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06/01/2004 City CouncilJune 1, 2004 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 51h Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Michael Plunkett, Council President Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember ELECTED OFFICIALS ABSENT Jeff Wilson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT David Stern, Chief of Police Al Compaan, Assistant Police Chief Duane Bowman, Development Services Director Stephen Clifton, Community Services Director Dan Clements, Administrative Services Director Brian McIntosh, Acting Parks & Recreation Dir. Rob Chave, Planning Manager Dave Gebert, City Engineer Steve Bullock, Senior Planner Frances Chapin, Cultural Resources Coordinator Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO APPROVE THE AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO APPROVE THE CONSENT AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve Mnut Minuetes (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF MAY 25, 2004. Approve (C) APPROVAL OF CLAIM CHECKS #71420 THROUGH #71586 FOR THE WEEK OF Claim Checks MAY 24, 2004, IN THE AMOUNT OF $196,619.38. MEBT Plan (D) CONFIRMATION OF MAYOR'S APPOINTMENTS TO MUNICIPAL EMPLOYEES' Committee BENEFIT TRUST PLAN COMMITTEE Alder Street Utility and (E) AUTHORIZATION TO CALL FOR BIDS FOR THE ALDER STREET UTILITY 231"PI. SW REPLACEMENT AND 231ST PLACE SW STORM IMPROVEMENT PROJECTS Storm Projects Edmonds City Council Approved Minutes June 1, 2004 Page 1 2004 Street O AUTHORIZATION TO CALL FOR BIDS OF THE 2004 STREET OVERLAY Overlay PROGRAM Program Ord# 3503 (G) ORDINANCE NO. 3503 REZONING CERTAIN REAL PROPERTY LOCATED AT 7023 Rezone 7023 AND 7025 174TH STREET SW FROM SINGLE FAMILY RESIDENTIAL (RS-20) TO and 702 174St,SW SINGLE FAMILY RESIDENTIAL (RS-12) th 3. PROCLAMATION IN HONOR OF AMTRAK'S EMPIRE BUILDER 75TH ANNIVERSARY Empire Amtrak's CELEBRATION FRIDAY J[JNE 11 2004 Builder Anniversary Mayor Haakenson read a proclamation declaring June 11, 2004 as the 75th Anniversary of the Empire Builder and encouraging all citizens to pay tribute to this outstanding achievement of continuous rail passenger service that the Empire Builder has provided to the people of Edmonds. He advised the kick- off event would be in Seattle followed by community celebrations along the route. The train will pass through Edmonds at 5:17 p.m, and stop for 3-5 minutes at which time an Amtrak representative will step off and present the Edmonds community with a one -of -a -kind framed poster commemorating the anniversary. Councilmembers Wilson and Marin will represent the City as Mayor Haakenson is unable to attend. Councilmember Marin advised the public was invited and refreshments would be served. Point Edwards 4. PUBLIC HEARING FOR THE CITY COUNCIL CONSIDERATION OF POINT EDWARDS Settlement SETTLEMENT AGREEMENT REGARDING TREE CUTTING Agreement — Tree Cutting Mayor Haakenson outlined how this item would be conducted. Development Services Director Duane Bowman would provide a history of the project and how it had reached this point; the City Attorney would describe the Settlement Agreement proposed by Pt. Edwards LLC and explain the Council's role in tonight proceedings. Next the Pt. Edwards representative would speak followed by public comment. He briefly reminded audience members of the three minute limit for comment. He noted it would be beneficial for the Council if speakers included their ideas for a solution or preferred outcome in their comments. After public comment, the Pt. Edwards representatives would address any issues that were raised, then the Council would ask questions of the audience, staff, Pt. Edwards' representatives, etc. Mayor Haakenson inquired whether the Council was interested in extending the three minute limit. Council President Plunkett observed Mayor Haakenson usually provided additional time for speakers to summarize their comments so the three minute time limit was adequate. The Council agreed. Mayor Haakenson noted after the Council asked questions, he would remand it to Council for their decision making process. Mr. Bowman explained the Edmonds Architectural Design Board (ADB) under File No. ADB-2002-226 approved the overall design of the Pt. Edwards LLC project, a 295 multifamily unit project for the upper yard of the former Unocal property. Part of the ADB's approval included a detailed arborist report that outlined how tree clearing would take place on the property. On March 15, 2004, the City issued a stop work order for clearing that had occurred on the western steeply sloped area of the property in violation of the approved arborist report and ADB approval. Subsequently a Notice of Violation was issued on March 19, 2004 and fines of $100 per day began to accrue. No appeal of the Notice of Violation occurred and the fines continue to run. On. April 14, 2004, pursuant to ECDC Section 21.00.040, he as the Development Services Director initiated a review of the approved ADB design for File No. ADB-2002-262. The purpose of the review was to have a public hearing before the Hearing Examiner to review the existing permit conditions to determine what new conditions could be placed on the project due to the violation of the approved Edmonds City Council Approved Minutes June 1, 2004 Page 2 clearing plan. A public hearing, originally scheduled for May 20, 2004, was continued to June 17, 2004 to allow the City to consider a proposed Settlement Agreement from Pt. Edwards LLC. City Attorney Scott Snyder clarified what the Council was being asked to do. He explained a proposal was made by Pt. Edwards LLC to resolve a pending permit review process. He noted this process could be initiated in a number of ways in order to consider violation of conditions posed under an application and approval. He noted the process could be initiated by the Council, Mayor, staff or three property owners living within 300 feet. Because of the location of this violation, there are no private citizens who could bring this action; therefore, it was initiated by staff and was susceptible to settlement via a Settlement Agreement. He noted this would be a legislative decision of the Council, not quasi judicial. The Council was free to talk with the public to whatever extent necessary. Mr. Snyder explained the terms were proposed by the developer and he incorporated them into a Settlement Agreement. The heart of the Settlement Agreement were things that the City would not have the legal ability to do under the current ordinance. As Mr. Bowman explained, the fines in this case were $100 per day which most people he noted would consider inadequate for a project of this size. He explained the Settlement Agreement provided for fines of $1,000 per day until the issue was resolved. The Settlement Agreement also provided for a $100,000 payment to help compensate the City and its citizens for the aesthetic and environmental damage caused. Mr. Snyder noted that in this instance, the trees that were cut were not public property; they were the property of the developer. The City had a fairly hefty fine and process for people who cleared their property in anticipation of development but this was a first, someone after approval failed to follow the conditions of approval. Staff drafted and will present on June 15 an ordinance to address that issue and provide for fines of $1,500 per day or $1,500 per tree, triple that in critical areas, environmentally sensitive areas and Native Growth Protection Easements. He noted this was nearly a one -of -a -kind issue and the Settlement Agreement attempted to resolve it via a proposal made by the developer to increase the penalties. Mr. Snyder explained this Settlement Agreement resolved only the permit review process. Under that process, the Hearing Examiner would review the permit to determine if the violations could be corrected by the addition of conditions. One difficulty was the damage had already been done and the permit would be subject to revocation but only if the process did not provide to reasonably resolve the problems that occurred. He explained the Settlement Agreement did not resolve the pending Department of Natural Resources (DNR) required moratorium. That moratorium was in place, imposed by Mr. Bowman, and a number of environmental issues such as assessment of the damage by a wildlife biologist were part of that process. That decision and resolution had not yet been made. Mr. Bowman's decision was subject to public scrutiny and appeal to the Hearing Examiner. Mr. Snyder explained the Council was exercising its legislative discretion tonight in part because the Council and Mayor were one of the few parties that could bring this enforcement action. There was no financial obligation imposed by the City; the cost of drafting and reviewing the Settlement Agreement and any defense costs would be borne by Pt. Edwards in event of any legal action. He concluded this was one of the few issues in which Mayor Haakenson could cast the tie vote since there were only six Councilmembers present. Fred Grimm, President, Manager, Point Edmonds LLC and President and Founder, Triad Development, 2801 Alaskan Way, Seattle, recalled several weeks ago at a Council meeting, he read their letter of apology. Subsequent to that meeting, the letter was presented to print media and was published in its entirety in two local newspapers. He noted while they had apologized publicly, they had also attempted to apologize privately; contacting many of the citizens who voiced their concern about this Edmonds City Council Approved Minutes June 1, 2004 Page 3 issue to the city. He assured their apology was sincere and heartfelt. He noted although there was a time to be eloquent, there was a time to be blunt — he admitted they screwed up, they made a mistake and they were sorry. He assured this was not a reflection of who they were as a company, noting he had been in the business 20 years and had never made this mistake before. He summarized they were embarrassed by their mistake and humbled by it. Mr. Grimm noted tonight's meeting was to discuss the consequences of their actions. He acknowledged it was not enough to say they were sorry, there still needed to be consequences. He pointed out the need to explain what they did do, what they didn't do, and what they should have done to provide some perspective before discussing the merits of their proposal. He noted the need to explain the situation was apparent when an acquaintance did not realize this had been a tank farm at one time and was under the impression that they had cut an old growth forest on the entire site. He assured he was not trying to undermine the sincerity of their apology by describing what they did. He noted what they did was not an "oopsy" but at the same time it was not the crime of the century. He displayed a photograph of the Unocal tank farm illustrating the tank that was removed in 2002, recalling the citizens' efforts to prevent Brightwater from locating on this site and allowing this development to continue. Mr. Grimm displayed a site map of the Pt. Edward site, noting one of the requirements of the ADB approval was a requirement that all tree clearing and replanting comply with an arborist report and final landscaping plan. He noted the arborist reviewed the site and determined many of the trees were diseased and represented a declining forest. Mr. Grimm noted this forest was created when Unocal originally cleared the site and pushed soil over the hillside to make room for the tanks and the forest grew up on its own in that location. Mr. Grimm displayed an aerial photograph identifying the 60-foot elevation line, explaining that above the line, they were authorized to cut trees as long as there was a plan for reforestation/restoration after the trees were cut. Under the arborist's report, they had the option to cut trees below the 60-foot line if reforestation of the hillside occurred at least one year prior to cutting of the trees and was done between April 15 and October 31 and with zero impact to the trees on the hillside. He summarized that was what was done wrong — they cut the trees below the 60-foot line without planting a year in advance, cut the trees prior to the date they should have and cut the trees without the zero impact measure. Mr. Grimm explained subsequent to the discovery of their mistake, they called the arborist to address what was done and to request he make recommendations to them and the City regarding appropriate action. Dave Wright, consulting arborist, owner of City Foresters, Inc. explained he walked the site with Mr. Bowman and Senior Planner Steve Bullock and based on his inspection of the site today and since he had been called back, a very good restoration had been accomplished. He supported his original recommendations as well as the work that had been done. He explained the existing greenbelt whose dominant species was maple with alder as a secondary species was in decline; most of the canopy of the existing stand of trees above and below the 60-foot line was in decline. He noted there were still trees that he considered hazardous to Burlington Northern and another area off Pine that could be addressed separately. Originally he envisioned that of the trees below the 60-foot line, perhaps 6-7 could have been saved which would have accentuated and framed views of Puget Sound. He clarified every tree had an infestation of root rot, a disease that naturally occurred in the forest resulting in trees dying and recycling into the top soil for the new forest. He noted more than half the trees were too big to stand safely on the slope. He noted in their experience, trees whose systems have been overcome by root rot, rather than standing as a benefit to slope stability, they become a liability to the slope and in a wind/rain storm can cause serious landslides. He concluded it was a touchy issue when a tree was a benefit to a hillside and when it was a liability. Most of this forest would be a liability to the slope in a fairly short time. Edmonds City Council Approved Minutes June 1, 2004 Page 4 Mr. Wright commented on the restoration that had taken place, expressing his delight at the conifers that were planted which were in addition to the original vegetation plan for the development. If the conifers were maintained well, they would provide a more attractive forest stand than the maples did. The maples were a result of urbanization; maple stands such as this occur in greenbelts and begin to deteriorate due to neglect. He noted in greenbelts, the understory often becomes infested with noxious, non-native species as occurred on this site. The entire stand of maples above and below the 60-foot line were covered with a thick growth of Himalayan Blackberry, the most notorious noxious non-native. He summarized the net benefits of this mistake likely outweighed the damage that was done. He commended the species, quality of stock, and measures to cover the exposed topsoil with erosion cloth. He noted a great deal of the slash from the cutting was returned to the slope and pinned to the slope with steel, which provided habitat and secured the erosion blanket on the hill, but would also interrupt any mud flow on the hillside should a 20- year rain event occur. Mr. Grimm explained the landscape design was done by Tom Ringsdorf, licensed landscape architect. Mr. Ringsdorf explained he had worked on this project since its inception. He explained the reforestation plan in the original design was modified since the clearing to plant the evergreen trees. He noted the mitigation trees were primarily conifer — cedar, fir, spruce — specified from 6-8 feet tall, although many were 10-12 feet tall. He noted planting was being irrigated now and a system would be installed and monitored over the next three years. The trees would be maintained on a regular basis via a daily walk- through by the landscape contractors who would observe the watering and plant health. He noted there were also hundreds of native shrubs planted on the site, such as vine maples, huckleberry, sword ferns and snowberry. He agreed the long-term effect of particularly the confer habitat would create a better buffer and create more diversity. John Sadler, Project Manager, Terra Associates, Licensed Engineering Geologist and Hydrogeologist, explained they had been involved with the project since late 2001 and had done a number of studies on the site, including stability analysis of the steep slope. He explained their analysis included the drilling of three 60-foot borings at the top of the slope and computer analysis for existing condition and proposed slopes for static and seismic conditions. The results of that analysis, as documented in a number of reports submitted to the City, were that the slopes are stable and would remain stable with regard to deep-seated stability. He reported the tree cutting that occurred on the slope would have no impact on the deep-seated stability. He noted superficial soil was exposed in several areas on the slope face as a result of the tree removal. Their recommended mitigation included attaching erosion control blankets to the face of the slope in conjunction with replanting. He noted the installation had been done in conformance with their recommendations. Mr. Grimm advised several other experts were in the audience to answer questions: Greg Crabby, Civil Engineer; Lori Anderson, professional wildlife biologist; and Rich Gifford, land use attorney. Mr. Grimm reviewed their proposal • Comply with the recommendation in the arborist's report to plant 80 conifers. With the arborist's approval, over 110 trees had actually been planted. • Supply the Director with quarterly arborist reports for a period of three years. He displayed several recent photographs of the site illustrating the irrigation, trees, and plastic covering the City's water line extension which would be vegetated once it is complete. • Supply the Director with weekly arborist reports until all plantings have been complete. • Upon completion, post a landscape maintenance bond for a period of three years. He displayed a rendering of the Pt. Edwards site in 2014 illustrating the conifers after 10 years of growth. • Donate $100,000 to the Edmonds Beach Ranger and Flower Programs. He noted this was their way of saying they were sorry and making a contribution to the City. Edmonds City Council Approved Minutes June 1, 2004 Page 5 • Pay the City $1000 per day from March 19, 2004 until the Director issued a Notice of Completion. He noted they did not feel the City's current fines were a reasonable repercussion for their actions. If the matter proceeded to the Hearing Examiner, the maximum fine was $100/day. Mr. Grimm explained the project proceeded through the SEPA process where the public had an opportunity to comment on the environmental impacts. He noted via that process they were allowed to eventually cut the trees on the hillside and replant it. He acknowledged they did not do the tree cutting correctly, both in manner and timing. One of the reasons perhaps they were allowed to cut the trees was the Edmonds Crossing had a ferry access lane that would have resulted in the removal of the trees. He noted the trees they have planted would be cut by the City to construct the proposed access to Edmonds Crossing. Mayor Haakenson opened the public comment portion of the public hearing. Carol Riddell, Edmonds, commented she enjoyed watching birds on the Edmonds waterfront and at the Amended marsh. She expressed concern regarding the terms of the Settlement Agreement. She noted the developer 8/ 16/05 acknowledged they clear-cut the slope and she urged the Council not to settle the matter in a manner that favored the developer but in a manner that would make whole relief. She noted the parties injured by this action were the City, residents (humans, animals and birds), and adjacent property owners. She noted a settlement with a three-year term placed by the city with the potential for slope failure and she recommended a longer term, such as 20-year, $10 million bond. She recommended the City educate itself with its own independent consultants. She commented Puget Sound slopes were subject to failure, noting the intense rains may increase the risk. She recommended any relief run with the land so that successor land owners are legally obligated to carry out the terms of the agreement. She noted failure to do this could expose the City to liability for future losses due to slope failure. She also urged the City to eliminate the gift provision from any formal resolution of this enforcement proceeding as a gift from the violator conflicted with traditional concepts of ethics and integrity in government. She concluded once the enforcement process was completed, it may then be appropriate for the City to accept a gift from Triad. Susie Schaefer, 1055 Edmonds St, Edmonds, a boardmember of the Pilchuck Audubon Society, explained she would speak from a bird's point of view. She acknowledged the forest that was cut was a scruffy forest but it was used by many migratory birds. Birds particularly like sick trees due to the number of insects. She considered this an upland forest to the marsh and the area near the hatchery, the marsh, the hillside and out to Puget Sound formed a wildlife corridor that was used by many birds and other wildlife. Her suggestions for restoration were additional plantings including maples and other deciduous trees, snags for perching as occur in a natural forest, and big logs on the ground. She also suggested rather than having just staff monitoring the site, a citizen committee be formed to conduct monitoring over a long period of time. Gary Smith, 8936 179th Place SW, Edmonds, explained that as a Plant Steward for the Washington Native Plant Society, he had been conducting vegetative monitoring for riparian restoration sites throughout Snohomish County for Snohomish County Surface Water Management and the Stilly Snohomish Fisheries Enhancement Task Force. In an effort to make the best situation from a bad situation, he noted mitigation efforts have largely failed in Snohomish and King County due to insufficient maintenance and monitoring. He noted with the express cooperation of the Pt. Edwards LLC there was an opportunity to make this a win -win situation. After reviewing the documentation available and his observation of the site, he found the plant list provided by the landscape architect and the arborist was sufficient to provide adequate vegetative cover for wildlife if their recommendations were followed. He noted the mix of deciduous and evergreens was sufficient and the number of plants may be adequate. Edmonds City Council Approved Minutes June 1, 2004 Page 6 During his inspection, he noted the plants in the ground were healthy, had been installed properly and the mulching was adequate. Although he would have preferred a wider diversity of plantings, he noted that his vantage point may not have allowed him to view the range of plantings. With regard to plant selection and design, Mr. Smith noted if the plants on the plant list were the same as were planted, the planting should be adequate. He recommended the arborist prepare a report comparing the as -built list with the proposed list to ensure the proper mix was attained and if there were deficiencies, the arborist provide recommendation to remedy. He also recommended a formal maintenance plan be prepared that included integrated vegetation management (IBM) procedures, including a replacement strategy for dead/dying plants and specific watering and mulching requirements. His final recommendation was that a formal monitoring plan be prepared that includes clear objectives that could be measured and verified, including numbers and species of plants, mechanism for extending the maintenance period beyond three years, quantitative assessment and maintenance requirements for property accountability and monitoring reports should be submitted directly to the City and the permitee to preserve the integrity of the report and allow both to provide comment. He recommended for the period following October 31, more frequent qualitative assessments be made to ensure plant establishment, noting this was critical due to the late planting at the site and the dry summer/fall period. He also provided written materials. Dell Lowell, 842 Dayton Street, Edmonds, thanked the developer of Pt. Edwards for removing an eyesore, for cleaning up a heavily contaminated site and for trying to build a quality project in the community that would attract more people to the City. He acknowledged there were trees on the hillside but they were infested with disease and he did not consider the former tank farm as a forest. He recognized the concerns with regard to wildlife and birds, pointing out the property belonged to the developer and only the timing of the tree cutting was incorrect. He urged the Council to consider the Settlement Agreement and if they did not want to accept the donation, give it to another cause in the community that could use it. Ray Martin, 18704 94th Avenue W, Edmonds, found the recommendation for a 20-year maintenance bond sufficient if his primary recommendation to revoke the permit was ignored. He questioned the explanation of what had occurred, noting there was an atmosphere in the City that told developers "anything goes, there's not going to be any consequences." He noted the City was "a one man operation" and anticipated three Councilmembers, Marin, Moore and Olson and possibly Council President Plunkett would vote how the Mayor had told them to vote. He preferred a $500,000 donation so that it would be self-perpetuating. He also recalled Mr. Bowman had told him he could not talk about the tree cutting and all communications were to be directed to the Mayor. He stated an objection to the red light on the podium. Veen Weber, 12530 Almiralty Way, Everett, provided a perspective as a visitor and bird watcher at Edmonds Pier and Marsh who often visited restaurants and shops in downtown. She pointed out this represented a major loss of habitat, particularly for migratory birds. She urged the Council to send a strong message and to incorporate the Pilchuck Audubon Society's recommendations in the Settlement Agreement. She concluded the proposed Settlement Agreement let the developer off too easy and a stronger message should be sent. Norma Bruns, 960 5tn Avenue, Edmonds, expressed her appreciation to the Pilchuck Audubon Society for their research and suggestions. Although she appreciated the developer's apology, it did not change the fact that they negated their contract. She agreed the City needed to take a strong stance and inform developers this was not acceptable. She urged the Council to take a strong stance and if they did not agree with the Settlement Agreement, revoke the permit. Edmonds City Council Approved Minutes June 1, 2004 Page 7 John Pierce, 1148 2°a Avenue S, Edmonds, noted they lived close to the site and were not happy when they noticed the trees had been cut. He noted the noise from the railroad tracks was noticeably increased. An attorney himself, he acknowledged the City's recourse was somewhat limited. He recommended the City consider two precedents in King County recently, the federal court judge who cut trees on public land and trees that were cut in Bellevue, where the fine was based on the economic value that accrued as a result of those actions. He recommended a third party evaluate whether the value to Triad/Pt. Edwards LLC from cutting the trees was equivalent to the $100,000 payment and the $1,000/day fine. Mr. Snyder commented that Mr. Pierce was referring to Trespass to Trees, and the difference in those cases and this was that the developer owned the trees. He acknowledged Mr. Pierce's comment with regard to analyzing the value. Jack Bevan,19210 94th Avenue W, Edmonds, emphasized this was not a tree farm and he was delighted when the tanks that had been on the site for 48 years were removed. He did not favor the extortion that many people suggested and recommended the City accept the Settlement Agreement and be happy with it. Ron Wambolt, 504 6tn Avenue S, Edmonds, expressed his pleasure at the improvements occurring on the site. He believed the developer made an honest mistake because there was no financial gain from deliberately cutting the trees as they did not block any views from the proposed buildings and they could not build in the area where the trees were located. With regard to preventing liability from future occurrences as a result of the tree cutting, his belief was that any future owner would incur that liability. He noted the views from adjacent properties would be superior to their views when the tank farm existed. He recommended the Council accept the Settlement Agreement after tweaking it a bit with the suggestions of the Pilchuck Audubon Society and any changes the City Attorney may recommend. Steve Waite, 324 Main, Edmonds, recommended the City accept the proposed Settlement Agreement, pointing out the elements of the proposal were not mandated by City ordinance nor had staff made any demands. The original arborist report conducted in 2002 stated this was not a high quality area and the proposed restoration would create something of value. He urged the Council to examine the issues in. light of the big picture, derive their conclusion based on fact and accept the Settlement Agreement. J. E. Sullivan, 18829 88t" Avenue W, Edmonds, a member of the Audubon. Society, echoed the comments of other Audubon members with regard to slope stability and wildlife concerns. She urged the Council to focus on the fact that this was a permit violation and to impose strict accountability to Triad. She appreciated the President of Triad's offer for restitution, however, she agreed with her colleagues that there should be independent analysis that Triad should pay for. She suggested if this type of restoration was to have been done one year prior to cutting, the Council could take up to six months to respond. John Osterhaug, 941 Viewmoor Place, Edmonds, commented he was puzzled by Pt. Edwards' presentation, expressing extreme regret for their transgressions but their consultants maintained that it was a good thing that would be better than before the clear cut. He suggested this be clarified. He expressed support for previous comments, particularly those of Ms. Riddell. He expressed concern with the stability of the slope, recalling a major slide that occurred approximately one mile south. He referred to a 1997 Enterprise article describing the Kingston Ridge, a potential earthquake fault from Kingston to under Pt. Edwards. He noted the experts could not guarantee that the tree clearing did not increase the risk of slides in the area. He noted future slides could be very costly financially as well as environmentally. He supported the requirement for Pt. Edwards to purchase a bond and whatever else was necessary to protect Edmonds taxpayers from future loss. He envisioned in ten years if there were a major slide and Triad was no longer involved, the burden would be on the taxpayer. He concluded it was the Council's responsibility to consider the City's liability and urged them to require a bond as protection for the City and taxpayers. Edmonds City Council Approved Minutes June 1, 2004 Page 8 Susan Matty, 1152 2nd Avenue S, Edmonds, commented she was not opposed or in agreement with what happened and would leave the decision to the Council. She commented on how the removal of the trees had affected her, explaining she purchased her property due to the setting, serenity, faint ferry horn and faint train whistle. She explained she now had a loud train whistle and could hear the train as it passed over the tracks. She noted she was not aware of what had occurred on the Pt. Edwards site until April when sleeping with the window open and she was awakened by the train whistle. She concluded this has taken away some of the serenity of her home. Paul Sorenson, 1045 3rd Avenue SE, Edmonds, commented he was the great-grandson, grandson, and son of the founders of Edmonds who owned five of the eleven mills in Edmonds and were responsible for removing trees in Edmonds although they later grew back. He found the Pt. Edwards project to be a great project that removed an eyesore and an environmental hazard that had existed since the 1920s. He recommended the Council accept the Settlement Agreement in recognition that what happened was an accident that occurred a year early. Christina Brown, 14107 NE 4th Street, Edmonds, commented she was the great-granddaughter, granddaughter and daughter of the founders of Edmonds. She liked the changes that had occurred in Edmonds over the past 50 years including the removal of the tanks on the Unocal site. She commended Triad for the improvements they have made to the property and efforts to enhance Edmonds. If a mistake were made, she recommended the City accept their offer and watch how wonderfully the site was transformed. Kim Bailey, 117 Olympic Avenue, Edmonds, noted this was not really improvements to the tank farm; although most agreed that was an improvement, that project had been approved. This was about the misconduct and violation by the contractor. She agreed a very clear message needed to be sent to contractors to obey their permits or there would be steep consequences. Bill Rengstorf, 621 Laurel Way, Edmonds, explained they moved to Edmonds to enjoy the nicest town in the State due to views of the water and Olympics. When he heard the tanks were being replaced with living space, he believed this would be a good thing for Edmonds property owners, recalling the community's battle with King County to make it a possibility. He acknowledged when Triad began their work, too many trees were removed and the City called foul. Triad admitted they were in error and offered to make good on the grievance. He referred to Triad's offer to replace the threatened, deciduous trees with a variety of evergreens and as a gesture of goodwill, partnership and neighborliness, donate $100,000 for the Beach Ranger Program and flower displays. He concluded Triad had worked faithfully as good partners with the City during design changes and their proposed offer demonstrated their continued effort to be fair and reasonable. He noted in the big picture, the new trees would be an overall improvement. He urged the City to move forward as neighbors in the nicest and fairest town in the State. Don Kreiman, 24006 96th Place W, Edmonds, recalled on November 15 he wrote his first letter to the Editor of the Enterprise concerned about loss of views and he attended ADB meetings with regard to this project. He provided the Council a Seattle Times article regarding what Triad had done in other communities including $100,000 to Wallingford to build steps to Lake Union, elevators for the disabled in the area and a viewing platform, amenities they were not required to provide. He noted when the ADB approved Triad's third design, he realized they were "pretty good folks." He noted this was not a good place for birds because there were few insects due to the volatility of the material that was previously in the tanks and on the ground. He urged the Council to accept the proposed Settlement Agreement and continue to be ever vigilant. He urged the Council to give Triad a chance, noting they were not trying to make excuses but were asking for forgiveness. Edmonds City Council Approved Minutes June 1, 2004 Page 9 COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER MARIN, TO EXTEND THIS ITEM FOR 60 MINUTES. MOTION CARRIED UNANIMOUSLY. Carla Nichols, 22440 Dogwood Lane, Woodway, commented she represented the Woodway residents who were the closest to this site. She commented on efforts to obtain $1.4 million in grants to purchase approximately 18 acres of urban wildlife habitat in Woodway and their reference in their grants to the connection between these trees and the marsh, thus she shared the Audubon's concerns regarding the impact this had on bird habitat. She recalled a letter she wrote to the City Council and Mayor Haakenson raising five concerns; three days later Mayor Haakenson delivered a great deal of information including the original geotechnical reports and geotechnical reports done after the tree cutting, reforestation plan, draft ordinance for increased fines, proposed Settlement Agreement, field reports, and descriptions of erosion control blankets. After reviewing the information her assessment of how her five points were addressed was as follows: • Replanting plan has more than just conifers — the plan provides for rich and diverse vegetation. and has deciduous and conifers as well as a wide variety of plantings that will provide different canopy levels for birds. • The Town of Woodway's arborist be allowed to review the reforestation plans — this was agreed to and a report will be provided to the City by Friday. • As the slope is connected to Woodway's slope and bluff, the stability of the slope is of utmost importance. After reading the report by Terra Associates, she called Shannon & Wilson, Burlington Northern's engineers who are the experts in the stability of these slopes. Upon inquiring regarding whether Terra Associates was a reputable firm, she was assured their geotechnical knowledge was well thought of throughout the community. Shannon & Wilson indicated if erosion control measures were in place and water was diverted off the site, it was stable as it did not have landslide debris similar to the Woodway slide. • Impact to birds and wildlife — a wildlife biologist report is being prepared as part of the DNR moratorium. She encouraged the City to incorporate the Audubon Society's recommendations. • With regard to the fines and Triad's offer to pay increased fines — Ms. Nichols commended Triad for their offer and the City drafting an ordinance that would increase the enforcement for any future situation. Ms. Nichols recommended the Council approve the Settlement Agreement. Laurie Dressler, 15714 75t" Place W, Edmonds, pointed out the reality was the trees were gone and bewailing the fact was not productive. The trees have been replaced with what would become a better habitat as well as better visually. She agreed a strong message should be sent which the proposed Settlement Agreement would do. She found the Triad's voluntary effort admirable and urged the Council to accept the Settlement Agreement. She thanked Pt. Edwards LLC for admitting their mistake and for their willingness to take responsibility Jan van Niel, Conservation Chair of Pilchuck Audubon Society, endorsed the issuance of strong penalties for future developers who did not follow the requirements of their permit. He pointed out this area, the Edmonds Marsh, the Edmonds Fishing Pier and the beach at Brackett's Landing were the cornerstone of the Cascade Loop for the Great Washington Birding Trail, a combined effort of Audubon, the State Department of Wildlife and State Department of Tourism to publicize this area as one of the prime eco-tourist places. He noted people came from all over the world to bird watch, an activity that was the fastest outdoor recreation exceeding the income communities receive from hunting and fishing. With regard to the short term of the bond Triad proposed, he urged the City to extend the bond to extend the maintenance and control of noxious weeds. He concurred with the improvements that resulted from the removal of the tanks and the associated environmental hazards, but pointed out the clean-up was Edmonds City Council Approved Minutes June 1, 2004 Page 10 required because of Unocal's contamination of the site and their responsibility to clean the site. He urged the Council to strengthen their rules and move on. Cheryl Bringam, 5528 151't Place SW, Edmonds, acknowledged a major error had occurred and a number of solutions had been proposed. She urged the Council not to lose sight of how the error took place and how to avoid it occurring again in the future. Roger Hertrich, 1020 Puget Drive, Edmonds, commented the reason for this public hearing was to reach enough of an agreement to lift the six year moratorium imposed by the State for violation of forestry practices. He preferred the donation offered by Triad be placed into a fund and only the interest spent. He found the time limit on the bond acceptable. He recommended as part of the Settlement Agreement, the City investigate the source of the water in the soil for summer growth and whether the construction uphill would interrupt that water; investigate slope failures referred to in the forestry report, and recommend Ross Wood be fired due to this error. He referred to the SEPA Checklist which did not refer to Puget Sound or ground water or slope failure, noting that the permit violation should make the Checklist null and void and require the process to begin again. With regard to views, he referred to one of the consultants' references to view corridors. He also commented on the destruction of eagles perching habitat, recommending artificial perching snags be provided. At Mayor Haakenson's request, Mr. Snyder responded to Mr. Hertrich's comment regarding the correlation of this issue with the moratorium. He read from Section 2.2 of the Settlement Agreement that nothing herein shall be interpreted to limit the discretion and/or actions of the Mayor, his delegated staff of the City Council with respect to the lifting of any moratorium imposed pursuant to and in conformance with the Washington State Forest Practices Act and the City's implementing codes and ordinances promulgated thereunder. Mr. Snyder explained the Settlement Agreement settled only the City's existing enforcement action which had $100 per day fines. As part of the moratorium, Mr. Bowman has ordered the production of a report by a wildlife biologist and the many citizen comments with regard to wildlife habitat would be relevant to that process. Mayor Haakenson clarified the moratorium had nothing to do with Council action tonight. He explained if the Council were to accept the Settlement Agreement, $50,000 of the $100,000 donation in the Agreement would go into a gift/rainy day fund established for the Flower Fund and $50,000 would be placed in a similar fund for the Beach Ranger program. John Quast, 15714 75t" Place W, Edmonds, acknowledged Pt. Edwards admitted their mistake. He described his visit to the site and his conclusion that the clear cut was not intentional as he was unable to see any economic gain from their action. He pointed out all indications were that Pt. Edwards wanted to make amends to the City and citizens and wanted to be good neighbors. He commented they had been good neighbors in the past, supporting the City's efforts to oppose Brightwater, and likely would continue to be good neighbors. He found their offer appropriate, fair, and timely. He reminded this project when completed would bring millions in additional tax revenue to the City, schools, fire, and hospital districts. He urged the Council to accept the Settlement Agreement tonight and "let's all be good neighbors." Finis Tupper, 711 Daly Street, Edmonds, commented he had participated in City land use issues in the past and had found it disturbing over the last 20 years the tendency of this administration and previous administrations to selectively enforce the Edmonds Community Development Code, one of the most inappropriate times to be unfair. He pointed out the Council had the duty and responsibility to uphold the City's regulations but also State statutes including SEPA and the Shoreline Management Act. He recalled when Mr. Bowman reported to the Council previously, he stated the City had become aware of the tree cutting actions at the Pt. Edwards site and that there were provisions in the code that required them to replace as many as three trees for each one cut. He noted this provision could only be found in Chapter Edmonds City Council Approved Minutes June 1, 2004 Page 11 18.45 but that had not been discussed this evening. He recalled Mayor Haakenson's letter to the editor that if one read the code more clearly, ADB projects were exempt. Mr. Tupper pointed out under exceptions there was a clause that stated ADB approved projects that were done in accordance with the approval was exempt. He referred to one of the first "Whereas" in the Settlement Agreement that states they violated their ADB approval. He noted their SEPA application indicated the arborist report was part of their ADB approval. He concluded the Council could not accept this Settlement Agreement without reviewing the standards and criteria in Chapter 18.45 and ensuring the Settlement Agreement satisfied those standards. One of the requirements was that this project be returned to the ADB for further review. He noted there was also a requirement in the City Code that no development occur for one year while this reforestation project was underway. He urged the Council not to ignore the code. Kevin Clark, 23924 107t" Place W, Edmonds, recalled his experience with a clear cut on the property adjacent to his backyard, noting that although he was one of the most angry NBMY's, he had been impressed by the developer of Woodway Highlands. He noted there was a 15-foot reforestation strip behind his house that had a three year maintenance requirement which the developer has maintained better than some neighbors who have done plantings. He disagreed with the concept of extortion, holding this developer hostage, noting that was not being good neighbors. He referred to the losses the developer would incur with a six month moratorium for the cutting of trees on their own property. He commended the leadership of the City and Mr. Snyder for crafting a Settlement Agreement that looked at all issues and made them fair. He cited a lecture by Abraham Lincoln that discouraged litigation and favored encouraging neighbors to reach compromise and stated that regardless of the winner, both were losers in terms of fees, expenses and wasted time. Mr. Clark believed the Council would do what was right to continue an environment where people could be forgiven. He noted the donation and increased fines were not a gift but recognition that they needed to make restitution beyond what was required by the law. Harry George, 22608 96th Avenue W, Edmonds, commented he did not have any particular background to bring to the story other than spending time with his family in the marsh area. He recommended Edmonds not just accept this as a mistake but investigate the code for necessary changes to ensure it did not happen again. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. With regard to comments about habitat, Mr. Grimm displayed a view of the Pt. Edward's site and surrounding area, pointing out a great deal of forested areas still existed. He explained consideration was being given to how to provide snags and their consultant would seek the input from the Audubon Society. With regard to the suggestion for citizen input, he welcomed input on the wildlife report and assured the Council they would be under close scrutiny as the project proceeded. With regard to the three year period, he noted quarterly reports would be provided as well as the three year bond. Landscape Architect Tom Ringsdorf explained they had been monitoring the reforestation for the past few weeks along with the City Forester and had reached very favorable conclusions with regard to the installation. With regard to survivability, he noted specifications for projects include a one year guarantee for plant material to cover decline/death during the first growing season. He anticipated a very high success rate for the plant material on the site due to the method of installation and its current condition. He noted three years was well within any monitoring standard for the small number of plants that may need replacement during that time. He noted this was a very diverse habitat and three years would more than meet any criteria for mitigation of a project of this scale. Mr. Grimm referred to the discussion by Mr. Pierce regarding economic value and assured there was no value to the removal of the trees as there was no increase in views from cutting below the 60-foot Edmonds City Council Approved Minutes June 1, 2004 Page 12 elevation and no value in the wood that was cut. With regard to comments about slides, particularly Woodway Mayor Nichols who relayed Shannon & Wilson's indication that the slide that occurred in Woodway was a different situation than exists on this site. He displayed a photograph of the very westerly boundary, noting the cutting was done on the other side of the trestle and tracks in this location still had trees intact, thus the highest area for slide potential was further from the tracks and closer to the lower yard of the Unocal site. With regard to train sounds, he noted the train sounds to adjacent property owners were likely increased by the removal of the tanks and once the condominiums were built, they would provide a sound barrier between the tracks and residences. With regard to several citizens' urging that the Council take a strong stand and send a message to developers that they couldn't get away with this type of activity in Edmonds, Mr. Grimm assured a strong message had been sent to the development community. With regard to the comment that on the one hand they were apologizing and on the other hand saying things were better, he explained both were correct. He assured they were sorry and did not want their explanation of what they were doing to undermine that apology, yet things would be better due to the reforestation they were doing to compensate for the problems they created by their mistake. He acknowledged although there was a short term loss, there was a long term gain from their restitution. Councilmember Dawson commented she did not want to place blame but asked how this had happened. Mr. Grimm explained they had a 60-foot line above which they could cut and replant after cutting; below the 60-foot line, they were not to cut until after planting was completed. He noted they began cutting on the northern side of the property and the cutting continued over a two month period as workers could not do other tasks on the site. He noted the cutting was due to a failure to follow the arborist report that was submitted a year earlier. Councilmember Dawson asked for clarification of whether they forgot they were only to cut a portion, thought they were able to cut the whole hillside, or bad instructions were provided to workers. Mr. Grimm acknowledged they forgot that they were supposed to plant before they cut before the 60-foot line. Councilmember Dawson noted that forgetting they were to plant a year in advance may not sound very credible to some people. Mr. Grimm agreed it was inexcusable, noting that apparently they were doing too many things at one time. Councilmember Dawson questioned whether the proposed Settlement Agreement was as far as they were willing to go or would be willing to incorporate citizens' concerns. She noted it appeared Pt. Edwards LLC was planning to do some of the things suggested by the public but they had not been incorporated into the Settlement Agreement. Mr. Grimm noted they had described things they were willing to do including snags and habitat. He noted the Settlement Agreement was not necessarily a take it or leave it proposition. He summarized they were not here to litigate, they wanted to resolve the problem, noting if they wanted to take a different approach, they would have proceeded to the Hearing Examiner. Councilmember Dawson expressed her hope that a compromise could be reached. She recalled a suggestion regarding the addition of perches and asked if Mr. Grimm would be willing to add that to the Settlement Agreement. Mr. Grimm answered he would, subject to the wildlife biologist's approval. He relayed her comment that providing perching in an area that eagles did not use previously may not be appropriate. Mr. Snyder reiterated Mr. Bowman ordered a wildlife biologist report as part of the moratorium process. He explained those issues were not discussed when the Settlement Agreement was drafted due to the assumption they would be part of the moratorium process. He noted staff was uncomfortable imposing requirements prior to the completion of the wildlife biologist's assessment. Councilmember Dawson asked what part of the site would be impacted by the moratorium. Mr. Snyder answered the moratorium would affect two of the buildings at the top of the slope out of a total of ten Edmonds City Council Approved Minutes June 1, 2004 Page 13 buildings. Councilmember Dawson questioned whether some of the issues that were addressed in the moratorium process such as the recommendations of the habitat consultant could be incorporated into the Settlement Agreement. Mr. Grimm explained they were interested in resolving the Settlement Agreement as soon as possible. The opportunity for input regarding wildlife was available via the moratorium process. He was uncertain whether they would be willing to retroactively include in the Settlement Agreement the requirements agreed to in the moratorium process. Councilmember Dawson inquired when the habitat consultant's report would be prepared. Mr. Grimm answered next week. Councilmember Dawson inquired whether Mr. Grimm would be agreeable to the Council delaying its decision on the Settlement Agreement pending the habitat consultant's recommendations. Mr. Grimm answered he did not have any objection other than the wildlife biologist's report was being conducted as part of the moratorium process which was not before the Council. With regard to independent consultants, Councilmember Dawson noted there was a saying among attorneys that you could hire an expert who would say anything. Although she assured she was not implying that was the case in this instance, a number of citizens would be more comfortable if an independent consultant reviewed the arborist report and the landscaping consultant's reports. She asked whether Mr. Grimm would be agreeable to someone suggested by the Pilchuck Audubon Society reviewing these reports. Mr. Grimm answered he would not object to an independent consultant reviewing the reports. He pointed out the consultant they used was accepted by the City at the beginning of this process and not someone brought in after the fact to push forward an agenda. He suggested to ensure the consultant was truly independent, he/she should be suggested by the City. He noted the Audubon raised a number of issues with regard to habitat which was not the issue before the ADB; neither the vegetation nor the arborist report addressed habitat. Councilmember Dawson presumed there was a reason for the requirement to replant before the trees were cut. She surmised that part of the reason was maintenance of habitat. Mr. Grimm answered at the 60-foot elevation the topography changed dramatically and the issue was slope stability. Arborist David Wright answered the main reason he stipulated pre -planting prior to removal of trees would be that in approximately one year a new stand of trees would have taken root and more importantly would provide erosion controls on the slope. He noted a new forest could not have been planted in the greenbelt without eliminating the blackberries that dominated the understory. By eliminating the blackberry and placing erosion controls in accordance with or exceeding best practices, a new stand of trees and understory would have had a year to establish which would have addressed the concern with erosion hazard. Councilmember Dawson observed Mr. Wright indicated the primary reason was for erosion control and asked if there were any other reasons. Mr. Wright stated that was their main reason. He acknowledged they were not habitat experts but their observation indicated the only wildlife on the site were crows, songbirds and squirrels. He noted they did not address habitat in their recommendation. He noted there were trees remaining on the site near the Burlington Northern right-of-way that needed to be pruned or removed. He concluded the only reason pre -planting was recommended was for erosion control. Councilmember Dawson asked whether Mr. Grimm had any objection to postponing Council action until the Woodway arborist concluded her review. Mr. Grimm answered he would not. Councilmember Dawson relayed Councilmember Wilson's preference for a 10-year performance bond rather than three years in an amount that represented 200% of the original materials and labor in a 10-year cash set -aside account. Mr. Grimm was agreeable to the percentage but found the three-year term of the performance more reasonable. Councilmember Dawson recalled the consultant's indication that three years was typical for mitigation they had done in the past. She asked what was typical and whether there had been other instances where Edmonds City Council Approved Minutes June 1, 2004 Page 14 mitigation was required for this type of clear cutting. Mr. Grimm answered this was typical as compared to landscape bonds the City required for a project's landscape plan. He noted if nothing had been done to the hillside, they would still have an extensive landscape plan throughout the project and once the landscaping was installed and approved by the City, typically a three-year or shorter bond was required. He noted the landscape bond required by the City for this project was two years and was not provided until the landscaping had been accepted by the City. He noted that would be for the landscaping in Phase l and not the landscaping in the reforestation as the reforestation would have a separate bond for a longer period of time than the City required. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO EXTEND THIS ITEM FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Councilmember Dawson relayed Councilmember Wilson's question whether Pt. Edwards LLC would be willing to provide written or oral monthly reports either to the Council or the Community Services/Development Services Committee. Mr. Grimm answered they would. Councilmember Moore inquired whether there were plans to control the noxious weeds referred to in the arborist's report. Landscape Architect Tom Ringsdorf explained the noxious weed plan was typically removing the Himalayan blackberries, then the native plants that were selected would reduce the prevalence of noxious weeds. Councilmember Moore asked whether noxious weed control would be covered by the bond. Mr. Grimm answered that the bonds were to ensure the survivability of the plantings which would include controlling the weeds but he did not believe the bond addressed noxious weeds specifically. Councilmember Moore inquired about wildlife restoration. Lori Anderson, wildlife consultant, advised she was contacted about two weeks ago at Mayor Haakenson's request that Pt. Edwards LLC retain a wildlife review. She noted she had no prior knowledge about the project and had been learning about the project during the past two weeks. She noted in some circumstances, there were wildlife restorations such as habitat improvements or mitigations when warranted. One of the most important things to do for wildlife was to get plants and trees growing, provide a diverse habitat and plant native plants which were being done. She noted there were other mitigations such as replacement of snags but unfortunately once all trees had been removed it was difficult to create a snag but for some birds such as raptors and bald eagles who may have been using the dead trees as places to perch, the snags were extremely important. One possibility may be constructing a perch structure to provide a perch. She noted one difficulty she had was that she had no knowledge of the habitat before the tree removal and replanting. She invited the community to contact her with specific data with regard to birds. Councilmember Moore inquired whether the risk for failure of the slope was greater now or could a slide have occurred before. Geotech John Sadler reiterated the tree cutting would not have a significant impact on slope stability with regard to deep seated failure. He noted the tree removal may have increased the potential for erosion which could cause shallow, superficial soil movement down slope; however, the bare soils that were exposed had been adequately mitigated with the installation of the erosion control measures. Council President Plunkett asked Mr. Bowman to describe his responsibility with regard to this project. Mr. Bowman explained as the Development Services Director he was responsible for building, planning and engineering and it was his responsibility to ensure any permit violations were enforced. Council President Plunkett asked whether the independent reviews Councilmember Dawson expressed interest in could be accomplished within 30 days. Mr. Bowman answered most likely they could. He explained the City would need to hire an independent geotechnical firm to review the geotechnical Edmonds City Council Approved Minutes June 1, 2004 Page 15 reports; one of the speakers, Gary Smith from the Washington Native Plants Association, had provided an independent assessment of the replanting. Council President Plunkett asked whether Mr. Bowman could return to the Council with the independent analysis in 11/z months. Mr. Bowman answered yes, likely sooner. Council President Plunkett inquired who would pay for independent review. Mr. Bowman answered that if the Council did not ask the developer, the City would pay for it. Council President Plunkett asked whether the Council could request the developer fund the independent consultants' review. Mr. Snyder answered there was no harm in asking. Mr. Snyder pointed out a less costly and much quicker process that the city frequently used was a peer review. Council President Plunkett asked whether Pt. Edwards LLC would pay for peer review. Mr. Grimm answered yes. Councilmember Moore inquired whether the moratorium applied only to the area where the trees were cut below the 60-foot elevation. Mr. Snyder answered the entire area including two buildings at the top of the slope was affected by the moratorium as was the city water line down the slope. He explained the Forest Practices Act was designed and intended to require people who clear cut to reforest to protect Washington forest lands. Councilmember Marin noted the Council may extend the deliberation to obtain additional reports. He asked whether Mr. Grimm would be willing to consider the report prepared by Mr. Smith and incorporate some of his suggestions in the Settlement Agreement. Mr. Grimm answered yes. Councilmember Dawson referred to Mr. Tupper's comments regarding Mr. Bowman's description of a 3:1 tree replacement. Mr. Snyder explained Mr. Tupper was referring to an exemption in Section 18.45.030.0 which exempts projects requiring ADB approval. He noted the ADB chapter and tree clearing chapters incorporate the same standards; the ADB applies the standards of the chapter. However the remedies of the chapter clearly apply only to violations of the tree clearing chapter. He noted the legislative record was very clear, he recalled reading to the Council a portion of the minutes when this chapter was originally approved regarding whether the tree clearing chapter covered all development to which Mr. Bowman answered only clearing done in anticipation of development. Councilmember Dawson recalled the penalties applied only for a short period of time and the maximum penalty was $10,000. With regard to the 3:1 tree replacement, Mr. Bowman explained that was the provision in Chapter 18.45 and 3:1 was a normal replacement ratio. Mr. Bowman reiterated this was not being enforced under Chapter 18.45 but under the ADB approval. Mr. Snyder noted only so many trees could grow in a certain area, therefore, it was more scientifically sound to follow the recommendations in the arborist's report to plant a variety of species with room to grow and establish themselves. He noted the 3:1 was a landscaping requirement aimed at signature trees in development, not a native growth or slope stability requirement. Councilmember Dawson asked whether there was any requirement to return this to the ADB. Mr. Snyder answered there was no provision for that type of review. He explained the City was using a code review provision that could only be initiated by the Mayor or Council because there were no residents within 300 feet. This was an enforcement process not a condition process. He noted the ADB established the landscaping provisions but did not enforce or provide mitigation. Councilmember Dawson asked whether there would be any value in returning this to the ADB when the developer was already doing what the ADB required but in a different way than originally required. Mr. Edmonds City Council Approved Minutes June 1, 2004 Page 16 Bowman answered this was being reviewed under an approved permit process; it would normally go to the Hearing Examiner with staff doing a review and the Hearing Examiner providing a decision. Councilmember Moore referred to letters received from citizens and concern with Triad no longer owning the site. She asked how many years Triad would own the property. Mr. Grimm answered 6-7 years depending on the economy and when the phases were complete. Mayor Haakenson inquired about responsibility for a slide in the future that impacted the railroad and Port property. Mr. Snyder answered the property owner, Burlington. Northern and the Port would be in court, not the City. He referred to citizen comments regarding responsibility running with the land, explaining that was not incorporated into the Settlement Agreement because the terms proposed were susceptible to completion within a period of time. After listening to comments, if the Council wished, the Settlement Agreement could require the control of noxious growth run with the land. He referred to a suggestion for a 20-year bond, explaining the City's ordinances typically provide for bonding and the amount is the value of replacing public improvements damaged should the slope fail. He noted if the Council wished it could require a bond for the replacement of public improvements. Council President Plunkett inquired about peer review. Mr. Bowman answered the City had a consulting geotechnical engineer that could review the geotechnical reports, the wildlife biologist Pt. Edwards retained could conduct the wildlife analysis and the report provided by Mr. Smith evaluated the replanting and included suggestions with regard to maintenance requirements that could be incorporated into the reforestation plan. Council President Plunkett suggested the Woodway arborist's report also be a consideration. Mr. Snyder suggested the wildlife biologist be hired under the City's Third Party contract. Councilmember Marin commented most of the City was extensively logged and in the 114 year history, this may be an unprecedented restoration project. He asked whether the City had ever required a developer to remove scruffy, diseased, non-native, noxious vegetation and replace it with native growth. Senior Planner Steve Bullock agreed this was by far the largest project constructed in Edmonds so almost everything was unprecedented. He noted smaller projects have been required to do wetland enhancements and other enhancement or mitigation projects but not to this scale. He agreed their proposed reforestation plan was very significant. Councilmember Marin agreed their proposal was significant and would provide habitat that was far superior to the existing habitat. Hearing no further Council questions, Mayor Haakenson remanded the matter to Council for action. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO EXTEND THIS DELIBERATION FOR APPROXIMATELY SIX WEEKS TO ALLOW THE REPORTS TO BE PREPARED AND PRESENTED TO THE COUNCIL. Council President Plunkett suggested the peer review of the geotech, report from the wildlife biologist, Mr. Smith's maintenance suggestions and Woodway arborist's review be presented to the Council at a public hearing on July 6, subject to the City reaching agreement with Triad regarding payment. He also suggested the draft Settlement Agreement be presented to the Council on July 20 for a public hearing. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO AMEND THE MOTION TO CONDUCT PEER REVIEW INCLUDING WOODWAY ARBORIST, SUBJECT TO REACHING AGREEMENT WITH TRIAD TO PAY FOR AN INDEPENDENT REVIEW, SCHEDULE A PUBLIC HEARING ON JULY 6 AFTER THE PEER REVIEWS ARE SUBMITTED AND THE DRAFT SETTLEMENT AGREEMENT BE PRESENTED TO THE COUNCIL AT A PUBLIC HEARING ON JULY 20. Edmonds City Council Approved Minutes June 1, 2004 Page 17 Mayor Haakenson inquired whether one public hearing would be sufficient. Council President Plunkett answered the two public hearings would allow the Council and public sufficient time to absorb the information provided at the July 6 meeting. Mr. Snyder pointed out the Settlement Agreement currently before the Council included a $1,000 day fine until certain actions took place. He assumed when staff reasonably believed the initial requirements imposed by staff had been resolved, they would issue an administrative determination that would stop the fines on that day. He noted the Council could not extend the time for this to come back and allow fines to continue to accrue. Mayor Haakenson suggested extending the hearing until June 8 to allow Pt. Edward LLC to meet with Mr. Bowman to determine what studies were needed and who would pay for the studies. He noted this would allow staff to estimate the timeline for providing that information to the Council. The following was added to the amendment: STAFF TO PROVIDE A REPORT AT THE JUNE 8 MEETING AND COUNCIL TO ESTABLISH FUTURE DATES FOLLOWING THAT REPORT. AMENDMENT CARRIED UNANIMOUSLY. MAIN MOTION AS AMENDED CARRIED UNANIMOUSLY. Mayor Haakenson advised the Council would meet on June 8 at 7:00 p.m. He then declared a brief recess. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO EXTEND THE MEETING FOR 45 MINUTES. MOTION CARRIED UNANIMOUSLY. Local Option 5. PRESENTATION ON LOCAL OPTION GAMBLING Gambling Administrative Services Director Dan Clements recalled at the Council's Strategic Planning Retreat there were suggestions regarding obtaining objective information regarding local option gambling. He advised representatives from the Washington State Gambling Commission were present to answer Council questions. Mayor Haakenson clarified at the Council retreat, Councilmembers asked questions about gambling. Staff did not have those answers, therefore, representative of the State Gambling Commission were invited to answer the Council's questions. Greg Thomas, Northwest Regional Manager, Washington State Gambling Commission, explained the Washington State Gambling Commission was a law enforcement agency covered by the State to enforce the provisions of the Gambling Act of 1973 and their mission was to protect the public to ensure gambling was legal and honest. He explained the Gambling Commission was created in 1973 to regulate and control gambling. They are governed by an independent Citizens Commission comprised of five members appointed by the Governor and approved by the Senate for six year terms. All revenues are derived from fees and they are a non -appropriated agency that is not part of the General Fund. Mr. Thomas described unique things about their agency including that by statute they could not limit the number of gambling licenses for an otherwise qualified applicant; they were the State authority for licensing and regulating of gambling with exception of the Horse Racing Commission and Lottery Commission. He enumerated the types of gambling they regulate — cardrooms (mini -casino), pull tabs, bingo, raffles, amusement games, co -regulation of tribal casinos. He noted there were five separate divisions within the Washington State Gambling Commission — field operations, licensing service Edmonds City Council Approved Minutes June 1, 2004 Page 18 investigations, special investigation, tribal gaming unit, electronic gambling and described the responsibilities of each division. Mr. Thomas described gambling occurring in Snohomish County, explaining there were five cardrooms in unincorporated Snohomish County, three in Everett, two in Mountlake Terrace, and five in nearby King County and Shoreline. He reviewed gross fiscal receipts for 2003 for cardrooms statewide ($250 million) and for Snohomish County ($28 million) noting this did not include tribal gaming. He explained gross revenue for 2003 for pull tabs totaled $475 million statewide and $61 million in Snohomish County, revenue for bingo totaled $119 million statewide and $12 million in Snohomish County and other activity totaled $30 million statewide and $1 million in Snohomish County for a grand total of nearly $900 million in gross gambling receipts statewide and $100 million in Snohomish County. Mr. Thomas enumerated local gambling taxes paid to cities, counties in 2003 — nearly $27 million for cardrooms statewide and $2.7 million in Snohomish County; over $15 million for pulltabs statewide and $2.3 million in Snohomish County; $1.3 million for bingo statewide and $112,000 in Snohomish County for a total of approximately $44 million statewide and $5 million paid to cities in Snohomish County. He reviewed the top five cities in Snohomish County in collection of gambling taxes — Everett $1.9 million, unincorporated Snohomish County $1.3 8 million, Mountlake Terrace $1.1 million, Lynnwood $246,000 and Marysville $1.52,000. He noted Edmonds collected $77,000 in pulltabs and $13,000 in bingo although the bingo establishment had since closed. Mr. Thomas reviewed allowable gambling tax rates for cardrooms, pulltabs and bingo, advising Everett's rate was 7.5% for cardrooms, Snohomish County's rate was 10% and Mountlake Terrace's rate was 5%. With regard to impacts, he referred to a study done by the Washington State Gambling Commission regarding the impact cardrooms had on local law enforcement for the period 1999-2001 which found there was an average of 20 law enforcement calls per cardroom per year, the number of calls varied depending on the size, location and other activities. He noted preliminary numbers from a similar, more recent study indicated about the same or slightly less law enforcement calls. Arlene Denniston, Staff Attorney, Washington State Gambling Commission, explained one of her duties was to bring administrative charges against licensees to deny, revoke or suspend their licenses. She referred to material provided to the Council that outlined what denials, revocations or suspensions were based upon. She stated she had been asked by Mr. Clements to provide pros and cons of gambling and impact on the city; she noted other sources of information for the Council included the Recreational Gaming Activity Association or local law enforcement, or the Liquor Control Board, and Washington Council on Problem Gambling. She referred to current and pending litigation involving gambling. She noted some studies show 3-5% of people who gambled were problem gamblers and there may be crime associated with that. For Councilmember Moore, Ms. Denniston explained State statute gave the Washington State Gambling Commission sole authority to regulate gambling and their mission was to keep gambling legal and honest. She noted the most recent decision in the Edmonds case was whether a city could zone gambling and Edmonds' ordinance with regard to regulation of gambling had since been repealed. Councilmember Dawson relayed Councilmember Wilson's questions regarding the proposed gambling initiative and how revenues would be distributed. Amy Blume, Administrator, Washington State Gambling Commission, explained I-892 would be regulated by the Washington State Lottery not the Gambling Commission. The way the initiative was proposed, revenue would be collected by the State with no option for taxing by local jurisdictions. Councilmember Dawson observed all revenues would be collected by the State General Fund. Edmonds City Council Approved Minutes June 1, 2004 Page 19 Councilmember Dawson relayed another question from Councilmember Wilson that Edmonds may have the worst of all worlds, it did not get the revenue from cardrooms but on its borders there were several cardrooms and the City likely was impacted by the associated negative affects. He asked whether any negative affects on the City had been observed. Police Chief David Stern answered no official data had been collected with regard to the impact of cardrooms in surrounding cities. His conversations with the Police Chiefs in those cities indicated the issues were primarily alcohol related, similar to issues that arose at any establishment that served alcohol to large numbers of people. He assumed Edmonds did get some spillover from that activity but exactly how much he was uncertain. Councilmember Dawson asked whether the number of law enforcement calls was higher, lower or the same as other alcohol -licensed establishments. Mr. Thomas answered they did not have any official data but anecdotal information indicated calls were similar to other establishments serving alcohol. Councilmember Orvis clarified there were two parts in the case Edmonds v. Edmonds Shopping Center Associates, a ban and other stuff. He noted the other stuff was struck but the ban was upheld therefore Edmonds continued to have a ban on gambling. Ms. Blume agreed, explaining cities may prohibit gambling but could not limit or regulate gambling. Councilmember Dawson explained Councilmember Wilson and she agreed it was not appropriate to have this discussion in a vacuum. She acknowledged no one particularly liked gambling necessarily; the only thing people may like was the revenue. She noted in the future the City would need to consider additional sources of revenue or substantial cuts — the question at some point would be which was the lesser of all the evils for revenue sources. She noted sources of additional revenue include increased property taxes, B&O tax, and gambling and a decision in the future would need to be which people disliked the least, not necessarily liked the most. She emphasized the ban on gambling could only be lifted at the behest of the citizenry via a public vote. She noted gambling was not anything anticipated in the near future, although depending on the outcome of initiatives, the City may need to discuss revenue and cuts in the near future. She concluded at some point the Council would need to make a decision between all the bad options for increasing revenue and needed all relevant information to make those decisions. Councilmember Marin, chair of the Highway 99 Task Force, recalled residents who attend their focus groups indicated they did not want gambling on Hwy. 99. Therefore neither the consultant report nor the Task Force's white paper included a recommendation for gambling. Councilmember Olson inquired whether having a lot of gambling places in one area diminished the return. Mr. Thomas responded there continued to be approximately 80 statewide, as one closed another opened. DNR 6. PUBLIC HEARING ON ORDINANCE NO. 3499 AN INTERIM ZONING REGULATION Moratoriums AMENDING THE PROVISIONS OF ECDC CHAPTER 20.100 TO ADOPT A NEW SECTION 20.100.050 RELATING TO DNR MORATORIUMS AND AMENDING SECTION 20.100.040 TO INTEGRATE MORATORIUM PROCEDURES WITH REVIEW OF APPROVED PERMITS Development Services Director Duane Bowman explained the Council adopted Ordinance No. 3499 on May 4, 2004, which established an interim moratorium to implement procedures for lifting moratoria associated with DNR Forest Practice Violations and set tonight as the public hearing. He pointed out the ordinance in the Council packet included several minor housekeeping revisions to clarify that the decision of the Director was an appealable staff decision. He recommended the Council adopt the amended interim ordinance and refer it to the Planning Board for review and recommendation. Mayor Haakenson opened the public participation portion of the public hearing. Edmonds City Council Approved Minutes June 1, 2004 Page 20 Roger Hertrich, 1020 Puget Drive, Edmonds, pointed out all references in the ordinance were to the Development Services Director. He referred to the wording in the ordinance relating to safety and esthetics, violations of any City permit, violation of City Code will be fully mitigated. City Attorney Scott Snyder explained the decision of any City official was required to have standards for the exercise of discretion. The issues Mr. Hertrich referred to were the issues he (Mr. Snyder) identified as those that should be reviewed prior to lifting the moratorium. Mr. Hertrich noted there was no requirement for a public hearing. Mr. Snyder explained this was notice required, a staff decision with a staff hearing and appeal to the Hearing Examiner. Mr. Hertrich pointed out moratoriums were important issues and should have a public hearing at the Council. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the hearing. Mr. Snyder reiterated staff's decision would be made after opportunity for public comment and the public had the right of appeal to the Hearing Examiner. Ord# 3504 Amenddinging COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO Ord# 3499 — ADOPT THE AMENDED INTERIM ORDINANCE (ORDINANCE NO. 3504) AND REFER THE DNR MATTER TO THE PLANNING BOARD FOR REVIEW AND RECOMMENDATION. MOTION Moratoriums CARRIED UNANIMOUSLY. 7. PUBLIC HEARING ON PROPOSED AMENDMENT TO CHAPTER 17.40.020 ALLOWING Historic BUILDINGS ON THE EDMONDS REGISTER OF HISTORIC PLACES TO QUALIFY AS Buildings HISTORIC BUILDINGS FOR RESTORATION UNDER THE CITY'S NON -CONFORMING RULES Planning Manager Rob Chave explained this amendment was requested by the Edmonds Historic Preservation Commission. The non -conforming provisions of the City's code have exceptions for building on the State and National Register. Now that Edmonds has a local register, the amendment would add building on the local register to the list of exceptions. Mayor Haakenson opened the public participation portion of the public hearing. There were no members of the public who wished to provide testimony and Mayor Haakenson closed the public participation portion of the hearing. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO DIRECT THE CITY ATTORNEY TO DRAFT AN ORDINANCE FOR APPROVAL ON THE NEXT AVAILABLE COUNCIL CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. E:�\i17 i �►[�19CK�7►� iu 191►YIE.y of July Chris Guitton, Chamber of Commerce Director, 1.012 Viewland Way, Edmonds, advised the celebration Chamber was in the midst of their fundraising campaign for the 4th of July celebration. He appealed to everyone to contribute and send donations to the Greater Edmonds Chamber of Commerce, PO Box 146, Edmonds 98020. He expressed their appreciation for the partnership with the City, Police Department, Fire Department, and Public Works. Gambling Warren Schweppe, 8524 2151" SW, Edmonds, commented the City needed additional revenue and Issues recommended the Council stop pontificating and moralizing about the affect of cardrooms on the City. He noted revenue from cardrooms would restore cutbacks in Police and Fire and eliminate the need for Edmonds residents to go to Mountlake Terrace. He noted Mountlake Terrace's Police Chief indicated Edmonds City Council Approved Minutes June 1, 2004 Page 21 they have had no problems with cardrooms and they collect over $1 million in revenue. The cardrooms have their own security and local police do occasional walkthroughs. He quoted Council President Plunkett as saying if we were to have a cardroom, we'd put it on 99. (Council President Plunkett clarified this comment on the following page). Mr. Schweppe preferred a location on the waterfront. He recommended the Council repeal the current ordinance against cardrooms, noting if there were problems, the cardrooms could be closed. Mary Jo Bevan, 19201 94th W, Edmonds, spoke in opposition to cardrooms. She referred to an Everett Gambling Issues Herald article about a town in the Mid -West who was sorry they allowed gambling due to the increased cost for police, increase in mafia-types, perverts, homeless, prostitutes, drug addicts, etc. as well as political problems including bribery, threats and forcing. She was opposed to the image of Edmonds being violated by gambling, pointing out efforts to construct a Performing Arts Center that would attract visitors and increase revenue for the City. She suggested the City explore parking meters as a source of revenue. Comprehensive Don Kreiman, 24006 96Ih Place W, Edmonds, encouraged the public to submit comments on the Plan Update Comprehensive Plan update. He noted issues being considered included increasing building heights, minimum first floor heights, Edmonds Crossing, design guidelines for builders, setbacks downtown, Hwy. 99 development, and the Downtown -Waterfront Plan. He noted the relevant documents were posted on the City's website at ]iitpJlwww.ci.edmonds.wa.us. Citizens could also request to be added to the mailing list by making a request of the Planning Division at City Hall, 121 5th Avenue N, Edmonds 98020 or calling (425) 771-0220. He encouraged the public to familiarize themselves with the issues and then inform the Planning Board and staff what they thought. The Planning Board could be accessed via email to Diane Cunningham at Cunninghamgci.edmonds.wa.us or Rob Chave at chave(&ci.edmonds.wa.us or contact him with questions at don3k(),cs.com or call him at the number in the telephone book. He urged the public to get involved. Betty Mueller, 209 Casper Street, Edmonds, expressed her opposition to allowing gambling in the Gambling Issues City. She recalled a petition that was circulated a few years ago that kept gambling out of the City and indicated they'd do it again if necessary. She recalled surveys they did of other cities on the negative aspects of gambling including drinking and driving, prostitution, increased suicides and increased domestic violence. She encouraged the City to contact other casinos to discuss what occurs in their parking lots. She urged the Council to not even consider gambling and to identify other ways of increasing revenue for the City. Council President Plunkett referred to Mr. Schweppe's quote, noting what he actually says to anyone who asks is, "People think we would put it on 99 when in fact it would go right in downtown Edmonds." Mayor Haakenson clarified gambling was illegal in Edmonds and no one had suggested that gambling be allowed. The Council only wanted to ask questions. 9. MAYOR'S COMMENTS Mayor Haakenson wished Council President Plunkett a Happy Birthday today. 10. COUNCIL COMMENTS Gambling Councilmember Dawson pointed out the only way gambling could be allowed in Edmonds was if a Issues majority vote of the people wanted it; the Council had no authority over the matter. Until a vote to allow gambling occurred, it would not happen. Edmonds City Council Approved Minutes June 1, 2004 Page 22 Councilmember Moore thanked everyone who came to testify and particularly Mr. Kreiman for urging s Tuesday— the community to comment on the Comprehensive Plan. She noted the first meeting on the fifth Tuesday Community would be held on June 29. She explained the Council would be present, staff and the Mayor would not, Outreach the meeting would not be televised and is intended as an opportunity for citizens to talk to the Council. With no further business, the Council meeting was adjourned at 11:10 p.m. G Y ENSON, MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes June 1, 2004 Page 23 AGENDA - EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 51h Avenue North 7:00 - 10:00 p.m. JUNE 11 2004 7:00 D.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 May 25, 2004. (C) Approval of claim checks #71420 through #71586 for the week of May 24, 2004, in the amount of $196,619.38. "Note: Information regarding claim checks may be viewed electronically at www.ci.edmonds.wa.us. (D) Confirmation of Mayor's appointments to Municipal Employees' Benefit Trust Plan Committee. (E) Authorization to call for bids for the Alder Street Utility Replacement and 2318t Place SW Storm Improvements Project. (F) Authorization to call for bids for the 2004 Street Overlay Program. (G) Proposed Ordinance rezoning certain real property located at 7023 and 7025 174Ih Street SW from Single -Family Residential (RS-20) to Single -Family Residential (RS-12). 3. ( 5 Min.) Proclamation in honor of Amtrak's Empire Builder 75th Anniversary Celebration, Friday, June 11, 2004. 4. (60 Min.) Public Hearing for City Council consideration of Point Edwards settlement agreement regarding tree cutting. 5. (20 Min.) Presentation on local option gambling. Page 1 of 2 CITY COUNCIL MEETING AGENDA JUNE 1, 2004 Page 2 of 2 6. (15 Min.) Public Hearing on Ordinance No. 3499, an interim zoning regulation amending the provisions of ECDC Chapter 20.100 to adopt a new Section 20.100.050 relating to DNR moratoriums and amending Section 20.100.040 to integrate moratorium procedures with review of approved permits. 7. (10 Min.) Public Hearing on proposed amendment to Chapter 17.40.020 allowing buildings on the Edmonds Register of Historic Places to qualify as historic buildings for restoration under the City's non -conforming rules. 8. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed as Closed Record Review or as Public Hearings. 9. ( 5 Min.) Mayor's Comments 10. (15 Min.) Council Comments ADJOURN 1 11 Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771-0245 with 24 hours advance notice for special accommodations. The Council Agenda as well as a delayed telecast of the meeting appears on cable television Government Access Channel 21.