for next meeting affording each member an opportunity to indicate their choices. The Council indicated that would be agreeable with them. MAYOR Mayor Naughten announced that the Planning Board Hearing on Highway 99 will be February 13. The Mayor asked for Council confirmation of two appointments. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER HALL, TO APPROVE THE CONFIRMATION OF LLOYD L. BLACK TO POSITION 3 OF THE BOARD OF APPEALS, TERM TO EXPIRE DECEMBER 31, 1988; AND DOROTHY WILLIAMSON TO POSITION 3 OF THE CEMETERY BOARD, TERM TO EXPIRE DECEMBER 31, 1985. -MOTION CARRIED. Mayor Naughten proclaimed the month of February, 1985 as "Adopt a Resident Month at Edmonds Villa Care Center", inviting citizens to "Share Your Heart" by "adopting" a resident. The Mayor informed the Council that the Table Top Disaster exercise held January 31 at 10:00 a.m. had been very successful and the City had been saved. Mayor Naughten announced that projects being recommended by the Block Grant Coordinator include: Handicap improvements to Bracketts' Landing, Yost Pool and City Park - $115,000; Structural improvements to Edmonds' Boys/Girls Club - $65,000; and Handicap improvements to Meadowdale Athletic Complex - $148,000. The Mayor said notification had been received from Snohomish County Dept. of Corrections that the Washington State Corrections Standards Board found Snohomish County in non-compliance with State law with regard to jail population; the County was given until February 28 to comply. He said Councilmember Hall, Chief Prinz, and he had attended the meeting where they were told there was no good answer to the problem, even though there are several options available. Councilmember Hall interjected that comments were made that the new jail will quickly reach capacity, also; there may have to be a review of philosophy in this regard. Mayor Naughten said a Criminal Justice Advisory Board was established with 35 members, 2 from Edmonds, to look at systems, fees, etc., in an attempt to hold down the population. Mayor Naughten said there are 2 applications for a liquor license, one for the Midori Restaurant at 9910 Edmonds Way. He said the second is from Don's at Milltown, 201 Fifth Ave. S. Both applications have been investigated by the Police Dept. and Chief Prinz recommends approval. The Council had no objections. EDMONDS CITY COUNCIL MINUTES Page 11 February 5, 1985 COUNCIL Councilmember Jaech discussed an article in the Herald regarding satellite dishes and asked the City Attorney to provide information to tie Council on this issue. Councilmember Jaech reported that the Esperance group has been reactivated because of the City's attempt to use the Chase Lake property for City storage. She said they are very irate with the City and reiterated that she does not favor utilization of that property in the middle of a residential area for Public Works storage. Councilmember Jaech suggested that Edmonds explore the possibility.of using the joint Lynnwood -Mountlake Terrace Public Works, facility for storage. Councilmember Dwyer reported that more than 90 days has elapsed since the instruction to report on the Olympic School project bond issue date. Councilmember Wilson said the committee is awaiting an appraisal and cannot do anything until then. Councilmember Dwyer said he was just interested in keeping people aware of what is happening. Councilmember Kasper objected to moving Council meetings to Monday evenings because of the problems created with the Consent Agenda. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO RESCHEDULE DISCUSSION OF RECLASSIFICATION OF COMMUNITY SERVICES MANAGERS TO FEBRUARY 19 AGENDA. MOTION CARRIED. Since it was now 10:00 p.m., COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO REOPEN THE MEETING FOR COMPLETION OF THE AGENDA, MOTION CARRIED. Councilmember Kasper said he has not received the minutes on the Woodway gate issue. He would like to have them. Councilmember Nordquist said the cable television station had carried last week's agenda through this evening, again. He complimented the Edmonds View paper, saying their exposure is great, and he believes the paper should be considered for publication of _ notices by the City when it has grown a little more. Councilmember Nordquist read the proposed agenda for the Spring Council Retreat on April 12 and 13. Councilmember Jaech asked that determination of policies for the City had been suggested in the past for discussion at the Retreat. Councilmember Wilson remarked that the list is impressive; he would like to see time for a session on dreaming about where the City should be in 1993. In regard to the dates and time, Councilmember Kasper suggested that the Council meet most of Saturday rather than dismissing at.noon. Councilmember Hall attended the ground breaking ceremony for the .Learning Resource High -Tech Center recently. She expressed pride that Edmonds Community College was a catalyst for this; they are living up to the name "Community" College. The Center will be training people for the high-tech industry. Councilmember Hall commented on the meeting with the corrections problem. She asked Chief Prinz to keep the Council informed on developments. Councilmember Ostrom read a proposal from Councilmember Dwyer and himself concerning the granting of the powers of initiative and referendum to the citizens of Edmonds. He commented on the unusual interest evidenced by the people of Edmonds in the affairs of their City. They believe this move would encourage a higher degree of citizen involvement and participation with an end result that can be nothing other than positive. They recommend that the City Attorney research the ramifications of granting this power to the public, that it be discussed on a Council agenda and the Council pursue the process of turning this power into something established by City.code. Councilmember Ostrom distributed copies of the memorandum to other members of the Council. Mayor Naughten scheduled the question for discussion on the March 12, 1985 agenda. EDMONDS CITY COUNCIL MINUTES Page 12 February 5, 1985 1 COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO MOVE THE MEADOWDALE ISSUE TO FEBRUARY 19 FOR FULL COUNCIL CONSIDERATION. MOTION CARRIED. Meeting was recessed to Executive session to consider a personnel matter at 10:15 p.m., adjourning at 10:30 p.m. JAC ELINE G. PARRETT, City Clerk L G N, aror EDMONDS CITY COUNCIL MINUTES Page 13 February 5, 1985