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05/04/1999 City Councilpprove 27/99 inutes EDMONDS CITY COUNCIL APPROVED MINUTES . MAY 49.1999 Following a Special Meeting at 6:45 p.m. to meet with an appointee to the Civil Service Commission, the Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Barbara Fahey in the Library- Plaza Room, 650 Main Street. ELECTED OFFICIALS PRESENT Barbara Fahey, Mayor Gary Haakenson, Council President Dave Earling, Councilmember John Nordquist, Councilmember Michael Plunkett, Councilmember Jim White, Councilmember Dick Van Hollebeke, Councilmember Thomas A. Miller, Councilmember ALSO PRESENT Meghan Cross, Student Representative STAFF PRESENT Robin Hickok, Police Chief Paul Mar, Community Services Director Ray Miller, Development Services Director Peggy Hetzler, Administrative Services Director Rob Chave, Planning Manager Jeff Wilson, Planning Supervisor Noel Miller, Public Works Director James Walker, City Engineer Arvilla Ohlde, Parks and Recreation Manager Michael Karber, City Attorney Phil Olbrechts, City Attorney Sandy Chase, City Clerk Jeannie Dines, Recorder Mayor Fahey invited Boy Scout Troop No. 300 to make the presentation of flags and to lead the flag salute. Mayor Fahey noted that Troop No. 300 has been in existence for 30 years. She introduced Scout Master David Miller, who is also an Edmonds Police Officer, and explained the scouts are earning their Citizenship in the Community merit badge. The scouts each introduced themselves to the Council. 1. APPROVAL OF AGENDA COUNCIL PRESIDENT HAAKENSON MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO MOVE AGENDA ITEM 5 TO ITEM 3 AND TO RENUMBER ITEMS 3 AND 4 AS ITEM 4 AND 5 RESPECTIVELY. MOTION CARRIED. 2. CONSENT AGENDA ITEMS COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED. The agenda items approved are as follows: (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF APRIL 27, 1999 Edmonds City Council Approved Minutes May 4, 1999 Page 1 Approve Claim Warrants (C) APPROVAL OF CLAIM WARRANTS #29378 THROUGH #32500 FOR THE WEEK OF APRIL 26, 1999, IN THE AMOUNT OF $465,759.10 laims for (D) ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM KRISTI M. WESTER amages ($690.42), AND JAN & JANINE JOHANSEN ($2,561.09) pdate on (E) UPDATE ON HIGHWAY 99 PROJECT wy 99 PSA with (F) AUTHORIZATION FOR MAYOR TO SIGN A PROFESSIONAL SERVICES System CONTRACT WITH SYSTEM INTERFACE, INC. TO PROVIDE ADDITIONAL interface WATER/SEWER TELEMETRY MONITORING SYSTEM SERVICES ($5,900) urplus (G) AUTHORIZATION TO CONTRACT WITH JAMES MURPHY AUCTIONEERS TO ehicles SELL SURPLUS VEHICLES Res. 952 Set (H) RESOLUTION NO. 952 SETTING JUNE 1, 1999, AS THE HEARING DATE FOR A Baring REQUEST TO VACATE A 10 -FOOT WIDE BY 113 -FOOT LONG PORTION OF THE Date 218TH PLACE SOUTHWEST RIGHT -OF -WAY IMMEDIATELY ADJACENT TO 9405 - 218TH PLACE SOUTHWEST (Applicant: Larry Wax / File No. ST- 99 -52) 10rd. 3250 re (1) ORDINANCE NO. 3250 AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF oning Map EDMONDS TO CHANGE THE ZONING DESIGNATION OF CERTAIN REAL PROPERTY ON THE NORTH AND SOUTH SIDES OF 15TH STREET SW AT ITS INTERSECTION WITH STATE ROUTE 104 FROM SINGLE - FAMILY RESIDENTIAL (RS -6) TO PLANNED BUSINESS (PB) 1999Legis. 3• PRESENTATION OF 1999 LEGISLATIVE CITATION OF MERIT TO MAYOR BARBARA S. Citation of FAHEY FROM THE WASHINGTON RECREATION AND PARK ASSOCIATION Brit Lynn DeVour, Washington State Recreation and Park Association, explained the Washington Recreation and Park Association is a 1200 member organization made up of Parks and Recreation professionals and Commissioners from across the state of Washington. At a recent conference, an awards banquet was held to honor people in the state for their efforts regarding Parks and Recreation. She presented Mayor Fahey the Legislative Citation of Merit and read a letter from the Executive Director of the National Parks and Recreation Association recognizing Mayor Fahey for her exemplary actions in support of congressional appropriations for public parks and recreation through the Land and Waster Conservation Fund. Ms. DeVour presented a Citation of Merit Award to Parks and Recreation Director Arvilla Ohlde who was nominated by Mayor Fahey as well as several members of the association. Mayor Fahey said this is a very significant award for her because she has been working very hard on this issue for the last two years. She said the award was not in recognition of her success but for her efforts to bring about change. She explained by congressional rule, the oil drilling industry must put monies into a trust fund to be used for park and recreation purposes. Some of the funds are to be used for federal programs and some for local, state, and city programs. Until about five years ago, both federal and local projects were funded; five years ago Congress made a decision to retain a significant amount of money in the trust and only allocate funds for federal projects. She said the City has numerous parks that were previously acquired with this funding. Edmonds City Council Approved Minutes May 4, 1999 Page 2 Mayor Fahey explained Ms. Ohlde asked her to speak to the Appropriations Committee to request funding for statewide programs. Mayor Fahey pointed out the need for open spaces in the City that are available to citizens on a daily basis and not only national parks and open spaces that citizens often cannot access. Their efforts resulted in the State Legislature supporting Congress' allocations. Letters signed by every mayor in the state have also been submitted to Congress requesting the appropriation. Resolutions have also been passed at the Conference of Mayors and National League of Cities. She pointed out this is an example of the importance of actively participating in debates in Washington DC to benefit the community. Parks and Recreation Director Arvilla Ohlde said funds provided in the past have resulted in the acquisition of Seaview Park, Sierra Park, Olympic Beach, the fishing pier, Brackett's Landing North, and the Meadowdale Playfields. She explained these funds are still being provided by the oil drilling industry but need to be reallocated the way they were promised in the 1960's. 4. PUBLIC HEARING - EXTENDING THE LIFE OF AN INTERIM ORDINANCE ENACTED Ord. 3209 - Frame/ PURSUANT TO ORDINANCE NO. 3209 RELATING TO A -FRAME AND SANDWICH -BOARD Sandwich DIRECTIONAL SIGNS AND REAFFIRMING ENFORCEMENT PRIORITIES Board Signs Planning Manager Rob Chave explained this is a follow -up hearing to an action the Council took in April extending the 3 -month study period for sandwich board signs. While sandwich board signs have been studied, work has also been underway on the sign code in general including coordination with the Architectural Design Board (ADB) study being conducted by Cedar River Associates. A joint meeting with the ADB and Planning Board is scheduled for May 12 to review sign regulations by districts as well as sandwich board sign issues specifically. The Planning Board will also review these issues at a meeting later in the month. The matter will be presented to the Council at a work session in June, which will include the Planning Board's recommendation. He anticipated the Council could take action in July. Mr. Chave said notices would be mailed next week for a June 2 open house when the Planning Board information will be available for public comment prior to their final action. Mayor Fahey opened the public participation portion of the hearing. Roger Hertrich, 1020 Puget Drive, Edmonds, reiterated a concern expressed by Councilmember Earling previously regarding the absence of those directly affected by this issue. He said there does not appear to be a lot of interest by the individuals the City is trying to change the code for and questioned whether it was necessary to continue. Hearing no further comment, Mayor Fahey closed the public participation portion of the hearing. She explained unless the Council chooses not to extend the ordinance, no further action is required. Closed 5. CLOSED RECORD APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY AN Record APPEAL REGARDING THE PLANNING DIVISION'S INTERPRETATION OF THE Appeal RECORDED PLAT CONDITIONS OF EDMONDS PLANNING DIVISION FILE NO. S- 96 -86, AP- 99 -58) COMMONLY KNOWN AS EAGLES NEST ESTATES, AS SUCH CONDITIONS RELATE TO THE BUILDABLE STATUS OF LOT 1 OF EDMONDS PLANNING DIVISION FILE NO. S -29 -88 (Property Location: North of the properties addressed as 7411, 7407, and 7403 - 169 "' Place / Appellant: Russell G Cofano representing Thomas & Roberta Maurice and Robert & Susan Allen / File No. AP- 99 -58) Mayor Fahey asked if any Councilmembers lived within 300 feet of the short plat, had any business or personal dealings with the appellant or the short plat, had any exparte contact concerning the short plat or have any information that could be perceived as influencing their objectivity. Edmonds City Council Approved Minutes May 4, 1999 Page 3 Council President Haakenson said in 1987 he testified before the Planning Board and City Council regarding an emergency access road that was part of this proposal at that time for the Eagles Nest Estates. He lived in the neighborhood and the neighbors did not want the access road. He said any action he took 12 years ago regarding the access road, which had nothing to do with this issue, would not bias his participation. There were no other disclosures. Mayor Fahey asked if there were any objections to the participation of any Councilmember in the proceedings. There were no objections; Mayor Fahey advised all Councilmembers were empowered to participate in the hearing. Mayor Fahey explained because the City Attorney was involved in this case originally, he cannot participate as legal counsel but will assist staff with the City's presentation. Therefore, the City has engaged the services of Phil Olbrechts as an independent attorney to assist the Council and herself with the hearing. City Attorney Phil Olbrechts explained this is a closed record appeal of the staff interpretation, which will include legal argument about the staff interpretation; new evidence (that was not presented to the Hearing Examiner) is not allowed. He requested that anyone referring to evidence state the location in the record to ensure the information was included in the record. He explained the staff interpretation is a determination by the Planning Department that one lot of a 2 -lot subdivision cannot be developed due to a Native Growth Area. The property owner disputes that interpretation. Mr. Olbrechts said his understanding was Mr. Karber, City Attorney representing staff, planned to withdraw his motion to supplement the record. Mr. Karber said he filed a motion with Council to supplement the record with information staff felt was relevant. Upon further review, staff does not wish to supplement the record. Mr. Olbrechts asked if the appellant had any issues with this action. Robert Allen, 833 8`h NW, Shoreline, asked if this meant the letter he received recently would not be submitted into the record and he could not refer to it. Mr. Karber answered yes; staff is asking Council to disregard that as evidence in this matter. Mr. Allen asked if he could refer to the letter. Mr. Karber answered no. Mayor Fahey asked Mr. Allen if he had an objection to the withdrawal of the motion to supplement the record. Mr. Allen answered he had no objection. Mr. Olbrechts explained legal counsel for the applicant will be allowed to present his argument first, followed by Mr. Karber representing staff, followed by members of the audience who wish to address issues in the record. The applicant's representative would have an opportunity for final rebuttal. Mayor Fahey said the appellant would be allowed ten minutes for his presentation and five minutes for rebuttal, staff will also have ten minutes for their presentation, and members of the public are asked to keep their comments to three minutes. Mr. Karber asked the Council to consider a change in the order. He explained the appellant's attorney will not be present and Mr. Allen will present their case. Although the appellant has the right to present his argument first, Mr. Karber requested he be allowed to present the factual record, which includes overheads that may assist the appellant in presenting their argument, prior to the appellant's presentation. Edmonds City Council Approved Minutes May 4, 1999 Page 4 i �I i I i Mayor Fahey indicated that Mr. Allen was nodding affirmatively from the audience that he would like to proceed in that manner. Mr. Karber explained in 1986, Mr. Allen and Mr. Maurice were the property owners of a 4.75 -acre parcel located in Edmonds. They originally proposed to construct an 8 -lot Planned Residential Development (PRD) on the property. Mr. Karber displayed a plat map that was filed with the plat and referred to the site characteristics outlined in Exhibit A to the City's brief (page 54 of the record). He explained the northerly one -third of the site is heavily vegetated and very steeply sloped. For that reason, the original PRD in 1987 proposed to have 8 lots located on the southerly two- thirds of the site. When the Hearing Examiner considered the PRD application, he was concerned with the small size of some of the lots (one lot was 4,800 square feet) given the minimum zoning at the time (RS -20, a 20,000 square foot minimum lot size). Therefore, the Hearing Examiner recommended approval of the PRD to the Council with the condition that two of the lots be aggregated because they were the smallest lots in the original PRD application. The original PRD application also proposed to leave the northerly one -third of the site as common open space with what was referred to as a Native Growth Restriction across that entire northerly one - third. The applicant apparently did not want to proceed with a 7 -lot PRD and changed their application to an B- lot standard sub - division. In order to accomplish that, they were required to use the entire 4.75 acres to create eight platted lots. Mr. Karber referred to the map and indicated the northerly portion of Lot 5 was Lot 8 in the original PRD application. The Hearing Examiner's decision at the time was to approve the 8 -lot subdivision but indicated there was significant concern about the buildability of what was then known as Lot 8 due to the steep slope as it appeared to have unstable soils and was heavily wooded. The Hearing Examiner's staff report (Exhibit D, page 100 of the record) lists the Hearing Examiner's concerns about the buildability of Lot 8. The Hearing Examiner attached conditions to the subdivision with respect to Lot 8, requiring further extensive environmental review of that particular lot if a building permit was ever sought for that lot. Otherwise, the Hearing Examiner recommended approval of the 8- lot subdivision. When the Council first heard the preliminary plat application, there was an issue raised regarding the means of access to the site but that is not germane to the appeal. Due to the Council's concern with access, the matter was remanded to the Hearing Examiner for review of the access. When the Hearing Examiner next heard the application for subdivision, the applicants had changed the proposed layout of the lots so that what was formerly Lot 8 was aggregated into Lot 5. This was ultimately recommended to Council and the preliminary plat and final plat were approved. Approximately six months after the plat was recorded, the property owners submitted an application for an administrative short plat that sought to further subdivide Lot 5 of the original 7 -lot subdivision. It divided former Lot 5 into Parcel 1 and Parcel 2. Parcel 1 is the exact dimensions of what was formerly Lot 8 in the original subdivision considered by the Hearing Examiner and the Council. Mr. Karber summarized the lots were consolidated when approved by the Council and then re- subdivided through the administrative short plat process, which did not require Council approval in accordance with the regulations in effect at that time. Parcel 2 was developed with a single - family residence and Parcel 1 has been vacant since the subdivision. The City recently received a request to evaluate whether Parcel 1 would be considered a buildable lot for purposes of obtaining a building permit. Planning staff reviewed the issue, including the conditions imposed by the Hearing Examiner, and issued a written response that they did not consider Parcel 1 to be Edmonds City Council Approved Minutes May 4, 1999 Page 5 a buildable lot, specifically due to the Native Growth restriction imposed on what was formerly the northerly portion of Lot 5, also known as Lot 8. Staffs administrative decision was appealed to the Hearing Examiner. Because the appeal is an appeal of a staff interpretation, the appeal is heard by the Council. Appellan t Mr. Allen said when they short platted the property, they always had it in mind to build on that lot eventually. He said that is the reason they had geotechnical studies done and have paid taxes on the property since that time. Mr. Olbrechts asked where the fact that they always intended to build on the property was in the record. Mr. Allen said it was self - evident; if someone pays taxes on property, they must have some intended use for it. Mr. Olbrechts cautioned that was not a fact in the record. Mr. Allen said the City denied their request based on the Native Growth Protection. He knew that at the time but there was no hard definition of Native Growth. The definition on the recorded plat states no trees shall be cut except dead or dying and the property shall remain in its present state unless approved by the City of Edmonds. He said they interpreted that to mean they would have to meet environmental review to build on it. He said since they received approval for the short plat and have paid taxes on the property, they feel it would be unfair in the extreme to have the City determine the property can never be built upon. Mayor Fahey asked if there was any member of the audience with standing who wished to speak. There was no one present who wished to address the Council. Staff Presentation Mr. Karber said the decision from the Hearing Examiner was very clear and summarized the arguments to reach his conclusion. Mr. Karber explained the subdivision of land in the state of Washington is governed by state law and local ordinances. Local ordinances must be consistent with state law. RCW 58.17.215 (page 44 of the record) states if any portion of a subdivision that has been recorded is to be altered, the process that is required is the same process by which the original subdivision was approved and a majority of the owners of the subdivided property must join in the application to alter the subdivision. That state statute is implemented in the City by ECDC 20.75.110(B) entitled "Changes" which provides that: An application to change a final plat that has been filed for record shall. be processed in the same manner as a new application. This section does not apply to affidavits of correction (page 45 of the Council record). Staffs position has been in 1986 Council approved a 7 -lot subdivision that clearly had a Native Growth Area designated on the plat. He referred to the map recorded with the subdivision plat, identifying the Native Growth Area that extends along the area that now comprises the area where Parcel 1 is located following the administrative short plat. He read the restriction printed on the map, which is also. printed in the Hearing Examiner's decision, "The Native Growth Area shown hereon shall remain in its present state. There shall be no cutting of trees unless they are dead, diseased or pose a hazard to the public or unless otherwise approved by the City." Staffs interpretation is this information should be given its plain and ordinary meaning because the first section is very unambiguous in its meaning and states the Native Growth Area shown hereon shall remain in its present state. Staffs interpretation is the construction of a single family home would take it outside its natural state. Staff also believes there was further authority in prior versions of the restriction. The Hearing Examiner heard evidence on this and made a finding (Finding 2 on page 2 of the Hearing Examiner's decision) indicating the manner in which the original restriction was proposed. That Edmonds City Council Approved Minutes May 4, 1999 Page 6 I restriction stated, "The Native Growth Protection Area shall be left in a substantially native state. No clearing, grading, filling or construction shall occur within this area except for necessary utility installations, drainage and other improvements as may be needed for the purposes of soil stabilization when reviewed and approved by the City of Edmonds City Engineer. Removal of trees by the property owners shall be limited to those which are dead, diseased or dangerous." That restriction was originally proposed with the 8 -lot PRD and the 8 -lot subdivision. When the 7 -lot subdivision was approved by Council, the restriction had been shortened to the two sentences that appear on the plat map. Mr. Karber summarized that the restriction is clear and unambiguous and should be given its plain and ordinary meaning, which would restrict the buildability of the lot restricted by that language. Therefore, it is staffs position that the purpose of the administrative short plat was to separate the burdened portion of Lot 5 from the unburdened portion of Lot 5 and that is where the division of property occurred. The appellant argued before the Hearing Examiner that they may have vested rights and raised some legal issues in that respect. The appellant's claim is that when they short subdivided the property (Lot 5) into two lots, it was done in expectation of building on Parcel 1. Although the Hearing Examiner heard testimony on this issue, it is not noted in his findings. Mr. Karber explained the Vested Rights Doctrine states when an application is complete, the property owner vests not only the right to divide the property but also to develop the property. However, courts have ruled that the property owner does not vest the right to develop the property to any possible use under the zoning but rather vests the right to develop what is stated as their intention to develop it at the time of application for subdivision. Therefore, the applicant's intention regarding development is relevant to what rights, if any, they are vested in. Mr. Karber referred to the Environmental Checklist (Exhibit M, page 212 of the record) specifically question 11 on page 213, "Give a brief complete description of your proposal." The applicant answered, "Proposal is to subdivide Lot 5 of Eagle Nest Estates into two lots. Lot 5 would be 20, 000 square feet and Lot 5A would be approximately 50,000 square feet. No use for the Lot 5A is planned at this time." Mr. Karber said there are other indications in the Environmental Checklist that the applicant intended to do no construction, grading, filling or any type of activity on Parcel 1. Mr. Karber referred to page 3 of the Checklist (page 214 of the record), question "h" which states "proposed measures to reduce or control erosion or other impacts to the earth, if any:" The applicant answers "Preserve vegetation." Question "f' states, "could erosion occur as a result of clearing, construction, or use? If so, generally describe." The applicant answered "Yes, but no clearing proposed." Mr. Karber said it was called to the Hearing Examiner's attention (verbatim transcript in the record) that the application for short subdivision did not have a space to indicate the proposed use. However, there was a section to indicate variances being requested as part of the subdivision. Staffs position is the property owners knew this area was burdened by the restrictions and had actually proposed the restriction. If they intended to build on Parcel 1, they could have requested a variance as part of the subdivision process. Staff s position is the restriction on the face of the original subdivision could only be modified or terminated by action of Council. That remains true today; if an application is presented, signed by a majority of the property owners of the subdivision, the restriction could be lifted if the Council found that was the correct course of action. Council President Haakenson said the Native Growth Area appeared on the map to be spread over three areas. He observed where NATIVE is printed is approximately the area being addressed tonight. Mr. Karber agreed. Council President Haakenson said where GROWTH and AREA are printed on the map is a steep slope. He asked if the Native Growth Area is part of lots 6 and 7 shown on the map. Mr. Karber answered yes according to staffs interpretation of the plat map. Council President Edmonds City Council Approved Minutes May 4, 1999 Page 7 Haakenson asked if the bottom half of Lot 6 was a Native Growth Area. Mr. Karber said the single family homes developed on Lots 6 and 7 are south of the Native Growth Area. Mr. Olbrechts observed this information was outside the record. Council President Haakenson asked if any tree cutting or development plans have been proposed for the Native Growth Area on Lots 6 and 7. Mr. Karber answered he is not aware of any but that was not an issue raised before the Hearing Examiner. One of the property owners of Lot 6 or 7 testified before the Hearing Examiner indicating he did not want to see his backyard go away, as the northerly part of his lot was well treed and steeply sloped to Meadowdale Beach Road. The property owner questioned how the City could consider de- vegetation of the site and construction of any structure. Mr. Karber said it could be assumed from the record that the neighbors who testified before the Hearing Examiner were strongly in support of staffs interpretation. Councilmember Earling said the testimony Mr. Karber referred to was from Mr. Kopp. Mr. Karber agreed Mr. Kopp testified and three letters were submitted at the hearing voicing concerns similar to Mr. Kopp's. Councilmember Plunkett referred to RCW 58.17.215 regarding subdivision and said his understanding was that this was a Planned Residential Development (PRD) which was more difficult to change. Mr. Karber answered when the property was first proposed to be developed, it was proposed as a PRD. However, because of the Hearing Examiner's decision, the property owners withdrew that application and changed to a straight formal subdivision. Appellant Rebuttal Mr. Allen said replatting is not a remedy because it was unlikely they could get 6 - 7 property owners to willingly replat the plat to allow them to build one single family residence because no one wants development in their area. He commented none of the residents of the plat would be able to see a house on Parcel 1 from their property. He summarized replatting was not a viable remedy. Regarding the reference to the Environmental Checklist and that it indicated they had no intention of developing the property at that time, he stressed they had no intention of developing the property "at that time," but truly and honestly always felt that was an option. That is why they have paid taxes on the property and had geotechnical studies done on the property in 1992. He said the fact that a short plat was granted led them to believe they could develop the property, provided, they went through the proper environmental review process, and that is why he had the geotechnical studies. done. He said the City may have erred in granting the short plat. He said this was unfair and extreme. Councilmember Plunkett asked where the City erred. Mr. Allen answered in granting the short plat in the first place in what was deemed a Native Growth Area. He did not realize at the time and still does not realize that a Native Growth designation condemns a property never to be built upon ever. He said there is nothing in the language that states that. Councilmember Plunkett asked Mr. Allen if he felt the City did not have the right to designate the property Native Growth. Mr. Allen answered they have always believed the Native Growth designation did not mean it could not be built upon. Further, there is nothing "hard and fast" in the definition of Native Growth that states it cannot be built upon. Councilmember Earling referred to Mr. Allen's statement that there is no definition of Native Growth and asked what impact that has on Mr. Allen's argument versus Mr. Karber's argument. Mr. Olbrechts Edmonds City Council Approved Minutes May 4, 1999 Page 8 i i said it is not an issue because it is a valid condition of plat approval and there is no question what that condition states. In the application materials, the attorney argued that the last clause "or unless approved by the City of Edmonds" qualified the fact that the property owner could not build. The Hearing Examiner disagreed with that interpretation and he (Mr. Olbrechts) also disagreed with that interpretation and believed that clause refers to the cutting of trees, and not to the first sentence. Due to the inclusion of the restriction on the plat map, Mr. Olbrechts said there is no question that any interpretation of the subdivision approval that concluded the City would allow development on the property would be invalid because it would conflict with the no development condition. Councilmember Earling asked Mr. Karber to review the change in language again. Mr. Karber referred to the Hearing Examiner decision (page 2 of Exhibit 5) and read the language included in the original B- lot subdivision, "A Native Growth Protection Easement is established over and upon Lot 8 and those portions of Lots 4, 5, 6 & 7 north of the top of the bank as indicated, except that clearing shall be permitted on Lot 8 for the construction of a house, driveway and 50' of lawn area around the house. This Native Growth Protection Area shall be left in a substantially native state. No clearing, grading, filling or construction shall occur within this area except for the necessary utility installations, drainage and other improvements as may be needed for the purposes of soil stabilization when reviewed and approved by the City of Edmonds City Engineer. Removal of trees by the property owners shall be limited to those which are dead, diseased or dangerous. Limbs may be removed from selected trees to establish/enhance view corridors." Mr. Karber said this language was originally proposed by the applicant for the Native Growth Area. What was approved by Council is the language that appears on the plat which shows the Native Growth Area covering former Lot 8 as well as the northerly portion of Lots 4, 5, 6 & 7. The language the Council approved was shortened and is more concise, "The Native Growth Area shown hereon shall remain in its present state. There shall be no cutting of trees unless they are dead, diseased or pose a hazard to the public, or unless otherwise approved by the City." Mr. Karber said the Hearing Examiner made a finding that the record does not indicate why the language regarding the Native Growth Area was changed and staff concurred with that finding. Mr. Olbrechts said unless the Council found the restriction on the Native Growth Area ambiguous, the background of how it was developed is irrelevant and a court would not consider that information. Councilmember Van Hollebeke asked Mr. Olbrechts to explain what the Council is being asked to act upon. Mr. Olbrechts displayed a map showing the short plat of Parcels 1 and 2. He said the appellant acquired approval for the short plat several years ago and recently requested a building permit for Parcel 1. The Planning Department indicated Parcel 1 was not a buildable lot due to the Native Growth Area. The appellant appealed staffs decision to the Hearing Examiner in an attempt to be allowed to build on Parcel 1, arguing that the City told him he could build on Parcel 1 when he obtained the short plat (equitable estoppel). Mr. Olbrechts said, as was argued in Mr. Karber's brief, equitable estoppel does not apply if there is an invalid permit. Mr. Olbrechts explained the concept of equitable estoppel is if someone makes you a promise and you rely on that promise, the person has to follow through on their promise. In this instance, the appellant states the City promised him, when granting the short plat approval, that he could build on that lot and, therefore, represents a promise upon which he has relied. The courts have found that equitable estoppel will not apply if the City promises you something they have no authority to promise. In this instance, when the Planner approved the short plat, it could be construed, although it is not clear what she actually said, that she was allowing development to occur on Parcel 1. What Mr. Karber has argued and what Mr. Olbrechts said he agreed with, the Planner had no authority to allow that because the only way to remove the Native Growth Easement on Parcel 1 and allow.development is through a plat alteration process, which requires the signature of the majority of the Edmonds City Council Approved Minutes May 4, 1999 Page 9 property owners living in the subdivision. The City's argument is since the Planner had no authority to make that statement, equitable estoppel does not apply. Councilmember Van Hollebeke said the Council record indicates on page 2 .that the Council's specific charge is to determine if the Hearing Examiner did his job in a proper manner or if he in some manner committed an error in law and, therefore, his decision is erroneous. Councilmember Van Hollebeke summarized the Council is to determine whether the Hearing Examiner acted within his bounds or made a substantial error. Mr. Olbrechts agreed, pointing out this refers to the original issue of whether staff was correct in their interpretation. The Hearing Examiner found they were and now the Council must determine if the Hearing Examiner was correct. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO UPHOLD THE HEARING EXAMINER'S DECISION OF MARCH 4, 1999, AND DENY APPEAL NO. AP- 99 -58. Council. President Haakenson said the appellant referred to the lack of definition for a Native Growth Area as well as the statement that "There shall be no cutting of trees unless they are dead, diseased or pose a hazard to the public, or unless otherwise approved by the City." Council President Haakenson said there are two statements regarding the restriction, the original one addressing, the Native Growth Protection Area, which would appear to mean "not buildable." He said the definition of Native Growth Protection Area was given on page 292, the Hearing Examiner's decision in which he quoted the restriction, "This Native Growth Protection Area shall be left in a substantially native state. No clearing, grading, filling or construction shall occur within this area except for the necessary utility installations, drainage and other improvements as may be needed for the purposes of soil stabilization when reviewed and approved by the City of Edmonds City Engineer. Removal of trees by the property owners shall be limited to those which are dead, diseased or dangerous. Limbs may be removed from selected trees to establish/enhance view corridors." The shorter definition appears to be a paraphrase of the first definition. Council President Haakenson said he was comfortable the Native Growth Protection Area was designated by the definition and the intent of the Council at that time was to leave the area as it existed with no building. Council President Haakenson indicated he was in support of the motion. . MOTION CARRIED UNANIMOUSLY. Mayor Fahey asked if Parcel 1 & 2, originally Lot 5, were originally designated as a Native Growth Area. Mr. Olbrechts answered only Parcel 1. Mayor Fahey asked if the two- parcel subdivision was necessary to build on a portion of the lot or if it would have been possible to build on part of the lot. Mr. Karber stated construction could have been done on the southern portion (similar to what was done on Lots 4, 5, 6 & 7) and leave the northerly portion of the lot in a vegetated state. 6. AUDIENCE COMMENTS ater ski Al Rutledge, 7101 Lake Ballinger Way, Edmonds, referred to a newspaper article 'regarding Mountlake Terrace's cancellation of the water -ski race on Lake Ballinger. He felt Edmonds had not been included in the discussion of this event. He next referred to Mayor Fahey's appointment to Amtrak's Mayor Council and suggested she or Councilmember Earling may be able to respond to an incident that occurred on a recent Amtrak trip from Vancouver BC where there were insufficient dinners available. Councilmember Earling clarified he was not on the train and had nothing to do with Amtrak's meal policies. Edmonds City Council Approved Minutes May 4, 1999 Page 10 nimal Roger Hertrich, 1020 Puget Drive, Edmonds, said he attends numerous meetings in the City including ntrolOrd. City Council, Planning Board, and Architectural Design Board meetings and considers himself well informed. He said the Planning Board and ADB are functioning well and he complimented them on their concern for the City. He referred to the joint City Council/Planning Board meeting where it was ,pointed out the animal control ordinance was sent to Council committee from the Planning Board. The ordinance was then altered by Committee member Van Hollebeke due to his belief that the ordinance needed more restrictions. Mayor Fahey indicated at the joint meeting that sending Planning Board recommendations to Council committee was not the normal practice and in the future Planning Board recommendations Plan - g Board would go directly to the full Council for hearing. Mr. Hertrich said this issue was discussed at a Planning Board meeting following the joint meeting and Commissioners were dismayed to learn three. Board Recommend- Planning Board issues, including wall graphics, will be reviewed by Council committee. As a result of ations. Councilmember Earling's statement to the Planning Board at the joint meeting that they had the ability to determine the path of their recommendations, they chose to suggest to staff that most of their items go directly to City Council. Mr. Hertrich suggested the Council look into the process, as it was important issues be sent to the Council for hearing. Amtrak Mayor Fahey clarified that Mr. Rutledge was referring to her attendance at an Amtrak meeting as a Mayor's member of Amtrak's Mayor Council to discuss issues related to safety. She explained she is not riding Council Amtrak because of the significant amount of time it takes to get to Chicago on the train. Instead she will be flying to Chicago on Wednesday afternoon for meetings on Thursday morning and flying back on Thursday afternoon. She said she looked forward to riding Amtrak when she has more time. es. 953 7• RESOLUTION NO. 953 TO CONDUCT TECHNICAL EVALUATION OF CABLE TELEVISION val. of SYSTEM REBUILD FOR COMPLIANCE WITH FRANCHISE AGREEMENT able TV Community Service Director Paul Mar recalled last week Chambers Cable made a presentation to the Council on the status of their system rebuild. At the conclusion of that presentation, Council directed staff to initiate the process for a technical review of the system rebuild. The City Attorney assisted with drafting the proposed resolution and has approved it to form. Council President Haakenson asked Mr. Mar to explain the resolution. Mr. Mar said the resolution directs staff to begin the technical evaluation. This includes. notifying Chambers Cable of the City's intent to do a technical evaluation, collection of information, and if the evidence indicates it is appropriate, setting a hearing date. Chambers Cable will have an opportunity to present their evaluation of the City's technical evaluation. The technical evaluation will be done by a consultant, assuming the resolution is approved. Mayor Fahey clarified the purpose of the technical evaluation is to determine if Chambers Cable complied with the terms of the contract for the system rebuild. Councilmember White asked the estimated cost of the consultant. Mr. Mar answered they have discussed the evaluation with 3H Cable Consultants, the consultant who assisted with drafting the franchise agreement and who have the capability of doing this analysis but no price has yet been requested. Mr. Karber said payment would come from the franchise fees that are collected. Mr. Mar agreed. Councilmember White asked how those funds are used if they are not used to pay a consultant. Mr. Mar answered they are in the General Fund. Edmonds City Council Approved Minutes May 4, 1999 Page l l COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCIL PRESIDENT HAAKENSON, FOR PASSAGE OF RESOLUTION NO. 953. Councilmember White said he would support the resolution if amended to include a presentation to the Council on consultant costs prior to entering into a contract. Councilmember Nordquist accepted this as a friendly amendment. MAYOR FAHEY RESTATED THE MOTION: TO ADOPT THE RESOLUTION SHOWN IN EXHIBIT I WITH THE PROVISION THAT THE COST OF THE PROCESS BE PRESENTED TO THE COUNCIL FOR APPROVAL BEFORE ENTERING INTO A CONTRACT. MOTION CARRIED. Council President Haakenson asked Mr. Mar if that report could be provided next week. Mr. Mar agreed to provide it in memorandum form with the Council packet. Eund 8. UPDATED INFORMATION ON PROPOSED UNDERGROUND PARKING GARAGE kZrg e Community Services Director Paul Mar recalled a lengthy presentation was made to the Council on April 20 regarding the proposed underground parking garage, particularly as it related to the special benefit area and the assessment if an LID was used to finance the garage. At the conclusion of that presentation, Council directed staff to return in 30 days with further information. Staff wants to ensure the information regarding which property owners would be subject to the special benefit assessment was clearly indicated. Mr. Mar explained the only property owners to be assessed are the property owners within the colored areas on the map shown at that meeting who have non - residential property uses and a parking deficit. Further, the public safety construction project is at a point where, if this project is still to be considered, staff needs direction from Council to issue a deductive change order to the current contractor. This will prevent the contractor from ordering long lead time items or proceeding with any of the landscaped areas on the west side of the project and allow the City full credit if the garage proceeds. Councilmember Van Hollebeke asked the timeline for that decision. Mr. Mar answered a decision will be necessary at the May 25 meeting. Councilmember White asked how commercial properties could exist within the zone, have a parking deficit and not have paid into the in- lieu -of- parking fund. Mr. Mar answered one possibility is if a property were in use prior to the enactment of the parking code. He explained the appraiser applied a parking demand based on the code requirement. If a property was in use prior to the implementation of the parking codes, it would not have been required to provide parking. Until a property -by- property analysis is done, exactly which properties have deficits will not be known as the appraiser looked only at blocks and not individual properties. Councilmember White said it appeared it would be relatively easy to determine which properties were in use prior to the enactment of the parking regulations. He asked if staff could provide a percentage of commercial properties that would be subject to the LID. Mr. Mar said his understanding of the analysis was there were estimates of square footage and application of the code by portion of a block and not on a parcel -by- parcel basis. Councilmember Earling asked whether there was a formula established based on vehicle traffic, etc. for reviewing new businesses. And, if so, hasn't every business been reviewed on that basis and asked to pay Edmonds City Council Approved Minutes May 4, 1999 Page 12 into the in- lieu -of- parking fund. Mr. Mar answered where businesses have changed use and have not increased the square footage or changed the use to another category, staff s determination has been that no additional parking is required. There have been redeveloped properties where additional parking has been required (i.e. 3`d and Dayton property, formerly Quintana Roo Restaurant). Councilmember Earling asked if the two churches will have full knowledge of the May 25 meeting. Mr. Mar said a letter from the Downtown Parking Committee is being distributed to all property owners, including the churches and includes notification of the May 25 meeting. Councilmember Earling asked if the business community has responded regarding ideas or reactions to the change in the amount of money that may be required via the LID. Mr. Mar answered after the April 20 meeting, he spoke with the project proponents to ensure they understood what their tasks were for the May 25 meeting. Mr. Mar said staff will also present further information at the May 25 meeting regarding other revenue sources from a parking garage that might offset the cost. Councilmember Earling was concerned there may be requests to re- identify the way the parking garage could be paid for (head tax or square footage tax). He said this appeared to be an evolution of the .rules. Mr. Mar said the business community has been asked to bring forward more information regarding other revenue sources. Administrative Services Director Peggy Hetzler and he have also discussed how that would affect financing for the garage. That information will be presented at the May 25 meeting. Councilmember White asked if the business community was aware that a significant portion of the businesses may not be participating,in the assessment. Mr. Mar answered the businesses that were at the April 20 meeting were aware the colored map does not include a portion of the BC zone. Councilmember White observed a determination has not yet been made regarding which businesses in the BC zone will be participating as no determination has yet been made regarding deficits. He asked if property owners understood this. Mr. Mar said yes; Ms. Wiggin's letter indicates the possibility of businesses being assessed. The letter seeks input on whether property owners are interested in proceeding now that the percentage may be as high as 36% (versus the 20% originally proposed) and the increased estimated cost of the garage. Councilmember White wanted to ensure property owners were aware the amount provided by the LID would not necessarily be divided by all businesses in the BC zone as many may be in compliance with parking regulations. Mr. Mar said the letter states the assessment is based on parking deficit, not property value, as originally proposed. Councilmember White asked if the LID would be assessed against the church property. Mr. Mar answered it would be assessed on all non - residential properties within the three colored zones that have a parking deficit. Councilmember White observed the property tax exemption did not apply in this instance. Mr. Mar said no. Council President Haakenson commented that the terms business community, business owners and property owners are being used interchangeably but it is actually the property owner who will be assessed. He said although the property owners will be assessed, it is likely the business owner who will pay. Council President Haakenson stressed although the business community may be in favor of a parking garage, they may not understand they will be paying for it. He hoped there would be representation from both business owners and property owners when this issue is discussed again. Edmonds City Council Approved Minutes May 4, 1999 Page 13 Councilmember Van Hollebeke, a member of the Edmonds Alliance for Economic Development, i stressed there is not a clear understanding in the business community, whether it is the property owners, business owners or tenants. He implored staff to contact Doug Dewar who raised the issue of who would be taking the leadership role in helping educate the business community regarding the assessment. Councilmember Van Hollebeke said he suggested the logical group would be the Chamber of Commerce's Economic Development group as well as the Property Owners group. He said the business community also may not understand the importance of the upcoming deadline and potential costs. Mayor Fahey explained the letter is being sent to property owners who would potentially be assessed if an LID is done based on benefit to individual property owners. This is different from Mr. Dewar's proposal that some form of tax (such as a head tax or square footage tax) be .implemented on the businesses in the entire downtown business zone as a way to pay for at least part of the proposed garage. This proposal will not be included in the letter related to the potential assessment, as they are completely separate issues. She said there are differences of opinion regarding a head tax and square footage tax and would require additional public meetings for discussion. This would be difficult to factor into the timeline necessary to make a decision regarding the Public Safety complex. 9. MAYOR'S REPORT j i candinavian Mayor Fahey reported on the wonderful 41 Annual Scandinavian Festival on Saturday, May 1, which estival included trolls, Scandinavian music, dancing, crafts and breakfast. She reported a big event is planned for their 5`h anniversary next year. arrior Mayor Fahey advised Warrior Way on Edmonds - Woodway High School campus will be dedicated ' ay tomorrow (May 5) at 8:30 a.m. Mayor's Mayor Fahey reported she will leave Thursday afternoon to attend the Cascadia Mayor's Conference in onference Victoria on Friday. Council President Haakenson will'act as Mayor Pro Tem in her absence. isioning Mayor Fahey reminded the community of the report on the visioning process that will be presented on Meeting May 19 at Edmonds Theater at 7:00 p.m. aterfront Mayor Fahey advised the Waterfront Festival, sponsored by the Edmonds Rotary, will take place on estival May 21 - 23 at the Port. 10. COUNCIL REPORTS Council. President Haakenson wished Councilmember Miller a happy birthday on May 10. nimal Councilmember Van Hollebeke advised Mr. Hertrich that the City has a process for handling ontrol Ord. 1 Councilmember duties, which includes committee meetings once per month to discuss issues prior to a public meeting with the full Council. He stressed he had no intention of circumventing the process and never intended for the animal control ordinance to be a committee decision. He said most issues that are brought to the committee are suggested by staff or a Councilmember. He supported having the animal ' control ordinance presented to the full Council. j Councilmember Plunkett said Lynnwood Councilmembers are envious of the Council's committee process. He was confident Council President Haakenson could make arrangements with Board and Commissions regarding what issues are heard by committees. He next reported the committee selecting Edmonds City Council Approved Minutes May 4, 1999 Page 14 ork for the artwork for Lynndale Skateboard Park will meet on Thursday, May 6 at the Lynnwood Council nndale j Chambers to review artwork. He advised the South County Republican Party meeting is also on May 6 k at the same location and time. Artwork for Councilmember Nordquist advised he has been participating on a jury to select artwork for the 50' ekinan 50' Anniversary of Hekinan. The jury met once and will be meeting again on June 10 for art presentations. `" He encouraged interested citizens to attend. He commented on the challenge of identifying an art piece that will fit into Hekinan's environment. Appointment Mayor Fahey requested the Council approve the appointment of David Bracilano to the Civil Service to Civil Commission. She explained the Council met with Mr. Bracilano prior to the Council meeting. She Service ommission briefly described Mr. Barcilano's background. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCIL PRESIDENT HAAKENSON, TO APPOINT DAVID BRACILANO TO THE CIVIL SERVICE COMMISSION. MOTION CARRIED. Mayor Fahey extended warm wishes for a Happy Mothers Day to all mothers in the community. With no further business, the Council meeting was adjourned at 9:05 p.m. BARBARA S. FAHEY, MAYOR ­ '-d� --f Z�" -.SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes May 4, 1999 Page 15 AGENDA EDMONDS CITY COUNCIL Plaza Meeting Room - Library Building 650 Main Street 7:00 -10:00 p.m. MAY 4, 1999 Special Meeting 6:45 P.M. — MEETING WITH APPOINTEE TO THE CIVIL SERVICE COMMISSION 7:00 P.M. - CALL TO ORDER FLAG SALUTE — LED BY BOY SCOUT TROOP NO. 300 1. APPROVAL OF AGENDA 2. CONSENT AGENDA ITEMS (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF APRIL 27, 1999 (C) APPROVAL OF CLAIM WARRANTS #29378 THROUGH #32500 FOR THE WEEK OF APRIL 26, 1999, IN THE AMOUNT OF $465,759.10 (D) ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM KRISTI M. WESTER ($690.42), AND JAN & JANINE JOHANSEN ($2,561.09) (E) UPDATE ON HIGHWAY 99 PROJECT (F) AUTHORIZATION FOR MAYOR TO SIGN A PROFESSIONAL SERVICES CONTRACT WITH SYSTEM INTERFACE, INC. TO PROVIDE ADDITIONAL WATER/SEWER TELEMETRY MONITORING SYSTEM SERVICES ($5,900) (G) AUTHORIZATION TO CONTRACT WITH JAMES MURPHY AUCTIONEERS TO SELL SURPLUS VEHICLES (H) PROPOSED RESOLUTION SETTING JUNE 1, 1999, AS THE HEARING DATE FOR A REQUEST TO VACATE A 10 -FOOT WIDE BY 113 -FOOT LONG PORTION OF THE 218TH PLACE SOUTHWEST RIGHT - OF -WAY IMMEDIATELY ADJACENT TO 9405 — 218TH PLACE SOUTHWEST (Applicant: Larry Wax / File No. ST- 99 -52) (1) PROPOSED ORDINANCE AMENDING THE OFFICIAL ZONING MAP OF THE CITY OF EDMONDS TO CHANGE THE ZONING DESIGNATION OF CERTAIN REAL PROPERTY LOCATED ON THE NORTH AND SOUTH SIDES OF 15TH STREET SW AT ITS INTERSECTION WITH STATE ROUTE 104 FROM SINGLE - FAMILY RESIDENTIAL (RS -6) TO PLANNED BUSINESS (PB) 3. (15 Min.) PUBLIC HEARING — EXTENDING THE LIFE OF AN INTERIM ORDINANCE ENACTED PURSUANT TO ORDINANCE NO. 3209 RELATING TO A -FRAME AND SANDWICH -BOARD DIRECTIONAL SIGNS AND REAFFIRMING ENFORCEMENT PRIORITIES 4. (60 Min.) CLOSED RECORD APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY AN APPEAL REGARDING THE PLANNING DIVISION'S INTERPRETATION OF THE RECORDED PLAT CONDITIONS OF EDMONDS PLANNING DIVISION FILE NO. S- 96 -86, COMMONLY KNOWN AS EAGLES NEST ESTATES, AS SUCH CONDITIONS RELATE TO THE BUILDABLE STATUS OF LOT 1 OF EDMONDS PLANNING DIVISION FILE NO. S- 29 -88. (Property Location: North of the properties addressed as 7411, 7407, and 7403 — 169 " Place / Appellant: Russell G. Cofano representing Thomas & Roberta Maurice and Robert & Susan Allen / File No. AP- 99 -58) 5. (5 Min.) PRESENTATION OF 1999 LEGISLATIVE CITATION OF MERIT TO MAYOR BARBARA S. FAHEY FROM THE WASHINGTON RECREATION AND PARK ASSOCIATION CITY COUNCIL MEETING AGENDA MAY 4, 1999 Page 2 6. AUDIENCE COMMENTS (3 Minute Limit Per Person) 7. (10 Min.) PROPOSED RESOLUTION TO CONDUCT TECHNICAL EVALUATION OF CABLE TELEVISION SYSTEM REBUILD FOR COMPLIANCE WITH FRANCHISE AGREEMENT 8. (5 Min.) UPDATED INFORMATION ON PROPOSED UNDERGROUND PARKING GARAGE 9. (5 Min.) MAYOR'S REPORT 10. (15 Min.) COUNCIL REPORT Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771 -0245 with 24 hours advance notice for special accommodations. The Council Agenda appears on Chambers Cable, Channel 32. Delayed telecast of this meeting appears the following Wednesday, Friday and .Monday at noon on Channel 32.