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06/22/2004 City CouncilJune 22, 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 Jeff Wilson, Councilmember Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT Gerry Gannon, Assistant Police Chief Duane Bowman, Development Services Director Brian McIntosh, Acting Parks & Recreation Dir. Noel Miller, Public Works Director Kathleen Junglov, Asst. Admin. Services Dir. Rob Chave, Planning Manager Dave Gebert, City Engineer Darrell Smith, Traffic 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, FOR APPROVAL OF THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Marin requested Item E be removed from the Consent Agenda. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE REMAINDER OF THE CONSENT AGENDA. The agenda items approved are as follows: (A) ROLL CALL Approve t Minutes (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF JUNE 15, 2004. M Approve I(C) APPROVAL OF CLAIM CHECKS #71925 THROUGH #72144 FOR THE WEEK OF Claim Checks JUNE 14, 2004, IN THE AMOUNT OF $364,676.33. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #38380 THROUGH #38496 FOR THE PAY PERIOD JUNE 1 THROUGH JUNE 1.5, 2004, IN THE AMOUNT OF $1,057,932.39. Bulkhead (D) REPORT ON FINAL CONSTRUCTION COSTS FOR THE MID -WATERFRONT Project WALKWAY/BULKHEAD PROJECT AND COUNCIL ACCEPTANCE OF PROJECT. Edmonds City Council Approved Minutes June 22, 2004 Page 1 Resit 1066 (F) RESOLUTION NO. 1066 STATING THE INTENT OF THE CITY COUNCIL TO Sierra Place Right -of --Way VACATE A PORTION OF THE RIGHT-OF-WAY OF SIERRA PLACE AND STATING THE PRECONDITIONS FOR SUCH ACTION. Item E: Authorization for Mayor to Sign Public Agency Facilities Agreement Between Snohomish County and the City of Edmonds for Community Development Block Grants (CDBG) for Improvements at the South Snohomish County Senior Center. Councilmember Marin explained he pulled this item to abstain from the vote as he already had an opportunity to vote on this issue at the Snohomish County level as a member of the Policy Advisory Board. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER OLSON, FOR APPROVAL OF ITEM E. MOTION CARRIED (6-0-1) COUNCILMEMBER MARIN ABSTAINED. The item approved is as follows: CDBG Grants for Senior (E) AUTHORIZATION FOR MAYOR TO SIGN PUBLIC AGENCY FACILITIES Center Improvements AGREEMENT BETWEEN SNOHOMISH COUNTY AND THE CITY OF EDMONDS FOR COMMUNITY DEVELOPMENT BLOCK GRANTS (CDBG) FOR IMPROVEMENTS AT THE SOUTH SNOHOMISH COUNTY SENIOR CENTER. 3. SECOND READING: PROPOSED ORDINANCE OF THE CITY OF EDMONDS Olympic I WASHINGTON GRANTING OLYMPIC VIEW WATER AND SEWER DISTRICT A NON - view Water EXCLUSIVE FRANCHISE TO CONSTRUCT MAINTAIN OPERATE REPLACE AND REPAIR and Sewer District A WATER AND SANITARY SEWER SYSTEM WITHIN THE PUBLIC RIGHT-OF-WAY OF lym�Y 1 we f awl] a Do 11 y[1:aI�CI�ICI�A�►11711► i 1►[!/_�I Y i►y l �l�i�����f.��i�1L BECOME EFFECTIVE. City Attorney Scott Snyder explained this item includes an Interlocal Agreement with Olympic View Water and Sewer District regarding the collection of certain fees. As a result of past case law, Olympic View Water and Sewer patrons in the City of Edmonds did not pay the same water and sewer tax as City water and sewer utility patrons did; the Interlocal Agreement put both on the same level. The Franchise permits Olympic View Water and Sewer District to operate within the City of Edmonds like any other utility. He explained the reason the two were linked was rather than pay a franchise fee, under this ordinance Olympic View instead remitted that fee in lieu of tax which the Council authorized approximately one year ago. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF ORDINANCE NO. 3506. MOTION CARRIED UNANIMOUSLY. The ordinance approved reads as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON GRANTING OLYMPIC VIEW WATER AND SEWER DISTRICT A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A WATER AND SANITARY SEWER SYSTEM WITHIN THE PUBLIC RIGHT-OF-WAY OF THE CITY OF EDMONDS, WASHINGTON, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. Point Edwards 4. CONTINUED PUBLIC HEARING ON THE POINT EDWARDS SETTLEMENT AGREEMENT Settlement REGARDING TREE CUTTING. ADDITIONAL PUBLIC COMMENT WILL BE RECEIVED Agreement/ ONLY ON THE RESULTS OF THE PEER REVIEW RECOMMENDATION AND ANY Tree Cutting POSSIBLE MODIFICATIONS TO THE PROPOSED SETTLEMENT AGREEMENT. Development Services Director Duane Bowman explained this was a continued public hearing on a proposed Settlement Agreement between the City of Edmonds and Point Edwards LLC regarding the violation of their permit approval by unauthorized tree clearing on the upper yard area of the former Edmonds City Council Approved Minutes June 22, 2004 Page 2 Unocal property. He noted this matter was continued from the June 1, 2004, Council meeting to allow for additional peer review and the development of a three party contract to retain a wildlife biologist. He explained tonight's public hearing was limited to comments on the peer review and the proposed revised Settlement Agreement. He noted the Council packet contained the peer review reports as well as the draft revised Settlement Agreement. Mr. Bowman noted there were exhibits referenced in the draft Settlement Agreement that were not attached. He distributed Exhibit B, a letter he signed off in regard to compliance with his original letter of April 30, 2004, establishing conditions that needed to be complied with. He pointed out the letter also included the statement that it was subject to additional conditions that could be imposed by the Hearing Examiner or via a Settlement Agreement. He also distributed copies of Exhibit C, a compilation of additional conditions recommended by the geotechnical engineer and additional information identified by the arborist David Reich regarding the maple trees on the slope. If the Council accepted the Settlement Agreement, it would be revised to include all the exhibits and placed on a future Consent Agenda. Mr. Bowman summarized the additional requirements contained in Exhibit C, 1) permanent surface drainage improvements shall be constructed by October 1, 2004 on the upper edge of the slope, 2) the geotechnical engineer shall monitor conditions of the slope within 48 hours (or the first business day) following a significant rain event, defined as a % inch or more rainfall in a 24 hour period or other occurrences of significant surface water release such as a broken irrigation or waterline or flooding, 3) all monitoring reports prepared by the project geotechnical engineer shall be submitted in counterpart to the developer and to the City within three business days except in emergencies in which case the report shall be submitted within 24 hours, and 4) carry out the recommendations of the arborist David Reich regarding maintenance, pruning and management of remaining maple stumps and new epicormic shoots as specified in Site Inspection Report dated June 18, 2004. City Attorney Scott Snyder referred to a question Councilmember Wilson raised today regarding what standard should the Council use when reviewing the agreement. Mr. Snyder explained this Settlement Agreement was a resolution of the issues that could be raised at a permit review or revocation proceeding. Those provisions were contained in Edmonds Community Development Code (ECDC) Chapter 21.00.040 and provided a process where if conditions of permit approval have been violated, a process can be initiated to determine whether new conditions should be imposed. Only if those new conditions cannot mitigate the problem would a permit be reviewed. The Hearing Examiner is challenged to find, 1) whether deficiencies exist and 2) whether they can reasonably be corrected by imposing new or changed conditions on the permit. Mr. Snyder summarized the purpose of the Settlement Agreement was to cut to the chase and impose new conditions. Unlike the quasi judicial procedure, this negotiation has been reasonably cooperative. The Settlement Agreement incorporates all the recommendations of experts within their field of expertise, although he acknowledged there was some overlap. The Settlement Agreement also does a number of things the City could not do during a permit review or revocation process — provide $100,000 in payment for City programs, provide for ten times the fine on the City's enforcement process/mechanism (from $100 to $1,000 per day) and providing for the City's costs. He concluded the City was getting everything they would from the quasi judicial process without the potential for delay and appeal, reducing the cost and greatly increasing the cost the developer would otherwise be required to pay. Mr. Snyder explained there were a number of things the Settlement Agreement did not do. The Agreement did not resolve code violations but the violations Mr. Bowman cited have been corrected. The Settlement Agreement provides for ten times the normal fine for those violations. The Settlement Agreement also does not resolve the moratorium issue; the moratorium has been imposed by Mr. Bowman as required by the Forest Practices Act. He acknowledged the moratorium related to only two Edmonds City Council Approved Minutes June 22, 2004 Page 3 buildings in this project, pointing out the two buildings had a fair market value of approximately $20 million. He noted the value of the buildings was considerably in excess of the vast majority of development that occurs in the City, creating a significant hook for the developer. Mr. Snyder explained the moratorium process will continue to be important because one of the issues in lifting the moratorium will be to determine whether the conditions that have been imposed under the Settlement Agreement have reasonably restored the stability the slope had in its precut condition. He noted Buildings 6 and 7 would not be constructed for some time due to the moratorium. There was a linkage between the moratorium and the buildings in that they were within a critical area setback at the top of the slope. As part of the original process, the setback was reduced from 50 feet to 10 feet. The assumptions upon which that reduction were made must remain the same; the bluff must remain in the same relative position that it is today. Should these measures not be successful and the bluff retreats, the City has the ability to reopen the critical area process and detennine the edge of the bluff for siting the building. Mr. Snyder explained another process the City has and will use with respect to the slope is ECDC Chapter 19.05, the City's landslide subsidence process. This process had been in place for 20 years and has been successful in evaluating the impacts of development on or near steep slopes. He noted that process would proceed independently so when the slope is evaluated over the next 3-4 years, if it has been stabilized, the building permit should be issued and the critical area setback remain in place. If these measures are not successful and the slope has retreated, the City has a number of tools to evaluate that retreat. Mr. Snyder noted there had been one change in the indemnity agreement; negotiations concluded at approximately 5:00 p.m. today. The developer had been very forthcoming in inserting an indemnity provision so that the City would be indemnified from claims of third parties if the City were sued because of the Council's approval of this agreement. He explained he requested the indemnity agreement because, had the matter proceeded through the Hearing Examiner process, the City would have the protections of the public duty doctrine. He wanted to ensure the Council did not assume any liability for approval of this agreement via it being a Council decision. He noted the developer included the provision. he requested regarding third party claims but included a cutoff of December 31, 2010. He noted his concern that after the developer completed construction, there would be people with a significant investment at the top of the slope as well as their mortgagors who could potentially bring suit. He noted there was obviously a difference between having liability and being the subject of a lawsuit but he wanted to ensure the developer was responsible and took the burden of defense in those situations. He noted the developer agreed late this afternoon to remove the date shown on page 6 of the packet. Mr. Snyder summarized staff s recommendation was for the Council to approve the Settlement Agreement in principle subject to clarification of the exhibits, removal of the above date, and provision of a clean version on the Council's next consent agenda. Mayor Haakenson asked whether Exhibit C, Additional Requirements, was available to the public. Mr. Bowman answered this had not been displayed on the City's website. Mayor Haakenson clarified these were additional requirements and were part of the proposed Settlement Agreement. Mr. Bowman agreed, explaining these issues had been discussed since the Council's last consideration of the Settlement Agreement, receipt of the peer review and meeting with the developer and were issues that staff wanted incorporated into the Settlement Agreement and Point Edwards LLC agreed. Mr. Snyder clarified the public had seen the raw data from which these requirements were derived. These conditions were taken from the peer review and the expert information and attached to the Settlement Agreement. For the benefit of the audience, Mayor Haakenson read the four additional requirements (Exhibit Q: Edmonds City Council Approved Minutes June 22, 2004 Page 4 1. Permanent surface drainage improvements shall be constructed to prevent uplands runoff from flowing onto the slope. The completion of these drainage improvements shall be monitored as necessary by the project geotechnical engineer, Terra Associates, and shall be subject to the City of Edmonds approval. The drainage improvements shall be completed prior to October 1, 2004. A report from the project geotechnical engineer shall be submitted confirming that drainage improvements at the top of the slope are adequate to prevent runoff from flowing onto the slope. 2. The project geotechnical engineer shall monitor the condition of the slope within 48 hours (or the first business day following) a significant rain event, defined as 1/2 inch or more rainfall in a 24- hour period, or other occurrences of significant surface water release onto the slope, such as a broken irrigation or water line or flooding. 3. All monitoring reports prepared by the project geotechnical engineer shall be submitted in counterpart to Developer and to the City within three (3) business days, except in emergencies, in which case the report shall be submitted to Developer and the City as soon as reasonably possible thereafter and within 24 hours after the event in question. 4. Carry out recommendations of arborist David Reich regarding maintenance, pruning and management of remaining maple stumps and new epicormic shoots as specified in Site Inspection Report dated 18 June 2004. Mayor Haakenson opened the public participation portion of the public hearing, advising comments were limited to the peer review and revised Settlement Agreement. mended Carol Riddell, Edmonds, commented she was confused by the amount of information and 8i16/05 documentation being incorporated into the Settlement Agreement and changes made at the last moment. She expressed concern with paragraph 1.1.3 in the Settlement Agreement that retained the three year period for insuring the plantings. She referred to the geotechnical report which indicated that due to the lack of ground seepage and springs on the hill, they were concerned some of the plants might fail after three years and suggested the arborist reconsider whether the three year period was adequate. She referred to a two year irrigation period followed by a three year maintenance bond to ensure the plantings remained viable. She noted the geotech referred to the slope as a marginally stable slope that had been damaged by the cutting and to be returned to a previous level of stability would require a longer maintenance period for the plantings. She requested the Council consider that recommendation. She questioned why the wildlife biologist's recommendations were not incorporated into the Settlement Agreement. She expressed concern with the length (180 words) of the sentence in release clause 1.7 and requested the sentence be shortened to clarify the intent. Mayor Haakenson asked staff to address the wildlife biologist's report. Mr. Snyder explained the Settlement Agreement did not resolve the moratorium issues. When Mr. Bowman imposed the moratorium, he ordered a wildlife biologist report; because the wildlife biologist's recommendations include several items that will take time to establish such as converting existing trees to snags for wildlife habitat, he recommended those issues be handled via the moratorium process. Dell Lowell, 842 Dayton Street, Edmonds, commented the Council was fortunate to have a company like Triad who was willing to pay more than a fair price in this situation. He acknowledged there were issues and their timing was very poor, but what they proposed was more than what was necessary in that they did not cut trees they otherwise would not have been allowed to cut. He concluded Triad had gone the extra mile and he urged the Council accept the Settlement Agreement and conclude this matter. Rowena Miller, 8711 182nd Place SW, Edmonds, commented she was also confused. After reading the materials that were available, she had several questions including why the trees above the 60 foot elevation were excluded, why brushing of noxious weeds with pesticides and herbicides was referred to in the landscaping report when the Edmonds "Take Care of the Water" brochure encouraged eliminating the Edmonds City Council Approved Minutes June 22, 2004 Page 5 use of pesticides particularly near waterways, the difference between the moratorium process and the Settlement Agreement, and why recommendations in the Zipper Zeman Associates (ZZA) report were not incorporated into the Settlement Agreement such as the risk of future landslides caused by excessive water, use of a drip irrigation system to avoid risk from pipe breaks, sprinklers should be manually operated, insufficient period of time for irrigation, and the City's right to enter the property to independently monitor conditions. She expressed concern that not all the information was available to the public for review. She urged the City to take another look at the Settlement Agreement and be comprehensive, inclusive and detailed to ensure the City was held harmless in the long term. Mr. Snyder acknowledged staff did not prepare the exhibits and the exhibits were not all available prior to the Council meeting. He recommended the Council provide conceptual approval of the Settlement Agreement subject to confirmation that the requirements were specifically attached as exhibits to the Settlement Agreement. Susie Schaefer, 1055 Edmonds Street, Edmonds, expressed her appreciation for the peer reviews. She noted she was confused about the difference between the moratorium and the Settlement Agreement and discouraged the Council from approving a Settlement Agreement that did not address the wildlife. She noted there appeared to be some question whether the snags or perches would work without making the slope less stable. She questioned how the City could guarantee that the wildlife biologist's recommendations would be included if the Council approved the Settlement Agreement now. She reiterated her suggestion that a Citizen Advisory Committee be established to monitor the restoration. She questioned how the City's update of the Critical Areas Ordinance would impact this project. Roger Hertrich,1020 Puget Drive, Edmonds, provided documentation regarding a wetland at the top of the slope as indicated by the Brightwater EIS. He noted the ZZA report and their recommendations was excellent. He expressed concern that there was not enough reference in the Settlement Agreement to the recommendations in the ZZA report. He recommended the Settlement Agreement be delayed until the moratorium was resolved and that the wildlife biologist's recommendations be included in the Settlement Agreement. He commented the most important recommendation in the ZZA report was that the three year maintenance period was inadequate and their recommendation was a three year period after the irrigation was completed. He expressed concern with the lack of information available to the public on a timely basis. He relayed staff informed him the information was only available on the Internet although he recalled the Council requested information be available via the internet as well as paper copies. He suggested paper copies be available in the future to ensure the availability of information to the public. Don Kreiman, 24006 95t" Place W, Edmonds, commented Triad was spending $65 million on this development, a huge risk. The consequences of the Council's action would be that future developers of large projects would be deterred by the delays Triad encountered. He urged the Council, for Edmonds' future, to accept the Settlement Agreement, noting the developer had said they were sorry, offered things no other company was likely to do and were trying to fix their mistake as best they could. Chris Guitton,1012 Viewland Way, Edmonds, agreed that Triad was offering the City a fair settlement and it would be a bad precedent to make the company liable for issues that would likely exist anyway if they had met all the code regulations. He asked what difference would there be if all the code regulations had been met and one compared the situation that would have existed and the situation that will exist as a result of the Settlement Agreement. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing. Mr. Snyder referred to Exhibit 7 in the Council packet, a matrix of the recommendations and how they were addressed. With regard to the moratorium, Mr. Snyder explained part of his negotiating posture on Edmonds City Council Approved Minutes June 22, 2004 Page 6 the City's behalf was to refuse to include any reference to the moratorium in the Settlement Agreement because the moratorium was not being settled at this time. The moratorium was imposed in accordance with State law and when the City determined that precut stability had been restored via these measures, there would be a public process whereby Mr. Bowman would determine that precut stability had been restored and the moratorium should be lifted. Mr. Snyder assured Mr. Bowman's determination regarding the lifting of the moratorium was appealable to the Hearing Examiner and reviewable by Superior Court. Mr. Snyder explained the purpose of the Settlement Agreement was to impose reasonable conditions on the developer; whether the conditions worked would determine whether the moratorium was lifted. The Settlement Agreement was intended to impose new conditions that were not part of the original approval and were designed to return the slope to precut condition as well as incorporate the developer's offer of additional funds. He concluded there was no linkage between the Settlement Agreement and the moratorium on purpose; the moratorium was in effect and would be lifted in accordance with State law and City ordinance and if the public did not agree, they had the right to appeal. The monitoring of the wildlife measures, establishment of snags, etc. would take time and the moratorium lifting process would consider the efficacy of those measures. Mr. Bowman explained the city's normal bonding requirement was two years; in this case, the developer was offering a three year bond. He clarified the monitoring and watering would occur for three years, not two years of irrigation and one year of additional monitoring. With regard to Ms. Schaefer's question regarding the update of the City's Critical Areas Ordinance, Mr. Snyder explained the developer was vested under State law to the ordinances and law in effect on the date their application was approved, therefore, any changes to the City's Critical Areas Ordinance would not impact the project unless the slope failed and the critical area buffer at the top of the slope was not maintained. Fred Grimm, President, Point Edwards LLC and President and Founder, Triad Development, 2801 Alaskan Way, Seattle, advised many of the same experts available at the last meeting were here to answer questions including arborist David Reich, geotechnical engineer John Sadler, and landscape architect Tom Rengstorf. He referred to the rhetorical question regarding what the difference would be three years from now had they complied with the original arborist's report versus what was proposed via the Settlement Agreement, commenting as a result of their mistake the City would receive $100,000 for two programs as well as a fine of $78,000. He recalled under their permits they were to follow the arborist's report which allowed them the option to cut these trees in a year if they had planted this year. He noted if they had planted this year and cut next year in accordance with the arborist report, in three years, the forest would basically be the same as it was planted now. He noted the only thing the City has had to endure as a result of their mistake was a risk regarding the hillside due to the trees not being planted in advance which they were willing to indemnify the City against. He concluded their proposal was fair; they remained apologetic and humbled by it but they were anxious to move forward. Councilmember Dawson inquired whether the indemnification clause would be the same other than the removal of the time limitation. Mr. Snyder agreed, noting they would also work to reduce the length of the sentence referred to by Ms. Riddell. Councilmember Dawson clarified the indemnification clause would indemnify the City. Mr. Snyder agreed. Councilmember Dawson recalled discussion regarding the indemnification running with the land and the owners of the condominiums assuming the indemnification. Mr. Snyder advised that point was discussed in negotiations. He explained this issue was something the City could not impose via a condition review process and for that reason was something they negotiated toward. Councilmember Dawson clarified if Edmonds City Council Approved Minutes June 22, 2004 Page 7 they would not agree to it, the City could not make them. Mr. Snyder explained Pt. Edwards LLC agreed to indemnify the City but not to pass that obligation on to future property owners. As requested by Councilmember Dawson, Mr. Snyder explained the developer will indemnify — pay the costs and protect the City from any loss — from any claim from a third party that the City was negligent or did something wrong in executing the Settlement Agreement. They also indemnify the City from the cost incurred in developing the Settlement Agreement. The purpose of the indemnity agreement is to place the City in the same position they would have been before. If the City were sued based on the theory that the City did something wrong in approving the agreement, Point Edwards LLC would defend the City and pay any losses that were incurred. Councilmember Dawson questioned whether it was only Point Edwards LLC or any subsequent corporations. Mr. Snyder answered it was their corporate form as it existed today. He noted there were rules under State law regarding the ability to follow successor corporations. Councilmember Dawson referred to the public's confusion between the Settlement Agreement and the moratorium, noting it appeared issues related to wildlife would be addressed via the moratorium and questioned whether it was appropriate to address the soil stability issues via the Settlement Agreement. Mr. Bowman answered staff has attempted to incorporate issues in Exhibit C to the Settlement Agreement but there were also issues regarding slope stability in the moratorium. Mr. Snyder clarified the conditions to stabilize the slope such as hand watering, number of trees, etc. were in the Settlement Agreement. The long term issues such as monitoring and the efficacy of the conditions such as whether the plants survive and whether the slope was stabilized were subject to critical area review, the moratorium and Chapter 19.05 provisions regarding issuance of the building permit. He noted what they would do to correct the situation was in the Settlement Agreement; whether it worked would be determined by the critical area review, the moratorium and Chapter 19.05 provisions. Councilmember Dawson noted the condition from the ZZA report regarding timed watering versus hand watering was not incorporated into the Settlement Agreement. Mr. Bowman answered it would be added to the Settlement Agreement. Mr. Snyder referred to the Exhibit 7 matrix which indicated sprinkler systems should be operated manually. Councilmember Dawson observed the developer was indicating that was not something they were agreeing to. Mr. Bowman noted staff supported that recommendation from the peer review. Councilmember Dawson preferred hand watering be agreed to in the Settlement Agreement. Mr. Grimm advised their proposal did not include hand watering; the irrigation system has been installed and the consultants were satisfied. Councilmember Dawson requested one of the consultants address the recommendation in the ZZA report regarding slope stability and the potential for pipes to break and destabilize the slope. Tom Rengstorf, landscape architect, advised an automatic system was typically preferred over a manual system. He explained there was a master valve control and the valve would only activate when a clock told it to and it would turn off automatically by the clock or sensors. He pointed out the potential for human error with manual valves, concluding there was typically better, tighter control with an automatic system than with a manual system. Councilmember Dawson noted the ZZA report indicated the greatest short term risk to slope stability was leakage from sprinkler pipes or a break in the pipe system. Mr. Rengstorf noted there was no water in the system unless the valve was turned on by the clock. Councilmember Dawson asked if Mr. Rengstorf disagreed with the ZZA report. Mr. Rengstorf indicated his disagreement. Tom Zipper, Zipper -Zeman Associates, explained the issue he raised was related to the possibility of a break in the pipe and a timer automatically charging the system and allowing uncontrolled water to run Edmonds City Council Approved Minutes June 22, 2004 Page 8 out of the pipe. He was not familiar with the type of control Mr. Rengstorf described. Mr. Rengstorf assured it was not a sophisticated system; it was a valve controlled by a clock. He noted he had installed the same system on numerous other projects. He stressed the system would not work unless the clock turned it on; it could not fail because there was no water in the pipe until the master control valve turned it on. He concluded this was a safer mode than the manual mode that could be impacted by human error. Councilmember Dawson asked whether Mr. Rengstorf s explanation allayed Mr. Zipper's concerns. Mr. Zipper answered yes as long as vandalism or a fallen branch that resulted in a broken sprinkler head while the system was off did not charge the pipes. Mr. Rengstorf noted each zone was only on for 10-15 minutes. The major concern would be the whole pipe running all night. He noted there were velocity and moisture sensors that could determine when the system has been running too long. Councilmember Dawson referred to the ZZA report (page 20 of the packet, Item 3). It indicated they found no evidence to confirm the groundwater seepage identified in the City Foresters Inc. report of April 27, 2004, as well as the November 2002 report regarding groundwater seepage from elevation 100 feet to elevation 60 feet provides natural irrigation of the slope vegetation. David Reich, arborist, answered when they first walked the slope in 2002, there were obvious areas of significant seepage from perched water on the hill above. He believed that due to the effective hydroseeding and growth of grass, the new vegetation and reduced rainfall, the moisture was being consumed by the new vegetation and may not be apparent in the last two weeks. Councilmember Dawson inquired whether he believed there was sufficient groundwater seepage to continue to water the plants after the irrigation system was removed. Mr. Reich answered yes. He referred to the ZZA report, noting it would be foolish to attempt to stop the water running down the slope. Because of the steepness of the hillside, the trees did not benefit from rainfall hitting the root zone of trees. The trees that were there now and the trees that existed before benefited from a combination of perched water above and water runoff working its way down the hill and penetrating the slope. Councilmember Dawson noted Exhibit C contained an agreement to prevent the upland runoff from flowing down the slope. Mr. Reich emphasized the need to control upland runoff, explaining a system that detained water and slowly released it down the hillside was preferable to capturing the water and piping it away because the trees would lose the benefit. This issue was overlooked by the peer review. With regard to the surface runoff from the upland onto the slope, Mr. Zipper noted the Terra Associates as well as their field reports made the same recommendation. It was standard practice in a steep slope area to collect surface runoff and prevent it from running across the slope to prevent erosion. With regard to the groundwater seepage, he confirmed they saw no evidence of groundwater seepage. Councilmember Dawson asked if he would expect to see the groundwater seepage given the recent dry conditions. Mr. Zipper answered from the descriptions in the original November 2002 reports, it appeared there was a fairly well developed band of seepage; they did not see any evidence of that. He noted that may be an issue for future monitoring. Councilmember Dawson noted that may be an issue to be addressed in the moratorium process. Mr. Zipper agreed, noting if the trees were dependant on inner flow, the survival of the trees would confirm whether that inner flow existed. Councilmember Dawson asked whether any of the consultants had reviewed the Brightwater EIS with regard to the wetland. Mr. Grimm answered they considered it during the environmental review of the project. He was uncertain whether the arborist or geotechnical engineer had specifically reviewed the Brightwater EIS. Mr. Snyder advised the report was provided to the wildlife biologist. Councilmember Dawson inquired about the recommendation that the City be allowed to enter the property to make independent review was discussed during negotiations. Mr. Snyder answered long term monitoring of conditions would be handled via the moratorium process. Councilmember Dawson asked Edmonds City Council Approved Minutes June 22, 2004 Page 9 whether the City had the right via the moratorium process to enter the property or did Point Edwards LLC need to agree to it. Mr. Snyder noted the City had a great deal of leverage in the form of stop work orders to obtain entry as well as the ability to obtain search warrants if necessary. Councilmember Dawson inquired about the length of time for the moratorium. Mr. Snyder answered the key issue was restoration of precut slope stability. Councilmember Dawson noted there seemed to be some dispute with regard to the time it would take to determine the efficacy of the slope stability measures. It appeared the Settlement Agreement was the only way to ensure the long term stability of the slope and to ensure there would be effective monitoring past three years. Mr. Snyder noted the developer was making a $20 million bet, the fair market value of the buildings at the top of the slope, that these measures were effective. With regard to the tools the City had, he referred to Appendix 70 to the Uniform. Building Code regarding stability of hillsides, explaining that if there was significant sloughing that impaired the critical area setback, the City could reopen that process. Via the building permit provisions in Chapter 19.05, there would be an independent technical assessment of slope stability before building permits were issued. Councilmember Dawson questioned how the moratorium process guaranteed the slope stability if the reports indicated it would not be apparent beyond a three year period but the moratorium process was not envisioned to extend that long. Mr. Snyder noted those investigations and discussion would occur at the time consideration was given to lifting the moratorium and there would be two years of history. Councilmember Dawson noted the public wanted these issues incorporated into the Settlement Agreement as this was their opportunity to have the Council address the issues although she understood some may be more appropriately addressed via the moratorium process. With regard to the critical area setback process, Councilmember Dawson questioned who in the City had the ability to reopen that process. Mr. Snyder answered it could be triggered by staff and the Mayor, a vote of the City Council, or property owners within 300 feet. He noted there were few property owners within 300 feet other than the Port and Burlington Northern. Councilmember Dawson noted the public would have an opportunity via the Council to reopen the process. Mr. Snyder agreed, noting the reason the appeal was to the Hearing Examiner was because the Council could not express an opinion at this time and then hear the appeal. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO EXTEND THIS ITEM FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Mayor Haakenson declared a brief recess. Councilmember Wilson referred to Ms. Miller's question regarding the trees that were to be retained above the 60 foot elevation that were also removed, inquiring whether there was a replanting planned for those trees. Mr. Bowman answered the project landscape plan addressed the area above the 60-foot elevation. For the area below 60 feet, the arborist gave the option of leaving the vegetation or clearing if certain conditions were followed. The Architectural Design. Board's (ADB) approval included a landscape plan above 60-foot elevation and everything below the 60-foot elevation was indicated to be left alone. Councilmember Wilson noted the landscaping above 60 feet was addressed via the ADB`s review of the site landscaping. With regard to the wetland identified in the Brightwater EIS, Councilmember Wilson noted the wetland was .02 acres in size or approximately 871 square feet. He recalled the City Code did not regulate wetland below 2,500 square feet. Mr. Bowman agreed. Councilmember Wilson summarized the wetland did not meet the threshold for regulation and could be converted. Councilmember Wilson asked whether natural vegetation was a preferred alternative or a common practice used to stabilize a hillside. Mr. Sadler answered not specifically for slope stability but for Edmonds City Council Approved Minutes June 22, 2004 Page 10 erosion protection, which could impact shallow, superficial soils. Their studies indicated the slope was stable with regard to deep seated failure. The tree cutting resulted in localized areas of exposed soil that were susceptible to erosion; those areas were mitigated by the application of the erosion control blankets. Councilmember Wilson asked whether vegetation and the roots were used for stabilization as well as erosion control. He noted the erosion blanket was a short term solution to erosion to allow the vegetation to take root to stabilize the soils. Mr. Sadler answered the erosion blanket was not just short term; there were materials available that were extended term and some that were considered permanent. The product installed on this slope was an extended term that would biodegrade eventually. With regard to the irrigation system, Councilmember Wilson asked where the valve was located on the top of the slope and whether water remained in the lines after the system turned off. Mr. Rengstorf answered there was minimal water in the pipe between the master control valve and the sprinkler head and no new water entered the line. If a break occurred, only the residual water would flow out and not a continuous flow. Councilmember Wilson asked whether there were protections if there were a break in the line that prevented the master control valve from operating. Mr. Rengstorf answered there was a flow monitor that would monitor the flow in the line. Councilmember Wilson inquired about the system's cycle. Mr. Rengstorf answered it depended on the weather and moisture sensors in the ground but typically every 1-2 days, decreasing over time depending on the soils, plant materials, etc. Councilmember Wilson inquired about the impact to the slope if there was a break in the line. Mr. Rengstorf answered the impact would be less than minimal. He advised the master control valve was next to the water meter and was protected by a box. Councilmember Wilson referred to the difference of opinion regarding intercepting the flow at the top of the slope to reduce erosion and asked whether there was a way to intercept and meter out heavy flows. Mr. Sadler explained the intent was to collect all surface water and route it in a controlled manner to the toe of the slope; there was no intent to collect it and reintroduce it to the slope. He noted uncontrolled surface water runoff was a potential instigator of stability problems which they wanted to prevent. Councilmember Wilson referred to the conflicting testimony regarding intercepting water at the top of the slope and tightlining it off the slope and maintaining the use of the natural water. Mr. Reich agreed a massive sheeting of surface water was not desirable. There were two different situations; when the project was completed, it was not desirable to have water from pavement and rooftop flowing down the slope. He relayed a story of a system designed for a ravine in Seattle where in the course of designing the system they captured all the water and prevented it from benefiting the trees on the slope. The consequence was that several large maples slowly died over a two year period from water deprivation and subsequently fell in high winds levering massive amount of mud down the slope. He pointed out the importance of establishing a middle ground where enormous amounts of water sheeting off impervious surfaces from a finished development were prevented via standard drainage techniques but some upland rainwater and perched water be allowed to benefit the vegetation on the hillside over the long term. Mayor Haakenson requested Mr. Bowman explain the first requirement in Exhibit C. Mr. Bowman explained water from impervious surfaces in the development (driveways, rooftops, etc.) would be collected and drained away; the pervious surfaces would continue to flow in a natural direction toward the slope. Mayor Haakenson noted the requirement that permanent surface drainage improvements be constructed to prevent uplands runoff from flowing onto the slope would have been a requirement regardless of whether they cut the trees on the slope; it was highlighted in Exhibit C to protect the slope. Mr. Bowman agreed. Edmonds City Council Approved Minutes June 22, 2004 Page I I Councilmember Wilson expected water from impervious surfaces would be collected but wanted confirmation whether the natural flow could be metered or whether it was okay in its existing situation for natural ground water to flow down the slope. Mr. Reich agreed. Councilmember Wilson clarified the reports did not address the value of allowing natural flows to remain on the hillside, the reports only addressed intercepting water from impervious surfaces. Mr. Zipper recommended Terra Associates consider that in detail as some of the planned impervious surfaces would be pervious/undeveloped for the next few years. Councilmember Wilson referred to comments at the last meeting that a three year maintenance period was fairly typical, pointing out this was not a typical landscape plan using ornamental plantings but rather was a reintroduction of native species onto a slope. He questioned why it was believed a three year period was adequate. Mr. Rengstorf answered a one year warranty was fairly typical, Edmonds requires two years. In reviewing the plant material today and the amount of growth that occurred in the past months, he expected to see a very high success rate in two years and a nearly total success rate in three years. Councilmember Wilson asked for examples of other reforestation projects. Mr. Rengstorf referred to a wetland reforestation for the Auburn High School and early projects for Triad at Harbor Point where a three year monitoring/maintenance was acceptable. Councilmember Wilson asked if those were steep hillside environments. Mr. Rengstorf answered the Auburn High School site was but the Harbor Point site was not. Councilmember Wilson asked whether the three year survivability of the plant material was adequate. Mr. Rengstorf answered yes. Councilmember Wilson inquired about recourse if the Council agreed to a shorter timeframe and failure occurred resulting in action against the City. Mr. Snyder advised the developer was indemnifying the City from claims of third parties. The issue would likely be what caused the slide; the City was indemnified from the approval of this agreement which did not change the rules of liability between the developer and third parties. Councilmember Wilson clarified if a slide occurred onto the railroad tracks and BNSF as the property owner wanted to take action against the City, the City would be indemnified. Mr. Snyder answered yes, noting if the slide occurred because of the City's sole negligence such as a City employee caused the slide, the City would not be indemnified. Councilmember Wilson referred to the June 4, 2004 letter from Ross Woods and the statement that should it be documented jointly that the plantings do not achieve at least 80% survival for either deciduous or evergreen plants at the end of three years, all declining or dead plants shall be removed and replaced before the maintenance bond is released. He inquired whether there was an additional protection for the portion that was replanted. Mr. Snyder agreed they would be replaced but there would not be an additional maintenance period. Mr. Bowman noted the issue would be the volume of material that failed, sporadic or area -wide. Councilmember Wilson inquired whether the City had the latitude to address that issue. Mr. Bowman answered yes, particularly via the moratorium process. He did not suspect that would be a problem as the plant materials were native and many were drought resistant; if those plants survived three years, odds were they were well on their way. Mr. Snyder noted if the loss of plant material resulted in slope stability issues, the City had a number of tools to address slope stability. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO EXTEND THIS ITEM FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Councilmember Moore requested staff address the use of pesticides mentioned by a member of the public. Mr. Bowman explained limited application of herbicides was used to control grass that competes with the Edmonds City Council Approved Minutes June 22, 2004 Page 12 plant materials. Councilmember Moore asked whether noxious weeds would be controlled to protect the native species that have been planted. Mr. Rengstorf answered the Himalayan blackberry was most common and would be controlled. Mr. Reich advised the product would likely be Roundup; his recommendation was the grass be killed in a 12-24 radius around each new plant to avoid competition for water. He noted the spray should not pose a problem to any water. Councilmember Moore referred to the three year maintenance period and asked about the length of time that was anticipated for build -out of this development. Mr. Grimm answered it would depend on the market, but it could be seven years. Councilmember Moore asked what would be done when the three years had expired and before sellout with regard to the hillside and landscaping. Mr. Grimm answered they would continue to monitor it and take care of it and if a problem arose they would address it. They anticipated the amount of care and monitoring would be minimal. Council President Plunkett referred to the comments that insufficient materials were provided in an insufficient amount of time. He asked when the peer review information was posted on the website and how much of the peer review information was on the website. Mr. Bowman answered the information provided by the Town of Woodway and the ZZA report were posted approximately 1'/2 weeks ago and the wildlife biologist's report as well as the monitoring information was posted Friday. Council President Plunkett asked when all the materials were available to the public on paper. City Clerk Sandy Chase answered it was available Friday afternoon when the Council packet was provided to the Council. Council President Plunkett summarized approximately 80% of the information was available a week before and 100% of the information was available Friday on paper and on the website. He noted the information in Exhibit C was in the materials; Exhibit C was an extraction from the materials. Council President Plunkett acknowledged the Council received Exhibit C tonight. Mr. Bowman advised the Council also received Exhibit B tonight, the letter regarding having complied with his letter of April 30, 2004 that established five provisions regarding replanting subject to any additional conditions that may be imposed by the Hearing Examiner or via a Settlement Agreement. Council President Plunkett noted any Council action tonight with regard to the Settlement Agreement would be in a conceptual format and a final version with all exhibits would be available for public review on a Friday prior to a Tuesday Council meeting where the item would be scheduled for final Council action on the Consent Agenda. He noted the public could lobby Councilmembers to take the matter off the Consent Agenda for further discussion. Mr. Snyder agreed. Councilmember Dawson referred to comments from the public that they were told hard copies of the information were not available. Ms. Chase advised paper copies would have been available Friday afternoon. Mr. Bowman explained they typically charge for making copies, in this instance, he told Mr. Hertrich he would make copies of all materials for him to review at their office but Mr. Hertrich left without reviewing the materials. He also informed Mr. Hertrich that the information was available on the internet and that there is a terminal in the City Hall lobby where the public can access the internet. Councilmember Dawson asked whether there was staff available to provide assistance with accessing the internet. Mr. Bowman answered the receptionist at the front counter often assists the public. Hearing no further questions, Mayor Haakenson remanded the matter to Council for action. Councilmember Marin noted this was an instance where Triad made a mistake, acknowledged their mistake and accepted responsibility for their mistake and offered a good faith effort to restore the hillside. He recalled when the Council last discussed the Settlement Agreement, Gary Smith, Native Plant Steward, Washington Native Plant Society, provided materials which he asked Mr. Grimm to review to determine whether some of the items could be incorporated into the revised Settlement Agreement. He Edmonds City Council Approved Minutes June 22, 2004 Page 13 referred to the Native Plant Society's suggestion that 80% survivability was the target and Triad's indication that 80% was not an acceptable level, 100% survival was their standard. He noted he was impressed with that indication by Triad, pointing out this was not a company that was attempting to dodge their responsibility. He noted Triad had a substantial inherent incentive to protect the slope. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO APPROVE IN PRINCIPLE THE SETTLEMENT AGREEMENT SUBJECT TO THE FOUR CONDITIONS AND THE INDEMNITY LANGUAGE DESCRIBED BY MR. SNYDER AND BROUGHT BACK TO THE COUNCIL FOR FINAL APPROVAL OF THE SETTLEMENT AGREEMENT ON THE CONSENT AGENDA. Councilmember Orvis noted the primary question he asked himself was whether the developer had done enough to make up for the damage. He reviewed what the developer had done — paid six figures in fines, experienced months of delay, repaired the damage, paid to improve the site, paid for consultants to tell them how to make the site better, paid for consultants to review the consultant's reports, and then endure another public process to prove they did everything right in order to have the moratorium lifted. He concluded the City had extracted its pound of flesh and more importantly, improved the site. He expressed his satisfaction with the Settlement Agreement. Councilmember Olson remarked she was also impressed; not only did Triad go to such efforts but Mr. Grimm allowed the Council and the public to take pot shots at them. She summarized this was the kind of company everyone wanted to be doing business in Edmonds; if there was a problem, they would try to make it right. Councilmember Wilson expressed shock with the public testimony that appeared to indicate the City should forgive the errors of this development simply because of the value of the development, noting as a Councilmember, he could not do that. He appreciated Mr. Grimm appearing before the Council and answering difficult questions as well as the effort he has made to restore the site, noting the project would bring great value to the community. He pointed out the necessity for a developer to accept the consequences when an error was made. He commented on the Council's responsibility to ensure developers adhered to the City's regulations and understood the consequences of even unintentional errors. He disagreed developers would be dissuaded from building in the City as a result of this process. Although he did not agree with the Settlement Agreement in its entirety, Councilmember Wilson acknowledged it did address the issues that had been raised. He encouraged the Council to consider requiring a longer maintenance period such as five years and a cash set aside rather than a bond. He noted a bond cost the developer a nominal fee and could be a great source of aggravation for cities to collect on. He expressed his appreciation for the work that had been done, commenting the Settlement Agreement had done a great deal to reconcile the errors that were made. Councilmember Dawson agreed with the suggestion for a longer maintenance period, noting there were some other areas in the agreement she would have preferred be addressed differently. She pointed out the importance of remembering this was a Settlement Agreement, not the City making demands, it was two parties reaching a compromise. She noted there were likely issues in the Settlement Agreement that Point Edwards LLC did not necessarily want to do but it was a compromise. As Mr. Snyder indicated, the City had other tools to ensure the survivability of the replanting, wildlife issues, etc. She had confidence that if matters were not proceeding as planned, the moratorium would not be lifted. She acknowledged the buildings under the moratorium were only a percentage of the project but no one would profit without the completion of those last two buildings. She noted if Mr. Bowman lifted the moratorium and the public did not feel it met the proper standards, the decision could be appealed to the Hearing Examiner. She Edmonds City Council Approved Minutes June 22, 2004 Page 14 concluded that even though there were some issues that could be improved on in the Settlement Agreement in her opinion, this was likely the best the City would get at this point. MOTION CARRIED UNANIMOUSLY. Six Year 5. PUBLIC HEARING ON THE SIX -YEAR TRANSPORTATION IMPROVEMENT PROGRAM Transportation (TIP) AND PROPOSED RESOLUTION ADOPTING THE SIX -YEAR TIP AND DIRECTING THE Improvement Program SAME TO BE FILED WITH THE STATE SECRETARY OF TRANSPORTATION AND THE TRANSPORTATION IMPROVEMENT BOARD. Traffic Engineer Darrell Smith explained the State TIP requirements were governed by RCWs which required the City to update the TIP each year by July L. The TIP must contain all regionally significant projects the City planned to undertake in the next six years; Edmonds has traditionally included all transportation projects in the TIP. All jurisdictions' TIPS were then used to create a statewide TIP. Mr. Smith explained the TIP was financially constrained in the first three years; the last three years were not financially constrained because projects not identified on the TIP were not eligible for state and federal grant funding. He relayed staff s recommendation that the Council approve the Six -Year TIP, and adopt the resolution. Councilmember Marin recalled the in -lieu -of parking program had been abolished and staff presented plans to the Finance Committee regarding the use of the $140,000 in the fund. The Finance Committee recommended referring the issue to the Public Safety Committee for further discussion on specific projects. He suggested amending the TIP to add a line for citywide parking improvements in the amount of $140,000. Mr. Smith agreed that could be done. Councilmember Wilson asked in what years the funds for parking improvements would be allocated. Mr. Smith recommended allocating the funds in the first three years due to the availability of the funds. He stated there were a variety of parking improvements that could be undertaken, noting the actual improvement would require Council approval before it was made. Councilmember Wilson asked whether the expenditure would need to be reflected in the CIP. Mr. Smith answered yes. Development Services Director Duane Bowman noted the $140,000 in -lieu -of parking funds would need to be used for parking in the downtown area where the funds were collected. Mayor Haakenson opened the public participation portion of the public hearing. Roger Hertrich, 1020 Puget Drive, Edmonds, asked what type of parking improvements the funds from the in -lieu -of parking fund would be used for. He then referred to the Edmonds Crossing project on the TIP, questioning how much of the funds were City of Edmonds funds. He observed the signal at 9th & Caspers was delayed until 2008/2009, questioning why it had been delayed when a recent survey indicated that was the most dangerous intersection in the City and had the highest priority for a signal. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing. With regard to Mr. Hertrich's comments about Edmonds Crossing, Mr. Smith advised Community Services Director Stephen Clifton had been very successful in securing state and federal grants for the project. There was approximately $500,000 dedicated to the project from local funds which would likely Edmonds City Council Approved Minutes June 22, 2004 Page 15 be Edmonds as well as other local grant partners. It was his understanding that the RTID would contain approximately $160 million if the package were passed by a public vote. He noted Mr. Clifton has also identified other federal funding sources but he did not want to tie up those funds until the project became more likely with State matches. With regard to 9th & Caspers, Mr. Smith noted there were a variety of improvements that could be made to the intersection. The City's primary concern with that intersection is left turn movements onto 9th toward Caspers and off SR 524 southbound on 9th and speeds around the corner. He noted that project along with several others were delayed due to I-776. Councilmember Wilson pointed out with the exception of one signalization, all the projects on the TIP occurred in the last three years. Mr. Smith agreed they were scheduled in the last three years which were not financially constrained. Councilmember Wilson noted the only signal improvement in the first three years were at 9th & 220th due to the project on 220th. Mr. Smith agreed. Councilmember Wilson concluded if the City had more money, there would be more signal projects. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO APPROVE THE SIX -YEAR TIP, ADOPT RESOLUTION NO. 1067 AND AUTHORIZE THE RECORDING OF THE DOCUMENTS BY THE CITY CLERK WITH THE ADDITION OF THE DOWNTOWN PARKING LINE ITEM WITH $140,000 PLACED IN THE FIRST THREE YEARS. MOTION CARRIED UNANIMOUSLY. 6. AUDIENCE COMMENTS Ron Wambolt, 504 6t" Avenue S, Edmonds, commented Mayor Haakenson's column in the June 17 G°vernment n Beacon contained mastatements that matched his views includingthe current initiative driven b Tim Employees y t t y compensation Eyman that would reduce property taxes by 25% and the corresponding decrease in services. He would not support the initiative because he did not want his essential services diminished. He stated the tax reducing initiatives were succeeding because most taxpayers felt they were not getting good value of the taxes they paid. The reason taxpayers were not receiving the level of service they expected was not that they were not paying enough taxes, it was because too much of the taxes were consumed by excessive compensation packages for government employees. He provided an example of the newly hired Economic Development Director who was paid $91,000 and has only 5-6 years work experience. He commented in private industry positions with that type of salary required much more work experience. As the administration was not likely to lower the compensation of government workers, the solution was to have fewer government workers which could be accomplished and services maintained or increased without higher taxes via the consolidation of communities as described by Mayor Haakenson's column. He hoped it would not take a 25% reduction to encourage elected officials to consider that option. Rowena Miller, 871.1 1.82nd Place SW, Edmonds, responded to Council President Plunkett's comments regarding the availability of hard copies. She remarked staff was very helpful and has given her all the information that was available; the problem was some items were not available. She pointed out the public paid for hard copies and must request them before 4:00 p.m. Critical Areas, 7. WORK SESSION ON THE CRITICAL AREAS AND COMPREHENSIVE PLAN UPDATE Comprehensive Plan Update Planning Manager Rob Chave introduced Dan McShane, Stratton Group, the project geologist; Jim Keany, the lead scientist; and Mark Greenig, landscape architect and planner and project manager, EDAW. Mr. Greenig explained the Growth Management Act (GMA) directed jurisdictions to protect human health and safety and protect functions of natural systems. GMA requires the Critical Areas Ordinance be Edmonds City Council Approved Minutes June 22, 2004 Page 16 updated every seven years and mandates incorporation of Best Available Science (BSA) due to emphasis on anadromous fisheries. He noted the update process was coordinated by the Department of Community Trade and Economic Development (CTED). Mr. Keany explained critical areas were divided into five categories (per CTED guidance), wetlands, aquifer recharge areas, geologically hazardous areas, frequently flooded areas, and fish and wildlife habitat areas. He commented on the inherent conflicts between GMA and Critical Area Ordinances — GMA supports increased density within urban growth boundaries to reduce sprawl while Critical Areas Ordinances require protection of resources within urban growth boundaries. He reviewed human induced effects on aquatic systems both direct (habitat, flow regime and water quality) and indirect (energy transfer and biotic interactions) that result in a biological response. Mr. Keany explained the Edmonds Critical Areas update includes a critical areas inventory, comparative code analysis, BAS review, code revision and update and supporting SEPA analysis. He reviewed progress to date on the above tasks, noting the critical areas inventory, comparative code analysis and BAS review had been completed and the update was on schedule. He explained in the near future they would have work sessions with staff regarding changes to the code as well as opportunities for the public to comment, and Planning Board and City Council input in the process. He displayed and reviewed an aerial inventory map identifying potentially frequently flooded areas, streams and wetlands. Mr. McShane displayed and reviewed an aerial map identifying potential geologically hazardous areas, explaining the map was developed by EDAW using geologic mappings done in the Edmonds area and combined steep slopes, soil types and underlying geology that in some areas causes instability. Mr. Keany displayed and reviewed an aerial map of potential fish and wildlife habitat conservation areas which he noted included streams, a major change in how the City's code was organized. He reviewed issues associated with streams with and without riparian corridors. He noted there were functional streams within the City with intact riparian corridors usually within parks or steep ravines that had other critical area associated with them. There were other areas in the City where there were streams with no riparian corridor and lawns, driveways with bridges, etc. From this arises the question how the Code would deal with streams in built areas. He noted it was a matter of setting priorities, preserving the best existing habitat, and considering ways to preserve marginal habitat via restoration in some areas so that development was not totally restricted. The third type of streams were the totally degraded streams; CTED recommends not ignoring the worst streams but to seek opportunities at the time building permits were issued to enhance poor habitat. Mr. Keany displayed and reviewed the code comparison and BAS review for wetlands, geologically hazardous areas, frequently flooded areas, and fish and wildlife habitat conservation areas. With regard to wetland, he noted the classification system had changed; the City had a 3-tiered system and Department of Ecology (DOE) and CTED advocated a 4-tiered system. Another change with regard to wetland would be increasing the minimum size of wetland; the City's minimum is 2,500 square feet, most jurisdictions are 100-1,000 square feet depending on conditions. He noted the City was generally in compliance with regard to buffers, compensatory mitigation ratios, and general development standards but some minor changes would be made based on the new 4-tier wetland system. With regard to geologically hazardous areas, Mr. McShane noted the buffers in the City's Code were fairly consistent with BAS. In the evaluation, it was noted the City's geologic hazard areas were divided into four categories — erosion, landslide, steep slope, and landslide hazard areas — most other jurisdictions divide into three, including steep slope in erosion of landslide or both. He noted this was an area where a change may be made in the City's Code. Edmonds City Council Approved Minutes June 22, 2004 Page 17 COUNCILMEMBER DAWSON MOVED, SECONDED BY COUNCILMEMBER WILSON, TO EXTEND THE MEETING FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Mr. Keany reviewed minor changes that would be necessary to the Code with regard to frequently flooded areas and fish and wildlife habitat conservation areas. He summarized the update of the Critical Areas Ordinance would include a general reorganization to make the Code easy to follow, consistent code cross references, limited geologically hazardous areas categories, revised wetland classification and stream typing, retention of native vegetation on previously undeveloped parcels, flexibility for implementation with an assured outcome, non -regulatory incentives and education, protection of existing aquatic functions, priorities for enhancement of degraded habitats, administration implementation and Shoreline Management Plan integration. Mr. Keany reviewed next steps in the Critical Areas update including finalizing the BAS report, finalizing the revised code text, presentation to the Edmonds City Council and Planning Board, SEPA, and CTED approval. Councilmember Marin commented the update was an opportunity to learn a lot and improve the process. He encouraged the consultants to avoid unfunded mandates and ensure requirements were affordable. Councilmember Wilson noted the consultant's reference to BAS referred to CTED and DOE, asking whether that was the only interpretations for BAS. Mr. Keany answered there were hundreds of references regarding BAS; the best were in peer review scientific journals; there was also a great deal of information in government publications. He noted CTED also included thousands of references in their guidelines. He cautioned one could get lost in the minutia so they attempted to identify the information that was relevant to Edmonds. He pointed out BAS did not provide one answer because it depended on the question being asked. For example, the appropriate size for a buffer for a Class II stream depended on the goal and the need to protect resources and not totally restrict development. Councilmember Wilson asked whether the possible result could be an increase in residential density in other areas of the City to offset the loss of land for additional buffers and/or enhancements. Mr. Keany acknowledged that was a possibility. One of the issues the City may have to address in the Comprehensive Plan is the large lot zoning. If the City was trying to meet guidelines under GMA for density, the GMA Hearings Board likely will look to the large lot zoning. If there is no critical area mapping information indicating those large lots were zoned in that manner due to critical areas, a question may arise why there was large lot zoning. Councilmember Wilson asked whether a priority for enhancing a degraded habitat would be daylighting a stream at the time of redevelopment. Mr. Keany noted it would depend on the situation; daylighting was popular in urban areas, but often the benefit did not match the expenditure. He explained for urban streams, often a judgment is required regarding what can be accomplished. Not every stream in Edmonds would become a salmon -bearing stream but many could be enhanced to restore water quality, provide wildlife habitat, etc. Councilmember Wilson asked whether there was any new approach to addressing regulatory takings using BAS. Mr. Kinney answered BAS would not address takings; policy would address that. He noted what worked best was allowing a certain amount of flexibility in the Code to permit the planners to work with responsible developers to develop a plan. He reiterated the need to balance protection with. development. For Council President Plunkett, Mr. McShane explained the yellow areas on the geologically hazardous areas map identified primarily slope but also soil type. Council President Plunkett asked whether all Edmonds City Council Approved Minutes June 22, 2004 Page 18 properties depicted as yellow on the map would be treated the same. Mr. McShane answered they could be treated differently depending on the soil and the slope. He noted the initial assessment of the risk should be a fairly simplistic determination of how far one needed to go to ensure it was safe. Council President Plunkett asked whether the yellow areas on the geologically hazardous map could be designated as critical slope areas. Mr. Kinney answered the yellow areas identified slopes of at least 15% regardless of soil type. The area in red identified slopes of at least 40% and the green area represented the Meadowdale landslide hazard area. Council President Plunkett noted the City's development code addressed the Meadowdale landslide hazard area and the potential critical areas. He asked whether the green area on the map could be eliminated from the development code and the property addressed via the Critical Areas Ordinance. Mr. McShane explained the green area was identified separately due to specifics that are different in that area. He recommended retaining the extra diligence in that area. Mr. Keany noted regulations with regard to geologically hazardous areas could be consolidated into the Critical. Areas Ordinance rather than. contained in other areas of the Code. Councilmember Dawson referred to the comment that BAS depended on the question that was asked, but at some point policy decisions would need to be made. She questioned when the City Council would have an opportunity to provide further input. Mr. Keany explained tonight's presentation was intended to be an introduction to the process, resources and framework; staff did not expect input from the Council. He noted they planned to schedule a future work session with the Council. Mr. Chave commented when choices began to emerge, staff would report to the City Council and Planning Board, identifying areas where policy decisions would be required. He advised another public workshop would be scheduled prior to the work session with the Council. 8. MAYOR'S COMMENTS Mayor Haakenson had no report. 9. INDIVIDUAL COUNCIL REPORTS ON OUTSIDE COMMITTEE/BOARD MEETINGS Port District Councilmember Orvis reported the Port reaffirmed their commitment to the arts by passing an art policy. Community Outreach I Council President Plunkett announced the Community Outreach Meeting on June 29. seashore Councilmember Moore reported Councilmember Olson and she are the delegates to SeaShore Transportation p g Forum Transportation Forum; their recent meeting included discussion regarding Hwy. 522. Downtown Parking Councilmember Olson reported the Edmonds Downtown Parking Committee reviewed the 3-hour parking committee zones and discussed how to get Community Transit bus shelters in the City. Snocom Councilmember Dawson reported on SnoCom, advising Fire District 1 provided notice to SnoPae that they would be withdrawing and joining SnoCom as a contract agency. The City of Mukilteo also voted unanimously to withdraw from SnoPac and will join SnoCom as a member agency with one vote on the board. She reported SnoCom is in ongoing negotiations with Fire District 7. Snohomish County Councilmember Wilson reported Snohomish County Tomorrow did not meet this month and the Hwy. 99 Tomorrow Task Force did not meet. Edmonds City Council Approved Minutes June 22, 2004 Page 19 COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO used EXCUSE COUNCILMEMBER DAWSON FROM THE JUNE 15, 2004 COUNCIL MEETING. ence MOTION CARRIED (6-0-1), COUNCILMEMBER DAWSON ABSTAINED. munity Councilmember Marin reported in keeping with the Community Transit retreat's vision, "Think Transit ransit First," he had ridden approximately 50 buses in the past two months, uncovering a number of flaws and difficulties using public transportation. He planned to present a number of recommendations to the Planning, Market and Operations Committee in hopes some changes would be made to make public transportation more usable for Edmonds citizens. ealth Councilmember Marin reported the Health District was sponsoring the July 4 Aqua Sox game with the District theme, Strike Out Smoking, and he would be throwing out the first pitch. With no further business, the Council meeting was adjourned at 10:40 p.m. G H EN 19ON, MAYOR 1 Z, zz,-, - SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes June 22, 2004 Page 20 w AGENDA EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 511 Avenue North 7:00 - 10:00 D. m. J U N E 22, 2004 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 June 15, 2004. (C) Approval of claim checks #71925 through #72144 for the week of June 14, 2004, in the amount of $364,676.33. Approval of payroll direct deposits and checks #38380 through #38496 for the pay period June 1 through June 15, 2004, in the amount of $1,057,932.39.* *Note: Claims information maybe viewed electronically at www.ci.edmonds.wa.us. (D) Report on final construction costs for the Mid -Waterfront Walkway/Bulkhead Project and Council acceptance of project. (E) Authorization for Mayor to sign Public Agency Facilities Agreement between Snohomish County and the City of Edmonds for Community Development Block Grants (CDBG) for improvements at the South Snohomish County Senior Center. (F) Proposed Resolution stating the intent of the City Council to vacate a portion of the right-of-way of Sierra Place and stating the preconditions for such action. 3. ( 5 Min.) Second Reading: Ordinance of the City of Edmonds, Washington, granting Olympic View Water and Sewer District a Non -Exclusive Franchise to construct, maintain, operate, replace and repair a water and sanitary sewer system within public rights -of -way of the City of Edmonds, Washington, and fixing a time when the same shall become effective. Page .1 of 2 CITY COUNCIL MEETING AGENDA June 22, 2004 Page 2 of 2 4. (60 Min.) Continued Public Hearing on the Point Edwards Settlement Agreement regarding tree cutting. Additional public comment will be received only on the results of the peer review recommendations and any possible modifications to the proposed Settlement Agreement. 5. (20 Min.) Public Hearing on the Six -Year Transportation Improvement Program (TIP) and proposed Resolution adopting the Six -year TIP and directing the same to be filed with the State Secretary of Transportation and the Transportation Improvement Board. 6. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings. 7. (90 Min.) Work Session on the Critical Areas and Comprehensive Plan Update. S. ( 5 Min.) Mayor's Comments 9. (15 Min.) Individual Council reports on outside committee/board meetings. ADJOURN 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. The Council Agenda as well as a delayed telecast of the meeting appears on cable television Government Access Channel 21.