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01/20/1998 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES JANUARY 20, 1998 Following a Special Meeting at 6:45 p.m. to interview candidates to serve on the Arts Commission, the Edmonds City Council meeting was called to order at 7:00 p.m. by Council President Gary Haakenson in the Library Plaza Room, 650 Main Street. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Barbara Fahey, Mayor (arrived 7:16 p.m.) Gary Haakenson, Council President Dave Earling, Councilmember John Nordquist, Councilmember (arrived 7:08 p.m.) Michael Plunkett, Councilmember Jim White, Councilmember Dick Van Hollebeke, Councilmember ABSENT Thomas A. Miller, Councilmember ALSO PRESENT Lisa Shin, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Michael Springer, Fire Chief. Paul Mar, Community Services Director Arvilla Ohlde, Parks and Recreation Director Jeff Wilson, Planning Supervisor James Walker, City Engineer Rob Chave, Planning Manager Meg Gruwell, Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jeannie Dines, Recorder Mayor Pro Tem. Haakenson requested a discussion of the Thermo Imaging Camera be added to the agenda as Item 10A. Addition to COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER Agenda EARLING, TO ADD A DISCUSSION OF THE THERMO IMAGING CAMERA TO THE AGENDA AS ITEM 10A. MOTION CARRIED. (Councilmember Nordquist was not present for the vote.) Mayor Pro Tem Haakenson requested the order of Items 7 and 8 be reversed. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEMBER VAN Reverse HOLLEBEKE, TO REVERSE THE ORDER OF ITEMS 7 AND 8. MOTION CARRIED. Items 7 & 8 (Councilmember Nordquist was not present for the vote.) COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER WHITE, FOR APPROVAL OF THE AGENDA AS AMENDED. MOTION CARRIED. 2. CONSENT AGENDA ITEMS Councilmember White requested Item K be removed from the Consent Agenda. Edmonds City Council Approved Minutes January 20, 1998 Page 1 COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER EARLING, FOR APPROVAL OF THE REMAINING CONSENT AGENDA ITEMS. MOTION CARRIED. The agenda items approved are as follows: (A) ROLL CALL pprove (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF JANUARY 6,1998 Minutes (C) APPROVAL OF CLAIM WARRANTS #19474 THRU #22261 FOR THE WEEK OF DECEMBER 29, 1997, IN THE AMOUNT OF $454,055.66. APPROVAL OF CLAIM pprove WARRANTS #19487 THRU #22301 FOR THE WEEK OF JANUARY 5, 1998, IN THE arrants AMOUNT OF $217,327.45. APPROVAL OF CLAIM WARRANTS #19489 THRU #22594 FOR THE WEEK OF JANUARY 12, 1998, IN THE AMOUNT OF $136,873.78. APPROVAL OF PAYROLL WARRANTS #19149 THRU #19296 FOR THE PERIOD OF DECEMBER 16 THRU DECEMBER 31,1997, IN THE AMOUNT OF $324,442.09. Claims for (D) ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM REBECCA J. SMITH Damages (Amount Undetermined), AND GERALD H. McARTHUR ($105.00) findings of (E) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR A CLOSED actlwhal] File No. AP- RECORD APPEAL OF THE HEARING EXAMINER'S DECISION WHICH WAS HELD 97 -146 BEFORE THE CITY COUNCIL ON DECEMBER 6, 1997. (Appellant /Applicant: Winston Whall / File Nos. V -97 -113 & AP -97 -146; Property Location: 19808 77th Place West) Purchase Vehicle (F) AUTHORIZATION TO PURCHASE A VEHICLE FOR THE PARKS & RECREATION DEPARTMENT FROM THE WASHINGTON STATE CONTRACT surplus (G) AUTHORIZATION TO CONTRACT WITH JAMES MURPHY AUCTIONEERS TO ehicles SELL SURPLUS VEHICLES AND EQUIPMENT Prosecutor (II) APPROVAL OF PROFESSIONAL SERVICES CONTRACT WITH PROSECUTOR ontract JEFFREY GOODWIN SnoCom (1) APPROVAL OF INTERLOCAL AGREEMENT WITH SNOCOM RELATED TO STEVE Interlocal PERRY'S SERVICE AS DIRECTOR Ord. 3185 — (J) APPROVAL OF INDIVIDUAL CONTRACT OF EMPLOYMENT AND SALARY fir. of ORDINANCE NO. 3185 RELATED TO STEVE PERRY'S SERVICE AS DIRECTOR OF SnoCom SNOCOM rd. 3186 Compress. (L) ORDINANCE NO. 3186 AMENDING THE PROVISIONS OF EDMONDS CITY CODE Brakes SECTION 8.32.050, PROHIBITING COMPRESSION BRAKES, TO PROVIDE AN EXEMPTION FOR EMERGENCY VEHICLES Item K: Proposed ordinance amending the provisions of Edmonds City Code Section 5.46.050. Use of Skateboards. Roller Skates. and Similar Devices - Restricted, regulating the unlawful use of skateboards on City streets and certain sidewalks Councilmember White explained the Public Safety Committee addressed this issue late last year as it is against the law to skateboard, scooter, roller skate, etc. on any public street in Edmonds. Following a "near- miss" auto accident, the police informed residents that skateboarding was not permitted even on the block -long cul -de -sac. Approximately 30 citizens participated in the discussion at the Public Safety Edmonds City Council Approved Minutes January 20, 1998 Page 2 Committee, including skateboarders of various ages. Police Chief Robin Hickok, City Attorney Scott Snyder, and the Public Safety Committee drafted a new ordinance which excludes certain areas from skateboarding such as steep hill terrain and most of the downtown core. By default, this leaves the rest of the City open to skateboarding. He pointed out the ordinance also includes a definition of negligent operation of a skateboard. COUNCILMEMBER'WHITE MOVED, SECONDED BY COUNCILMEMBER EARLING, FOR ADOPTION OF CONSENT AGENDA ITEM K. MOTION CARRIED. (Councilmember Nordquist was not present for the vote.) The item approved is as follows: Ord. 3187 (K) ORDINANCE NO. 3187 AMENDING THE PROVISIONS OF EDMONDS CITY CODE Use of SECTION 5.46.050, USE OF SKATEBOARDS. ROLLER SKATES, AND SIMILAR Skateboards DEVICES - RESTRICTED, REGULATING THE UNLAWFUL USE OF SKATEBOARDS ON CITY STREETS AND CERTAIN SIDEWALKS 3. AUDIENCE Jim Curley, 18606 88th West, Edmonds, expressed concern with water safety and recreational use of Water Safe the water. He referred to three articles in the Bremerton Sun regarding water safety in Edmonds but did Park rwater not appear in a local paper. He recalled two incidents that occurred off Edmonds in which individuals were in the water for approximately 20 minutes before being rescued; one individual survived and one did not. He recalled Mayor Fahey stated the City is not responsible for safety enforcement and was surprised when Fire Chief Springer said Edmonds did not have a rescue boat. His understanding was that the City had a rescue boat and the only question was funding. Mr. Curley submitted the Bremerton Sun articles to the City Clerk. Al Rutledge, 7101 Lake Ballinger Way, Edmonds, said the City needed a north -south "free lane" and east -west "spot" lane down 5th Avenue and should eliminate the 4 -way stop at Walnut Street to increase traffic flow. He reported the Friends of Athletics will meet on Thursday, January 22 at the Anderson vends of Center to discuss the $15 million request for athletic fields as well as to discuss the upcoming school thletics levy. Roger Hertrich, 1020 Puget Drive, Edmonds, expressed concern with the possibility of a conflict of Purchase of interest regarding the Waterfront Park Associates. He said the partners of Waterfront Park Associates to Tidelands whom the $80,000 was paid as a result of a lawsuit with the City should be a matter of public record. The settlement was for a party wall; the Council's packet refers to the party wall settlement but not what the payment was for. He also questioned whether a precedent was established by Native Americans who used the beaches as trails and whether that precedent would continue to allow public access across all beaches. He also requested the City Attorney address the Public Trust Doctrine. City Attorney Scott Snyder advised these issues would be addressed during the public hearing. Rich Demeroutis, 921 Pine Street, Edmonds, thanked the City for attempting to expedite the Thermo Purchase of Imaging Camera contract so that firefighters could begin using it as soon as possible. He referred to City Tidelands Attorney Scott Snyder's discussion of the City's proposed purchase of tidelands and his statement that the parcel was taxed as one parcel, not as uplands and tidelands. Mr. Demeroutis said the assessor's worksheet lists two parcels, one at $40 per square foot (26,335 square feet) and the second marked as cleared and tideland at 200 front feet at $40 a foot. He entered the assessor's worksheet into the record. He read from a letter he received from the Snohomish County's Assessor's Office regarding tideland value that states when no direct sales data is available, a rule of thumb, accepted by most appraisers and Edmonds City Council Approved Minutes January 20, 1998 Page 3 agencies, is to establish the tideland price at 50% of the adjoining upland rate. This usually occurs when the contiguous tideland and upland areas are owned or used by the same party. In this situation, the tidelands have value due to their utility in relation to the owner or tenant's upland property. In the case of a lack of abutting upland ownership or tenancy, the tidelands have considerably less utility to the possessor and a resulting significant decline in value. Most of the time, the tideland unit price does not exceed 10% of the upland rate in this incidence. He entered this letter into the record. Mayor Pro Tem Haakenson recognized Snohomish County Councilmember Gary Nelson in the audience 4. REPORT ON COUNCIL COMMITTEE MEETINGS (Mayor Fahey arrived at the meeting at this time.) Community Services Committee Committee Member Plunkett reported Councilmember Van Hollebeke was elected as Chair. Meeting Community format and upcoming issues were discussed and 1997 reviewed. The Committee briefly discussed the Services upcoming hearings related to the proposed increase in sanitary sewer and stormwater rates. Mr. Mar Committee reported the groups he has spoken with consider the proposal to be fair and equitable. Mr. Mar was asked to keep the Committee informed. In response to constituents, Councilmember Van Hollebeke brought up the possibility of smaller striping in the BC zone to increase the number of vehicles that could park in the area. This issue was discussed and no action was taken. A new subdivision on Olympic View Drive and 180th, processed by Snohomish County, was discussed. This development has 28 single - family homes and is more dense than Edmonds' standards allow. Staff is investigating the situation and will prepare a response to Snohomish County. Finance Committee mance Chairperson Earling reported the Finance Committee discussed the purchase of a Street Division vactor Committee replacement. Staff was asked to research several items and return to the Finance Committee in February. The Committee recommended the purchase of a Parks and Recreation car which was approved on the Consent Agenda. The purchase of four 1 -ton flatbed trucks was also recommended for approval which was to have been placed on tonight's Consent Agenda. The City's Bond Council recommended the refund of Water /Sewer bonds due to declining interest rates which would save the City approximately $118,000. Staff will make a report at the February meeting regarding refinance of 1993 General Obligation Bonds. Public Safety Committee Committee Member White reported Councilmember Nordquist was selected as Chairman. Fire Chief Public Springer gave his monthly report on Emergency Medical Services. Assistant Fire Chief Taylor requested Safety the ordinance banning compression brakes be amended to exempt emergency vehicles. The Committee Committee recommended approval of the proposed ordinance and it was approved on the Consent Agenda. The interlocal agreement and individual employment contract and proposed salary ordinance related to Steve Perry's service as Director of SnoCom was discussed. The skateboard ordinance, which was discussed previously, was approved on the Consent Agenda. The contract between the City and the Fire Foundation regarding the thermal imaging device was added to tonight's agenda. Discussion followed regarding the new half -time animal control position that will allow parking enforcement to be done on a full -time basis. Councilmember Earling noted the parking and animal control position was forwarded to the Finance Committee who will review the issue at their February meeting. Edmonds City Council Approved Minutes January 20, 1998 Page 4 Council President Haakenson observed several Councilmembers indicated they did not receive the Fcomplete packet for Item 8 (Closed Record Appeal of the Hearing Examiner's decision to deny an appeal of the Planning Division's decision to deny the proposed short subdivision of the property located at 17619 76th Avenue West). City Clerk Sandy Chase advised the first packet was delivered at Council Committee meetings. The Friday packet included a request that the information provided on Tuesday be brought to tonight's meeting. Councilmember White said he received a copy from the City Clerk's office today which he had an opportunity to review. Councilmember Nordquist said he did not receive the packet but would be willing to step down from the discussion. Council President Haakenson suggested this item be postponed until January 27 to ensure the Councilmembers who did not receive the information had an opportunity to review it. City Attorney Scott Snyder advised the Council could hold the hearing and allow audience members to provide testimony but postpone its decision until next week. Council President Haakenson advised the Council would hold the hearing and postpone its decision until January 27, 1998. 5. PRESENTATION BY EDMONDS SCHOOL DISTRICT REGARDING SCHOOL LEVY AND School Levy BOND and Bond Bret Carlstad, Edmonds School District Planning and Property Manager, distributed information regarding the Replacement Maintenance and Operation Levy and School Construction Bond. He explained the election on February 3 includes Proposition 1, the Replacement Maintenance and Operation Levy and Proposition 2, a School Construction Bond. The Replacement Maintenance and Operation Levy funds approximately 20% of the district's budget for general operations including staff salaries, textbooks, extra - curricular programs, etc. It renews the basic educational funding and, as a result of HB 4208 the School District is allowed to extend the levy from two years to four years. The Replacement Maintenance and Operation Levy is required to maintain programs, renews for four years, restores cuts made in the past, and increases the levy by approximately $2 million over the four years. He reviewed the information contained in the materials he distributed including the ballot title, school district funding and the tax rate associated with the levy. He explained funds from the $72.25 million School Construction Bond will allow replacement of five schools and health, safety, and technology improvements of 24 schools including replacement or remodeling of Chase Lake and Meadowdale elementary schools, Maplewood Center, Cedar Valley, Terrace Park and Maplewood K -8 schools, as well as other capital improvements. This bond continues the work that has been ongoing as a result of the last two voter - approved bond issues such as Seaview Elementary School, Edmonds - Woodway High School and Meadowdale High School. Mr. Carlstad explained Proposition 1 and 2 are separate issues that require separate votes. He explained on a home with an assessed valuation of $100,000, the current voter - approved tax rate is $414 per year; the proposed rate is $501 with passage of both issues. He displayed the per $1,000 tax rate with approval of both propositions for the Edmonds School District ($5.01), and for Northshore School District ($5.98), Everett ($6.59) and Shoreline ($6.90) with their ballot issues also being approved. David Schaefer, Citizen Co- Chair, looked forward to the cooperation between the City and School District on joint projects and use of facilities. He also looked forward to the Council's endorsement as has been provided in the past. Councilmember Earling said the improvements currently under construction and completed projects, have improved the potential learning experience for students. Although no one likes increased taxes, he Edmonds City Council Approved Minutes January 20, 1998 Page 5 pointed out the current students are the future. He asked the Council to support a motion to develop a resolution in support of the Levy and Bond for approval on the Consent Agenda. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCIL PRESIDENT HAAKENSON, TO SUPPORT THE BOND ISSUE. MOTION WITHDRAWN. City Attorney Scott Snyder said State Statute prohibits the Council from using public funds to support any ballot issue once the matter has been scheduled for an election. The Council can pass a resolution taking a position, but must first allow an opportunity for public comment in favor and in opposition to the resolution. Councilmember Earling requested Council President Haakenson schedule this item on the January 27 agenda. Councilmember Earling thanked David Schaefer for his involvement with schools. Mayor Fahey thanked Mr. Carlstad and Mr. Schaefer for their presentation, noting this would assist in informing citizens. She stressed the replacement levy would continue operation and maintenance which is critical to the quality of schools. She pointed out unless voters supported the levy, there would be no additional funds for operation and maintenance. She pointed out the new high schools indicate the excellent job of planning and construction done by the School District. She encouraged the public to vote in favor of the bond issue. Mr. Carlstad clarified there was an approximately $0.50 increase in the Maintenance and Operation Levy. Although it is a replacement levy, there is an opportunity to increase the funding up to 24% of the budget which the Board of Directors has done and approximately $0.50 per $1,000 on . the Capital W ater- Construction Bond. of W Acquisition 6. ADDITIONAL PUBLIC HEARING ON THE POTENTIAL ACQUISITION OF WATERFRONT front. PROPERTY Property Council President Haakenson noted it was not the Council's intent to vote on this issue tonight; there would be at least one more public hearing. City Attorney Scott Snyder explained staff has been pursuing the purchase of the tidelands and easement per 30 years of consistent Council direction and specific Comprehensive Plan direction. He noted this issue has been considered numerous times during the past two years. He referred to areas in the Comprehensive Plan, particularly the Park Plan, calling "for shoreline acquisition whenever the opportunity exists," and specifically urges the City to make those purchases via the use of grant funds. Staff understands the public's concern regarding the price paid for the property; however, restrictions placed on negotiations through the grant requirements tend to inflate value. He referred to the Public Trust Doctrine theory which indicates the public has a right of passage across the tidelands. He explained the public's right of passage must be consistent with the owner's legitimate use of the property. The property being discussed is unique in north King County /south Snohomish County and is one of the few pieces of commercial property with tidelands attached. As Mr. Derneroutis noted in his discussion with the assessor, and as the appraiser noted in the two appraisals done on this property, the standard rule of thumb is the tideland is valued at 50% of the square footage value of the upland property. By acquiring the property, Waterfront Park Associates' extensive development rights are extinguished. He stressed this was an unusual purchase because, unless one owns the upland property, this property has no particular value. The City and the owners of 144 Railroad Avenue are the only ones to which the Edmonds City Council Approved Minutes January 20, 1998 Page 6 property has the indicated value. The City, as a public purchaser, must pay the owner the value of the property. Mr. Snyder explained development of the tidelands by the owner would block the public's right of passage. If the City acquired an easement across the uplands portion that blocked the owner's use of the tidelands, the issue of a takings arises. He explained the grant monies the City proposes to use specifically prohibit the City from using its condemnation authority. In order to acquire a Certificate of Willing Seller from the owners of the property two years ago, Parks and Recreation Director Arvilla Ohlde approached the property owner to determine whether they were interested in selling the property and for what price. An appraisal was done by the property owners and was submitted with the grant application. (The appraisal was later updated at City expense.) The grant application process included a review by Snohomish County regarding the viability of the numbers in the appraisals. Mr. Snyder pointed out the City's Comprehensive Plan, adopted in July 1997, states, "all feasible means to preserve open space should be used." " Shorelands and waterfront areas should receive special consideration in all future acquisition and preservation programs." He noted the City adopted a specific Edmonds Downtown Waterfront Plan in August 1994. That plan provides that, "the City should provide more waterfront and beach access," and "it should provide in its purchases for the connection of existing parks along the waterfront." The City's plans also call for "a continuous esplanade" which is described in the Park Plan as a "necklace of parks." The Plan also calls for a "system of beaches, esplanades, and parks" and indicates, "many of the improvements will require a significant amount of funds, most probably from several sources. Several of the actions must be coordinated with larger regional efforts." Several of these provisions were quoted in the City's grant application which was approved by the City Council when the City requested a grant from the Snohomish County Futures Program to purchase the tidelands. Of the amount proposed to be spent (approximately $800,000 which has been in the 1997 and 1998 budgets, in the City's CIP, and the Park purchase Plan), $600,000 is provided by the Snohomish County Futures grant. Mr. Snyder said the City's Parks and Recreation Plan, a five -year document originally dated June 24, 1993, and expires June 24, 1998, states the City has only half the recommended ratio of shorelands and beaches that national standards identify as appropriate for City purchase. The Parks and Recreation Plan provides that, "the City should acquire shoreline property whenever the opportunity exists." Regarding the party wall, when the City demolished the buildings on the Anderson Marine property, some of the support for the wall no longer existed. The settlement basically provided sealing of the wall and engineering support when the buildings were demolished. He indicated the documents for this settlement were on file with the City Clerk. Mr. Snyder pointed out the Snohomish County Park Plan also emphasizes shoreline acquisition. He noted the City of Edmonds has historically provided beach access for most of north King County and South Snohomish County and Snohomish County has consistently supported the City's efforts through grant monies. The City has used State and Federal money to acquire and develop several parks and proposes to use those monies to make this acquisition. Mr. Snyder reviewed the steps that brought this proposal forward, noting public hearings were included in many of the steps. The City Council instructed staff to determine what grant funds were available to settle the other half of the lawsuit settlement, an alleged taking of the rights of the property owners of 144 Railroad Avenue. They alleged that the City, through the development of these plans, diminished the property's value and encouraged trespass by citizens across the property. On August 16, 1996, the City Council approved a resolution authorizing an application for the grant. On December 17, 1996, the City's 1997 budget included $800,000 for the purchase, noting in the Capital Improvement Plan (CIP) that a portion could come from Edmonds City Council Approved Minutes January 20, 1998 Page 7 grants. In the 1997 CIP, $800,000 was targeted for the acquisition of this property through the use of grants and other matching funds. The grant application to the Snohomish County Futures Program was approved by the City Council on June 24, 1997. The grant application, in the public packet, included the Certificate of Willing Seller as well as a $800,000 estimate. The appraisal update by Mr. Clarke followed and on September 30, 1997, the City updated its CIP to again include this property acquisition. If the City Council approves the purchase, the CIP must be updated to indicate the purchase in 1998. Mr. Snyder explained this property is primarily valuable to the City for view purposes, as a, link in its trail system, and also as the last piece of privately -owned tideland in the area. He pointed out if the City were to purchase the property through condemnation, the value of the property before the taking and after the taking is considered. In this case, the City is acquiring the development rights to the property. As a commercial property in this zone, it could be developed for a variety of water - related uses such as a marina, a sea -plane float, a restaurant, etc. When addressing the Shoreline Management Plan in the future, he recommended the City consider whether a developer should be allowed to develop property lot line to lot line (filling the entire tideland with a commercial use). An appraiser would consider the potential uses for the property, not whether it was feasibly possible given the constraints of the ferry, etc.; the appraisal and update both indicating the value was approximately 50% of the upland's value. Mr. Snyder explained the Public Trust Doctrine has been accepted in California and a number of western states, but has never been litigated in the State of Washington. The Public Trust Doctrine indicates the public has the right to walk across tidelands as long as their passage is not inconsistent with the owner's lawful use of the property. There is no public right of passage across the dry land uplands. The public also has the right to go anywhere on the navigable waters of the State. One "catch" in the theory is that it has not been brought forward on a State or Federal level since the U.S. Supreme Court decided the Knowland v. California Shoreline's Commission case a few years ago which ruled the requirement for developers to provide access to the waterfront when horizontal strip development occurred along the waterfront was a takings issue. Therefore, if the City impaired the development rights of the property, a takings issue could arise. Mr. Snyder displayed a chart outlining the purchase options including the property acquired, the total cost, and the cost to Edmonds' taxpayers. One of the City's options is purchasing the property as negotiated at a cost of $775,000 for the tidelands, $9,000 for an upland easement, a total cost of $795,000. The cost to Edmonds taxpayers would be $195,000. Development of the walkway has been estimated to be approximately $10,000. This figure was obtained by considering a walkway on piers so that repair or maintenance of the seawall was not an issue. If the seawall is constructed and the walkway can be constructed on the ground, there will be some savings. Those savings ($1,500) have been indicated as an incentive to do the work this year. Another option is to walk away. The City does not acquire any property and the public has the right to cross the tidelands property until it is developed by the property owner. The City has an unopened easement across the uplands portion which expires January, 2001. However, the condition of the seawall makes the easement practically unusable. This option would also require that the City return the grant. Another option would be to condemn the tidelands and easement. Although the City could save some money on the square foot value of the tidelands by this method, it would cost more to the average taxpayer because the grant monies would not be available. By using the rule of thumb (that the tidelands are worth 50% of the uplands value), the price would range from $22 per square foot to $15 per square foot (the amount the City paid for the Anderson Marine property). Using $15 per square foot would save Edmonds City Council Approved Minutes January 20, 1998 Page 8 $110,000 - $120,000 on the purchase price; however, in condemnation, the City pays its own legal and expert fees as well as the other side's legal and expert fees ($100,000 - $200,000). Another option would be to condemn an easement only, since the public has the right to utilize the tidelands. However, a permanent usable walkway easement across the uplands portion cuts off the tidelands from the uplands portion of the property and diminishes the value of the property from 50% of the value of the uplands portion to 10 %. This would require the City to pay for the diminution in value, likely nearly the same amount than if the tidelands were also purchased. He noted in condemnation, the value of the property is not what is taken but the remaining value of the property. Costs to pursue the Public Trust Doctrine theory would range from $0 to $500,000. He did not recommend the City pursue this litigation. Mr. Snyder explained the Purchase and Sale Agreement in the Council's packet would purchase 38,000 square feet of tideland in fee for $775,000 and an 11.75 foot x 192.5 foot easement for $9,000. He noted the original grant application included rebuilding the seawall as part of the $800,000 grant. For a variety of reasons, the easement provision encourages repair of the seawall by the property owners in 1998. The property owners have no cost for relocation of the City's walkway if the seawall is constructed in 1998 (the City waits until 1999 to install pavers on top of the wall). If the City uses pavers instead of a suspended walkway, it is estimated the City can save $1,500 which would be provided as an incentive to the property owners to complete the seawall by December 31, 1998. Council President Haakenson asked about the funding sources for the "cost to Edmonds taxpayers" indicated on the chart. Mr. Snyder said all funds for options 1 -5 are General Fund monies. After the expenditure of the $195,000, only approximately $5,000 would be left in the Park Acquisition Fund. Council President Haakenson asked where the funding for the Park Acquisition Fund was acquired. Mr. Snyder answered this was currently the Real Estate Excise Tax (REET). Council President Haakenson asked if .those funds could be used for other purposes, such as defending the public's right of passage. Mr. Snyder answered the first '/4% of BEET funds would not qualify for that expenditure. Councilmember Plunkett asked if the purchase of the easement had been discussed. Mr. Snyder answered Ms. Ohlde asked the property owners the amount they would be willing to sell their property for. This resulted in the original appraisal and discussions have focused on the purchase of both the tidelands and the easement. In the last month, he has researched how to purchase the easement separately and determined the tideland's value is diminished sufficient so that this option is not feasible. Councilmember Plunkett asked if the extension of the existing easement into perpetuity had been discussed. Mr. Snyder answered this has not been seriously discussed as the negotiator cut off all those conversations. His impression was the property owner was planning to use funds from this acquisition to fund their construction of the seawall. He noted any action that eliminated the property owner's access to the tidelands, eliminated their right to develop it. Councilmember Plunkett observed the intent of the Edmonds Development Code, the Comprehensive Plan, Downtown Waterfront Plan, City Parks, Recreation and Open Space Plan, Snohomish County Comprehensive Park Recreation Plan, State Shoreline Act, and in general the Public Trust Doctrine refer to access to beaches, tidelands, etc. He referred to Exhibit A which states, "if the proposed construction is for water enjoyment use, construction over water may be considered if the proposed project incorporates substantial public access." As all documents intend to have public access, he asked how a property owner could exclude public access. Mr. Snyder said the City could wait until the property is developed and in the meantime, tighten development restrictions. However, a property owner can Edmonds City Council Approved Minutes January 20, 1998 Page 9 construct across the tidelands and block the public's right of passage. If the property is developed, the City could require public access and the developer could propose them as SEPA mitigation. Public access could be a boat launch, a viewing area, a day slip for a restaurant, etc. He cautioned the City not to count on this resulting in a continuous park system because a permanent pedestrian easement would restrict the property owner's use of the property. COUNCIL PRESIDENT HAAKENSON MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO EXTEND THE HEARING AN ADDITIONAL 30 MINUTES. MOTION CARRIED. Although development could impair the City's goal in providing a contiguous walkway, Councilmember Plunkett observed any development must adhere to City requirements and therefore could not actually block access across the land unequivocally. Mr. Snyder said part of the process would be to ensure public access to the shoreline but would not ensure access across the shoreline. In the Knowland v. California Shoreline's Commission, the Supreme Court ruled if developers were required to provide horizontal and lateral easement to the shoreline as part of the development of public shoreline, they must be compensated. If the City wants a walkway across the front, it is highly likely the City will pay for it. If the City wants a public slip, a viewpoint, etc., that could be included in the amenities required in development. Councilmember Plunkett asked if Mr. Snyder had considered an easement by prescription. Mr. Snyder answered yes. Councilmember Plunkett said this appeared to meet the elements that this land needs to be used openly and notoriously (the owners know the public is using the land), the use has been occurring more than ten years, and the use is hostile (the owners do nothing to prevent it). Mr. Snyder said the uplands area did not qualify because it has been used under an easement, a granted right to the public. He said the tidelands would fall under the Public Trust Doctrine and the historic use of the property. The fact that these rights have been previously prescribed, has been plead as a defense in the current litigation. He pointed out if the public had the right to walk there, the use was not hostile and therefore would not be prescribed. He commented the prescriptive easement and the Public Trust Doctrine were inconsistent theories. Councilmember Plunkett referred to the City's 10 foot easement across the Ebbtide property which was granted to the City for $1 and asked what the City's potential liability on the Ebbtide property would be if the Waterfront Park Associates property was purchased. Mr. Snyder answered there would not be any liability to the City; the Ebbtide property owner willingly granted the easement years ago thereby eliminating their access to the tidelands and diminishing their development rights. Councilmember Plunkett thanked staff for the information provided regarding this matter. Mayor Fahey opened the public participation portion of the hearing. Don Herman, 18815 Soundview Place, Edmonds, declined to speak, indicating his comments likely would be redundant or not applicable. He said it would take time to do further research. Frances Murphy, 5804 186th SW, Lynnwood, submitted a letter regarding the Brackett's Landing Foundation, composed of interested and involved citizens from around South Snohomish County who care about the South County shoreline ecosystem, particularly the shoreline that is enclosed by the Edmonds City boundary along Puget Sound. The group has worked to develop a protection program for this shoreline because of its fragile nature. She explained their protection program is working but there Edmonds City Council Approved Minutes January 20, 1998 Page 10 are areas of tidelands that are in private ownership that are problematic. She said citizens who object to this purchase do so because of its cost and their belief that they can continue to trespass as they.have in the past or that the City can condemn the property. She stressed property values continue to increase and Edmonds must pay the purchase price that has been determined by appraisal, the fair market value. Regarding condemnation, the City prefers to be a good neighbor and condemnation is only used when there is no other option. She commented condemnation did not allow a municipality to take property for less than the fair market value. She said the Brackett's Landing Foundation endorsed the City's plan to purchase the tidelands for the fair market value to be placed in public ownership. Kevin Hanchett, Vice President, Waterfront Park Associates, Inc., 144 Railroad Avenue, Edmonds, said when they were first approached by the City regarding purchase of the property to resolve the litigation, they commissioned an independent appraisal which resulted in a higher value than the City ultimately offered. When the City returned with a revised appraisal, they negotiated in good faith to arrive at a price that was within the City's budget and the grant proposal. One of the ways this was accomplished was to negotiate the sale of an easement in the uplands portion rather than a sale of the fee title to the property. This substantially reduced the price although by granting the easement in perpetuity, they eliminated the fair market value of the property. Due to the Council's concern with the $80,000 cap on the construction of the seawall, the revised agreement removes the cap and the property owners will have full responsibility for construction of the seawall. The property owners have no interest in the sale of only the easement or granting of the existing easement in perpetuity because this would eliminate development rights to the tidelands. Roger Hertrich, 1020 Puget Drive, Edmonds, reiterated his objection to what he viewed as an unfair use of taxpayer dollars as the fair market value did not appear to be appropriate in view of other occurrences along the waterfront. The Department of Transportation purchased from Edmonds the uplands and tidelands between the ferry dock and the former Anderson Marine for approximately $8 per foot for the tidelands. In 1986, the previous owners of the 144 Railroad Avenue property received an appraisal of $100,000 for the tidelands as a result of the City's attempt to purchase it at that time. Anderson Marine was purchased for $15 per square foot and was purchased as a result of the City's opposition to expansion of the ferry system southward. He pointed out there were several figures available that were not included in the appraisal. He suggested the process be halted and an appraisal using all the information be commissioned. He noted zoning changes mentioned in the appraisal may down -grade the use of the tidelands to preserve them. He suggested if Waterfront Park Associates are interested in selling the property for the amount of the grant, the City should offer to purchase the property for that amount. Rich Demeroutis, 921 Pine Street, Edmonds, said the assessment on the property was $2,415,000 and $800,000 is for the tidelands. If the sale takes place, he suggested the County reassess the property and collect back taxes. He pointed out the grant funds are $0.20 per $1,000 assessed valuation property tax, it is not free money. He questioned whether the City should continue to be "a good neighbor" when a property owner files a lawsuit. He recommended the City revise the Park Plan to eliminate the walkway on the waterfront which would eliminate the inverse trespass. He preferred the grant money be spent more wisely such as purchase of property in Woodway. He objected to Councilmember White's reference to citizens concerned with this issue as "banner wavers." COUNCIL PRESIDENT HAAKENSON MOVED, SECONDED BY COUNCH MEMBER VAN HOLLEBEKE, TO EXTEND THE HEARING FOR AN ADDITIONAL 15 MINUTES. MOTION CARRIED. Edmonds City Council Approved Minutes January 20, 1998 Page 11 Liz Sayer, 9512 216th SW, Edmonds, a resident since 1960, said she has served on numerous committees studying the future of the area and the issues of preserving the small town atmosphere and keeping and expanding the use of beach areas always arise. She pointed out the area between the fishing pier to the ferry dock was frequently crowded and agreed the Beach Rangers do a fantastic job of educating the public. She urged the Council to do whatever was necessary to make this a permanent part of the Edmonds Beach Park system. Jeff Palmer, 17510 76th Avenue West, Edmonds, said if control was desired, then a purchase was necessary. He pointed out if Snohomish County was satisfied this was the best use for the grant funds, the citizens should also be satisfied. He felt this was an appropriate use of the '/4% Real Estate Excise Tax and recommended the City purchase the property as negotiated. Al Rutledge, 7101 Lake Ballinger Way, Edmonds, said he spoke from experience as an owner of lakefront property. He recalled a State Shoreline Right -of -Way Project between 1965 and 1968 and recommended the City determine whether there was another owner of the shoreline property. Syd Locke, 110 Pine, Edmonds, was pleased the City Council delayed the vote on this issue as there were several issues that should be considered before a vote was taken such as relocation of the ferry terminal as the mid - waterfront location would affect this purchase. He suggested the City consider the Waterfront Study conducted by the Port in 1997 for the use of this property. He also urged the City to consider the 10 foot easement across the Ebbtide property, two- thirds down the beach, leaving tidelands that may need to be purchased for public access. There being no further public comment, Mayor Fahey closed the public participation portion of the hearing. Mayor Fahey asked staff to clarify what would occur if the grant dollars were returned. Parks and Recreation Director Arvilla Ohlde explained the City had one year to proceed with the sale of the property using the Conservation Futures grant funds. To acquire the Conservation Futures funds, Snohomish County has bonded themselves for 20 years; this project is part of that bond package. If the funds are returned, unfunded projects would be funded. Although there is a possibility that some small projects may be funded during the 20 years, a project of this size would not. Councilmember Earling informed the Council of an appraisal done in 1986 by Carlton McCawley. He offered to make it available to Councilmembers prior to the next hearing, noting this may be a valuable piece of information although it occurred some time ago. Because the original appraisal was funded by the potential sellers of the property and the City's request that the same appraiser update the review, he said it may be appropriate to have the methodology and conclusions in the Clarke appraisal reviewed. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCIL PRESIDENT HAAKENSON, TO SET ASIDE $3,000 TO HIRE AN APPRAISER TO REVIEW THE METHODOLOGY AND CONCLUSIONS IN THE CLARKE APPRAISAL AND TO FUND THE APPRAISAL FROM THE COUNCIL CONTINGENCY FUND. Councilmember Earling agreed to try to find an appraiser, noting this was a unique property and it would be necessary to find someone who would be comfortable reviewing the documents. MOTION CARRIED. Edmonds City Council Approved Minutes January 20, 1998 Page 12 Council President Haakenson asked when it was anticipated this would be completed. Councilmember Earling answered as soon as possible, likely within 30 days. Council President Haakenson tentatively scheduled a second hearing on February 24, 1998. Councilmember White pointed out this was scheduled as a one minute agenda item in December. At that time, the Council provided information, answered questions raised during discussion, held an Executive Session, and the information regarding potential acquisition of Waterfront Property was produced. Following that meeting and prior to the next meeting, he was unaware there were any issues regarding the potential acquisition until the issue was raised on KING TV. He stressed citizens had not called him or other Councilmembers. He suggested this was "waving a flag" rather than contacting the Council with their concerns. Council President Haakenson also thanked staff for the information they provided. Mayor Fahey declared a brief recess. 7. HEARING ON THE PROPOSED VACATION OF A PORTION OF THE PLATTED BUT acation of UNBUHA RIGHT -OF -WAY OF 237TH PLACE SW WEST OF 107TH PLACE SW (KNOWN AS R -o -w WOODWAY MEADOWS). LOCATED IN THE CITY OF EDMONDS RESERVING UTILITY (Woodway EASEMENTS, SURFACE AND SUBSURFACE Meadows) Planning Supervisor Jeff Wilson distributed a letter from Mike Echelbarger regarding the proposed vacation. Mr. Wilson explained this item was a request to vacate an unopened right -of -way in the plat of Woodway Meadows, the western extension of 237th Place right -of -way. He displayed a map of the area, pointing out the 80 x 50 foot right -of -way. He explained the proposed vacation was identified by the Engineering Division as unnecessary for extension of right -of -way or street use needs and therefore could be vacated. The Engineering Division has determined it would be appropriate to retain surface and subsurface easements for utilities. Staff s analysis indicates there is other access to all surrounding properties and the vacation would not deny access to any parcel. City ordinance allows establishment of a value of up to 50% of the appraised value or other options can be considered such as diminishing the value of the right -of -way if easements are retained or other public uses are identified for the property. Staff has determined there should be no value associated with vacation of the right -of -way due to the retention of surface and subsurface easement that would restrict the use of the property although the adjoining property owners would acquire the property as part of the vacation process. City Engineer Jim Walker said the 1998 budget included a $30,000 project in this area designated as Woodway Meadows drainage improvements. The entire Woodway Meadows plat utilizes infiltration to address stormwater in the area. During any heavy rainfall, serious flooding occurs at the south end of the cul -de -sac on 107th, filling the cul -de -sac and entering garages on some occasions. Staff proposes to construct an underground infiltration pond in the center of the 80 x 50 foot unopened right -of -way to divert drainage. This would not address the entire problem but will provide a great deal of relief to residents. In his letter, Mr. Echelbarger stated he is willing to consider allowing connection through his property, a request the City made as part of SEPA, which would provide a good long term solution. When the City completes the proposed project, the area would look much the same as it does now with a grass surface. The advantage to the City of maintaining an easement rather than a right -of -way would be less concern with the possibility of truck traffic over the area and materials for the project would be less expensive than if constructed in a right -of -way. The easement would allow location of all utilities, and would allow the adjoining property owners to utilize the area to make connections to utilities as necessary for their plat. Edmonds City Council Approved Minutes January 20, 1998 Page 13 Councilmember Plunkett asked if emergency vehicle access would be allowed. Mr. Walker answered staffs intent was not to allow fire access but utilities only. Discussions with the Fire Marshall resulted in a letter from the City to the Town of Woodway indicating it would be better to extend the existing fire access road on the south. He identified the fire access to the south on the map. Mayor Fahey opened the public participation portion of the hearing. Jim Young, 23730 107th Place SW, Edmonds ( Woodway Meadows), a property owner next to the easement, was in favor of the City's proposal to vacate the right -of -way to allow construction of the infiltration system to assist flooding on 107th Place. Gail Piper, 10629 237th Place SW, Edmonds, a resident near the proposed vacation, thanked the Council for listening to residents and for proposing this vacation as a solution to the prospect of this being a major access into the new 86 -home development in Woodway. She said this proposal was acceptable to the neighborhood and was advantageous to them. Hearing no further public comment, Mayor Fahey closed the public participation portion of the hearing. City Attorney Scott Snyder said this vacation is done under City ordinance and State law, Chapter 35.79 of the RCW, which delegates the power to vacate public easements to the City and must be done in accordance with those principles. While it may accomplish a valid objective for Woodway Meadow's citizens, the City's position is that the property is excess to the needs of the City and the vacation serves a valid public purpose by providing drainage and utility easements. Council President Haakenson advised the Council received a letter from Janet Catlip, 23919 106th Place W, Edmonds, who also supported vacation of the parcel. COUNCH.MEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO DIRECT THE CITY ATTORNEY TO PREPARE THE APPROPRIATE ORDINANCE TO VACATE THIS RIGHT -OF -WAY. Councilmember Earling thanked former Councilmember Myers for pursuing this issue and bringing it to the Council's attention. MOTION CARRIED. Mayor Fahey applauded the citizenship of an 8- year -old in the audience, Alora Knapp, who sent a letter to the Mayor. 8. CLOSED RECORD APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY AN Closed APPEAL OF THE PLANNING DIVISION'S DECISION TO DENY THE PROPOSED SHORT Record SUBDIVISION OF THE PROPERTY LOCATED AT 17619 76TH AVENUE WEST INTO 2 LOTS: Appeal TO DENY THE REQUEST FOR A MODIFICATION TO REDUCE THE REQUIRED LOT SIZE (Swift—File P -97-155) OF 12,000 SQUARE FEET TO 10.334 SQUARE FEET FOR THE PROPOSED LOT 2, AND TO DENY THE REQUESTED SETBACK MODIFICATION FROM THE PROPOSED SOUTH PROPERTY LINE OF LOT 1 FOR THE EXISTING SINGLE FAMILY RESIDENCE (Appellant /Applicant: Charlotte Swift / File Nos. AP -97 -155, AP -97 -119 & S -97 -3) Edmonds City Council Approved Minutes January 20, 1998 Page 14 Councilmember Earling said he had an opportunity to review Council President Haakenson's packet regarding this item, noting it contained much of the same information as the packet he did receive.. He indicated he was comfortable having the hearing and taking a vote tonight. Councilmember Nordquist preferred the Council not take action tonight but offered to excuse himself from participation on this item. City Attorney Scott Snyder explained this was a closed record hearing which would include a presentation from staff, argument from the applicant and comment from parties of record; no new testimony is permitted. He pointed out the attorney for the applicant, Dennis Jordan, submitted an affidavit from the surveyor. As this is a closed record hearing, he requested staff treat this information as a withdrawal of one of the modification requests. Therefore, the record is not being supplemented, rather an item is being withdrawn. At Council President Haakenson's request, Mayor Fahey asked those involved in the appeal to indicate whether they would prefer to have the matter resolved tonight or postponed to another date. Four participants present indicated their preference to resolve the matter tonight; none of the participants indicated a desire to postpone the decision. Councilmember Nordquist excused himself from participation on this item. COUNCILMEMBER WHITE MOVED, SECONDED BY COUNCIL PRESIDENT HAAKENSON, TO MOVE FORWARD WITH THE HEARING TONIGHT WITH FIVE COUNCILMEMBERS PARTICIPATING, COUNCILMEMBER NORDQUIST NOT PARTICIPATING. MOTION CARRIED. Mayor Fahey explained the Closed Record Appeal hearing procedures. She asked if any Councilmembers wished to make a disclosure. There were no disclosures made by any Councilmember. Mayor Fahey asked if any participant had an objection to any Councilmembers' participation. There were no objections to the participation of any Councilmember. Planner Meg Gruwell noted, as Mr. Snyder indicated, the setback modification on the south side of the property is no longer necessary; therefore, both setback modifications have been resolved. She displayed a site plan, noting it originally appeared to be an easy subdivision as there was access to Soundview Drive, 76th Avenue and a 28,000 square foot lot in a 12,000 square foot minimum zone. However, due to the steep slope to Soundview Drive and springs in the area, access could not be obtained from Soundview Drive and must be provided from 76th Avenue West. There is an existing single - family residence on the site which they prefer not to demolish or remove which results in a slightly longer easement than may otherwise have been required. Subtracting the access easement from the lot area results in a lot size of 10,334 feet. Staff reviewed their proposal using the variance criteria, and denied the lot size modification and subdivision as it did not meet the criteria. The applicant requested reconsideration and an appeal to the Hearing Examiner, neither of which resulted in a change in the original decision. She explained the applicant's issues include the use of the word "normally" in the lot area definition which the applicant's attorney indicates violates the right of due process. In'reviewing the matter, staff has determined the access easement has always been subtracted from the lot area. She noted the word "normally" was added when the lot area definition was amended so that if the Engineering Department needed to require excess access easement above the standard, the applicant could use the excess in their lot area calculation. Regarding the use of special circumstance criteria, the applicant stated this was not a use variance but a dimensional variance. As the City does not allow use variances, Edmonds City Council Approved Minutes January 20, 1998 Page 15 all variances are dimensional and must address the special circumstance criteria including past action of the owner such as location of the house. Staff has determined the applicant did not meet the criteria; this decision has been upheld on reconsideration and appeal to the Hearing Examiner. Dennis Jordan, 4202 Hoyt, Everett, attorney representing Charlotte Swift, said the materials regarding their position on the lot size variance are included in the materials presented. He referred to page 24 of the packet (ECDC 21 .55.020) which states, "Lot area shall normally exclude any street rights - of -way and access easements." The Hearing Examiner noted the position of the City of Edmonds Planning Division is that they always exclude any street rights -of -way and access easements. Mr. Jordan pointed out the word "normally" was included in the 1986 amendment and must have some meaning. His concern with the word "normally," supported by case citings included in the Hearing Examiner appeal, is that it is unconstitutionally vague. The City's Planning Division states it is not unconstitutionally vague because the word "normally" refers to the addition of the third sentence of the ordinance which states, "If additional right -of -way has been required in accordance with the provisions of ECDC 18.80.010, note 4" which, by his interpretation, referred only to the City's requirement for additional street rights -of -way and not access easements. He said the word "normally" also modifies the words "access easements" and not only "street rights -of- way." The word "normally," as applied to access easements must mean there are some cases when the access easement will not be excluded and that this is one of those cases. He explained the access easement is only for the benefit of Lot 1 as Lot 2 still owns the fee under the access easement and has the right to use that access easement in any way they see fit so long as that use is not inconsistent with the use Lot 1 will be granted (access). In that context, he said it was not appropriate to exclude the access easement from the lot area requirements. He pointed out under Whatcom County's ordinance, access easements are excluded, including all access easements and easements not usable to the present or future surface owner of the parcel. This ordinance clearly would not exclude an access easement that Lot 2 had a right to use. He summarized it was his belief that it was not the intent of the ordinance to exclude the easement area in this instance. Mayor Fahey opened the public participation portion of the hearing. Jeff Palmer, 17510 76th Avenue W, Edmonds, referred to the Findings, Conclusions and Reconsideration decision of the Planning Division as well as the letter he submitted. He said the focus should be on this proposal's inconsistency with the Comprehensive Plan by 1) granting special privileges and 2) the possibility of setting a precedent that could have a dramatic affect on the neighborhood and the City as a whole. The staff report states all the requirements in Chapter 20.85 must be met to grant a variance and no variance can be approved unless all findings in the section are met. One of the findings is the special circumstance criteria which he felt had not been met. He pointed out the staff report included nine letters submitted by neighbors who did not feel granting the variance and short subdivision would enhance their neighborhood. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER EARLING, TO EXTEND THE MEETING FOR 30 MINUTES. MOTION CARRIED. (Councilmember Nordquist did not participate in the vote.) Hearing no further public comment, Mayor Fahey closed the public participation portion of the hearing. Councilmember White asked if the lot size would be adequate if the access easement was included. Ms. Gruwell answered the lot would then be 12,444 square feet, but staff has never included the access easement in the lot area. Edmonds City Council Approved Minutes January 20, 1998 Page 16 Councilmember Van Hollebeke asked for an interpretation of Mr. Jordan's statement that the use of the word "normally" was unconstitutionally vague. Mr. Snyder answered three standards of interpretation used by the Hearing Examiner are, 1) words, if not defined are given their ordinary (dictionary) definition, 2) ordinances are interpreted as a whole to give meaning to each of their provisions, and 3) the interpretation placed on zoning ordinances by Zoning Officials who apply them on a daily basis is given weight by the court.. In this instance, staff and the Hearing Examiner are reading the second and third sentences in ECDC 18.80.010 together, the second sentence refers to normally and the third sentence gives the section and refers to Note 4 of the street standards. Mr. Snyder said Mr. Jordan raised an alternative theory but that the Hearing Examiner's and staffs position were valid and defensible. Councilmember Van Hollebeke observed this was a difficult situation and unfortunately there were circumstances such as the location of the existing house that prevent the City from achieving a win -win situation. Although Mr. Jordan made an interesting point regarding the interpretation of law, staff has shown they have consistently subtracted the access easement from the lot area. He indicated he would vote to uphold the Hearing Examiner's denial. Councilmember Earling observed staff has consistently subtracted access easements from the total square footage. This clearly results in a substandard amount of property in this instance. He observed the Council has consistently respected the zoning size of various areas of the community. He indicated he would also uphold the Hearing Examiner's interpretation. Council President Haakenson pointed out the packet included 18 letters, nine in favor, and nine opposed. His interpretation of the word "normally" was that the lot area shall exclude any access easement unless additional right -of -way has been required. He said he would support the Hearing Examiner's decision. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER EARLING, TO UPHOLD THE HEARING EXAMINER'S FINDINGS AND DENY THE REQUEST. MOTION CARRIED. (Councilmember Nordquist did not participate in the vote.) Councilmember White suggested Mr. Snyder and the Planning Division review the ordinance to determine whether it needed to be revised. (Councilmember Nordquist resumed his seat on the Council.) Vacation of 9. HEARING ON THE PROPOSED VACATION OF A PORTION OF THE PLATTED BUT o_w UNBUILT RIGHTS -OF -WAY OF PORTIONS OF 15TH STREET SW ADJACENT TO THE (Cemetery) EDMONDS CEMETERY AND PORTIONS OF 100TH AVENUE SOUTH ADJACENT TO THE EDMONDS CEMETERY, LOCATED IN THE CITY OF EDMONDS, RESERVING THE UTILITY EASEMENTS, SURFACE AND SUBSURFACE Planning Supervisor Jeff Wilson displayed a map identifying the two right -of -way areas adjacent to the Edmonds Cemetery. He explained this was a request to vacate undeveloped portions of right -of -way. Staff has determined both areas are not necessary for any future use or expansion of the right -of -way. The original resolution provided for retention of surface and subsurface easements. However, City Engineer Walker has indicated there are no existing utilities within rights -of -way proposed to be vacated nor would there be a need to locate utilities within those rights -of -way. He asked that the Council not require retention of a surface or subsurface easement in these rights -of -way, noting the easements would preclude the future use of the vacated right -of -way by the cemetery. The purpose of the vacation is to provide additional area that can benefit the public through expansion of the cemetery. Edmonds City Council Approved Minutes January 20, 1998 Page 17 City Engineer Jim Walker explained this project came about as a result of the Park Department's project for a columbarium in the cemetery. He reiterated there was not a need to use the vacated portions for street purposes or utility easements. Mayor Fahey opened the public participation portion of the hearing. Dale Hoggins, 21826 95th Avenue W, Edmonds, a member of the Cemetery Board, thanked the Council for their support in the budget and their presence at the annual Memorial Day program. He said if the right -of -way is vacated, it is the intent of the Cemetery Board to primarily use this area for the construction of columbariums for cremated remains. Construction would be done in stages; each stage would finance the next. He expressed the Cemetery Board's appreciation of the support provided by the staff members assigned to the Cemetery Board. There being no further public comment, Mayor Fahey closed the public participation portion of the hearing. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCIL PRESIDENT HAAKENSON, TO DIRECT STAFF TO PREPARE THE APPROPRIATE ORDINANCE . ACCORDING TO STAFF'S RECOMMENDATION. MOTION CARRIED. 10. REPORT REGARDING THE CULTURAL ARTS STADIUM AND CONVENTION DISTRICT ASCD BOARD ( CASCD) PROPOSAL (Provided by the Council Task Force) Proposal Councilmember White said the task force, Councilmembers Earling, Van Hollebeke and he, met to discuss this issue and requested additional information from the CASCD Board. The CASCD Board has agreed to commission the group who performed the feasibility study to answer these questions. A letter is being drafted which will be submitted to the CASCD Board. It was the consensus of the Council to forward the letter as drafted. hernial 10A. DISCUSSION OF THE THERMAL IMAGING CAMERA Imaging Camera Fire Chief Mike Springer said this was the final contractual language for the lease agreement for the Thermo Imaging Camera. He explained the $25,000 camera was funded through the Fire Safety Foundation via financial support from citizens and other commissions and clubs. The camera allows the wearer to see in dark conditions such as a house filled with smoke and see heat images of victims as well as the fire. The contract was rough drafted in December when the Foundation acquired the camera; the City Attorney and a private attorney representing the Foundation, have been addressing issues with language in the lease agreement during the past month. The draft annual lease agreement for $1 per year has been signed by the Foundation Chair. The camera will remain with the Edmonds Fire Department but will have the capacity to respond outside the Edmonds area where fire fighters currently respond. Councilmember White asked Fire Chief Springer to explain why this equipment was being leased rather than given to the City. Chief Springer said the Foundation was very concerned that the Edmonds Fire Department have sole use /control of the camera. The Foundation was concerned with issues of merging, consolidation, and contractual agreements with automatic aid, and felt the lease agreement would keep the camera under the control of the Edmonds Fire Department at this time. Edmonds City Council Approved Minutes January 20, 1998 Page 18 1 Councilmember White asked if the camera could be provided to other departments under mutual aid. Chief Springer answered, for Lynnwood to utilize the equipment, an Edmonds Fire Department representative would be required to respond to that location and would be the "controller" of the camera. He explained the Fire Chief Agreement in Southwest Snohomish County (Duty Chief) which provides first response of a Fire Chief from Friday evening until Monday evening. These duties are shared between Lynnwood, Mountlake Terrace, Edmonds, and Fire District 111. The Duty Chief responds to any calls in those jurisdictions; the jurisdiction is then informed of the situation and is a second response. It was not the intent -of the Foundation to place the camera in the possession of a neighboring Fire Chief or Duty Chief. The camera will be located at the Five Corners Fire Station, which responds to the most mutual aid calls. Councilmember White asked if other fire agencies had equipment the Edmonds Fire Department used. Chief Springer answered only the Duty Chief pager was rotated between the Fire Chiefs. Until a few years ago, there was a great deal of equipment that was rotated between the Duty Chiefs. He noted each fire agency has added specialty equipment such as the Hurst tool during recent years. City Attorney Scott Snyder said negotiations included assurance that the City of Edmonds would insure the camera. He explained two weeks were lost in the contract negotiations because the address label on the redrafted contract, showing the Foundation attorney's address, fell off and the contract was not delivered. Until Mr. Demeroutis brought the issue up, he was unaware the contract had not been delivered. He urged citizens with concerns to contact City staff or Councilmembers. Councilmember Earling asked what would occur if the fire districts merged. Chief Springer said the future use of the camera was discussed with the Foundation and they were receptive to putting the camera into the new restructure. Council President Haakenson asked if all fires in South Snohomish County were immediately mutual aid calls. Chief Springer said any significant fire would be mutual aid. Council President Haakenson asked how Lynnwood would request the camera if a call was not mutual aid. Chief Springer said at the present time, all Southwest Snohomish County has the ability to call out an individual or a specific piece of equipment. It is anticipated that the camera would be placed on one engine that responds to the majority of fire calls in Southwest Snohomish County (Five Corners). If the Five Corners Fire Station did not respond to a fire call, whoever is in charge of the fire call can request that piece of equipment through the mutual aid agreement. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO AUTHORIZE THE MAYOR TO SIGN THE LEASE AGREEMENT WITH THE FIRE SAFETY FOUNDATION FOR THE USE OF THE THERMAL IMAGING CAMERA. MOTION CARRIED. COUNCIL PRESIDENT HAAKENSON MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO EXTEND THE MEETING FOR SEVEN MINUTES. MOTION CARRIED. Mayor Fahey requested confirmation. of the appointment of Cami Smith to the Edmonds Arts Commission. Edmonds City Council Approved Minutes January 20, 1998 Page 19 Appoint COUNCIL PRESIDENT HAAKENSON MOVED, SECONDED BY COUNCILMEMBER ami Smith EARLING, TO CONFIRM THE APPOINTMENT OF CAMI SMITH TO THE EDMONDS ARTS to Arts COMMISSION. MOTION CARRIED, COUNCILMEMBER NORDQUIST ABSTAINED. Comm. Open House Mayor Fahey announced there was a public information open house scheduled for January 22 from 6:00 - Proposed 8:00 p.m. at the Public Works facility regarding the proposed increase in sanitary sewer and stormwater Increase in rates. She urged citizens to attend and provide input. Sewer & Stormwater Rates 12. COUNCIL REPORT Council President Haakenson informed the Council that Friday was the last day to submit items for the Council retreat. With no further business, the Council meeting was adjourned at 10:45 p.m. BARBARA S. FAHEY, rM4AYOR ., � �— J. e 4 4 SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes January 20, 1998 Page 20 i 1 AGENDA ,y EDMONDS CITY COUNCIL Plaza Meeting Room - Library Building 650 Main Street 7:00 -10:00 p.m. JANUARY 20, 1998 Special Meeting 6 45 P:M - INTERVIEY�I CANDIDATES FOR;THE ARTS COMMISSION 7:00 P.M. - CALL TO ORDER FLAG SALUTE 1. APPROVAL OF AGENDA 2. CONSENT AGENDA ITEMS (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF JANUARY 6, 1998 (C) APPROVAL OF CLAIM WARRANTS #19474 THRU #22261 FOR THE WEEK OF DECEMBER 29, 1997 IN THE AMOUNT OF $454,055.66. APPROVAL OF CLAIM WARRANTS #19487 THRU #22301 FOR THE WEEK OF JANUARY 5, 1998 IN THE AMOUNT OF $217,327.45. APPROVAL OF CLAIM WARRANTS #19489 THRU #22594 FOR THE WEEK OF JANUARY 12, 1998 IN THE AMOUNT OF $136,873.78. APPROVAL OF PAYROLL WARRANTS #19149 THRU #19296 FOR THE PERIOD OF DECEMBER 16 THRU DECEMBER 31, 1997, IN THE AMOUNT OF $324,442.09. (D) ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM REBECCA J. SMITH (Amount Undetermined), AND GERALD H. McARTHUR ($105.00) (E) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR A CLOSED RECORD APPEAL OF THE HEARING EXAMINER'S DECISION WHICH WAS HELD BEFORE THE CITY COUNCIL ON DECEMBER 16, 1997. (Appel lant/Appl!cant: Winston Whall / File Nos. V -97 -113 & AP -97 -146; Property Location: 19808 77th Place West) (F) AUTHORIZATION TO PURCHASE A VEHICLE FOR THE PARKS & RECREATION DEPARTMENT FROM THE WASHINGTON STATE CONTRACT (G) AUTHORIZATION TO CONTRACT WITH JAMES MURPHY AUCTIONEERS TO SELL SURPLUS VEHICLES AND EQUIPMENT (H) APPROVAL OF PROFESSIONAL SERVICES CONTRACT WITH PROSECUTOR JEFFREY GOODWIN (1) APPROVAL OF INTERLOCAL AGREEMENT WITH SNOCOM RELATED TO STEVE PERRY'S SERVICE AS DIRECTOR (J) APPROVAL OF INDIVIDUAL CONTRACT OF EMPLOYMENT AND PROPOSED SALARY ORDINANCE RELATED TO STEVE PERRY'S SERVICE AS DIRECTOR OF SNOCOM (K) PROPOSED ORDINANCE AMENDING THE PROVISIONS OF EDMONDS CITY CODE SECTION 5.46.050, USE OF SKATEBOARDS, ROLLER SKATES, AND SIMILAR DEVICES - RESTRICTED, REGULATING THE UNLAWFUL USE OF SKATEBOARDS ON CITY STREETS AND CERTAIN SIDEWALKS (L) PROPOSED ORDINANCE AMENDING THE PROVISIONS OF EDMONDS CITY CODE SECTION 8.32.050, PROHIBITING COMPRESSION BRAKES, TO PROVIDE AN EXEMPTION FOR EMERGENCY VEHICLES 3. AUDIENCE (3 minute limit per person) 4. (15 Min.) REPORT ON COUNCIL COMMITTEE MEETINGS 5. (15 Min.) PRESENTATION BY EDMONDS SCHOOL DISTRICT REGARDING SCHOOL LEVY AND BOND CITY COUNCIL MEETING AGENDA JANUARY 20, 1998 PAGE 2 6. (45 Min.) ADDITIONAL PUBLIC HEARING ON THE POTENTIAL ACQUISITION OF WATERFRONT PROPERTY 7. (40 Min.) CLOSED RECORD APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY AN APPEAL OF THE PLANNING DIVISION'S DECISION TO DENY THE PROPOSED SHORT SUBDIVISION OF THE PROPERTY LOCATED AT 17619 76TH AVENUE WEST INTO 2 LOTS; TO DENY THE REQUEST FOR A MODIFICATION TO REDUCE THE REQUIRED LOT SIZE OF 12,000 SQUARE FEET TO 10,334 SQUARE FEET FOR PROPOSED LOT 2; AND TO DENY THE REQUESTED SETBACK MODIFICATION FROM THE PROPOSED SOUTH PROPERTY LINE OF LOT 1 FOR THE EXISTING SINGLE - FAMILY RESIDENCE (Appel lant/Applicant: Charlotte Swift / File Nos. AP -97 -155, AP -97 -119 & S -97 -3) 8. (30 Min.) HEARING,ON THE PROPOSED VACATION OF A PORTION OF THE PLATTED BUT UNBUILT RIGHT -OF- WAY OF 237TH PLACE SW, WEST OF 107TH PLACE SW (KNOWN AS WOODWAY MEADOWS), LOCATED IN THE CITY OF EDMONDS, RESERVING UTILITY EASEMENTS, SURFACE AND . SUBSURFACE i 9. (15 Min.) HEARING ON THE PROPOSED VACATION OF A PORTION OF THE PLATTED BUT UNBUILT RIGHTS -OF- WAY OF PORTIONS OF 15TH STREET SW ADJACENT TO THE EDMONDS CEMETERY AND PORTIONS OF 100TH AVENUE SOUTH ADJACENT TO THE EDMONDS CEMETERY, LOCATED IN THE CITY OF EDMONDS, RESERVING UTILITY EASEMENTS, SURFACE AND SUBSURFACE 10. (20 Min.) REPORT REGARDING THE CULTURAL ARTS STADIUM AND CONVENTION DISTRICT BOARD (CASCD) PROPOSAL (Provided by the Council Task Force) 11. (5 Min.) MAYOR'S REPORT 12. (15 Min.) COUNCIL REPORT Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at 771 -0245 with 24 hours advance notice for special accommodations. The Council Agenda appears on Chambers Cable, Channel 32. Delayed telecast of this meeting appears the following Wednesday, Friday and Monday at noon on Channel 32.