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01/18/2005 City CouncilJanuary 18, 2005 The Edmonds City Council meeting was called to order at 7:02 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Richard Marin, Council. President Michael Plunkett, Councilmember Jeff Wilson, Councilmember Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Deanna Dawson, Councilmember ALSO PRESENT Bryan Huntzberger, Student Representative STAFF PRESENT Al. Compaan, Assistant Police Chief Duane Bowman, Development Services Director Dan Clements, Administrative Services Director Brian McIntosh, Parks & Recreation Director Jennifer Gerend, Economic Development Dir. Kathleen Junglov, Asst. Admin. Services Dir. Rob Chave, Planning Manager Steve Bullock, Senior Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Lawrence Cretin, Video Recorder Jeannie Dines, Recorder Councilmember Plunkett recognized Steve Fisher in the audience, a student at Meadowdale High School who interviewed him today in preparation for writing a paper on the Edmonds City Council. Councilmember Plunkett recalled he needed proof for his teacher that he attended the Council meeting, noting now he was on TV, confinnation of his attendance. 1. APPROVAL OF AGENDA Mayor Haakenson relayed City Attorney Scott Snyder's advice that the Council pull Item I from the Consent Agenda and remove Item J. hangeto genda COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER DAWSON, FOR APPROVAL OF THE AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Wilson requested Item F be removed from the consent Agenda. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, FOR APPROVAL OF THE CONSENT AGENDA WITH THE EXCEPTION OF ITEMS F, I, AND J. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve 1111105 (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF JANUARY 11, 2005 Minutes (C) APPROVAL OF CLAIM CHECKS #76361 THROUGH #76529 FOR THE WEEK OF Approve laim JANUARY 3, 2005, IN THE AMOUNT OF $690,521.04. APPROVAL OF CLAIM becks CHECKS #76530 THROUGH #76715 FOR THE WEEK OF JANUARY 10, 2005, IN THE AMOUNT OF $564,625.53. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #39987 THROUGH #40060 FOR THE PERIOD DECEMBER 16 THROUGH DECEMBER 31, 2004, IN THE AMOUNT OF $732,286.67. Edmonds City Council Approved Minutes January 18, 2005 Page 1 laim for amages Parks, Item F: Approval of Reorganization of Management Structure of Parks, Recreation & Cultural Recreation, Services Department Cultural Services Councilmember Wilson commented on the differences in the qualifications for the two management Borg positions. He expressed concern with the Recreation Manager, noting recreation was one of the few true revenue producing ventures but the education and work experience requirements were not worded toward an applicant with those attributes. Parks & Recreation Director Brian McIntosh responded the positions were being advertised externally as well as internally to ensure a competitive process. He explained at least two employees in the Parks & Recreation Department had been identified as potential candidates and there may be others within the City interested in applying. He explained one of the employees applying did not have the educational background but had a wealth of experience. The intent was to leave the qualifications as open as possible to avoid excluding anyone. Councilmember Wilson appreciated the effort to balance the education and experience but suggested the definition describe professional experience to offset the educational requirement such as strong management capabilities, experience in marketing and/or programming, etc. Mr. McIntosh explained staff was encouraged to take professional development classes which he found more relevant than a college degree one may have received years ago. Councilmember Moore commented one of the positions managed a budget of approximately $750,000, three full -time staff and numerous part -time staff but would not be required to have a college degree. The other position managed a very small budget, one full -time staff member and was required to have a college degree. She pointed out the description was not necessarily for the candidate who filled the position this time but also in the future. Mr. McIntosh answered there was latitude to change qualification requirements in the future should an opening arise. Councilmember Moore suggested tabling this item to allow the Council more time to think about it. Mayor Haakenson pointed out the Finance Committee had considered this issue. Councilmember Moore preferred the matter be reviewed as a policy issue versus how to fill the positions right now. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO TABLE THIS ITEM. MOTION CARRIED UNANIMOUSLY. The item tabled is as follows: (F) APPROVAL OF REORGANIZATION OF MANAGEMENT STRUCTURE OF PARKS, RECREATION & CULTURAL SERVICES DEPARTMENT Item I: Water Excise Tax Ordinance Change — Proposed Ordinance Amending the Provisions of ater Edmonds City Code 3.20.050 to Add a New Paragraph F Imposing a Tax of Five and Three - .xciseTax rdinance Quarters Percent on the Gross Income of the City's Water Utility City Attorney Scott Snyder explained this was not a new or an additional tax. This was a housekeeping ordinance to convert what had been a surcharge into a B &O tax to match the City's other taxes. He noted Edmonds City Council Approved Minutes January 18, 2005 Page 2 (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM TIMOTHY HAPKE (AMOUNT UNDETERMINED). elephone System (E) AUTHORIZATION FOR MAYOR TO SIGN AN AGREEMENT WITH CNR, INC. FOR TELEPHONE SYSTEM REPLACEMENT. Prisoner (G) AUTHORIZATION FOR MAYOR TO SIGN 2005 ADDENDUM TO PRISONER Detention Agreement DETENTION AGREEMENT BETWEEN THE CITY OF LYNNWOOD AND THE CITY OF EDMONDS. F.71 (H) AUTHORIZATION FOR MAYOR TO SIGN THE 2005 — 2009 INTERLOCAL ervices AGREEMENT FOR JAIL SERVICES WITH SNOHOMISH COUNTY. [Agreement Parks, Item F: Approval of Reorganization of Management Structure of Parks, Recreation & Cultural Recreation, Services Department Cultural Services Councilmember Wilson commented on the differences in the qualifications for the two management Borg positions. He expressed concern with the Recreation Manager, noting recreation was one of the few true revenue producing ventures but the education and work experience requirements were not worded toward an applicant with those attributes. Parks & Recreation Director Brian McIntosh responded the positions were being advertised externally as well as internally to ensure a competitive process. He explained at least two employees in the Parks & Recreation Department had been identified as potential candidates and there may be others within the City interested in applying. He explained one of the employees applying did not have the educational background but had a wealth of experience. The intent was to leave the qualifications as open as possible to avoid excluding anyone. Councilmember Wilson appreciated the effort to balance the education and experience but suggested the definition describe professional experience to offset the educational requirement such as strong management capabilities, experience in marketing and/or programming, etc. Mr. McIntosh explained staff was encouraged to take professional development classes which he found more relevant than a college degree one may have received years ago. Councilmember Moore commented one of the positions managed a budget of approximately $750,000, three full -time staff and numerous part -time staff but would not be required to have a college degree. The other position managed a very small budget, one full -time staff member and was required to have a college degree. She pointed out the description was not necessarily for the candidate who filled the position this time but also in the future. Mr. McIntosh answered there was latitude to change qualification requirements in the future should an opening arise. Councilmember Moore suggested tabling this item to allow the Council more time to think about it. Mayor Haakenson pointed out the Finance Committee had considered this issue. Councilmember Moore preferred the matter be reviewed as a policy issue versus how to fill the positions right now. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO TABLE THIS ITEM. MOTION CARRIED UNANIMOUSLY. The item tabled is as follows: (F) APPROVAL OF REORGANIZATION OF MANAGEMENT STRUCTURE OF PARKS, RECREATION & CULTURAL SERVICES DEPARTMENT Item I: Water Excise Tax Ordinance Change — Proposed Ordinance Amending the Provisions of ater Edmonds City Code 3.20.050 to Add a New Paragraph F Imposing a Tax of Five and Three - .xciseTax rdinance Quarters Percent on the Gross Income of the City's Water Utility City Attorney Scott Snyder explained this was not a new or an additional tax. This was a housekeeping ordinance to convert what had been a surcharge into a B &O tax to match the City's other taxes. He noted Edmonds City Council Approved Minutes January 18, 2005 Page 2 B &O ordinances require a special effective date clause, effective 60 days after passage rather than the normal five days; the Council packet contains a redrafted ordinance containing the effective date provision required by State Statute. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER WILSON, FOR APPROVAL OF ITEM L MOTION CARRIED UNANIMOUSLY. The item approved is as follows: rd# 3531 ater (I) ORDINANCE NO. 3531 - AMENDING THE PROVISIONS OF EDMONDS CITY CODE xcise Tax 3.20.050 TO ADD A NEW PARAGRAPH F IMPOSING A TAX OF FIVE AND THREE - QUARTERS PERCENT ON THE GROSS INCOME OF THE CITY'S WATER UTILITY ingntar Item J: Proposed Ordinance Granting To New Cingular Wireless PCS, LLC, A Delaware Limited Bless Liability Company, D /B /A Cingular Wireless, a Master Use Agreement, to Install, Operate, And aster use Maintain Wireless Communication Facilities within a Certain Designated Public Right -Of -Way of greement the City of Edmonds, State of Washington, Prescribing Certain Rights, Duties, Terms, And Conditions with Respect Thereto, and Establishing an Effective Date Mayor Haakenson advised this item would be returned to the Council on a later date. Interim 3. PUBLIC HEARING TO CONSIDER THE FOLLOWING: Zoning Ordinances (A) AN INTERIM ZONING ORDINANCE DEFINING VIEW FOR THE PURPOSES OF and zoning ECDC 20.10.070; Moratorium e: 25 -Foot Building (B) AN INTERIM ZONING ORDINANCE CLARIFYING UNDER ECDC 20.10.060 AN odlntated APPLICANT'S RIGHT TO FULLY UTILIZE BULK STANDARDS WHICH HAVE BEEN Design, and ADOPTED PURSUANT TO THE CITY'S COMPREHENSIVE PLAN• View Issues (C) REENACTMENT OF AN INTERIM ZONING ORDINANCE REGARDING THE RIGHT OF AN APPLICANT TO UTILIZE MODULATED BUILDING DESIGN IN ORDER TO HAVE A ROOF ABOVE THE 25 -FOOT HEIGHT LIMIT• AND (D) A ZONING MORATORIUM ON ARCHITECTURAL DESIGN BOARD AND BUILDING PERMIT APPLICATIONS NOT VESTED PURSUANT TO STATE LAW AND CITY ORDINANCE TO UTILIZE MODULATED BUILDING DESIGN AS THE BASIS FOR A BUILDING HEIGHT IN EXCESS OF 25 FEET. Mayor Haakenson clarified there would be one public hearing to consider all the above items; this was not a public hearing to discuss increasing building heights from 30 feet to 33 feet which would be the subject of a public hearing in February. Council President Marin explained the Council may or may not take action on Items A C above; Item D pertains to the ordinance the Council enacted two weeks ago. State law requires a public hearing be held within 60 days; the Council was holding the public hearing within two weeks. He advised it was recommended that the public hearing be held in conjunction with the three other potential zoning ordinances; however, the Council may choose to wait until the Planning Board has concluded their work on the Comprehensive Plan update before taking action on those issues. Development Services Director Duane Bowman explained this was a public hearing on the moratorium imposed by the Council on January 4, 2005 regarding the acceptance of Architectural Design Board (ADB) and building permit applications in the BC zone which seek to use building modulation for heights over 25 feet. In addition, staff prepared several draft interim ordinances for discussion purposes. Staff was seeking direction from the Council regarding the rules for development in the BC zone as a result of the Bauer et al v. City of Edmonds decision. He explained in that recent Superior Court case the judge overturned the City Council's interpretation regarding building heights in the BC zone. Edmonds City Council Approved Minutes January 18, 2005 Page 3 Mr. Bowman reviewed the three possible actions for the Council to take, 1) continue the moratorium on building heights until the Comprehensive Plan update is completed and regulations are adopted to implement the plan, 2) adopt interim zoning ordinances to establish development rules until the Comprehensive Plan and zoning regulations are in place, 3) action must be taken on the view issue as the City is not in compliance with Anderson v. Issaquah standards with regard to regulation of views. He noted the review criteria the ADB uses that includes the term view are vague and non - specific, making it a nearly impossible regulation to enforce. Senior Planner Steve Bullock provided a historical perspective of development in the BC zone, explaining in early Edmonds, there were no zoning ordinances and no limits on heights. He displayed photographs of buildings constructed in the first half - century, explaining most buildings ranged in height from 13 stories with a variety of sizes and materials. The City adopted its first zoning code in 1956 which allowed building heights of up to 4- stories or 45 -feet, whichever was less. The zoning code was modified in 1963 to allow building heights of 3- stories or 35 -feet. He displayed photographs of buildings constructed between 1956 until the next major rewrite of the code in 1980, simple boxy style buildings taken up to the height limit with little roof ornamentation. Mr. Bullock explained in 1980, following a great deal of public input, the code was rewritten to allow building heights in the downtown BC zone up to 25 -feet with a provision that they could extend to 30 feet if the building had a roof with a pitch of 4:12 or greater. He displayed photographs of the two building styles that were the result, first a building 25 feet to the eve line with a hip roof that encircles the building with a 4:12 pitch around the entire building. The other style that was typically seen was a building 25 feet to the eve line with an architectural gable to 30 feet. In 1987, the code was tweaked slightly to allow for more building variety and architectural interest. Language was added to the code to allow for barrel vaults, shed roofs, etc. that did not necessarily meet the 4:12 criteria. The revision to the code also provided for flat roofs over the 25 -foot height limit. He displayed photographs of several buildings that utilized these provisions of the code. City Attorney Scott Snyder explained staff was seeking direction on how the Council wanted staff to handle building permit applications pending the Council receipt of the Planning Board's recommendation and preparation of development regulations. The Planning Board's recommendations can be expected in 4 to 8 weeks, the development regulations will take longer. In the Bauer decision, the judge felt the decision to accept modulated design was not what the ordinance stated. He recalled the Council struggled with that interpretation itself, enacting shortly after the decision an interim zoning regulation that defined the height issue of modulated building consistent with past interpretation. He noted that interim zoning ordinance expired in late October, raising the issue of reenacting that interim zoning ordinance. Mr. Snyder referred to the moratorium on building applications that use a modulated building design which affects buildings in the downtown area. The judge's ruling raised two additional issues. While the judge affirmed the Council's ruling that the project was consistent with the Comprehensive Plan, in another area of her decision, she questioned whether the City was applying the requirement. Looking at the argument made on appeal before the Council, in order to find consistency with the Comprehensive Plan, it may be necessary to deny rights such as setback. Staff's and the ADB's position has been that because development regulations are required by GMA to be consistent with the Comprehensive Plan, if a development regulation that has been adopted is used, it is consistent with the Comprehensive Plan. The other issue the judge raised was with regard to Sections 20.10.070(C)(3) and a sentence in the ADB ordinance that applies to all ADB applications, not just the downtown corridor. The argument made before the ADB, City Council and judge was that view could include the right to light, air and protection of private views. The code refers to the imposition of special height limits when necessary to protect Edmonds City Council Approved Minutes January 18, 2005 Page 4 views from surrounding properties from substantial view blockage. The City has an obligation in the ADB process to give clear direction to applicants; however, the terms "view," "surrounding property" or "substantial view blockage" are not defined in the code. Staffs concern in honoring and applying the judge's decision is it has never been applied, the terms are not defined and the ADB has consistently excluded the concept of shadowing. Staff has attempted to provide a range of interim ordinances. The Council could take a do- nothing approach once the public hearing on the moratorium on applications in the downtown area that are subject to ADB review that use modulated design is complete, or adopt zoning ordinances that define the terms. If the Council decided to wait until the Planning Board's recommendation in the Comprehensive Plan regarding the height issue, staff still needed some direction regarding views. He noted one of the options was a moratorium on the application of the view provisions until the issue was resolved. If the view provisions were applied, staff drafted two definitions, one that restricted it to public views which would exclude shadowing. The only option staff did not provide with regard to view was a moratorium on all ADB applications until the issue was resolved which he noted would have a significant economic impact. Councilmember Dawson noted the specific language in the ordinance refers to buildings over two stories. Another option would be a moratorium on all buildings over two stories. Mr. Snyder pointed out "stories" also was not a defined term. Councilmember Dawson suggested the Council take public comment tonight and have staff return with responses to the public comment in two weeks. Mayor Haakenson opened the public participation portion of the public hearing, reiterating this was not the meeting to discuss the height increase from 30 feet to 33 feet. The Council would have a work session at the January 25 meeting on proposed amendments to the Comprehensive Plan. A public hearing was scheduled for February 1 on the non - Downtown Waterfront Plan Comprehensive Plan amendments with a public hearing on February 15 specifically on the Downtown Waterfront Plan Comprehensive Plan amendments. Mr. Snyder clarified there was a definition in the code of ` §tory," noting it was not really a usable definition. He read the definition: the part of the building lying between two floors or between the floor and ceiling at the highest useable level in the building. He pointed out by this definition, a one -story house with a basement would be considered a 3 -story house. Mayor Haakenson advised the Council received emails today regarding the 25 -foot building height from Mary Hovander who urged the Council to retain lower building heights, and from Doug Resnick who asked the Council to retain an official limit of two stories and 25 feet. Don Kreiman, 24006 95th Place W, Edmonds, read a portion of ECDC 20.10.060 to assist in focusing the discussion: the Board shall make the following findings before approving the proposed development, a) Comprehensive Plan, that the proposal is consistent with the Comprehensive Plan and other adopted City policies. He noted the Comprehensive Plan was adopted ten years ago and staff developed land use regulations to implement the Comprehensive Plan. A builder read the regulations and thought he could add a floor to his project downtown; the ADB reviewed and approved the project although it may not have complied with the Comprehensive Plan. He concluded the ADB effectively changed the regulations and development downtown surged ahead due to the profitability of two stories over one story of commercial. Local developers and the Planning Board have testified that the regulations do not allow them to build viable commercial space and still make a profit. The Chamber of Commerce, the Economic Development Director and downtown merchants have testified that downtown retail /commercial space is poor and each building constructed under these regulations adds to poor retail space. He concluded the ADB made a mistake, however, because the City Council does not have the land use expertise of the Planning Board, he urged the Council to maintain the moratorium until they reviewed and adopted the Planning Board's recommendations with regard to the Comprehensive Plan update. Edmonds City Council Approved Minutes January 18, 2005 Page 5 Ron Wambolt, 530 Dayton Street, Edmonds, also supported continuing the moratorium until the City Council had an opportunity to review the Comprehensive Plan update. In the event the Council did not, he reviewed the recent history of the issue, noting until 1997, the height limit in the BC zone was 25 feet, resulting in a lot of buildings with modulated sides with flat roofs. In order to diminish the number of flat roofs, the Council passed an ordinance allowing 30 feet if the roof was also modulated. Unfortunately this ordinance was not applied as intended and 30 foot buildings with flat roofs were approved. Mayor Haakenson requested the ordinance be clarified and an ADB member resigned in frustration. An interim ordinance was developed and adopted in February 2004 to achieve the intent of the 1997 code, specifically that 30 -foot buildings with flat roofs would not be allowed, the roof would have to be modulated. Earlier at the same meeting, the Council approved a 30 -foot building with a flat roof at 215 5'h Avenue which the interim ordinance would have disallowed. A public hearing on the interim ordinance was held and after considerable discussion, it was the consensus of the Council to continue the interim ordinance without change. At the next meeting, it appeared Councilmembers had conspired to draft amendments to the interim ordinance. An amendment which was not on the agenda, allowing 30- foot buildings with flat roofs, was passed, undoing the work on the interim ordinance at previous meetings. He urged the Council not to pass an ordinance that retained an incentive to construct 30 -foot buildings with flat roofs. He requested the Council make side and roof modulation mandatory when allowing 30 -foot buildings. Mayor Haakenson clarified until 1997 the height limit was 25 feet and buildings were allowed to extend to 30 feet with a 4:12 pitch roof. Darrell Marmion, 750 Edmonds Street, Edmonds, urged the Council not to pass Items 3B and 3C, explaining 3C applied to Section 16.50.020 and the interpretation of the height limit in the BC zone. He clarified the height limit was 25 feet and there were allowances to go to 30 feet. The project that raised this issue was the first time the City Council reviewed a project that was 30 feet in height with a flat roof; and an ordinance was not needed to protect the existing decision - making pattern because this issue had not been before the Council before and was rejected by the Superior Court. He recalled former Councilmember Petso and Councilmember Dawson, both attorneys, found the language clear, Mayor Haakenson attested to the history of how the ordinance was passed, that the intent was for roofs to be modulated. The plaintiffs attested to the same and the judge affirmed that in her decision. He reiterated there was a clear interpretation, eliminating any need for an interim ordinance and the only reason for an interim ordinance would be to find a way to approve 30 -foot tall flat roofed buildings, which he found to be inconsistent with the goals of the existing Comprehensive Plan. Approval of an interim ordinance as proposed in Item 3C could be challenged under the GMA as a violation to the Comprehensive Plan and he would pursue such an action before the Growth. Management Hearings Board. With regarding to 3B and Section 20.10.060, he found this would in essence tell the ADB to ignore the Comprehensive Plan. Jenny Anttila, 709 7th Avenue S, Edmonds, commented on the need for clarification with regard to view, noting that issue arises often when houses are built in front of other houses. She noted the issue of "story" was resolved ten years ago. She relayed comments from a visitor from England who watched the televised Edmonds Council meetings and inquired how a city in the U.S. obtained any history via building preservation when the buildings were always being demolished. She acknowledged to him that was a big problem in the U.S. and urged the City to consider that in the Comprehensive Plan. She concluded although Edmonds needed commercial viability, the city needed to look to the future and historic value. Mayor Haakenson commented the Historical Preservation Commission was pursuing ways to preserve historical structures in the city. Steve Bernheim, 216 4th Avenue N, Edmonds, referred to written materials he provided to the Council which included a proposed ordinance that he urged the Council to consider. He supported eliminating the moratorium because the existing law, properly applied was a workable standard that states 25 feet is the maximum height and roof only may extend an additional 5 feet. He also recommended leaving the issue Edmonds City Council Approved Minutes January 18, 2005 Page 6 of view the way it is, noting many may be surprised there was an ordinance regarding views. With regard to definitions, he urged the Council to use common sense and wisdom. He commented on residents' suspicions regarding the motives for recent actions, recalling numerous people visited his office over the weekend indicating the Council was just going to get this through, wouldn't listen and were being bought off. He said people were feeling this way because although they lost their case on appeal to the City Council, five minutes later, the Council passed a law stating they were right. Further, the Council passed an amendment the next week that was not on the agenda that was 180 degree turnaround on the issue. He expressed concern that this issue, absent their intervention, had been scheduled to be approved on the consent agenda without any further discussion. He recalled Mr. Snyder stated his job was not to be right but make sure the City did not have a liability, expressing concern that that statement was not included in the meeting minutes. He provided petitions to the City Clerk with 440 signatures added to the 1,110 signatures that were provided to the Planning Board, commenting they were planning to get more signatures. He concluded the people attending the meeting wanted to retain the 25 foot height limit. He noted the issue of increasing building heights was not mentioned by Councilmembers Moore or Olson during their election campaigns. Sandy Eastly, 16858 76th Avenue W, Edmonds, shared a page on Edmonds from the Greater Seattle Info Guide that described Edmonds as a village in bloom by the sea, voted the most friendly town on Puget Sound for nine years, celebrated for art, award - winning flowers, quaint streets and a center fountain. The article remarked on the flowers, food, shopping, ferry, festivals, Sunday park concerts, symphony, ballet, theater, art center, museum and farmers market. She provided additional petition signatures, noting the petition language restricted those signing to residents, noting many more signatures could be gathered from residents of surrounding communities who visit Edmonds. She thanked the Council for what they do and urged them to proceed with caution. Leslie Hann, 750 Edmonds Street, Edmonds, agreed with comments made regarding retaining the city's history. She also agreed with the comment regarding the importance of tourism, noting real estate brochures refer to the charm of Edmonds, not the three and four story buildings. She commented on her love of Edmonds, noting the people who signed the petitions and people who voted for the Council also love Edmonds and dislike what could potentially happen to the city. She noted the Council's actions will affect the city, residents and visitors for the next 100+ years. She urged the Council to consider that the residents were the ones interested in retaining the 25 foot height limit, suggesting those interested in raising the height limits may be greedy developers. She concluded there were ample opportunities for development, however, a few feel the need to push the envelope. David Page, 1.233 Olympic View Drive, Edmonds, disagreed with the comment he has heard repeatedly that a developer cannot make a profit with two stories. A realtor, builder, mortgage broker, past President of the Washington Association of Realtors, and with extensive experience in land use, he explained a condominium could be built in downtown Edmonds for $130 per square foot and sold for $300,000-x. The office space below can be constructed for $100 per square foot and sold for $200,000. He referred to an existing building with 20,000 square feet with 1700 square feet below priced at $7 million, doubting it cost more than $5 million to build. He noted increasing building height would also increase the price of the land. He referred to the concept of a "ruinous profit" in building, expressing concern with the potential of a building in downtown Edmonds costing the same as a building in downtown Seattle. He referred to Council President Marin's article, remarking the Council had misjudged its constituency. He noted increased building heights was not a popular issue, was driven by money and could potentially harm the city. Lora Petso, 10616 237th Place SW, Edmonds, urged the Council not to raise building heights. She pointed out it was an election year and the audience was asking the Council not to raise building heights. Jean Sittauer, 9220 1.92 "d Place SW, Edmonds, a realtor, commented although she could benefit from condominiums constructed in the BC zone, she urged the Council to consider past history. She Edmonds City Council Approved Minutes January 18, 2005 Page 7 questioned how many buildings were built to the 4 -story limit in 1968/1969 and why was a decision made to lower the buildings heights at that time. She concluded no one wanted to see Edmonds decimated the way it was now. She agreed with Mr. Page that developers make their profit from the condominiums on the upper floors. She suggested a 2 -story retail building with 13 -foot ceilings which would be within the height limit. She urged the Council to listen to the public, noting there were many more than those in the audience who were upset over this issue. She concluded it was the Council's duty to do what their constituents want — to keep building heights at 25 feet. Bob Gregg, 16550 76th Avenue W, Edmonds, submitted written comments. He recalled Mr. Bernheim's comments in the Edmonds Beacon that after reading and rereading the code, only modulated roofs could be built to 30 feet. The week before, Mr. Marmion stated the height limit was 25 feet and the expectation of many was if the Council did not reactivate the interim ordinance, building heights would be limited to 25 feet. He pointed out pitched roofs have been and will continue to be allowed to 30 feet; pitched roof designs are approved property line to property line, and setback, modulation or courtyards are not required. He emphasized developers also want clear direction. He pointed out the code states flat roofs with a pitch of less than 3:12 are not allowed to protrude above the 25 foot height limit unless part of an approved, modulated design, noting there was a difference between modulated and flat roofs. He supported a moratorium until the issue could be resolved. With regard to views, he noted the term "view" in the code was in direct conflict with State law which left developers at risk of appeal. He noted State law was clear, a property owner did not have a right to a view they did not contract for. He suggested educating the public regarding State law. He concluded builders needed to know what they could build and property owners needed to know what they could expect to be built. Mathew Brenan, 4728 177 1h Place, Bothell, a property owner in Edmonds, referred to the economic value of a building to the city, bringing new families, new commercial and employment opportunities and beautifying an area. He objected to the description of a developer as "greedy," noting this building was a dream he was assisting the property owner with. He noted they were vested in their project, applying for it 18 months ago. He commented Edmonds was still a charming city even with 30 foot building heights, doubting visitors to the city noticed the difference between 25 and 30 feet, believing visitors were looking instead at the views and noticing how friendly the city was. His intent was to build a beautiful, elegant building that was modulated and was not boxy. With regard to views, their building would increase views for people facing the Puget Sound via the elimination of wires and poles. He concluded this was an economic issue, their building would bring ten new families to the area. Property owners in the BC zone had a right to develop their property within the rules, commenting they had not asked to change the rules. He noted signatures of 2,000 -3,000 residents represented a small percentage of the population. Jeff Keller, 12514 Double Eagle Drive, Mukilteo, commented on the venomous attacks on their project as well as on the City Council and the ADB process. His understanding of the process was a developer approached the City with an idea as they did and asked for clarification of how their idea would fit the Comprehensive Plan. With the changes made as a result of their pre - application meeting with the Planning Board, they presented an application to the ADB where their project was approved and subsequently approved by the City Council. With regard to the comment that developers want clear rules, that was what they sought two years ago and have followed those rules. He pointed out the Edmonds business community struggles and developers are asked to take a big risk to construct a building with parking on -site, viable commercial space and fund it with residential spaces above. He noted there was no greed involved, it was a simple business decision. He urged residents to understand that the zoning in the BC zone did not allow a slam -dunk on viability, the difference in height from his shoulder to the floor meant the difference between a viable building. He urged the audience to take an interest in what the business people in the community had to say. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO EXTEND THIS ITEM FOR 20 MINUTES. MOTION CARRIED UNANIMOUSLY. Edmonds City Council Approved Minutes January 18, 2005 Page 8 Roger Hertrich,1020 Puget Drive, Edmonds, agreed with Mr. Page, pointing out Mr. Gregg's building would be one continuous wall where there used to be three private properties with setbacks and view corridors between buildings. He noted Mr. Gregg was able to obtain a 30 foot building height with a flat roof because of Councilmember Moore's "and/or" amendment to the interim ordinance. He recalled the original interim ordinance stated the roof and the building had to be modulated in order to allow the additional height, the amendment allowed the entire building to have a flat roof with a modulated building. He urged the Council to return to the original interim ordinance (No. 3488) and eliminate the amended interim ordinance (No. 3492). He relayed comments from a Lynnwood resident who liked to visit Edmonds to shop, noting three stories did not lure such visitors to the city. He recalled a previous interpretation by legal staff where "residential story above commercial" was interpreted as plural which resulted in two stories of residential above commercial. With regard to views, he noted when new buildings replaced 1 -2 story buildings, concerns arise regarding views. Now with three story development lot line to lot line, there were no view corridors. He emphasized the importance of protecting both public and private views. With regard to bulk standards, he suggested Mr. Snyder advise the Council further before the Council made a decision regarding that issue. Adam Cornell, 628 Dayton Street, Edmonds, urged the Council to be clear in their Findings of Fact, noting his sense from reading the judge's decision was that there were gaps in her understanding and she was possibly doing more than the parties asked her to do because she was unclear regarding the Council's findings. He suggested the Council do nothing now, deliberate on the issue, and ensure their findings were clear. Ray Martin, 18704 94th Avenue W, Edmonds, commented this was the second building height crisis created by a mayor, recalling in 1980 the mayor tried to raise building heights to 45 feet. He alleged this was a sneaky, underhanded, law- violating situation that allowed modulation, averaging, view corridors, and 12 foot ceilings. He expressed concern with the City's planner issuing Findings of Fact to the Planning Board. He questioned who was responsible for the building height issue, noting neither the Planning Board nor the Council initiated it although he alleged Council President Marin and Councilmembers Olson and Moore would do whatever the mayor told them to. He concluded there were four remaining Councilmembers who would do the best job for the City. He urged the Council to say no to increased building heights. Joan Longstaff, 524 Main Street, Edmonds, resident and realtor who has marketed quality of life in Edmonds for many years, valued how the community, City Council and Planning Board was able to pull . together to study the issue. Specializing in view property for many years, she remarked more views were blocked on residential property by a neighbor who built their residence in front of another's view than by a building height blocking views. She commented the Greater Seattle Info Guide was a great marketing too] for Edmonds; people are drawn to Edmonds for the quality of life. She noted if the small business community and retailers were lost, a lot of the quality of life would also be gone. She concluded much of Edmonds claim to fame was the little business village on the waterfront; she was interested in more street appeal, more street art, shops that have appealing fronts, and beautiful condominiums. She urged the community to continue to work together. Rowena Miller, 9711182 "d Place SW, Edmonds, expressed her support for retaining the moratorium to allow time for the community and the Council to study the Comprehensive Plan which would address many of the issues raised tonight. She urged the Council not to do anything that appeared to be favorable to any particular building construction, reminding of the importance of appearances and building trust via the Council's procedures. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. Edmonds City Council Approved Minutes January 18, 2005 Page 9 rd# 3532 COUNCILMEMBER PLUN.KETT MOVED, SECONDED BY COUNCIL PRESIDENT MARIN, Zoning oratori TO ADOPT OPTION A, ADOPTING A ZONING MORATORIUM ON THE APPLICATION OF um Relating to ECDC 20.10.070(C)(3) RELATING TO THE IMPOSITION OF SPECIAL HEIGHT LIMITS TO Imposition of Special PROTECT VIEWS, ESTABLISHING AN EFFECTIVE DATE, AND FIXING A TIME WHEN Height THE SAME SHALL BECOME EFFECTIVE. imits to Protect lViews Councilmember Dawson indicated her opposition to the motion, explaining Option A placed a moratorium on the consideration of view, not a moratorium on buildings that would impact a view. She clarified by approving this option, ECDC 20.10.070(C)(3) would not be considered, how views would be impacted would not be considered. This section applied only to 2 -story or higher buildings and because the city did not have a workable definition of story, she suggested developing a better definition of story for the interim period until the planning process was completed, which allows how views would be impacted to be a consideration. She expressed concern with a 6 to 8 month period where how a building would impact views would not be considered. Councilmember Wilson supported the moratorium because the issue was unclear and undefined and an arbitrary action to establish a definition without adequate consideration was prone to error and future litigation to define it. In his experience, the definition of story typically referred to life safety issues and was not a way to restrict height. The testimony tonight and in the past indicates there are some holes that need to be filled and those can only be filled via thoughtful consideration and deliberation to ensure there is a solid basis for those conclusions. He appreciated Councilmember Dawson's concern with the impacts of adopting a moratorium on application of view consideration, remarking there were also problems if the decision was not done correctly the first time. The Council's decisions affected the community for many years and whatever decisions were made should be made for the right reasons and not in haste. Councilmember Plunkett inquired whether Councilmember Dawson or Mr. Snyder had any amendments to suggest or whether they could develop a clarifying amendment for next weeks' Consent Agenda. He concluded the only appropriate thing to do with respect to views in response to the judge's decision was to enact a moratorium. Mr. Snyder commented the view issue had been debated by many Councils for over 20 years. He recalled his recommendations to the Council in 1985 and 1992 that if the Council wanted to enter into view regulation, they needed to define view corridors in the city and develop a definition of view, a complex issue that would require a great deal of public input. Mr. Snyder explained Judge Farris' ruling also raised the issue of shadowing, noting he was not aware of any community in the State that recognized the concept of shadowing. He concluded this was a complex subject and could not be resolved on the fly. Councilmember Plunkett suggested narrowing the definition to two stories. Mr. Snyder responded one option for narrowing the moratorium would be to limit it to structures over 25 feet as the area of concern to the public is from 25 to 30 feet. Mr. Snyder advised a revised ordinance would be required. The ADB ordinance and the concept of view is applicable to any ADB application which could include the RM zone and others; specifying 25 feet in the BC zone would narrow the issue. Mr. Snyder referred to Mr. Bernheim's implication that he had no interest in being right. Mr. Snyder explained he has for the past 25 years provided advice regarding what he felt was the legally correct thing to do. He clarified what he was saying two weeks ago was that he had no investment in being right in an argument with Mr. Bernheim over a rather obscure point of law, when by holding a public hearing, the city could waive all liability. He explained he was more than happy not to be right all the time and was happy to give the Council his frank opinion on any issue. Mr. Snyder explained the existing ordinance, if applied, is clearly in violation of Anderson v. Issaquah, therefore, his concern would not be addressed by anything other than a moratorium on all applications or on the application of the provision. Edmonds City Council Approved Minutes January 18, 2005 Page 10 Councilmember Dawson suggested the Council consider a moratorium on buildings over 25 -feet because the ordinance only applied to buildings over two stories, or buildings over two stories that utilized building modulation. Mr. Bowman indicated he would have a concern if a moratorium were imposed on buildings over 25 feet throughout the city. Councilmember Dawson asked what other areas of the city could be affected. Mr. Bowman answered it could potentially be Westgate, any of the RM zones, and the Hwy 99 corridor. In response to Mayor Haakenson, Mr. Bowman advised Harbor Square was zoned CG under a contract rezone and has a specified height limit of 35 feet. Councilmember Dawson clarified she was not suggesting this decision needed to be made tonight and it could be addressed in the near future. She was troubled by imposing a moratorium on the concept of view in the code, thereby eliminating any consideration of views for any project throughout the City. Councilmember Orvis suggested expanding the moratorium to buildings over 25 feet in the BC zone. Councilmember Moore observed although a view provision has been in the code for years, it has not been enforced because views have been blocked. Mr. Snyder advised the view provision was in the ADB section, therefore, it only applied to buildings subject to ADB review so single family homes were not affected. Mr. Snyder explained the provision refers to substantial view blockage, noting the terms view, substantial view blockage and surrounding properties were not defined. He advised this issue had arisen due to the argument by citizens at the ADB, before the Council and the Superior Court appeal, that shadowing (the blocking of light and air) to a specific residential property qualified as view blockage under this ordinance. The judge did not indicate whether that was substantial or not, only that it was not defined. Mr. Snyder advised the ADB had never considered shadowing to be view blockage. Councilmember Moore clarified the view blockage provision only applied to buildings subject to ADB review which could include a building on Hwy. 99. If Option A were imposed, view would not be considered during ADB review. She concluded she would support the motion as Option. A would not affect the current moratorium on building heights over 25 feet in the BC zone. Councilmember Dawson advised there were two other options for the Council's consideration that would narrow the definition of view to make it a workable definition. For example, she explained, Option C indicated shadowing would not be a consideration; Option B indicates only certain types of views would be considered. Although she preferred more consideration of view, at least Option. B allowed some consideration of view blockage during an ADB review. She preferred that approach in the interim rather than not considering views at all. She urged the Council to consider either Option B or C. Councilmember Wilson remarked Option C would not resolve the issue as there still was no definition of substantial view blockage on surrounding properties and would still require a subjective determination. He did not recall in the past 10 -15 years a project where view was the deciding factor in the ultimate design of the building. The view provision has been in the code but has not been enforced /applied during the past 25 years. He acknowledged the difficulty for staff to craft a defensible ordinance on the fly that would withstand the test of time and/or a court challenge. He preferred including policy statements in the Comprehensive Plan that articulate the community's values with regard to views and use those to develop regulations. He supported the proposed moratorium on consideration of view. Councilmember Moore agreed with Councilmember Wilson and supported not enforcing the view provision and continuing the moratorium on applications for buildings over 25 feet in the BC zone until the Comprehensive Plan update was completed. Edmonds City Council Approved Minutes January 18, 2005 Page 11 Council President Marin expressed support for the motion. He noted there were two sides to the view issue, one person may want a view and another may want privacy. One person may want a view and another may want to exercise their right to develop their property. He questioned when the rights of one person supplanted the rights of another, an issue the Council had not yet considered. He concluded the moratorium on the application of the view provision would allow the Council time to discuss those issues. Councilmember Olson expressed her support for the motion, concluding if the Council took action too quickly and their intent was unclear, the Council would be in the same position they were before. THE MOTION ON ADOPTING ORDINANCE NO. 3532 CARRIED (6-1), COUNCILMEMBER DAWSON OPPOSED. Mr. Snyder advised if the Council took no further action, the direction to staff was a moratorium on over 25 -feet high modulated buildings and a moratorium on the application of the view provision pending receipt of the Planning Board's Comprehensive Plan recommendations. He advised the next decision . point for the Council would be whether to enact interim ordinances when the Planning Board's recommendations were received as it could be 6 -8 months before development regulations could be developed to implement the Comprehensive Plan. Councilmember Dawson clarified if no action were taken on the other options, there was a continuing moratorium on buildings utilizing building modulation to achieve a height over 25 feet in the BC zone. This was the public hearing on that interim ordinance, basically establishing a 25 foot height limit in the BC zone until and unless a new ordinance was passed via the Comprehensive Plan update. Mayor Haakenson reminded the audience the Council would hold public hearings on the Comprehensive Plan amendments on February 1 and 15. Mayor Haakenson declared a brief recess. 4. CLOSED RECORD REVIEW OF AN APPEAL OF A VARIANCE REQUEST TO REDUCE THE Closed REQUIRED STREET SETBACK FROM 25 FEET TO 10 FEET TO ALLOW THE Record CONSTRUCTION OF A HOME. PROPERTY LOCATION: 167XX — 74TH PLACE WEST Review re. 167xx (APPELLANT: BRETT GASPERS, ET AL / FILE NO V -04 -100) 4 "' Pl. W. Gaspers' J Because this was a quasi judicial matter, Mayor Haakenson inquired whether under the Appearance of Ft a1) q � Y q. PP Fairness Doctrine any Councilmember had any conflicts or ex parte communication to disclose regarding this matter. Councilmember Dawson advised some of the issues in this matter reminded her of a case she was working on at the Court of Appeals before she left their employment. She was concerned that her interpretation of the ordinance in question might be colored by an opinion that has not yet been issued by the court. She was concerned about stating her rationale without disclosing something that was not appropriate for her to discuss as it had to do with the court's deliberation. Mr. Snyder answered from the city's point of view, information an individual Councilmember has that are facts such as an independent site visit could be problematic under the Appearance of Fairness Doctrine or pre - judgmental bias. However classified information Councilmember Dawson may have received via her position at the Court of Appeals was similar to a Councilmember who was a builder and had knowledge as a result of his/her background. He concluded he was not aware of a case that challenged a Councilmember's decision based on their education, background or personal experiences as a logical basis for the decision. Councilmember Dawson clarified her concern was whether she would be able to articulate why she felt an interpretation by a Hearing Examiner was or was not correct without revealing an unpublished opinion. Mr. Snyder advised Councilmember Dawson would need to determine whether to recuse herself based on an ethical or contractual obligation to her employer. He did not find it disqualified her under the Edmonds City Council Approved Minutes January 18, 2005 Page 12 Appearance of Fairness Doctrine or pre - judgmental bias. Councilmember Dawson concluded if she felt she was not able to articulate her rationale without revealing a court confidence, that would be a basis for recusing herself from the decision. Mr. Snyder agreed, suggested if that issue arose, there be a brief recess for Councilmember Dawson and he to discuss whether there was other precedent in the same area that might be applicable. Councilmember Plunkett disclosed he did a lot of work with the applicant's engineering firm and anticipated working with them in the future. He explained he had assisted at least five of their engineers move into the area and also knew some of the engineers personally. He noted the applicant's engineering firm was not a party of record. Mr. Snyder asked whether Councilmember Plunkett had a direct financial interest in the firm. Councilmember Plunkett answered when they needed to move someone into the area, they would call him. Mr. Snyder asked whether Councilmember Plunkett had a continuing relationship that provided a monetary benefit to him. Councilmember Plunkett answered yes. Mr. Snyder advised although it was up to individuals to make an objection to his participation, he suggested Councilmember Plunkett recuse himself Councilmember Plunkett recused himself and left the room. Mayor Haakenson asked whether any parties of record had any objection to Councilmember Dawson's participation. There were no objections voiced. Mayor Haakenson asked Councilmember Dawson whether she was able to make an unbiased decision. Councilmember Dawson answered she felt able to make an unbiased decision in the matter; if she determined in deliberations that she would need to reveal . something about a pending case in the Court of Appeals, she would recuse herself from voting . Mayor Haakenson advised the six Councilmembers present would participate in the Closed Record Review. He inquired what would occur in the event there was a tie vote. Mr. Snyder answered Mayor Haakenson could break the tie. Therefore, Mayor Haakenson disclosed he previously lived in the area near this property. He asked whether any parties of record had any objection to his casting the deciding vote in the event of a tie. There were no objections voiced. Mayor Haakenson established a 20 minute time limit for the appellants and the applicant, suggesting the appellants retain some time for rebuttal. Mr. Snyder reminded the parties this was a closed record appeal and under Regulatory Reform, argument must be limited to facts already in the record, no new evidence could be presented. Senior Planner Steve Bullock explained the applicant requested a variance to the 25 -foot required street setback in the RS -20 zone. He displayed Attachment 4 (page 21 of the record), a drawing that illustrated the property on 174th Place W, identifying the required 25 -foot street setback, 25 -foot rear setback, and 10 -foot side setback. The property also had a steep slope on the southern portion. He displayed a topographical map (page 15 of the record) identifying the top of the slope, the 10 -foot minimum required steep slope buffer and 10 -foot building setback for a total of 25 feet from the top of the steep slope. He identified the portion of the site available for building once the setback, steep slope buffer and building setback were applied. The applicant requested a variance to reduce the street setback from 25 feet to 10 feet on the northwest corner to allow construction of a home as illustrated on Attachment 6 (page 23 of the record). Mr. Bullock advised the Hearing Examiner considered the variance request on October 21, 2004 and issued his decision on November 1. The appellants submitted letters of reconsideration which the Hearing Examiner considered and affirmed his original decision, leading to the appeal to the City Council. Mr. Bullock referred to the agenda memo which outlined the appellant's major appeal issues and staffs response to the appeal issues raised by the appellant. Appellant Brett Gaspers, 1.6623 74th Place W, Edmonds, whose residence is northwest or diagonally across the street from the property in question, referred to their letter of appeal (page 62 of the record) and the Planning Division's responses in the Agenda Memo. With regard to the Planning Division's response Edmonds City Council Approved Minutes January 18, 2005 Page 13 that notice was adequate, Mr. Gaspers explained according to Edmonds Municipal Code, property owners within 300 feet of the property were required to be notified. He pointed out ten property owners within the stated radius were not notified. He concluded either the applicant did not provide a full list of property owners or the Planning Division was negligent in not notifying some property owners, either of which were in violation of the Municipal Code. He asked whether the Planning Department maintained a record of notifications. He noted these property owners indicated although they did not receive the initial notice, they did receive notice of this meeting. With regard to the second point in their appeal letter, that the site plans the applicant had on file at the time of the hearing differed from those Mr. Stephens initially obtained from the planning office, he referred to staff s response that it was not uncommon nor prohibited for anyone, including the applicant, to submit information to the Hearing Examiner for consideration all the way up to the hearing. Pointing out they did not disagree with this, Chapter 20.95(l 0)(B) of the Edmonds Municipal Code pertaining to applications states that among the requirements are a site plan to scale showing the proposed layout of the structures and other site development, architectural drawings to scale of all exterior elevations and signs, a landscape plan to scale preferably combined with the site plan showing all existing and proposed vegetation including vegetation to be removed. Mr. Gaspers pointed out the applicant submitted a sketch of the site plan (page 15 of the record); however, the four following pages of architectural drawings refer to a house that differs from floor plans shown on page 15 which would seem to violate the scale drawing requirement. He pointed out the landscape plan is completely missing, perhaps because the applicant wished to gloss over the number of large evergreen trees to be removed under this site plan. Another of the reasons for their appeal was that the Hearing Examiner Pro Tem, Donald Largen, made an error in his reconsideration decision (pages 41 and 42 of the record). Mr. Largen states two reasons for rejecting the request for reconsideration, one of which pertains to potential future road widening, asserting that this portion of 74`h Place West is a private road and as such the City would not have the authority to undertake that project. This is incorrect, that portion of 74`h Place West is a public road and is documented as such by the City. Therefore, Mr. Largen inappropriately based part of his decision on incorrect information. He pointed out the Planning Division appears to accept that 74th Place West is a public road in that they state nothing in the variance would encroach on improvements the City may choose to do on 74th Place West. Fourth, the Planning Division states the proposed variance does not encroach into the street right -of- way /easement. He pointed out this was never their intention; their concern was if the variance were granted, the house would be situated 10 -feet from the street easement on the corner of 74th Place West. Under the required street setback, the house would be situated further back from the pavement, perhaps 30 feet. He noted the easement was in place to provide for future improvements in the road if warranted. He explained their appeal letter also points out the limited sight distance at the corner. He referred to accidents that have occurred on this corner and increased traffic on 74`h Place West due to increased development on 72d Avenue West. He concluded if the City ever chose to rectify this potentially dangerous area by widening the street and corner, the house could end up 10 feet from the paved corner. Further, the result could be a large house located directly off the street with nothing to screen it from the street. He noted there would be nothing to stop a future occupant of the house from objecting to road widening claiming the house would be too close to the street. Fifth, Mr. Gaspers referred to alternative locations they have suggested, pointing out the applicant was using less than 50% of the buildable area on the property (reference to page 23 of the record). The Planning Division has failed to address why they are not asking the applicant to pursue site plans based on these alternatives which would not require variances other than the reduction of the steep slope buffer from 65 feet to 25 feet which was already incorporated into the variance application. He acknowledged this alternative would require more architectural work, however, as Mr. Bullock stated during the public hearing on the variance, increased architectural expense was not a reason for granting a variance as Edmonds City Council Approved Minutes January 18, 2005 Page 14 outlined in the special circumstances clause in Section 20.85 of the Edmonds Municipal Code. This alternative had the advantage of fitting in with the lot and surroundings better, referring to page 27 of the Comprehensive Plan Land Use Element, Residential Development, Item B1 which encourages those building custom homes to design and construct them with architectural lines which enable them to hannonize with the surroundings, adding to the community identity and desirability. He referred to testimony by the applicant's architect (page 56 of the record) that if the variance were not granted, the applicant would suffer in the marketability and design of the home. Mr. Gaspers pointed out there were other homes in the area that had oddly- shaped footprints. Mr. Snyder interrupted, stating the points regarding the accident history and the information in the third full paragraph of Mr. Gaspers comments regarding a house for sale, was not in the record. He suggested the Council exclude that information from consideration during their deliberative process. Mr. Gaspers pointed out limited sight distance on this corner was addressed in the record. Mr. Snyder clarified the introduction of specific accident history was not contained in the record. Mr. Gaspers advised his final point also concerned Section 20.85 of the Edmonds Municipal Code. Subsection C states the approval of the variance will be consistent with the Comprehensive Plan; as previously stated, he noted the proposed variance would lead to a house at odds with the Comprehensive Plan. The proposed site plan would likely lead to the removal of three or more mature evergreen trees; page 38 of the Comprehensive Plan, Soils and Topography, Section C.I a stated that grading, filling and tree cutting shall be restricted to building pads, driveways access ways and other impervious surfaces. He noted nearly all the trees on the property were located on the property line or steep slope area, yet because of the variance request the applicant's construction would be as close to the north property line and due to the large amount of excavation required by the applicant's site plan, these trees would have to be removed or would likely die due to extensive root damage. He pointed out page 41 of the Comprehensive Plan, Vegetation and Wildlife, Section B.1 states the removal of trees should be minimized particularly when located on steep slopes or hazardous soils. Subdivision layouts, buildings and roads should be designed so that existing trees are preserved. Mr. Gaspers concluded his intent was not to deny any development on this lot; he welcomed development that adhered to the Comprehensive Plan, harmonized with the surroundings and added to the community identity and desirability. He urged the Council to deny the variance for the reasons stated or remand it to the Hearing Examiner so that their suggestions regarding alternatives might be given proper consideration rather than rejected out of hand in favor of the developer. Councilmember Dawson advised as this matter proceeded, she was increasingly concerned that her participation in the hearing would cause her to breach her obligation to the Court of Appeals due to information she obtained while in their employ. She recused herself due to her obligation to the court and left the room. Mayor Haakenson advised he would no longer be required to break a tie vote as only five Councilmembers would be participating. For Councilmember Orvis, Mr. Snyder advised unlike an ordinance that required a majority vote of the Council, this matter required only a majority decision of a quorum of the Council. Peter Stephens, 1.6703 74th Place W, Edmonds, stated he is a Professional Engineer with a 19 year background in heavy construction specifically in land and marine piledriving, dredging, drilled shafts and concrete construction. His residence is west of the subject property and he owns a lot to the south. He was appealing this variance on four issues, 1) the applicant's claim of hardship due to marketability concerns, 2) their alternative ideas, 3) impact on an already substandard road, and 4) whether it really supports the City's Comprehensive Plan. Mr. Stephens explained they were told this lot has a hardship due to its marketability which justifies the use of a road setback variance. The applicant's architect, Mr. Thomas, argues that the narrow shape of Edmonds City Council Approved Minutes January 18, 2005 Page 15 the buildable envelope threatens the marketability in that it would be difficult to get both a garage and a covered parking place. Mr. Stephens pointed out a covered parking place was not indicated on the submitted plans. He questioned if the building envelope could accommodate a garage without a covered parking place and whether a covered parking place was a priority that should help justify this variance. Mr. Stephens referred to two suggested alternatives, one which Mr. Bullock indicated would require a critical area steep slope setback variance. In the event the applicant was limited to his current rectangular foundation footprint, he suggested moving the footprint south 15 feet and removing any material remaining between the house and the old roadway shown on page 46 of the packet. This would avoid the current proposed variance and would also remove the equivalent significant weight of a 5 -foot wide berm that ranges in height from 0 to 12 feet from imposing itself on the stability of the lower slope to the south . of the roadway. He recalled Mr. Thomas' statement during the hearing that a geotech stated there is seepage in the slope in question; however, his research even after a rainstorm did not find any seepage. He suggested this claim be supported by some credentials and locations as it could have been mistaken for year round seepage that occurs approximately 150 feet away on the lower far side of his lot below this slope at 16711 74t Place West (page 14 of the record). Second, Mr. Stephens described an alternative that would not require a setback adjustment; build the house in the buildable area described in Attachment 6 (page 23 of the record). He disagreed with Mr. Thomas' suggestion that this would generate a non - rectangular footprint leading to a less marketable product, pointing out a footprint could have corners other than 90 degrees and still have rectangular rooms. The irregular shapes that are generated could be absorbed into utility spaces for ducting, furnaces, closets, etc. and have little affect on the marketability. He noted there was at least one house in the area where that was accomplished. Mr. Stephens referred to page 23, advising a house could be built on this lot in such a way to flow with the current topography within the buildable envelope. He described a stacked, multi- level tiered design beginning at the west end of the lot with the garage and first floor extending toward the hillside and subsequent floors built on top and extending further up the hillside. A stepped design would allow for more than sufficient floor space and much less excavation thus saving trees and not requiring a variance. The applicant's plans appear to suggest that approximately 1,000 yards of material would be removed from the slope. Third, Mr. Stephens referred to the impacts the variance would have on efforts to improve the road in the future. The road was originally dedicated to provide access to 76th for the eight homes on the private road to the northeast. Since dedication, there has been little maintenance or improvement despite the significant increase in traffic now experienced. The road was dedicated in 1969 with a substandard width corner adjacent to this lot with the knowledge it was a limited sight distance situation as documented in three memos by the City Planner at the time. Since then, the neighborhood above has grown tremendously and the road provides access to almost 90 homes, an over 1000% increase compared to the original eight for which it was intended. Traffic has increased substantially and the limited sight distance corner has not been improved. There were four grade school or younger children who live within 200 feet of the corner and without improvements, he was concerned about the potential for an accident involving one of them. Mr. Stephens pointed out even with the above, the Council was discussing granting a variance to build a spec house close to this corner with the likelihood that the roadway would be widened. He anticipated a future owner would object to the improvements due to the impacts it would have on their space and view despite the city's easement. With regard to the Comprehensive Plan, Mr. Stephens commented it appeared some parts of the Comprehensive Plan were being ignored in lieu of others. Edmonds City Council Approved Minutes January 18, 2005 Page 16 Mr. Stephens remarked the lot was assessed at $243,000 but the lot did not warrant this value based on its limited view. He suggested the value was due to its location in a neighborhood with extensive mature plantings, trees and wider than required setbacks. The Comprehensive Plan addresses these values and he questioned why the applicant was being given what appeared to be carte blanche with this proposed residence. He pointed out the 45 degree slopes required in the excavation would kill or remove four mature evergreen trees that would serve as property line buffer in addition to threatening the viability of two large cedars to the east of the property. In response to their statement that the house was not consistent with the character of the neighborhood, staff stated there was no requirement that homes be consistent with any kind of neighborhood character. However, page 27 of the Comprehensive Plan Land Use Element, Residential Development, Item. B.1 encourages those building custom homes to design and construct them with architectural lines which enable them to harmonize with the surroundings, adding to the community identity and desirability. Mr. Stephens urged the Council to reject the application or send it back to the Hearing Examiner for further review after needed changes were made by the applicant for the following reasons: the applicant has not demonstrated reasonable hardship, workable alternatives not requiring this variance have been demonstrated, future road improvements will negatively impact the marketability of the house as well as limit improvements on the limited sight distance corner, and the proposed construction does not comply with the City's Comprehensive Plan. Reiterating that argument was limited to the record, Mr. Snyder advised the Council to exclude from consideration Mr. Stephen's testimony regarding seepage, the road serving eight private homes, the four grade schoolers living within 200 feet of the corner, the 1000% increase in the number of homes served by the road, the 90 homes served by the road, and the assessed valuation of $243,000. Mayor Haakenson advised he requested Mr. Snyder not interrupt Mr. Stephens during his testimony, but rather identify the issues that were not in the record at the conclusion of his testimony. With the Council's agreement, Mayor Haakenson extended the appellant and the applicant's time limits to 30 minutes. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER MOORE, TO EXTEND THE MEETING FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Charles Kee, 16624 72"d Avenue W, Edmonds, who owns property immediately adjacent to the subject property, advised there were twelve residents within 300 feet who were not notified or they would also be parties of record. In the Meadowdale Beach area, there were only two ways to access the 93 homes, via 164th off North Meadowdale Road and via 74th Place West off Meadowdale Beach Road. He relayed his understanding that in 2005 or 2006 the City planned to close the access at 164th off North. Meadowdale Beach Road to improve that access. Mr. Snyder cautioned the parties to confine their argument to the facts that were already in the record and not provide additional information. Mayor Haakenson asked whether the closure of the access at 164th off North Meadowdale Beach Road was in the record; Mr. Bowman responded it was not. Mayor Haakenson acknowledged this was an unusual way to hold a hearing; it was not the Council's rule, the State Legislature developed the rule. The rules require that at a closed record review, parties only argue information already in the record and that is what the Council must base its decision on. Mr. Kee referred to the 90 degree corner at the property in question, noting in the event the Council allowed a 10 -foot setback and the City wanted to widen the street, the house would be within 10 -feet of the roadway. Edmonds City Council Approved Minutes January 18, 2005 Page 17 City Clerk Sandy Chase advised the appellants had 10 minutes remaining for rebuttal. Applicant Grant Tenoff, 11328 58th Avenue W, Mukilteo, advised his geotech, Eric Anderson, was here to speak regarding soils. Mr. Snyder reiterated the parties could only argue information in the record and not provide additional testimony. Mr. Tenoff advised the geotech's recommendation was to stay as far away from the bank as possible. Mr. Snyder advised that was not part of the record. Jim Thomas, project architect, advised the footprint shown on the drawing was 1500 square feet, 50 feet by 30 feet; however, the buildable area was 25 feet at its narrowest point. He commented on the topography of the site, advising in addition to the steep slope, the property also sloped toward the front and there was a slope from the back to the front of the house. He advised the house they designed, described as a 3 -story structure, would have the garage /lower floor buried into the hill. He advised no where near 1,000 yards of soil would be removed; the basement was only half the length of the house, essentially a basement with a 2 -story house on top of the hill. With regard to the house being compatible with the Comprehensive Plan, he referred to the front elevation they provided, explaining it was a reminiscent house. The house met the height limit and was an attractive home in his opinion. He advised the geological report did mention slippage. Mr. Snyder stated the report Mr. Thomas referred to was not offered as an exhibit at the hearing and could not be considered. The record contained a topographical map, therefore the information regarding the slope could be considered. Rebuttal With regard to Mr. Thomas' comment that this was not a 3 -story structure, Mr. Gaspers pointed out half the basement would be sticking out of the hill. The site plans revealed approximately 1,000 square feet of living space on that bottom floor. With regard to the comment that this would be an attractive home in his estimation, Mr. Gaspers advised he never said it was not an attractive home and in another location the house would be perfectly fine but not on this site. He pointed out the need to remove several evergreens on the site to accommodate the structure. There was an alternative that did not require a variance and would eliminate the hardship, but neither Mr. Tenoff, Mr. Thomas nor the City's Planning Division provided any reason why their suggestion to build the house within the buildable area was not feasible. Mr. Stephens referred to the top photograph on page 26 and the bottom photograph on page 27 and asked the Council to image a 3 -story house 30 feet to the right of the pavement and then envision it without the trees. He then asked the Council to imagine driving up that road and asked whether that complied with the Comprehensive Plan. Councilmember Wilson recalled testimony the appellant offered regarding differences between the original plans in the file and the plans that were introduced at the hearing. Mr. Thomas advised the footprints were similar, 30 feet by 50 feet; the elevations were different. Councilmember Wilson referred to page 15 of the packet, the topographical map with the setbacks and house depicted, and asked whether that footprint matched the footprint on pages 17 and 18. Mr. Thomas answered it was roughly the same, 35 by 50 feet with the new footprint. Councilmember Wilson asked whether the changes were to the elevation and not the footprint. Mr. Thomas answered the elevations were similar; the applicant provided him a plan from another architect and they developed a similar plan with a garage and front porch below and floors above. Councilmember Wilson recalled several comments regarding excavation on the site. Mr. Snyder suggested asking where in the record that information was contained. Councilmember Wilson withdrew his question, finding the record did not appear to contain any information regarding excavation on the site. Edmonds City Council Approved Minutes January 18, 2005 Page 18 Councilmember Wilson asked whether other alternatives were considered during the process of developing a site plan and meeting with staff or whether this site plan was the only one submitted to staff for review. Mr. Thomas answered this design was the best fit for the circumstances in his opinion. Councilmember Moore asked whether the architect had experimented with any other plans that did not require a reduction in the setback. Mr. Thomas answered no, they were provided a footprint to work with by the client. Councilmember Wilson recalled testimony regarding trees that would have to be removed and asked whether it was identified in the record if those trees were within the buildable area, within the buffer area, or within the steep slope area. Mr. Gaspers answered the trees were not specifically identified in the testimony; he identified the location of a cluster of four fir trees ranging in diameter from 12 -19 inches and a couple of large cedars to the east and back of the house. Councilmember Wilson asked if these trees were identified in the photographs beginning on page 25. Mr. Gaspers identified the cluster of fir trees in the photograph on the top of page 25 and the cedars trees in the top photograph on page 26. He noted the trees shown in the bottom photograph on page 26 were the trees that would likely need to be removed if excavation occurred. With regard to the notice, Mr. Bullock advised a number of people called when they saw the sign and asked why they had not been notified. He obtained their names and addresses and confinned they were on the mailing list and that their notice had not been returned to the City. He concluded the City and the applicant complied with the notice requirement. With regard to several other issues raised by the appellant, he noted many were judgment calls and difficult to quantify, such as whether the proposal was consistent with design of the neighborhood and consistent with the Comprehensive Plan. He noted staff may not consider these issues in the same way a neighborhood would but that was due to past direction from the City Attorney to consider the rights of the property owner and as long as it was not against the Comprehensive Plan, staff would decide in their favor on such issues. He noted this appeared to be a high . quality home constructed with high quality materials based on the designs that were submitted. He pointed out that was not regulated in a single family zone. With regard to the neighborhood's concerns regarding tree retention, specifically the removal of the trees on the north property line due to the proposed location of the house, Mr. Bullock pointed out the alternative to move the house to the south would also require the removal of other trees on the site. With regard to the suggestion that the applicant consider a reduction of the critical area buffer and setback, he explained that would also require a variance. He explained options such as these are discussed with applicants for development on sites that were encumbered by the bulk regulations and critical areas. If there does not appear to be a reasonable amount of buildable area on the site, staff may be asked to recommend where to look for a variance, whether critical areas or standard setback. In most cases their recommendation would be to seek a variance to the bulk regulation such as the street or side setback before seeking a variance to reduce the critical area setback due to the sensitive issues in a critical area. Mr. Bullock found the applicant's proposal complied with the variance criteria due to special circumstances on the property that justify the request and did not find that a special privilege was granted when the Hearing Examiner approved the variance. With regard to traffic safety, Mr. Bullock advised this variance or development of the site would not preclude the City from making any necessary improvements to the right -of -way in the fixture. Mr. Snyder referred to discussion regarding the design of a specific house. He pointed out when the Council approved a variance, they were approving a right that ran with the property, a variance from the setback, but it was not tied to any specific design. He requested direction from the Council with regard to the following two sections: 1) 20.85.010.A.2, special circumstances should not be predicated upon any factor personal to the owner such as extra expense that may be necessary to comply with the zoning Edmonds City Council Approved Minutes January 18, 2005 Page 19 ordinance, the ability to make more profitable use of the property nor any factor resulting from the action of the owner or past owner, and 2) Criteria F, minimum variance, that the approved variance is the minimum necessary to allow the owner to reserve the rights enjoyed by other property in the vicinity with the same zoning. Mayor Haakenson declared a brief recess to change the video tape. Mr. Snyder commented members of the audience who were not parties of record were frustrated because they could not provide information stating they were not notified and staff could not respond with the information showing notice was mailed. He reminded that if the Council had concerns about notice, the Council had the ability to remand to the Hearing Examiner for a limited hearing regarding whether notice was adequate. He clarified under the City's ordinance, the requirement was that notice be mailed not that it be received. Councilmember Moore asked why a landscape plan was not required to be submitted. Mr. Bullock answered a landscape plan was not a typical requirement for single family development although the applicant would have proposed such a plan or the neighbors could have requested it and the Hearing Examiner could have included it in his decision if he felt it was justified. In this instance, the applicant did not propose a landscape plan and none of the neighbors raised the issue and staff did not include it. Councilmember Moore observed the Hearing Examiner appeared to base part of his decision on the fact that he believed this was a non - public road and did not anticipate any conflicts with future improvements when it in fact is a public road. Mr. Bullock agreed that was addressed in the Hearing Examiner's decision. Councilmember Moore asked whether staff recommended the footprint of this house. Mr. Bullock replied staff reviewed the footprint and indicated it met the variance criteria. Staff did not review any other footprints for the site. Mayor Haakenson clarified staff did not draw the footprint of the house on the site. Councilmember Moore asked whether the increase in traffic was contained in the record. Mr. Bullock answered it was not. He explained if staff believed the site had a buildable area that was not proposed, staff would have asked the applicant to indicate why another location was not viable. Mayor Haakenson . advised that was not part of the record. Councilmember Wilson referred to page 11 of the record, Section. C.3 regarding critical areas, specifically a condition regarding a recommendation from a qualified geotechnical consultant. He noted the assumption now was that only a 25 foot setback would be required from the top of the slope plus the building setback. He pointed out the geotechnical report could require a larger setback. Mr. Bullock agreed, commenting in that instance, this variance would not be sufficient. Councilmember Wilson asked whether by approving the variance the Council was approving the intrusion of only that portion of the structure shown on Attachment 6. Mr. Bullock answered yes, advising that was the intent of the condition recommended to the Hearing Examiner. Councilmember Wilson asked whether paragraph B.1 on page 13 (staff's recommendation) tied the applicant to only that footprint and only the floor plans contained in the record. Mr. Bullock advised staff's recommendation was incorporated by reference in the Hearing Examiner's decision. Mr. Snyder responded if that language was included, it would limit it to the footprint and floor plans in the record. He noted this was highly unusual because variances were usually not design specific. He noted a design specific variance was problematic due to the minimum variance necessary and no profitable use limitation. Councilmember Wilson observed the way the decision was crafted by the Hearing Examiner, only the footprint shown in Attachment 6 could be constructed and any deviation would require an amendment to the permit. Mr. Snyder agreed it would require another variance proceeding. Edmonds City Council Approved Minutes January 18, 2005 Page 20 Councilmember Wilson asked if a variance would be required if the applicant chose to build in the unencumbered portion of the site. Mr. Bullock clarified staff would not typically deal with it in that manner, the variance was for the portion of the building that encroached into the setback area. Councilmember Wilson commented on the difficulty reconciling the true intent of the variance criteria and how it was historically applied in the State. Mr. Snyder explained variances were created because State Legislatures realized if was difficult to develop a zoning code that met all situations and the most common problem was topography. In order to provide some flexibility, the concept of variance was created. The City's variance procedure is as restrictive as could be found and was not designed to be easy to satisfy. The Critical Areas Ordinance also had a reasonable use exception that would allow some use of the property. With regard to the grant of special privilege criteria, Councilmember Wilson asked whether there was any evidence in the record regarding whether similar variances had been granted in the area. Mr. Bullock answered there was no specific reference to any other specific projects, there was a general reference to the fact that variances have been approved for similar topographic situations. The record specifically refers to the bulk setback versus the critical area setback. With regard to the distance between the property line and the public street, Councilmember Wilson noted the property was not extending into the public right -of -way, there was no grant of a special privilege to the property owner to allow them to extend into the right -of -way. Mr. Bullock agreed. With regard to the minimum necessary, Councilmember Wilson asked whether the Council was limited to the floor plan shown, questioning how that applied if the structure could be modified within the non - encumbered area on the site. Mr. Snyder pointed out the floor plans on pages 17, 18 and 19 did not match the footprint shown in Attachment 2. Mr. Bullock recalled there was reference at the Hearing Examiner that the plans were to be mirrored. Mr. Snyder pointed out the difficulty with identifying a design when typically a variance only addressed the intrusion. Councilmember Wilson commented the Council was basing their decision on a floor plan that had been offered; however, other than the portion that intrudes into the setback, the structure could be modified. Mr. Bullock explained staff considered the shape and proportions of the structure as illustrated in the site plan on page 1.5 of the record and determined that was a reasonable home for the site and that the encroachment was a reasonable amount that staff would anticipate for the site. Mr. Snyder commented one option would be for the Council to state that if the applicant intruded into the setback, they were limited to the building footprint shown on a certain attachment and if the applicant did not want to utilize the variance, they could build anywhere on the site that was allowed by the zoning code and Comprehensive Plan. Councilmember Moore asked for clarification regarding special circumstance. Mr. Bullock explained generally variances were anticipated to be used for sites that had streams, wetlands, steep slopes and other features that made it difficult to build within the standard building envelope. On this site, the eastern third and the southern half of the site is encumbered by what the Critical Areas Ordinance describes as a steep slope hazard area. The Critical Areas Ordinance does not allow any structures to be built within the steep slope hazard area or within its 10 -foot buffer and 15 -foot building setback. He summarized those critical areas encumbered over half of this site; therefore, the special circumstance for this site was that over half of the property was encumbered by a critical area and there was not sufficient area in the remaining portion of the site to allow construction of a typical home. Councilmember Moore noted if the drawing on page 23 was to scale, it appeared there was sufficient space for a different floor plan in the buildable area shown. Mr. Bullock cautioned the Council to use the site plan on page 15, the survey submitted by the applicant, as it was the most accurate. He advised the drawing on page 23 was an illustrative plan that staff prepared using the GIS parcel map and was not to the same exact scale as the site plan submitted by the applicant. Edmonds City Council Approved Minutes January 18, 2005 Page 21 Councilmember Moore asked whether the long dashes on the site plan on page 15 represented the current setback. Mr. Bullock answered yes, referring to the notation on the map identifying the 25 foot critical area setback and buffer. Councilmember Moore asked how far the buffer extended into the driveway area. Mr. Bullock advised the steep slope lessened to the south of the sportcourt and did not impact the remainder of the driveway. Mr. Snyder explained topography was the most typical special circumstance. He referred to houses in Seattle and Ballard that are 7 -feet wide and 30 -feet long, explaining variances could not be obtained because the size of the lot was created by a prior owner. In this instance, the problem was created by the City Council's passage, as required by State law, of the Critical Areas Ordinance. He summarized this was a classic example of special circumstance due to topography. Councilmember Orvis determined he could not find a special circumstance existed in this instance as there were building footprints that would fit inside the buildable area. While those footprints may be more expensive to build, that was not a reason to find a special circumstance. Therefore, he was unable to approve a variance. COUNCIL PRESIDENT MARIN MOVED, SECONDED BY COUNCILMEMBER OLSON, TO DENY THE APPEAL AND UPHOLD THE HEARING EXAMINER'S DECISION. Council President Marin referred to page 15, pointing out the drawing on the screen (page 23 of the record) did not replicate reality. He found there was no other place to construct a house on the lot. Councilmember Orvis pointed out the dashed lines indicating the critical area buffer widened toward the bottom of the page and based on the record there was adequate space for a building footprint, making it impossible for him to find a special circumstance exists. Councilmember Moore expressed concern that the Hearing Examiner's decision was based on there being a non - public road when it was a public road. She indicated the Hearing Examiner was incorrect about the road and the matter should be remanded to him. Councilmember Wilson agreed there was a special circumstances caused by the topography of the property and the minimum setback requirements of the Critical Areas Ordinance. He pointed out the applicant is assuming there would only be a 25 -foot setback from the top of the slope, it was still possible the geotechnical analysis could require a larger setback which could encumber the entire property. He pointed out the City's process was to preserve critical areas first. He found the record somewhat inadequate regarding special privilege as there was not enough discussion regarding other areas with steep slopes and he would have preferred some clarification regarding that issue. With regard to the minimum required, at first there appeared to be sufficient area when one considered the drawing on page 23 that was displayed on the overhead. He found that was a misrepresentation of what exists on the property and page 15 more accurately illustrated the topography, the critical area setback and the street setback. Councilmember Wilson indicated he was not concerned about remanding to the Hearing Examiner regarding the issue of the public versus private street. This is an existing single family lot on a public right -of -way that had the right to have access to the right -of -way. Councilmember Wilson summarized after evaluating the map on page 15, he was satisfied there was a special circumstance and the minimum necessary based on the space left on the lot as a buildable area. He indicated he would support the motion. Mayor Haakenson referred to Mr. Snyder's suggestion that the Council comment on notice. Councilmember Moore found the mtice was adequate, commenting the City was required to mail the notices, not follow the postman and ensure the notices were delivered. Councilmember Olson commented that based on the criteria she did not feel the appellant proved their case and she would support the motion. Edmonds City Council Approved Minutes January 18, 2005 Page 22 Councilmember Moore indicated she would not support the motion because she found the public road to be an issue in this instance. If the Hearing Examiner understood this was a public road and that the City might in the future want to make improvements to the road, it may have affected his decision. UPON ROLL CALL, MOTION CARRIED (3 -2), COUNCIL PRESIDENT MARIN, AND COUNCILMEMBERS WILSON AND OLSON IN FAVOR; AND COUNCILMEMBERS ORVIS AND MOORE OPPOSED. Mr. Snyder advised he would provide written Findings of Fact on a future agenda. He explained because of the Council's reliance on Attachment 2 in their decision and the inconsistency between plans, he would reference that as the approved building footprint. (Neither Councilmember Plunkett nor Councilmember Dawson returned to the meeting following the conclusion of this matter.) AUDIENCE COMMENTS Ron Wambolt, 530 Dayton Street, Edmonds, suggested the Council have audience comments earlier on the agenda, noting the Council might get more comments from the audience and there might be more Councilmembers remaining to hear audience comments. He objected to Councilmembers' reference that the Comprehensive Plan would govern what happened in the City for 25 — 75 years, pointing out the Planning Comprehensive Plan was reviewed and amended periodically. Next, Mr. Wambolt explained at the Board Feet December 1 Planning oard meeting that from all appearances, the increase in building heights to 33 feet 3 r eet g g PP � g g Building was a done deal to which Board Member Crim responded his comment was unfair to the process. Height However, he was proven right when the Planning Board approved the increase to 33 feet at the January 12 meeting with no discussion. He noted the Planning Board appropriately took time to carefully review and sometimes amend other areas of the Comprehensive Plan including reviewing comments from BC property owners and amended some of the Downtown Waterfront Districts. The Planning Board did not discuss the districts where the 33 foot building height increase was proposed and at the end of the meeting approved all districts with no discussion of the massive opposition at the public hearing to increasing building heights in certain BC zoning districts. He suggested the Council reject the Planning Board's recommendation regarding districts where 33 -foot heights were proposed and send the matter back to the Planning Board for proper deliberation. He requested when the City Council held its public hearings next month, Councilmembers explain their rationale. Lora Petso, 1061.6 237th Place SW, Edmonds, agreed with Mr. Wambolt's comment about taking Sherwood audience comment earlier in the meeting because public comment ought to be an important item on the Park agenda. She referred to Sherwood Park, advising the Edmonds School District filed a land use application with the City to change the Comprehensive Plan to allow housing on the Sherwood Park property which she noted was inconsistent with a park. Mayor Haakenson explained if the School District did not file for the amendment, it would be another year before they could file again. If the School District were willing to sell the parcel to a developer to build some homes as well as allow for a park, the only way that could be accomplished was to file that action. Ms. Petso commented she assumed the Comprehensive Plan designated the area as a park and that the City was intending to acquire the property for that purpose. Mayor Haakenson clarified the City would not acquire the entire parcel for a park as the City would not pay $7 million for the property. He assured the City would get a park there. Ms. Petso encouraged the Council to pursue the type of park the area needed as was described in the Comprehensive Plan such as playfields/ballfields and/or a neighborhood park. She was not concerned about the $7 million price, assuming the City and School District could make a deal that did not require cash. Edmonds City Council Approved Minutes January 18, 2005 Page 23 Jeff Thompson, 16742 76th Avenue W, Edmonds, commented he was glad public comments occurred at the end of the meeting. He commended the Council for spending their time and money getting elected to office and then taking all the abuse. He found the Council patient and tolerant and recognized them for their perseverance on the issues. He thanked the Council for all they do. Don Kreiman, 24006 95th Place W, Edmonds, agreed with Mr. Thompson. He commended the Council for stepping back and not making a decision in the heat of the moment. Planning Roger Hertrich, 1020 Puget Drive, Edmonds, suggested Edmonds' philosophy of emphasizing public Board Public participation and public hearing procedures was violated by the Planning Board. One of the procedures Heating was not to allow public testimony after the public hearing is closed, especially if the public has gone Procedures home and the only way to give public input after the hearing was closed was to send letters and information to the Planning Board. He recalled there was an attempt at the Planning Board to create a new way of calculating building heights on Sunset Avenue and additional input was allowed between the closed public hearing and the Planning Board's discussion. During the Planning Board's discussion, the Chair allowed two people to provide more information; however, the public was not allowed to comment on that new information. He concluded the Planning Board violated the procedures and suggested the public hearing be reopened to the public. He also objected to the Planning Board Chair requesting Findings of Fact prior to the Board's discussion and then passing the section regarding the 33 -foot building heights without any discussion when the majority of the public testimony at the Planning Board's public hearing wanted to retain the 25 -foot plus 5 -feet building height and not 33 -foot building heights. He challenged the City Council to address this issue, stop the process, reopen the public hearing and tell the Planning Board they must discuss what the public said. «.� � Z�7 711[�7►`[�l Y 1�'LK�111►[�i1[K�7►i iu i Y YI Y 91 �f►l l � 9111�i� Clf.Y�75[tl_ \�[il_ \7•ii�►�II11 Pinanoe Finance Committee committee Councilmember Olson reported the Committee discussed the Llility Rate Study; staff's recommendation was to increase the combined 2005 rates by 0.83% ($0.47 per month) which reflects a 0% increase in water and sewer and a 7% increase in storm rates. Next, the Committee discussed the Parks and Recreation reorganization which the Council tabled this evening. The Committee then discussed the telephone system replacement which was passed on the Consent Agenda. The Committee concluded its meeting with a discussion of the water excise tax ordinance, a housekeeping change that had no financial impact, that the Council approved tonight. Public Safety Committee Public safety Councilmember Orvis reported the Committee discussed the possibility of funding a bailiff to man a committee metal detector for the courtroom. The hatter was forwarded to the Finance Committee for discussion of potential revenue sources. The Committee then discussed the Snohomish County jail services contract and prisoner detention agreement with the City of Lynnwood which were approved on the Consent Agenda. Community Services /Development Services Committee Community/ Development Councilmember Moore reported the Committee reviewed a list of priorities for the coming year including Services items that will come before the Planning Board. She identified the current priorities, the ECDC rewrite of Committee the Title 20 procedures, Comprehensive Plan implementation follow -up and code amendments addressing methadone treatment facilities and essential public facilities. 7. MAYOR'S COMMENTS Mayor Haakenson had no report. Edmonds City Council Approved Minutes January 18, 2005 Page 24 8. COUNCIL COMMENTS Councilmember Moore explained the reason she ran for office was that she believed in good government and she had nothing at stake except to serve. She made a decision to serve as a Councilmember due to her belief that citizen participation was vital to a flourishing democracy and her choice was to serve in elected office rather than testifying before boards. She commented she was doing her best and she was proud of her record so far. She found it necessary to speak out regarding unfounded character assassination and spoke for Mr. Snyder's honor and reputation. She found it outrageous, undignified and wrong for anyone to imply that the Council was being bought off. She concluded insulting the mayor and staff did no one's cause any good and she appreciated those who spoke to the Council who were kind, used their sense of humor and used the facts. In response to Mr. Wambolt's comment regarding the long term effect of decisions the Council made today, Councilmember Wilson clarified he was not implying the policy had that long term effect as he agreed the Comprehensive Plan could be reviewed and amended annually. He explained his concern was if the Council did not adopt the right policies, the result was buildings that people in 20 or 30 years point to wondering how that happened. He clarified when he referred to long term effects, it was not the policy but what was built that the community had to live with for a long period of time. He summarized the Council wanted to leave a legacy they could be proud of in the future. With no further business,the Council meeting was adjourned at 11:23 p.m. G 'Y t ' ENSON, MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes January 18,2005 Page 25 • AGENDA .illift EDMONDS CITY COUNCIL II- I ICouncil Chambers, Public Safety Complex 250 5th Avenue North 7:00 - 10:00 p.m. JANUARY 18, 2005 7:00 p.m. - Call to Order Flag Salute 1. Approval of Agenda 2. Consent Agenda Items (A) Roll Call (B) Approval of City Council Meeting Minutes of January 11, 2005. (C) Approval of claim checks #76361 through #76529 for the week of January 3, 2005, in the amount of $690,521.04. Approval of claim checks #76530 through #76715 for the week of January 10, 2005, in the amount of $564,625.53. Approval of payroll direct deposits and checks #39987 through #40060 for the period December 16 through December 31, 2004, in the amount of $732,286.67.* *Information regarding claim checks may be viewed electronically at www.ci.edmonds.wa.us (D) Acknowledge receipt of Claim for Damages from Timothy Hapke (amount undetermined). (E) Authorization for Mayor to sign an agreement with CNR, Inc. for a telephone system replacement. (F) Approval of reorganization of management structure of Parks, Recreation & Cultural Services Department. (G) Authorization for Mayor to sign 2005 Addendum to Prisoner Detention Agreement between the City of Lynnwood and the City of Edmonds. (H) Authorization for Mayor to sign the 2005 - 2009 Interlocal Agreement for Jail Services with Snohomish County. (I) Water Excise Tax Ordinance Change - Proposed Ordinance amending the provisions of Edmonds City Code 3.20.050 to add a new paragraph F imposing a tax of five and three-quarters percent on the gross income of the City's water utility. Page 1 of 2 CITY COUNCIL MEETING AGENDA JANUARY 18, 2005 Page 2 of 2 (J) Proposed Ordinance granting to new Cingular Wireless PCS, LLC, a Delaware Limited Liability Company, D/B/A Cingular Wireless, a Master Use Agreement, to install, operate, and maintain wireless communication facilities within a certain designated public right-of-way of the City of Edmonds, State of Washington, prescribing certain rights, duties, terms, and conditions with respect thereto, and establishing an effective date. 3. (60 Min.) Public Hearing to consider the following: (A) An interim zoning ordinance defining view for the purposes of ECDC 20.10.070; (B) An interim zoning ordinance clarifying under ECDC 20.10.060 an applicant's right to fully utilize bulk standards which have been adopted pursuant to the City's Comprehensive Plan; (C) Reenactment of an interim zoning ordinance regarding the right of an applicant to utilize modulated building design in order to have a roof above the 25-foot height limit; and (D) A zoning moratorium on Architectural Design Board and building permit applications, not vested pursuant to state law and City ordinance, to utilize modulated building design as the basis for a building height in excess of 25 feet. 4. (45 Min.) Closed record Review of an appeal of a variance request to reduce the required street setback from 25 feet to 10 feet to allow the construction of a home. Property location: 167XX - 74th Place West. (Appellant: Brett Gaspers, et al / File No. V-04-100) 5. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings. 6. ( 5 Min.) Report on City Council Committee Meetings of January 11, 2005. 7. ( 5 Min.) Mayor's Comments 8. (15 Min.) Council Comments ADJOURN 1 Parking and meeting rooms are accessible for persons with disabilities. Please contact the City Clerk at(425) 771-0245 with 24 hours advance notice for special accommodations. A delayed telecast of the meeting appears on cable television-Government Access Channel 21.