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05/07/1985 City CouncilL, THESE MINUTES SUBJECT TO MAY 14 APPROVAL EDMONDS CITY COUNCIL MINUTES May 7, 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 Rodin of the Edmonds Library. All present joined in the flag salute. PRESENT ABSENT STAFF PRESENT Larry Naughten, Mayor Laura Hall Bobby Mills, Actg. Pub. Wks. Supt. John Nordquist Jim Adams, City Engineer Steve Dwyer Steve Simpson, Parks & Rec. Dir. Jo -Anne Jaech Mary Lou Block, Planning Director Bill Kasper Jackie Parrett, City Clerk Lloyd Ostrom Scott Snyder, City Attorney Jack Wilson Shirlie Witzel, Recorder Doug Reuble, Student Rep. Mayor Naughten proclaimed the week of May 12 through May 18 as Hospital Week in recognition of Stevens Memorial Hospital and its employees and presented the proclamation to Janet Livingston. He also urged citizens to avail themselves of the free health screening being offered during the the Health Fair at Stevens Hospital on May 16 from 9:00 a.m. to 6:00 p.m. Council President John Nordquist introduced Christine Fleckenstein, newly selected Council Resource Person. CONSENT AGENDA Mayor Naughten advised that Item (E), Authorization for Mayor to Sign Contract With Lee Johnson Associates for Design of Improvements at Brackett's Landing ($22,500), had .been postponed to the May 14 agenda. He also noted that there had been a request to move Item 5 on the Agenda to follow the Audience portion because of the length of the two appeals scheduled as Items 3 and 4. Councilmember Wilson objected since there may be people waiting until a later hour to appear for that hearing. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO SCHEDULE ITEM 5, HEARING TO OBTAIN PUBLIC INPUT REGARDING ADOPTION OF POWERS OF INITIATIVE AND REFERENDUM, AS ITEM 3 ON THE AGENDA. MOTION. CARRIED WITH COUNCILMEMBER WILSON VOTING NO. Items (B) and (0) were removed from the Consent Agenda for discussion. COUNCILMEMBER NORDQUIST 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) Acceptance of Quit Claim Deed from Ronald and Anita Rennebohm. (F) Authorization for Parks and Recreation Department to call for bids for construction of new park Signs. (G) Adoption of Ordinance 2492 relating to Council meeting time and days to provide for Council Committee meetings. (H) Adoption of Planning Board recommendation to approve rezone request from RS-12 to RS-8 for south 70' of property located at 19619 88th Ave. W. (R-1-85/Robert Lakey) (I) Set date of May 21, 1985 for hearing on Planning Board recommendation to amend Chap- ter 21.05 of the Community Development Code defining the term "Alley." (CDC-12-84) APPROVAL OF MINUTES OF APRIL 23, 1985.AND APRIL 30, 1985 [Item (B) on Consent Agenda] Councilmember Kasper asked that the April 30, 1985 minutes be corrected on page 3, paragraph 7, first line, to read "Councilmember Jaech said a recent meeting held by Mayor Naughten and attended by Councilmember Kasper.." COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO APPROVE MINUTES OF APRIL 23 AND 30, 1985, AS CORRECTED. MOTION CARRIED. EDMONDS CITY COUNCIL MINUTES Page 1 May 7, 1985 AUTHORIZATION TO SELL SURPLUS POLICE MOTORCYCLE [Item (D) on Consent Agenda Because he had questions regarding this item, COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO RESCHEDULE THE AUTHORIZATION TO SELL SURPLUS POLICE MOTORCYCLE TO THE MAY 14 CONSENT AGENDA. MOTION CARRIED. HEARING TO OBTAIN PUBLIC INPUT REGARDING ADOPTION OF POWERS OF INITIATIVE AND REFERENDUM Councilmember Dwyer announced that explanatory materials were available at the back of the room. He said that Councilmember Ostrom and he had raised this issue and asked for a preliminary hearing to discover whether there is public support for adding these powers to the City Code. Mayor Naughten opened the public hearing. Anne Salina, 8620 Olympic View Dr., spoke in support of this issue, quoting from an article she had written for the Enterprise in 1971. She encouraged the Council to grant the powers of initiative and referendum, now available at the State level, to citizens of Edmonds. Bill Mathias, 548 Holly Dr., also supported granting these powers since Edmonds is a first class city and first class cities have these powers, He felt the powers would aid decisions made by the Council. Since there was no further testimony to come before the Council, Mayor Naughten closed the public hearing. He acknowledged a letter received from Anne Spivey, 300 Caspers, which favored granting the powers of initiative and referendum to residents of Edmonds. Councilmember Kasper said the Council maintains an open forum and has been responsive to petitions submitted in the past. Fie expressed doubt about how the initiative and referendum process would be handled in view of the new regulations from the Courthouse on charging and backcharging for elections. He did not feel the cost had any bearing but felt there was too much uncertainty at this time. He said the petition process has worked well in Edmonds. Councilmember Nordquist commented that the situation in Ballinger regarding the traffic circle was an example of the confusion that may arise from the petition process, in that people signed separate petitions because they were not aware of what they were signing. Councilmember Kasper observed that the same applies to the referendum process also_ Councilmember Dwyer said petitions would not be barred under the present proposal. However, the advantage of the initiative and referendum process would be that the Council can know, before an election, that there are a substantial amount of people who have disagreed with a Council action, since there is a requirement that signatures of 15% of the registered voters (approximately 2400) must be gathered in 30 days. In comparison with the petition process, he said the important difference is, that upon presentation of 2400 valid signatures should the Council decide not to change their minds, the matter would be placed on a ballot. He said the Council does hot take action that is designed to be unpopular; however, these powers afford an opportunity when an error is made or the Council should refuse to admit that error, providing an opportunity to go elsewhere for an evaluation. Councilmember Kasper asked if that would also apply to Councilmanic bonds. City Attorney Scott Snyder replied in the negative, since neither the budget nor any part of the debt cycle is subject to the referendum process. Councilmember Ostrom favors the proposal because it would provide a vehicle for a higher degree of public participation in the governmental process. He agreed with Councilmember Dwyer's comments regarding the use of referendum power to question Council actions; however, he said there is also the,possibflity that citizens may initiate legislation and determine whether a majority concurs. He said the State was a pioneer in the use of initiative and referendum powers and that power is available to cities. To his knowledge, there have not been any problems with the granting of those powers to residents in Seattle. He said he would not expect any frivolous measures since it is too much work obtaining the necessary signatures. He believes the powers should be adopted. Councilmember Wilson asked for clarification of the initiative power and the cost factor of these powers to the City. Mr. Snyder replied that citizens may initiate or bring forward legislation and the statutes are not as clear on limitations of initiatives as they are on referendums. He was not able to determine any cost factor, saying the City Clerk must review petitions for sufficiency and there would be the City's proportional share of the cost of the election. He said Councilmember Kasper was referring to the new rules regarding cost of registration of voters which is unsettled at this time. Councilmember Wilson referred to paragraph 3 of the City Attorney's letter addressing these powers and the limitation of items subject to the referendum, which may result in frustration on the part of the citizen. He said he felt the language used was rather strong and feels the Council should pay attention to it. rl 1 1 EDMONDS CITY COUNCIL MINUTES Page 2 May 7, 1985 Councilmember Dwyer said he had considered the concerns expressed by the Attorney. He said that many of the same restrictions apply at the State level regarding the budget, etc., but the system on the State level is defensible. He said anyone initiating legislation would check with the City Clerk regarding procedures and anyone intending a referendum should know whether the issue was subject to referendum action. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER OSTROM, (1) THAT THE CITY COUNCIL EXPRESS ITS INTENTION TO ADOPT THE POWERS OF INITIATIVE AND REFERENDUM, AS AUTHORIZED BY THE OPTIONAL MUNICIPAL CODE; (Z) THAT THE CITY ATTORNEY BE DIRECTED TO PREPARE AN APPROPRIATE RESOLUTION EXPRESSING THIS INTENTION AND THAT THIS RESOLUTION BE PLACED ON THE MAY 14, 1985, CONSENT AGENDA FOR PASSAGE; AND (3) THAT THE CITY ATTORNEY AND THE CITY STAFF BE DIRECTED TO BEGIN COMPLIANCE WITH ALL OTHER REQUIREMENTS OF THE OPTIONAL MUNICIPAL CODE, INCLUDING THOSE OF NOTICE AND HEARING, WHICH MUST NECESSARILY PRECEDE FINAL ADOPTION OF THESE POWERS BY THE CITY COUNCIL. Councilmember Kasper indicated his intention to vote against the motion since there has not been a circumstance where the Council has not responded to a petition. A ROLL CALL VOTE WAS TAKEN WITH COUNCILMEMBERS NOROQUIST, DWYER, JAECH, AND OSTROM VOTING YES; COUNCILMEMBERS KASPER AND WILSON VOTING NO. MOTION CARRIED. HEARING ON HEARING EXAMINER'S RECOMMENDATION TO MODIFY GREENBELT COVENANT ON PLAT OF ROB'S ADDITION (ROBERT BRUBAKER, JR./P-1-85) AND HEARING ON APPEAL OF HEARING EXAMINER'S DECISION DENYING SHORT SUBDIVISION S-36-83 (APPELLANT: ROBERT BRUBAKER, JR.) Mayor Naughten explained that Robert Brubaker, Jr., has agreed that these two hearings will be conducted simultaneously. He advised that Mr. Brubaker, represented by attorney, will be allowed 15 minutes for an opening statement and 15 minutes for a closing statement. Since there are 4 people who wish to speak, he will allow 5 minutes for each person. Planning Director Mary Lou Block explained that these two issues are intertwined and it would be difficult to separate the testimony on the two items to hear them individually. Ms. Block reviewed the history of both Mr. Brubaker's request for greenbelt modification and his appeal of the Hearing Examiner's decision to deny short subdivision S-36-83. She said the applicant had demonstrated that the greenbelt covenant should be modified, since the topography is not that steep on the area of Lot 4 from which the greenbelt would be lifted. The Staff recommends that the Council adopt the Hearing Examiner's recommendation to modify the greenbelt covenant as set forth in his report. In regard to the denial of subdivision S-36-83, she said the Hearing Examiner's concern was with the inadequacy of the proposed access road, which is too steep and would require excessive grading. Ms. Block noted that the Staff recommends upholding the decision of the Hearing Examiner unless the appellant can demonstrate that a better access road can be developed. Several slides of the area and transparencies depicting the vicinity map and various access proposals were shown. Councilmember Ostrom asked why the configuration of the new lot was rectangular within a contoured area and asked what elevation occurred on the property. Ms. Block read the description of the elevation from an exhibit and explained that the shape of the lot was to make it a standard building lot and said the lot meets zoning requirements. She said the proposed access routes were not acceptable to Mr. Hudak. Ms. Block indicated that Mr. Brubaker, Jr., has a new access proposal to present this evening. In response to a question from Councilmember Jaech, Ms. Block described the new access proposal, indicating that it was submitted to the staff for their review, but had not been before the Hearing Examiner. The new access proposal would necessitate a 3' rather than an 8' retaining wall and would reduce the amount of cut needed. She said the Council has authority to approve or disapprove the proposal this evening and added that Mr. Hudak had written to express his acceptance of the new proposal, reading his letter for the record. Mr. Snyder explained that the Council is conducting a de novo hearing and is not bound be any previous action. If the Council feels this should be heard by the Hearing Examiner, they can remand it to him or approve the proposal themselves. Mayor Naughten opened the public hearing. Derrill Bastian, representing Mr. Brubaker, Sr. and Jr. and located in the First Interstate Bank Building in Lynnwood, used the previous slides to illustrate his points and concurred with the presentation made by the Planning Director. Mr. Bastion said the Hearing Examiner had approved the removal of the greenbelt and approved the subdivision provided access was available in his first report. In the second report, he said, the Hearing Examiner indicated a different access and said the subdivision would be approved if that access were obtained; however, Mr. Hudak did not accept the access across his property. Mr. Bastian said there was an easement to the property when it was originally platted and commented that the Brubakers wished to make every effort to meet the necessary EDMONDS CITY COUNCIL MINUTES Page 3 May 7, 1985 requirements for the access, describing the new proposal which should not require removal of any trees and will eliminate the need for cuts, instead requiring a rockery and fill. The proposed access also follows very closely the water -way easement and has a 4% grade. Mr. Bastion commented that the Hearing Examiner had interpreted the original resolve of the Council concerning preservation of steep slopes and this proposal takes that into consideration. He added that the City Engineer and Planning Department have reviewed the proposal, subject to precise realignment of the drive and said this would be one common driveway with abandonment of the present driveway on Mr. Hudak's property. Mr. Bastion contended that the Hearing Examiner report clearly indicated that resolution of the access problem would make the plat acceptable. He asked the Council to approve the plat and accept the recommendation in respect to the grbenbelt modification. In reference to Hearing Examiner recommendation I (the reworded greenbelt restriction proposal), Mr. Bastion asked that a correction be made in line eight to read "No clearing, grading, filling or construction of any kind shall occur within this area except for necessary right-of-way and utility installations." Robert Brubaker, Sr., 3 Park P1., said he had no further contribution, but is available to answer any questions. Robert Brubaker, Jr., 4 Park P1., indicated that he also was present to answer any questions. Rick Spellman, 21016 Shell Valley Way,said one year ago these same issues were examined in a series of five meetings. He said the residents of the Shell Valley neighborhood have invested a great deal of time and effort because it is important to them. He said they have been expressing personal opinions and asked the Edmonds City Council to stand behind decisions that have been made, take responsibility for those decisions and continue those decisions over a reasonable period of time. He said he was sure the Councii knew what was involved, expressing their decision in terms such as "a permanent greenbelt" and "never a structure shall be built." He said the residents of Shell Valley had also made a decision to buy their homes, the largest single investment they will probably make, based on the decision of the Council. However, they have now heard a Hearing Examiner state that their concerns about child safety and property values are not legitimate. He noted that several of the staff and Council who have been involved in this issue are no longer present and hopes this has not turned into a battle of attrition. He said they want someone to tell them how a private citizen makes a decision based on existing facts, figures,and Council minutes with assurance that the decision will be carried out; he asked if there should be a dollar limit to be spent in making that decision; and he asked what someone should do to protect himself from these changes. Karl Ahl, 21010 Shell Valley Wy, who lives on Lot 5, concurred with the statements made by Mr. Spellman. He said they are tired of the battle. He said he had researched with the Planning Department prior to purchasing their property, finding provision for a greenbelt, an easement for utility services, and a prohibition on buildings of any kind. Now it appears there will be loss of a greenbelt, loss of privacy in his backyard, and loss of property value because of the first two losses. He asked the Council to make a decision that concurs with previous decisions and protects the value judgments made at that time. Todd Gruenhagen, 21036 Shell Valley Wy, said he had been involved in the previous five meetings regarding removal of a greenbelt covenant and the short plat. He said the presentation of a new alignment of the drive and modification of a smaller portion of the greenbelt were a surprise to him. Those items were not addressed in prior hearings and he said they were unprepared in addressing them. Mr. Gruenhagen said there was a colloquy in 1980 between Mr. Brubaker, Sr., -and Mr. Brubaker, Jr., concerning the allowance of creation of Maple Creek Sub Plat in the Subdivision of Rob's Addition. He said all the property belonged to Mr. Brubaker, Sr. Mr. Gruenhagen said the minutes contained the dialogue of what the greenbelt meant and the language, as recorded, is clear and unambiguous. The Hearing Examiner's suggestion to modify the greenbelt covenant, he said, would make it more complicated. He indicated that everyone buying in the area relied on the land remaining in its natural state. He believes there was an arms length transaction at that time and Mr. Brubaker, Sr., as owner, knew what that status was. The grade may be less steep than contemplated, but the Comprehensive Plan allows for conservation of areas that are 15% or greater in grade and this land is 16% in grade. Mr. Gruenhagen said they would like to rely on the greenbelt covenant as created. Former decisions against the applicant were correct, he said. Since there was some time remaining and no one else wished to speak, Mayor Naughten allowed additional time for those who had spoken previously. Rick Spellman said they held no animosity toward Mr. Brubaker and agreed that a person should be able to maximize the use of their land and resources; however, there are a number of people other than Mr. Brubaker involved. lie noted that Mr. Brubaker was compensated EDMONDS CITY COUNCIL MINUTES Page 4 May 7, 1985 for the decisions he made in utilizing the land; striking a bargain with the City of Edmonds in regard to the greenbelt. Now he is back and Mr. Spellman feels the status quo should be maintained. Todd Gruenhagen referred to Finding 15 of the Hearing Examiner's report regarding granting of no further easements by Hudak; yet a new proposal is now before the Council. He then referred to Finding 27 of the report and read the paragraph, indicating that the public use and interest is to be served by the City Council. He said the public interest of Shell Creek stands in opposition to the proposals. He then noted that the street created to serve the existing community is surcharged and additional traffic would result from the proposed subdivision. He then referred to Conclusion 5 of the report and said it appears the rules are changing as they go along with an inadequate opportunity to address and deal with the changes. He said they have made substantial investments in the Edmonds lifestyle, there has been no change in the land since 1980, and the proposed changes would result in economic detriment to the residents of Shell Valley. He urged the Council to take that into consideration and stand by the decision made last year, denying the application for modification of the greenbelt covenant and the sub plat. Councilmember Dwyer asked Mr. Gruenhagen and Mr. Bastion to comment on whether a doctrine of estoppal applies to the apparent contract made in 1980 by Mr. Brubaker, Sr., and who the beneficiaries of that agreement are. Mr. Gruenhagen said three legal doctrines apply: estoppal, unclean hands, and laches. He said four years have elapsed and the agreement is not subject to vacillation, and read Conclusion 3 of the Hearing Examiner's report. He also believes that Mr. Brubaker is estepped and has unclean hands. He said there is a wealth of legal authority that precludes Mr. Brubaker from attacking the validity of the greenbelt covenant. Mr. Gruenhagen said not all of the residents would fit within a third party beneficiary description; however, every resident of Edmonds is a beneficiary of the greenbelt in relation to the esthetic benefits derived and its use as a sight and sound buffer. As a practical matter the residents of Shell Valley benefit more than someone across town. He commented that Yost Park was dedicated to the City on condition that it remain in its natural state and has been a benefit to the community. Derrill Bastion said the minutes of the Council meeting in 1980 were considered during the Hearing before the Hearing Examiner. and referred to Finding 5 of the report and read from line 4 on page 4 regarding the steep slope portions of Lots 3 and 4. He said the map used by the Council in determining the greenbelt was inaccurate and the minutes show the Council did not intend to confiscate property that was not on the steep slope. In regard to the question about estoppal, he said Mr. Brubaker agreed to protection of the steep slope areas. However, he does have a full and complete level lot and has the right to use that lot. There is no contractual relationship in existence, he said, since placing a covenant is exercising a police power. No one ever gains a right to use of a police power, he said. Mr. Bastion quoted from the Supreme Court case of Norco vs King County in which it was stated that a man may use his property as he sees fit. He said a covenant is out of place in zoning and Mr. Brubaker is not estopped since he was not striking a bargain. Mr. Bastion displayed a slide of the greenbelt behind Mr. Ahl's house and indicated that it would not be disturbed by the proposed development. Mr. Bastion then referred to letters from property owners surrounding the Lot in question in which there was no objection to the subdivision. In reference to the statement that the City Council must stand behind their decision, he said the Council would not have made the same decision if they had had the information then that is now available. Mr. Gruenhagen requested additional time to rebut matters just addressed. Mayor Naughten granted him three minutes. Todd Gruenhagen said there has been an attempt to define what the City Council intended in 1980. He indicated that the minutes of that meeting show that pictures were used by the City Council in reviewing Lots 3 and 4. He said Mr. Brubaker, Sr., is charged with an awareness of the status of the land at the time of the proceedings in 1980 to the present. He noted that there were three meetings in 1980 held in February, June and July. He quoted from these minutes indicating that the property could not be subdivided further in reference to Lot 4. He called attention to and read from the March 20 report of Hearing Examiner James Driscoll, Conclusion 4, in which the modification was not found to be consistent with City codes and ordinances. He said there was reference to the vegetation on Lots 3 and 4 in the minutes, indicating there was something more than mature trees to which they were referring. He read Conclusion 5 of Mr. Driscoll's report and said there are factors that are consistent with their position in asking the City Council to keep the greenbelt covenant. Mr. Gruenhagen said the City Council did not place Mr. Brubaker under duress in 1980 and does not believe there was any taking without due process of any property right. Mr. Bastion said the minutes of these meetings should not be taken out of context and suggested the Council reread those minutes if they have any questions. He noted he had been referring to minutes of the Planning Commission dated February 28, 1980. He said the EDMONDS CITY COUNCIL MINUTES Page 5 May 7, 1985 findings and conclusions of Mr. Driscoll are irrelevant to the present proceeding since he was considering a different application and the current proposal deals with that portion of Lot 4 that is flat and meets the zoning code. The Hearing Examiner heard comments that dealt with disturbing the neighborhood; however, he said, this will be just one more single family lot, with seven average car trips per day as determined by national transportation studies. Mr. Bastion requested the Council to sustain the steep slope part, sustain the intent of the short plat (allowing them to work out the exact location of the access), and allow Mr. Brubaker to use his lot. Mayor Naughten closed the public portion of the hearing. Councilmember Nordquist asked why Mr. Driscoll had not heard this application. Ms. Block explained that Mr. Brubaker had requested another Hearing Examiner and the City Attorney had advised the City to honor that request. Mr. Snyder said the issue of prejudgmental bias was easy to eliminate in that way. Councilmember Kasper wished to ask Mr. Brubaker some questions. Councilmember Jaech raised a point of order that questions are not allowed after closing the public portion of the hearing. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER KASPER, TO REOPEN THE PUBLIC PORTION OF THE HEARING TO ALLOW COUNCILMEMBER KASPER TO ASK HIS QUESTIONS. THERE WAS A ROLL CALL VOTE WITH COUNCILMEMBERS NORDQUIST, DWYER, KASPER, AND WILSON VOTING YES; COUNCILMEMBERS JAECH AND OSTROM VOTING NO. MOTION CARRIED. Councilmember Kasper asked if Mr. Brubaker had ever intended to have a lot there and whether he was stopped at the time by the staff. Mr. Brubaker said there were long range plans, that was why he kept the easements, but he was not precluded at that time. He said his opinion and knowledge of the property was no different than that of the Planning Commission members at that time and they were all of the opinion that the restriction was necessary for the purpose intended. He challenged the restriction and asked for its meaning but with the understanding that it was necessary to protect the slopes. Councilmember Kasper said the Council was concerned about erosion and not a greenbelt. He said it appears the greenbelt was extended too far. Mr. Brubaker said the Planning Commission was concerned at that time about further development of Lot 3, not Lot 4, which is supported by Covenant Restriction 2. Councilmember Wilson asked if Mr. Brubaker denies Finding of Fact 5, "The Planning Commission Minutes of 1980 indicate that the City wanted the steep slope areas of 3 and 4 to be designated as permanent greenbelt areas on the recorded plat in order to insure that there would be no development down the slope. A Planning Commissioner explained to Mr. Brubaker, Sr., that at no time in the future could a structure be built there. Mr. Brubaker said he saw nothing wrong with that." Mr. Brubaker said the statement was true. Councilmember Dwyer said he had no desire to vote on this issue tonight. lie suggested the public hearing remain closed but continue the hearing for two weeks, allowing the Council to go through the 56 exhibits and look at the minutes of the meetings that have been referred to in the testimony. Councilmember Nordquist said he had talked with the City Clerk and the tapes will be made available for Council Members to hear. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO CONTINUE THE COUNCIL PORTION OF THE HEARING TO MAY 21, 1985. Mr. Snyder suggested that the hearing be continued as intended by the motion in order to add these tapes and anything else to be considered along with the exhibits to the record.` He also reminded the Council that receipt of any written or oral communications between now and the time a decision is reached should be noted in order to enter them into the record. He also suggested that Council Members discourage ex parte communications from anyone. Councilmember Dwyer asked that the Council Resource Person be made custodian of the exhibits for the next two weeks and that a record be kept of who has taken what. Councilmember Ostrom said he would like to visit the site again and asked if that would be acceptable. Mayor Naughten allowed Mr. Bastion to inquire regarding procedure. Mr. Bastion said their position would be that the Council may not take any more testimony, written or oral, from anyone since the hearing is closed and there would be no opportunity to rebut such testimony. He said the tapes and minutes of prior meetings are a part of the record. Councilmember Dwyer asked for clarification of what Mr. Bastion. means; would he object to reading of minutes which may not be in the record. Mr. Bastion replied affirmatively. In an attempt to clarify what is included in the record, Mr. Bastion said any information that has come to Council members from the Staff or through minutes of the Planning Commission or City Council dealing with the 1980 hearings may be considered. Mr. Bastion does object to 1 EDMONDS CITY COUNCIL MINUTES Page 6 May 7, 1985 consideration of Mr. Driscoll's reports because they deal with a different application and there would be no chance to rebut it. Councilmember Dwyer asked Mr. Snyder if Mr. Driscoll's findings and conclusions were placed in the record since this is a de novo hearing and they were mentioned. Mr. Snyder said he would agree with Mr. Bastion that the prior decision, unless placed in the minutes, is not a. part of the record. Any consideration of Mr. Driscoll's report would be one hearsay statement that may be considered as a makeweight but a finding could not be based upon it. Mr. Bastion said they had objected to an attempt to enter that report into the hearing and the Hearing Examiner sustained the objection. Mr. Snyder asked that the Clerk gather together the record of the Hearing Examiner's opinion, the exhibits, the decision, and items mentioned tonight for consideration. If someone wishes to consider another item, he suggested that the item be held and everyone be given notice of the additional item. Councilmember Dwyer wanted an agreement as to what is contained in the record. Mr. Snyder suggested that the Council stick to this evening's record and the record before the Hearing Examiner, including the exhibits. He said the Council has an obligation to consider Mr. Brubaker's present request on its own merits on the basis of the hearing before the Council. Councilmember Dwyer asked if the City Council Minutes of June 3, 1980 and July 1, 1980 were the minutes from which Mr. Bastion quoted. Mr. Bastion said he was reading from Planning Commission minutes of February 1980. He said he concurs with Mr. Snyder's advice and, if the Council wishes to reread the 1980 Planning Commission and City Council proceedings, he has no objection with the caveat made by the Counsel. COUNCILMEMBER KASPER WITHDREW HIS MOTION, AGREEABLE TO SECOND. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER KASPER, TO CLOSE THE PUBLIC HEARING. MOTION CARRIED. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO CONTINUE COUNCIL DISCUSSION OF THIS MATTER TO MAY 21, 1985, PERTAINING ONLY TO THE EXHIBITS AS DISCUSSED. MOTION CARRIED. Mr. Snyder suggested that if site evaluations are made, that Council Members not speak with residents. Ms. Block asked what the Council wished to have included in their packets on May 21.. Councilmember Dwyer asked for all 56 exhibits and the Planning Commission minutes from 1980. Councilmember Jaech asked for City Council Minutes from 1980. Mayor Naughten recessed the meeting for five minutes at 9:30 p.m. to clear the room. Meeting was reconvened at 9:35 p.m. Mayor Naughten advised those present that the Public Hearing on the Powers of Initiative and Referendum was considered earlier in the evening, was approved, and the Council had asked for a resolution to be drafted and included on next weeks Consent Agenda. MAYOR Mayor Naughten proclaimed the week of May 5 - 12 as National Music Week for the City of Edmonds. The Mayor said the Arts Commission, through Arts Coordinator Linda McCrystal, gathered up 100 pieces of art and distributed them to 18 businesses in Edmonds, contributing to the quality of life that exists here. He commended the Commission and Ms. McCrystal for their efforts. Mayor Naughten asked for confirmation of his appointment to the Planning Board. Since the appointee is well qualified, COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO CONFIRM APPOINTMENT OF HANK LEWIS TO THE ALTERNATE POSITION ON THE PLANNING BOARD, TERM TO EXPIRE PECEMBER 31, 1985. Councilmember Nordquist said he will vote against the confirmation. He feels the fact that Mr. Lewis is a former employee of the City and has appeared before the Council as a representative of his company would afford him extreme leverage. Even though there was discussion in the interview of no appearance of fairness problem, he said in some cases he perceives there may be. Councilmember Jaech explained that she sees a problem with the heavy business involvement of Mr. Lewis with the City and agrees that having been a City employee places Mr. Lewis in a unique position. Therefore, she will not vote in favor of the confirmation. Mayor Naughten said he had considered these matters and feels that Mr. Lewis's background and education in planning as well as his association with the City makes him a contributing member of the Planning Board. He said that type of expertise is needed and he does not see a conflict of interest. EDMONDS CITY COUNCIL MINUTES Page 7 May 7, 1985 Councilmember Wilson said Mr. Lewis's appearances before the Council have been of the highest level and he sees no problem. A ROLL CALL VOTE WAS TAKEN WITH COUNCILMEMBERS DWYER, KASPER, AND WILSON VOTING YES; COUNCILMEMBERS NOROQUIST, JAECH, AND OSTROM VOTING NO. MAYOR NAUGHTEN VOTED YES TO BREAK THE TIE. MOTION CARRIED. Mayor Naughten proclaimed the month of May 1985 as Buddy Poppy Month in Edmonds, urging all patriotic citizens to wear a Buddy Poppy. The Mayor pointed out the new bulletin board in the lobby of the Library and thanked Building and Grounds Supervisor Ed Huntley for the project. City Clerk Jackie Parrett noted that a complete Council packet is being placed on that board each week. COUNCIL Councilmember Kasper would like the Community Services Committee to review problems with Subdivision 5-7-76, Seamont Ln.; there seem to be lots that were sold without improvements and building permits cannot be obtained. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER DWYER, TO EXCUSE THE ABSENCE OF COUNCILMEMBER HALL THIS EVENING. MOTION CARRIED. Councilmember Nordquist announced that Ms. Fleckenstein will be in the Council Office from 8:00 a.m. to 5:00 p.m. on Monday, Tuesday and Thursday and will attend the Council Committee Meetings the fourth Tuesday of the month. Councilmember Ostrom suggested that reports of various matters be kept in the Library, such as the budget, annual reports from the City departments, and the Highway 99 studies. He asked that a consistent policy be determined. Councilmember Kasper said they are not sorted or catalogued and are difficult to find. Councilmember Ostrom suggested that the Council meet with the Librarian to discuss how this might be handled. Mayor Naughten asked that Council Members indicate reports they think should be placed in the Library. Councilmember Dwyer expressed objection to passage of items on the Consent Agenda such as the rezone this evening. Mr. Snyder said this would come back as an ordinance. Ms. Block explained the Code provides that these items are to be placed on the Consent Agenda. If they are removed, she said, there must be a public hearing. Councilmember Dwyer asked why the Mayor was allowed to break the tie on a vote to confirm his own appointment. Mr. Snyder read RCW 35A.12.100 that determines when the Mayor may vote to break a tie. Councilmember Dwyer asked if the Council may approve appointments acting as a committee of the whole. Mr. Snyder said it would depend on the Board since appointments are covered by different statutes. Mayor Naughten said he believed he could appoint and confirm people to Boards and Commissions. Again, Mr. Snyder said it would depend on the Board. He will give the Council a list with the requirements for each Board. Councilmember Dwyer said Councilmember Wilson was correct and the hearing on powers of initiative and referendum should not have been moved to an earlier time this evening. He did suggest that the agenda be reviewed and an attempt be made to schedule the shorter hearings or items before items that are expected to take longer. Councilmember Jaech said, because of the asbestos problems existing in the Civic Center roof, the roof and the solution of the asbestos problem should be accomplished at the same time. Councilmember Kasper said the courts have allowed extra time to accommodate solving asbestos problems. Mayor Naughten said the roof will hold another year and the asbestos problem will be solved this year. Councilmember Kasper said there is a danger, if the roof goes, that the money will be wasted. In addition he said the entire thing, heating and ventilation, should be done all at once. Councilmember Jaech asked for a staff report on the problems and an estimate of the cost. In addition, she asked that the problem of insulation be addressed. Since there was no further business to come before the Council, Mayor Naughten adjourned the meeting at 10:00 p.m. 4JACQOELINE G.P RRETT, City Clerk Y S A TEN,! ay EDMONDS CITY COUNCIL MINUTES Page 8 May 7, 1985