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02/21/1989 City CouncilTHESE MINUTES SUBJECT TO FEBRUARY 28, 1989 APPROVAL In E/3 EDMONDS CITY COUNCIL MINUTES FEBRUARY 21, 1989 The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Larry Naughten at the Library Plaza Room, 650 Main St., Edmonds. All present joined in the flag salute. PRESENT Larry Naughten, Mayor Bill Kasper, Council President Steve Dwyer, Councilmember Laura Hall, Councilmember Roger Hertrich, Councilmember Jo -Anne Jaech, Councilmember John Nordquist, Councilmember Jack Wilson, Councilmember Dave Berdine, Student Rep. CONSENT AGENDA STAFF Mary Lou Block, Planning Div. Mgr. Peter Hahn, Comm. Svc. Director Art Housler, Admin. Svc. Director Bob Alberts, City Engineer Jack Weinz, Fire Chief Jim Barnes, Parks & Rec. Div. Mgr. Dan Prinz, Police Chief Bobby Mills, Public Works Supt. Linda McCrystal, Arts Coordinator Scott Snyder, City Attorney Jackie Parrett, City Clerk Margaret Richards, Recorder Items (F), (G), (H), (M), (N), (P), and (Q) were .removed from the Consent Agenda. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MO- TION CARRIED. The approved items on the Consent Agenda include the following: (A) ROLL CALL (B) APPROVAL OF MINUTES OF FEBRUARY 7, 1989 (C) ACKNOWLEDGEMENT OF RECEIPT OF CLAIMS FOR DAMAGES FROM ROBERT D. VOSHALL ($35,000) AND GLEN W. GARVIE ($130.80) (D) APPROVAL OF AMENDMENT TO MEBT PLAN --MEMBERSHIP STRUCTURE, IN ACCORDANCE WITH COUNCIL ACTION JANUARY 10, 1989 7iLe41zlel (E) AUTHORIZATION TO PURCHASE FOUR MOTOROLA MAXTRAC/100 MOBILE RADIOS FROM KITSAP COUNTY INTERLOCAL RADIO PURCHASING AGREEMENT ($11,459) (I) REPORT ON BIDS OPENED FEBRUARY 7, 1989 FOR YOST POOL BLANKET, AND AWARD OF CONTRACT TO W.M. SMITH & ASSOCIATES ($9,594.20) 3 (J) AUTHORIZATION TO PURCHASE SIGNAL EQUIPMENT FOR 3RD AND MAIN ST. ($20,000) K) AUTHORIZATION FOR MAYOR TO SIGN ONGOING TESTING SERVICE AGREEMENTS WITH HONG TESTING AND BOSS TESTING p (L) APPROVAL OF MEADOWDALE PLAYFIELD MAINTENANCE AGREEMENT WITH CITY OF LYNNWOOD ($30,000) (0) ADOPTED ORDINANCE 2703 AMENDING EDMONDS CITY CODE CHAPTER 8.48 REGARDING PARKING AUTHORIZATION TO REPLACE UNIT 23 (1974 FORD COURIER) AND PURCHASE 1988 CHEVROLET CELEBRITY STATI N WAGON FROM STATE CONTRACT 11,459j ITEM F N THE CONSENT AGENDAI Councilmember Nordquist recommended that Staff consider purchasing a vehicle that would be better P� suited to transport equipment. Mayor Naughten inquired what type of vehicle Councilmember Nord- quist felt would be more suitable. Councilmember Nordquist said although he did not want to dictate to Staff which vehicle to purchase, he felt a vehicle such as an Astro van would be bet- ter. Councilmember Hertrich said he tried to contact Greg Ramsland because he had several questions but was unable to reach him. He was in favor of deferring the item until the issues were re- solved. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER KASPER, TO TABLE ITEM (F)., MOTION CAR- RIED. AUTHORIZATION TO SOLICIT BIDS FOR NEW FIRE ENGINE ITEM (G) ON THE CONSENT AGENDA] Councilmember Jaech expressed concern that the City may be liable if one of its fire engines was involved in an automobile accident because they exceed the State and Federal weight limits. Fire Chief Jack Weinz noted that a bill is pending in the legislature to exempt fire vehicles from the weight limit. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE ITEM (G).. MOTION CARRIED. REPORT ON BIOS OPENED FEBRUARY 7, 1989 FOR DOWNTOWN STREET LIGHTING PROJECT, AND AWARD OF CONTRACT TO WESCO 3 ,1 5.03 ITEM H N THE CONSENT AGENDA Councilmember Nordquist noted that a question had arisen whether or not the proposed lights have sufficient luminosity. City Engineer Bob Alberts said the decorative lights will be installed throughout the downtown area with the'exception of the intersection of Third and Main Street, which will have the cobra head fixtures. Councilmember Nordquist felt that the lighting system should be consistent throughout the downtown area rather than a combination of decorative lights and cobra head fixtures. Community Services Director Peter Hahn noted that the cobra head fix- tures will be of a decorative nature. Mr. Alberts said Staff took a light reading of the down- town area and determined that the decorative lights would not provide enough luminosity at the intersection of Third and Main Street and that is why the cobra head fixtures were proposed at that location. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE ITEM (H). MOTION CARRIED. AUTHORIZATION TO PURCHASE VARIOUS EQUIPMENT [ITEM (M) ON THE CONSENT AGENDA] Councilmember Nordquist noted that the Council did not authorize the purchase of a mobile radio for the Fire Department. Fire Chief Jack Weinz said he was under the impression that the Council had. He said the radio would replace another piece of equipment and was necessary to receive transmissions when he is in the bowl area that are beyond the bowl area. Councilmember Nordquist requested that the Council's previous request to reupholster the chairs in the Library Plaza Room be accomplished. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE ITEM (M). MOTION CARRIED. APPROVAL OF ADDITIONAL GROUNDS MAINTENANCE POSITION [ITEM (N) ON THE CONSENT AGENDA] Councilmember Hertrich said he was under the impression that the employee would be paid at an apprenticeship level. Community Services Director Peter Hahn said the hourly wage was based on an average between the beginning hourly rate and step increases. Councilmember Hertrich inquired if step increases will continue throughout the years for that position. Mr. Hahn replied affirma- tively. He said the salary will progress in steps as is done for any new position. Councilmem- ber Hertrich inquired if the employee will be the sole person to maintain the cemetery. Public Works Superintendent Bobby Mills said one person would be assigned for cemetery maintenance but there would be an additional person from time to time to serve as a back up. Councilmember Hertrich inquired if the employee would act as a liaison between the Cemetery Board and the City Council. Mr. Hahn replied negatively. He said Parks & Recreation Division Manager Jim Barnes will continue to serve as the liaison. Public Works Superintendent Bobby Mills said the employee will report exclusively to the Grounds Maintenance Supervisor. He said the supervisor meets weekly with Mr. Barnes to discuss all aspects of grounds maintenance throughout the City. Coun- cilmember Hertrich suggested that the temperament of the candidates for the position be taken into consideration so that personality conflicts with cemetery staff can be avoided. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER HALL, TO APPROVE ITEM (N). 'MOTION CARRIED. Administrative Services Director Art Housler noted that a funding source was not identified for the additional grounds maintenance position (Item N on the Consent Agenda). COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO FUND THE GROUNDS MAINTENANCE POSITION FROM THE COUNCIL CONTINGENCY FUND. MOTION CARRIED. EDMONDS CITY COUNCIL MINUTES Page 2 FEBRUARY 21, 1989 AUTHORIZATION TO TRANSFER MONIES FROM COUNCIL CONTINGENCY FUND TO BUILDING MAINTENANCE FUND 116 FOR PURPOSE F MONITORING CITY _BUILDINGS THAT ARE _EQUIPPED WITH FIRE ALARM SYSTEMS f ,50 ITEM P N THE CONSENT AGENDAJ Councilmember Kasper noted that the monies were to be transferred to the General Fire Department Fund #001 rather than the Building Maintenance Fund. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO TRANSFER THE MONIES TO THE GENERAL FIRE DEPARTMENT FUND #001 AND APPROVE ITEM (P). MOTION CARRIED. AUTHORIZATION TO CALL FOR BIDS FOR COPIER IN PUBLIC SAFETY BUILDING [ITEM (Q) ON THE CONSENT ,i✓ AGENDA Councilmember Nordquist recommended that the committee that was established to analyze the copier marketplace be given an opportunity to review the proposed purchase. He and Councilmember Hall had served on that Committee with two Staff members. They both agreed to serve on the committee again. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER KASPER, TO TABLE ITEM (Q). MOTION CAR- RIED WITH COUNCILMEMBER DWYER OPPOSED. AUDIENCE Mayor Naughten opened the audience portion of the meeting. �W ' Patricia Meeker, Commissioner of Olympic View Water and Sewer District, 22711 - 96th Ave. W., Q� said the District filed an appeal of the Council denial with respect to the Esperance annexation environmental checklist because it wished to protect the rights of the District in the environmen- tal review process. She said the District was under the impression that the City would forward information to it regarding annexation of the Esperance area but has only received minimal commu- nication. Mayor Naughten recognized Jeff Nelson, Commissioner of the Fire District, in the audience. Mayor Naughten closed the audience portion of the meeting. HEARING TO RECEIVE COMMENTS FROM EDMONDS CITIZENS REGARDING ESPERANCE ANNEXATION At the direction of the City Council, the hearing was scheduled to receive comments from Edmonds citizens regarding the proposed annexation of the Esperance area into Edmonds. Harold Schnarre, 1028 Puget Dr., inquired if the annexation process has been anticipated for some time. Mayor Naughten replied affirmatively. Mr. Schnarre inquired who initiated the process. Mayor Naughten said the City Council discussed the issue at last year's retreat in response to an interest from Esperance residents. Councilmember Hall said she welcomed the Esperance residents into the City with open arms. She clarified, however, that she was not personally pursuing annexation. Councilmember Kasper said it has always been the policy of the City to annex the Esperance area as long as he has served on the Council. Mayor Naughten added that the City adopted a policy to encourage annexation in contiguous areas. Councilmember Nordquist noted that the City encourages annexation when residents of unincorporated areas express an interest. Mr. Schnarre inquired if road maintenance will remain at least at its present level in Esperance if the area is annexed. Mayor Naughten said it is anticipated that funds will be available to maintain those streets. Mr. Schnarre inquired about the costs that have been incurred to the City as a result of the annexation process. Councilmember Dwyer said approximately $5,000 was expended on a telephone survey. Mayor Naughten said the only other expense has been Staff time. He said he would be happy to provide Mr. Schnarre with a cost breakdown to date. Jack Bevan, 19210 - 94th W., said annexation of the Esperance area was discussed when he served on the Council twenty-two years ago so it should not come as a surprise to anyone. Mr. Bevan said the area where he resides was not incorporated at the time he purchased his home but has since been annexed. He said services that are provided by the City make him feel more secure. EDMONDS CITY COUNCIL MINUTES Page 3 FEBRUARY 21, 1989 Mayor Naughten said he felt the Esperance area would benefit from annexation. He noted that Edmonds Way bisects that area. He said from a planning standpoint, one Comprehensive Plan, rath- er than two, would help protect the residential character of that area. In addition, he said Esperance residents could help share in the costs of facilities which they already use. Lastly, Mayor Naughten said although it would be small, annexation of the Esperance area would increase the revenue to the City. Mayor Naughten closed the public portion of the hearing. REVIEW PUBLIC INFORMATION COSTS AND TIMETABLE REGARDING ESPERANCE ANNEXATION ayor Naughten said there will be costs involved in presenting this issue to the voting public of Esperance. He noted that an estimate of costs was included in the Council packets: two mailings to 6,500 residents and costs of brochures and mailing - $10,000; November 1989 election costs - $5,000 minimum; Esperance census cost - $11,0.00. Mayor Naughten noted that item #8 of the Esperance annexation timetable should indicate that the election date was scheduled on November 7, 1989 rather than November 2. Councilmember Hertrich inquired if the total cost to annex the area was reflected in the budget. Mayor Naughten replied negatively. RECONSIDERATION OF COUNCIL ACTION WITH RESPECT TO APPEAL OF HEARING EXAMINER DECISION UPHOLDING APPEAL OF BYRON CLARK REGARDING ISSUANCE OF BUILDING PERMIT FOR FENCE AT 9826 CHERRY ST., AND STAFF INTERPRETATION OF EDMONDS COMMUNITY DEVELOPMENT CODE CHAPTER 17.30 FENCE HEIGHT C LCUL - TION AP-28-88/APPELLANTS: GRANFORS AND NEWLAND On February 7, 1989, the City Council voted to schedule this matter for deliberation and poten- tial reconsideration. This matter was not scheduled for additional public input. Included in the .Council packets were copies of the past City Council minutes on this matter and the original packet. The file has been in the Council office for review. It is Staff's recommendation to uphold the Staff interpretation of the Edmonds Community Develop- ment Code. Councilmember Kasper noted that the Council received additional information since the hearing was closed. City Attorney Scott Snyder advised the Council that any information received since the date of the last hearing on the interpretation issue should not be considered as part of that decision. At the request of Councilmember Hertrich, Mr. Snyder explained that the Staff considers a retain- ing wall and a fence as two difference structures that, under proper circumstances, could be combined and the retaining wall height and fence height viewed separately. However, he said, the Hearing Examiner considers a retaining wall with a fence on top as one structure that should be measured as one structure. Mr. Snyder said in drafting the Findings of the Council, it was apparent that the evidence pre- sented at the hearing clarified that the neighborhood had been established for a long period of time with a ground level that, over the years, had been generally accepted. The Findings, there- fore, stated that there was a finished grade for that area, such that all fence heights should be measured from that finished grade in the future. He said it also struck him that the Council concurred that the footing in question was not a separate retaining wall but was part of the fence. Mr. Snyder said if the Council confirms its Findings, it would make no difference in the issue before them at the present time how the height was measured because the measurement was from the ground level up. Mr. Snyder said the question before the Council was: How does the Council hypothetically want fences to be measured, e.g., Will there ever come a time when the height of a legitimate retain- ing wall with a fence on top are measured separately to determine what the height limit is, or are fences and retaining walls always to be considered as one structure with one height limit? Councilmember Dwyer said he felt the Hearing Examiner was wrong when he said the term "finished grade" should mean the natural grade without fill being added because Councilmember Dwyer said he believed the natural grade without fill referred to the undisturbed soil. He said it was clear to him that finished grade meant a grade that has been altered by a person. Councilmember Dwyer said he believed Staff's interpretation of the measurement of the fence in question was correct. EDMONDS CITY COUNCIL MINUTES Page 4 FEBRUARY 21, 1989 Councilmember Hertrich pointed out that the Code does not indicate which side of a structure the finished grade is to be determined from. He believed that the Hearing Examiner found that the undisturbed soil and finished grade were one and the same with regard to the structure in ques- tion. Councilmember Hertrich said it would be difficult for him to determine the finished grade because someone could, conceivably, keep adding soil on top of soil. Councilmember Dwyer reminded the Council that they should not discuss the structure in question because the issue before the Council was how to hypothetically determine the height of a fence. Mr. Snyder noted that there are going to be questions of fact and questions of law for the Coun- cil to consider in any decision they make. He said fence heights are easily measured. He noted that the dispute before the Council was a question of facts. Mr. Snyder said in the case that brought the issue before the Council, the factual issue was: What is finished grade? He said regardless of which interpretative method the Council finds, they will still have the ability to determine factually whether or not a finished grade is actual- ly the finished grade or whether or not a structure is, indeed, one structure or two structures. In response to a question by Councilmember Jaech, Mr. Snyder said the Council is to hypothetical- ly determine whether or not a fence on top of a retaining wall is to be considered as one struc- ture or two and what constitutes finished grade but the Council is not to consider the actual structure in question. Councilmember Hall felt that clarification of the Code was a function of the Planning Board and not of the Council, and that the Council should only consider whether or not the conditional use permit should be granted. Mr. Snyder said the Council was obligated to render a decision. He advised the Council that if they deviated from the long-established administrative policies to remand that section of the Code to the Planning Board for further review. Councilmember Wilson felt it was important to uphold Staff's interpretation because he said it is an historically established policy of the City. Councilmember Kasper concurred. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO INSTRUCT THE CITY ATTORNEY TO PREPARE NEW FINDINGS OF FACT WHICH UPHOLD STAFF'S METHOD OF MEASURING FENCE HEIGHTS, AND INCORPO- RATE FINDINGS REGARDING FINISHED GRADE AS REFERRED TO IN THE PREVIOUS FINDINGS. Mr. Snyder said he would incorporate into the Findings the following clauses: 1) the Findings with respect to finished grade as referred to in previous Findings; 2) the height of structures would be measured from the midpoint of the structure and not from one side or the other; 3) while the Council recognizes Staff's decision regarding retaining walls and fences as separate struc- tures, the Council would admonish Staff in any given situation that the Council and any review body should review the structure factually to determine whether it, indeed, is two structures with separate viable purposes or one structure denominated in different ways in order to bend the Code's interpretation. MOTION CARRIED WITH COUNCILMEMBER JAECH OPPOSED. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING GRANTING OF A CONDITIONAL USE PERMIT FOR A FENCE OVER 6 FEET IN HEIGHT T 9826 CHERRY ST. PPELL NT: BYR N CL RK CU-5 - / AP-26-88 CONTINUED FROM fEBRUARY 7, 1989 Planning Division Manager Mary Lou Block noted that the fence in question exceeds the 6 foot height limit regardless of which method the height was measured from. She said the applicant was informed that a conditional use permit would be required if the structure remained in place. Ms. Block reported that on October 5, 1988, Staff granted a conditional use permit for a fence over 6 feet in height at 9826 Cherry Street. She said Staff relied heavily on a letter from Wayne Tanaka of the City Attorney's office in issuing that permit. She said an adjacent property owner, Byron Clark, subsequently filed an appeal asking the Hearing Examiner to reverse the Staff decision. Ms. Block said Mr. Tanaka indicated that in order to grant a conditional use permit, the applicant has the burden of proving that the structure in question meets the criteria of section 20.05.010 of the Edmonds Community Development Code as follows: 1) the proposal is con- sistent with the Comprehensive Plan, 2) the proposal is consistent with the Zoning Ordinance, and 3) the use is not significantly detrimental to the public health, safety or welfare or to a pri- vate property owner. Ms. Block said Mr. Tanaka said he did not believe that the applicant, as a matter of law, had to give a reason to erect a fence over 6 feet in height so long as the crite- ria were met. Ms. Block said the Hearing Examiner held a public hearing on the appeal on November 17, 1989. On December 8, 1988, the Hearing Examiner issued a decision upholding the Staff decision. Mr. Clark then filed another appeal asking the City Council to reverse the Hearing Examiner's decision. EDMONDS CITY COUNCIL MINUTES Page 5 FEBRUARY 21, 1989 Ms. Block noted that this matter was continued from the February 7, 1989 City Council meeting. Exhibits were included in the Council packet, and the file has been in the Council office for review. Ms. Block said it is the recommendation of Staff to uphold the Hearing Examiner's decision. Upon the advice of City Attorney Scott Snyder, the appellants were provided a copy of the informa- tion that was submitted to the Council from Granfors and Newland. Ms. Block noted that the Hearing Examiner recommended that the appeal of Byron Clark be denied, and that it was his opinion that the criteria for the conditional use permit were satisfied. Councilmember Dwyer inquired about the height of the fence according to Staff's methodology of height measurement. Ms. Block said a portion of the fence is 6 feet from the interior (Gransfors/Newland side) of the subject property but other portions on the west side of the fence exceed 7 feet. Councilmember Hertrich inquired about the height of the portion of the fence that is adjacent to Mr. Clark's property. Ms. Block said that portion is approximately 6 feet high from the interior of the fence. Mayor Naughten opened the public portion of the hearing. Byron Clark, 9822 Cherry St., said the portion of the fence which abuts his property is 7.5 feet high and was constructed on a grade that has existed for many years. He said the fence in ques- tion replaced a wooden fence in the same location. Mr. Clark said the Code, as it relates to fence height, was enacted to protect adjacent property owners. Therefore, he felt the height measurement on the interior of the subject property was irrelevant. Mr. Clark said he was surprised to learn that Mr. Tanaka had taken the position that a reason must not be given to erect a fence higher than 6 feet so long as the criteria of section 20.05.010 were met. Mr. Clark noted, however, that section 21..15.090 clearly states that a condi- tional use permit must be related to some kind of property use which is unusual, special, or different from the normal uses commonly in existence in the area. He said, therefore, a reason or reasons should be stated. Mr. Clark read excerpts from a letter written to the Planning Department from his attorney. The letter dated September 16, 1988 stated, in essence, that there is nothing peculiar about the subject property which would justify the construction of a fence that exceeds 6 feet in height. The purpose of the issuance of a conditional use permit or variance is to avoid unnecessary hard- ship arising from unusual circumstances pertinent to the subject property. The unnecessary hard- ship must relate to the land itself and cannot be created by the owner/applicant. Thus, loss resulting from construction in violation of regulations cannot be made grounds for a conditional use permit or variance. In a letter dated September 27th, Mr. Clark's attorney pointed out that the Granfors/Newland application for a conditional use permit for a fence in excess of 6 feet had no validity because there was no use which required a fence exceeding that height. He went on to say that Chapter 17 of the Zoning Code states that fences shall not be more than 6 feet high unless a conditional use permit is obtained. An application for a conditional use permit must relate to the property use that requires a fence more than 6 feet high. Mr. Clark said he was concerned that neither the City Attorney nor the Hearing Examiner have made a substantial reply to his attorney's comments. Mr. Clark said the fences at the wastewater treatment plant, boat storage yards on the water- front, tennis courts, and the Union Oil property exceed 6 feet in height, but those are special property uses which justify the fence heights. He questioned what comparable circumstance exist- ed on the Granfors/Newland property to justify a fence higher than 6 feet. He said the answer was clear in that there are no special circumstances whatsoever. Mr. Clark said the Code, as it relates to fence heights, will be meaningless if the conditional use permit is granted to the applicants. Mr. Clark urged the Council to seriously take into consideration the intent of a conditional use permit, and then revoke the conditional use permit that was granted to the applicants. Mr. Clark said neither the Staff person who attended the original hearing nor the Hearing Examin- er applied the criteria with respect to a conditional use permit. He noted that section 20.05.010 states that the contemplated condition use shall not be significantly detrimental to EDMONDS CITY COUNCIL MINUTES Page 6 FEBRUARY 21, 1989 nearby private property. Mr. Clark said, however, the fence in question will detrimentally af- fect his property because it will set a precedent to allow adjacent property owners to con- struct fences in excess of the height limit. Mr. Clark said he was particularly concerned about the 105 feet of the west boundary that has no fence on it at the present time. He said a fence higher than 6 feet in that location would be a serious detriment to his property because the main living space of his home fronts that elevation. Mr. Clark reminded the Council that the applicant has the burden of proving that the criteria for the issuance of a conditional use permit have been satisfied. He noted that the primary criterion was that the fence was not detrimental to adjacent property owners. Mr. Clark pointed out that the applicants have presented no information to refute his testimony regarding the potential damage to his property nor has Staff or the Hearing Examiner made any finding or comment with respect to the significant omission of the applicants' position. Mr. Snyder said the recent Council decision has two important differences from the original Staff measurement in that the Council made a determination that there was a finished grade in the neigh- borhood and, secondly, the fence, as built, is a structure with a footing and not a fence on top of a retaining wall; the structure is a 6 foot fence measured from the existing ground level. Mr. Snyder said he did not believe the Staff interpretation issue had any bearing, given the Findings of Fact that were just authorized. He said his interpretation was that if Staff were to measure the structure in question at the present time, they would measure it from the previous ground level up and would not consider the structure as a retaining wall with a fence on top. Councilmember Dwyer asked how high the fence was. Mr. Snyder said Staff would have to measure the fence again from the previous ground level up to determine the actual height. He said the original grade was the undisturbed soil prior to any construction in the neighborhood. Once the neighborhood was established and a finished grade commonly accepted by all of the neighbors, a new finished grade had been established in which all measurements are to be made. Mr. Snyder stated that perhaps the reason why Staff and the Hearing Examiner did not refer to the law cited by Mr. Clark's attorney was because it was embarrassingly bad law. He said a variance is not a conditional use; a variance is an exception to specific bulk criteria of the Code, as referenced in Chapter 20.85. Mr. Snyder said the general law that Mr. Clark and his attorney cited is the law of a variance. He pointed out that a conditional use is a use anticipated by the Code, which has a flexible standard. He said the variance criteria do not apply to the condition- al use applications. Councilmember Dwyer said he understood the answer to the question regarding the fence height as it relates to Mr. Clark's property was not available at the present time. He inquired, then, how to proceed in order to obtain that information. Mr. Snyder said the Council could either: 1) ask each of the parties what they measured the fence height to be; 2) continue the hearing to obtain a precise measurement from Staff; or 3) give an as -built approval of the structure if the Council felt that the fence, as built, met Code criteria. George Cody, 3405 - 188th St. S.W., Lynnwood, representing the applicants, said he understood that the answer to Councilmember Dwyer's question regarding the fence height was that it is 6 feet in height adjoining Mr. Clark's property but in excess of 6 feet as it passes the property line and adjoins other properties. He questioned whether Mr. Clark's appeal was valid when con- sidering that the Council and Staff stated that the portion of the fence that Mr. Clark contends would be detrimental to his property would qualify under a building permit and the other neigh- bors do not object to the portion of the fence that exceeds 6 feet and, therefore, there is no detriment that the Council could conceivably find that exists to them. Mr. Snyder inquired what methodology Staff used when they measured the portion of the fence that abuts Mr. Clark's property. Ms. Block said the fence was measured from the interior of the prop- erty from the top of the fill that was placed there by the applicants. Mr. Snyder inquired if Staff conducted a measurement of the fence from Mr. Clark's side of the fence. Ms. Block said she was not aware of that. Mr. Snyder noted that the Council adopted an interpretation.that the finished grade in that neighborhood was as it had been established over the years; the measure- ment that was conducted was conducted from the fill to the top of the fence. Therefore, the measurement that was given in response to Councilmember Dwyer's question was not conducted in accordance with the Findings previously approved by the Council. Mr. Cody pointed out that the finished grade on the interior of the fence may have differed prior to the fence being erected or the measurement being taken. Mr. Snyder noted that the Council may wish to continue the hearing in order to conduct another measurement. He said if the fence is not over 6 feet in height, a conditional use permit is unnecessary. Mr. Cody said the point to make was: Does the fence exceed 6 feet in the area adjoining Mr. Clark's property? Councilmember Dwyer said the issue of whether or not the fence is detrimental to surrounding property owners was relevant only as it related to Mr. Clark because the adjacent property owners EDMONDS CITY COUNCIL MINUTES Page 7 FEBRUARY 21, 1989 said they did not object to the fence. Councilmember Dwyer said, then, the height of the fence as it abuts Mr. Clark's property was an extremely important issue. He recommended that Mr. Cody assume that the fence exceeds 6 feet in height and present his case, then close the hearing with the exception of the receipt of information as to the height of the fence. Councilmember Hall inquired what Mr. Clark would gain if the portion of the fence which abuts his property was reduced to 6 feet. Mr. Clark said he was concerned that a precedent would be set and that adjoining neighbors may desire to construct a 7 foot high fence. Councilmember Hall inquired how Mr. Clark would be affected by the fence in question. Mr. Clark said the fence was aesthetically unappealing where it exceeds 6 feet. Mr. Cody said the criteria of section 20.05.010 do not seem to be in dispute, and the public health, safety, and welfare are not detrimentally affected by the structure. He said the only detriment that has been expressed by Mr. Clark was that he does not like the fence. Mr. Cody said that concern, however, was not a detriment as it relates to the ordinance. He said if the structure, as designed, collapsed in a heavy wind, then a detriment would exist. Mr. Cody said the real question, then, is: Does a detriment exist to a private property owner? He noted that the other individuals who submitted letters to the Hearing Examiner were supportive of the fence. He pointed out that by Mr. Clark's own testimony, the detriment he perceived to exist was not a result of the excessive height of the fence but the idea that the fence was constructed around his property. Mr. Cody added that even if the Council adopted the previously established finished grade, nothing precluded the long-established finished grade on one side of a fence to be -different from that on the other side of the fence. He said the question remains, then: What has the finished grade of the interior of the fence been? Mr. Cody contended that the finished grade would be the same as the grade that existed when the previously erected 6 foot wooden fence existed and, therefore, the fence in question would measure no differently than the previous fence. Mr. Cody said there was no detriment to be argued, as a legal matter, whether or not the fence in question was 6 feet in height or 7 feet. Mr. Snyder inquired if fill had been added to resolve an erosion problem related to the swimming pool and if the flower beds had been installed next to the fence. Melanie Granfors, 9826 Cherry St., said some fill was added to solve the erosion problem but fill was not added for the land- scape beds. In response to Councilmember Dwyer, Ms. Block said the adjacent neighbors, Peterson and Omquist, were in support of the fence in question but Mr. Butler voiced an objection at a previous hear- ing. Councilmember Hertrich inquired if Mr. Butler's objection was part of the evidence before the Hearing Examiner. Ms. Block replied affirmatively. Mr. Cody pointed out that legal title to the property which Mr. Butler resided was in the name of another. He felt that fact was signifi- cant as it related to the Code. In response to a question by Councilmember Hertrich, Mr. Clark said he felt the fence was detri- mental to him because it devalued his property and decreased the chance of its sale to a prospec- tive buyer. Jeff Palmer, 17510 - 76th Ave. W., said the Council should take into consideration not only the effect to adjoining property but of future owners and the general health, safety, and welfare of the community as a whole. He stated that fences are not private contracts between abutting prop- erty owners but are, rather, public contracts between an applicant and the community. Harold Schnarre, 1028 Puget Dr., said he firmly believed that good fences make good neighbors. He said, however, when someone erects a structure and then defies the City to make him remove it, it makes Edmonds a laughing stock. Dick Hill, 1242 Coronado PI., said the Code was enacted because it was the general consensus of the community. He felt the Code should be enforced. At the request of Mr. Clark, COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER HALL, TO ALLOW MR. CLARK AN ADDITIONAL FIVE MINUTES TO TESTIFY. MOTION CARRIED. Mr. Clark asked Councilmember Dwyer if he was satisfied that the fence was 7.5 feet in height or if he questioned the height. Councilmember Dwyer said he was not satisfied that he knew the height of the fence. Mr. Clark noted that the Council conducted a site inspection of the proper- ty in question and should be able to determine the height of the fence. Mr. Clark said he also felt the Code should be adhered to. He questioned if any justification existed to allow the applicants to be granted a conditional use permit. He asked the Council to consider the integrity of the Code if a conditional use permit was granted. Mr. Cody stated that a property owner can generally use his property as he sees fit, so long as it does not significantly affect a neighbor. He said the Code must be looked at strictly and in EDMONDS CITY COUNCIL MINUTES Page 8 FEBRUARY 21, 1989 favor of a property owner. Mr. Cody said the Code is quite specific. He noted that the only issue that has been presented is: Has there been a demonstrable detriment to another private property owner because of the existence of the fence in question? He said the applicants are entitled to use their property as they see fit if the Council cannot find that such a detriment exists. Councilmember Dwyer inquired if any part of the fence was constructed on Mr. Clark's property. Mr. Cody said not to his knowledge. Councilmember Dwyer inquired if any evidence existed that both sides of the fence were not on the applicants' property. Mr. Cody replied negatively. Mr. Snyder noted that the word "detrimental" was used several times throughout the hearing. He pointed out that the Code uses the phrase "significantly detrimental" and not just "detrimental". Mayor Naughten closed the public portion of the hearing. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO CONTINUE THE HEARING TO MARCH 7, 1989 FOR THE SOLE PURPOSE OF OBTAINING A STATEMENT FROM STAFF AS TO THE HEIGHT OF THE FENCE IN VARIOUS PLACES ALONG THE 20 FOOT PORTION THAT ABUTS THE CLARK'S PROPERTY, AND FOR COMMENT UPON THAT PRESENTATION BY THE APPLICANTS AND APPELLANT AS THEY SEE FIT. MOTION CARRIED. The meeting recessed at 9:45 p.m. and reconvened at 9:57 p.m. Councilmember Kasper left the meeting during the latter part of the hearing and Councilmember Nordquist left the meeting during the recess. PROPOSAL TO LEASE PORTION OF SECURITY PACIFIC (RAINIER BANK PARKING LOT) p��-•'�'e Mayor Naughten noted that Rainier Bank approached the City last year regarding leasing lots #3 .� and 4 of their parking lot to be used for public parking. This area would provide 25 public parking spaces. Mayor Naughten said a City -managed parking lot would enable the Bank to preclude the public from parking in the lot free of charge and would provide more off-street parking through regulation of 13 three-hour parking stalls. Mayor Naughten said it is Staff's recommendation to approve the expenditure of $4,172.86 from the In -Lieu Parking Fund and authorize the Mayor to sign a three-year lease. Councilmember Hertrich inquired if the City could renegotiate the contract with Security Pacific if the City was unable to lease all of the parking spaces. Mayor Naughten replied negatively. He said the City would probably promote the parking spaces at a higher level to merchants if the lot was not completely filled. Councilmember Jaech noted that she contracts with the Trust Department at Rainier Bank but has no interest in Rainier Bank's stock or real estate. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE EXPENDITURE FROM THE IN -LIEU PARKING FUND AND AUTHORIZE THE MAYOR TO SIGN A THREE-YEAR LEASE. MOTION CARRIED. APPROVAL OF 1989 EDMONDS ARTS FESTIVAL CONTRACT At the request of Councilmember Wilson, this item was discussed prior to Item #8 to accommodate a member of the Arts Festival Association. Kelly Mitchell, 3519 - 25th St., Everett, President of the Edmonds Arts Festival Association, said the Association will be hosting the 32nd Annual Edmonds Arts Festival in June. She said a special centennial award in the juried art show was added as part of their contribution to the Washington State Centennial. An important change to this year's contract is the moving of sever- al food concession booths and adding an eating area to 8th Avenue, between Main and Dayton Streets, to allow the Festival more space for tables in a pleasant atmosphere and reduce the con- gestion next to the Anderson Center. Councilmember Hertrich expressed concern that 9th Avenue is already congested and the closure of 8th Avenue will only compound that problem. He inquired if the Police and Fire Department re- viewed that proposal. Community Services Director Peter Hahn replied affirmatively. Councilmem- ber Hall noted that 9th Avenue is congested during the Festival anyway. Councilmember Jaech inquired if the residents on 8th Avenue were aware of the possible closure of that street. Ms. Mitchell, said she was pretty sure that the barricades could be angled to allov the corner residents access to their garage, and the second house could access from the alley. She said those residents were her relatives and she was sure they would be amenable to the propos- al. EDMONDS CITY COUNCIL MINUTES Page 9 FEBRUARY 21, 1989 Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCIL - MEMBER HERTRICH, TO EXTEND THE MEETING FOR 20 MINUTES. MOTION CARRIED. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER WILSON, TO AUTHORIZE THE MAYOR TO SIGN THE 1989 EDMONDS ARTS FESTIVAL CONTRACT. MOTION CARRIED. J q %1 , J REPORT ON 1989 ROADS POLICY AND PROJECTS, AND APPROVAL OF FEDERAL AID PROJECTS 10 �" Mayor Naughten recommended that the Council concur with the issues raised at a Council discussion P� of roads on November 15, 1988 as follows: 1) ACTION NO. 1: concur with Mayor's recommendation to decline acceptance of the $1.5 million Public Works Trust Fund; 2) ACTION NO. 2: approve the two Federal aid project agreements for resurfacing of two arterials.(212th and Olympic View Dr.); 3) review the Mayor's proposed policy deciding the proper combination of overlaying and chip sealing, and the 1989 streets lights. Because it was the consensus of the Council to have a full quorum present when voting on this item, COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO PLACE THE ISSUE ON THE FEBRU- ARY 28TH AGENDA. MOTION CARRIED. MAYOR Mayor Naughten said Council President Kasper requested him to inform the Council that the ADB approved an antique color for the street light fixtures rather than black. A sample was circulat- ed amongst the Council. No negative comment was made. Student Representative Dave Berdine inquired if Councilmember Wilson had an opportunity to speak ' n with Edmonds High School Principal Frazier. Councilmember Wilson said he was unable to contact him but would pursue it tomorrow. Mr. Berdine expressed considerable concern regarding the merg- er of Edmonds and Woodway High Schools. He was hopeful that the City would be involved in the discussions between the School District and the School Board. Mayor Naughten said the City sent a letter to the service clubs, Chamber of Commerce, and local businesses in the community urging their involvement in the process. COUNCIL Councilmember Dwyer pointed out that the'Council had agreed that the hearing procedure would be to allow the applicant to speak first, the appellant second, and then the applicant again but the hearing that evening deviated from that. Mayor Naughten noted that that provision had to be passed by ordinance before it was implemented. Councilmember Wilson informed the Council that a bill was submitted to the senate that could seriously affect municipal courts. He urged the Council to write to the State representative. City Clerk Jackie Parrett noted that she included in the Council packets an action call from AWC with telephone numbers to express their feelings and urging the City's input. Councilmember Hall, in response to Mr. Berdine's concern, said she and Councilmember Wilson at- tended the meeting at the high school. She said she wrote the superintendent a letter last week. In addition, she said she asked the Council President to invite Dr. Benzel to a Council meeting to discuss the merger of the two high schools. The meeting adjourned at 10:14 p.m. THESE MINUTES ARE SUBJECT TO FEBRUARY 28, 1989 APPROVAL. c JACQUELINE G. PARRETT, City Clerk LARRY S. NAUGHTEN, Mayor EDMONDS CITY COUNCIL MINUTES Page 10 FEBRUARY 21, 1989 AGENDA EDMONDS CITY COUNCIL PLAZA MEETINr) ROOM -LIBRARY BUILDING 7:00 - 10:00 P.M. FEBRUARY 21, 1589 CALL TO ORDER FLAG SALUTE 1. CONSENT AGENDA (A) ROLL CALL (B) APPROVAL OF MINUTES OF FEBRUARY 7, 1989 (C) FRM ROBERTLD ACKNOWLEDGMENT ($35I000)FAND AGLEN IMS FW. G RVIEOR S($190.80) (D) APPROVAL OF AMENDMENT TO MEBT PLAN --MEMBERSHIP STRUCTURE, IN ACCORDANCE WITH COUNCIL ACTION JANUARY 10, 1989 (E) AUTHFROMOKITSAPON TO COUNTYURCHASE INTERLOCALRRADIOROLA PURCHASINGC/100 AGREEMENTLE RDIOS ($3A0 0) (F) AUTHORIZATION 1988 CHEVTROLETCELEBRITY STATIONWAGONO REPLACE UNIT 23 4FROM STATE FORD CONTRACT ER) AND PU RCHASE (G) AUTHORIZATION TO SOLICIT BIDS FOR NEW FIRE ENGINE (H) REPORT ON PROJECT, AND DAWARDNED FEBRUARY 7, 1989 OF CONTRACT TO WESCOFOR ($38 145003STREET LIGHTING ) (I) REPORAWARDTOFNBIDS CONTTRACTETOOW. M. ARY SMITHS&l989 ASSOCOIATESST POOL ($9,5946KET, AND 20) (J) AUTHORIZATION TO PURCHASE SIGNAL EQUIPMENT FOR 3RD AND MAIN ST. ($20,000) (K) AUTHORIZATION FOR MAYOR TO SIGN ONGOING TESTING SERVICE AGREEMENTS WITH HONG TESTING AND BOSS TESTING (L) APPROVAL F oE PLAYFIELD MAINTENANCE AGREEMENT WITH CITY OF (M) AUTHORIZATION TO PURCHASE VARIOUS EQUIPMENT ($35,386) (N) APPROVAL OF ADDITIONAL GROUNDS MAINTENANCE POSITION (0) PROPOSED ORDINANCE 2703 AMENDING EDMONDS CITY CODE CHAPTER 8.48 REGARDING PARKING (P) AUTHORIZATION TO TRANSFER MONIES FROM COUNCIL CONTINGENCY FUND TO BUILDING MAINTENANCE FUND 116 FOR PURPOSE OF MONITORING CITY BUILDINGS THAT ARE EQUIPPED WITH FIRE ALARM SYSTEMS ($3,500) (Q) AUTHORIZATION TO CALL FOR BIDS FOR COPIER IN PUBLIC SAFETY BUILDING 2. AUDIENCE 3. HEARING TO RECEIVE COMMENTS FROM EDMONDS CITIZENS REGARDING ESPERANCE (30 MINUTES) ANNEXATION 4. REVIEW PUBLIC INFORMATION COSTS AND TIMETABLE REGARDING ESPERANCE (15 MINUTES) ANNEXATION 5. RECONSIDERATION OF COUNCIL ACTION WITH RESPECT TO APPEAL OF HEARING (15 MINUTES) EXAMINER DECISION UPHOLDING APPEAL OF BYRON CLARK REGARDING ISSUANCE OF BUILDING PERMIT FOR FENCE AT 9826 CHERRY ST., AND STAFF INTERPRETATION OF EDMONDS COMMUNITY DEVELOPMENT CODE CHAPTER 17.30 (FENCE HEIGHT CALCULATION) (AP-28-88/AP-20-88/APPELLANTS GRANFORS AND NEWLAND) 6. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING GRANTING OF (60 MINUTES) A CONDITIONAL USE PERMIT FOR A FENCE OVER 6' IN HEIGHT AT 9826 CHERRY ST. (APPELLANT: BYRON CLARK) (CU-57-88/AP-26-88) (CONTINUED FROM FEBRUARY 7, 1989) 7. PROPOSAL TO LEASE PORTION OF SECURITY PACIFIC (RAINIER PARKING LOT) (15 MINUTES) 8. REPORT ON 1989 ROADS POLICY AND PROJECTS, AND APPROVAL OF FEDERAL AID (15 MINUTES) PROJECTS 9. APPROVAL OF 1989 EDMONDS ARTS FESTIVAL CONTRACT (10 MINUTES) 16. MAYOR 11. COUNCIL THE PUBLIC IS INVITED TO ATTEND vnnutNr, ANn MFFTTNn ROOMS ARE HANDICAPPED ACCESSIBLE