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03/21/1989 City CouncilTHESE MINUTES SUBJECT TO MARCH 28, 1989 APPROVAL EDMONDS CITY COUNCIL MINUTES MARCH 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 STAFF Larry Naughten, Mayor Mary Lou Block, Planning Div. Mgr. Bill Kasper, Council President Jack Weinz, Fire Chief Steve Dwyer, Councilmember Bob Alberts, City Engineer Laura Hall, Councilmember Hal Reeves, Building Official Roger Hertrich, Councilmember Bobby Mills, Public Works Supt. Jo -Anne Jaech, Councilmember Wallace Tribuzio, Asst. Police Chief John Nordquist, Councilmember Scott Snyder, City Attorney Jack Wilson, Councilmember Jackie Parrett, City Clerk Dave Berdine, Student Rep. CONSENT AGENDA Item (B) was removed from the Consent Agenda. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCIL - MEMBER HALL, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. .APPROVAL OF MINUTES OF FEBRUARY 28, 1989 AND MARCH 7, 1989 [ITEM (B) ON THE CONSENT AGENDA] COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HALL, TO APPROVE THE FEBRUARY 28 MINUTES. MOTION CARRIED. Councilmember Dwyer made the following corrections to the March 7 minutes: page 4, second to last paragraph, first sentence, insert the words that are underlined, "Councilmember Dwyer said the relevant height of the fence to be considered was on the exterior (Clark's side) of the fence because all of the fence is located on the Granfors/_Newland property; second sentence, "He point- ed out that the issue to consider was not simply if the City had a six foot height limitation and if that Code would be enforced because he said there are provisions for a conditional use permit and a hearing process, which presupposes exceptions to a six foot limit; clarify the 4th sen- tence to read, "Mr. Clark was the only one of the four neighbors who claimed that the fence was detrimental". COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO CORRECT THE MINUTES AS STATED ABOVE. MOTION CARRIED. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE MARCH 7, 1989 MIN- UTES. MOTION CARRIED. AUDIENCE Mayor Naughten opened the audience portion of the meeting. No public input was offered. Mayor Naughten closed the audience portion of the meeting. HEARING ON PROPOSED ORDINANCE 2706--FIREWORKS ORDINANCE MODIFICATIONS Fire Chief Jack Weinz reported that personal injuries and property damage occur each year around the 4th of July due to fireworks, both legal and illegal. He said steps must be taken to attempt to gain more control over this problem. Chief Weinz reviewed the key changes to the ordinance as follows: 1) the sale of legal fireworks within the City from licensed stands will be from noon on June 28th until 9 p.m. on July 4th; 2) legal fireworks may be discharged within the City only on July 4th between 9 a.m. and 11 p.m.; 3) it is unlawful to sell fireworks to anyone under sixteen years of age; 4) permit fee for selling fireworks shall be $100. Councilmember Hall expressed concern regarding enforcement of the ordinance. Chief Weinz said although he realized that not everyone will observe the ordinance, he believed that most resi- dents were law-abiding citizens. Councilmember Kasper suggested that the time limitation to discharge fireworks be extended to midnight to give people who attend the public fireworks display an opportunity to go home and celebrate with their fireworks. Mayor Naughten opened the public portion of the hearing. Jeff Palmer, 17510 - 76th Ave. W., noted that the provision in section 5.26.130 of the proposed change following item H4 permits the use of fireworks in public areas commencing on June 30. City Attorney Scott Snyder said that was an oversight when the changes were drafted and will be amended to July 4. Mr. Palmer suggested that the ordinance include a clause which prohibits the discharge or allow the residue of any fireworks to be deposited within 250 feet of an animal. Robert Ahlbeck, 731 Brookmere Dr., said he served in the U.S. Navy as an underwater specialist in explosives. He said fireworks are extremely dangerous, particularly when discharged into the air. He said the reduction of the use of fireworks is an appropriate action. Mayor Naughten closed the public portion of the hearing. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO PASS ORDINANCE 2706 BUT AMEND THE POSTING LIMITATION IN SECTION 5.26.130 TO JULY 4 AND EXTEND THE LIMITATION TO DISCHARGE FIREWORKS ON JULY 4 TO MIDNIGHT. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO AMEND THE MOTION TO LIMIT THE DISCHARGE OF FIREWORKS ON JULY 4TH TO 11 P.M. MOTION CARRIED WITH COUNCILMEMBER HERTRICH AND COUNCILMEMBER KASPER OPPOSED. THE MAIN MOTION, AS AMENDED, CARRIED. HEARING ON HEARING EXAMINER RECOMMENDATION REGARDING REVIEW OF APPROVED PERMITS FOR THE PRELIMI- ... .- ..- ........... .... . .- -- „nn —.. ry n1 1 n r nn r uT1 V /nnnl T! IJTC. City Attorney Scott Snyder requested anyone who wished to challenge the participation of any Councilmember in the hearing process to do so at that time. Mayor Naughten said the Council would recess to an Executive Session following the challenges to discuss legal issues. Councilmember Hertrich raised a point of order. Because he had participated in a previous hear- ing regarding the environmental impact statement and also an appeal to the City Council related to the subdivision and wished to avoid placing the City in an unfavorable position if the issue was heard in Superior Court, he stepped down from the dais. Hulda Humola, 516 Olympic Ave., requested Councilmember Wilson and Councilmember Hall to step down from the dais because she believed that the parties were entitled to a fair and impartial panel. She cited statements which Councilmember Hall and Councilmember Wilson had made in previ- ous hearings regarding the appeal process as the basis for her request. She recalled that Coun- cilmember Hall had stated that she had given Mrs. Humola tapes of previous hearings to use but said that was not true. She said she rented a tape recorder to copy the tapes. She submitted a receipt for rental of a tape recorder to the City Clerk, which was marked as Exhibit 1. Shirley Hall, 432 Olympic Ave., challenged the participation of Councilmember Hall because she said Councilmember Hall had told her that Kevin Hanchett was her Godson and, therefore, she did not believe Councilmember Hall was capable of rendering a fair and impartial decision. Linda Mattison, 520 Olympic Ave., challenged the validity of the proceeding before the Council because she said two of the permits have not been appealed and the third permit is only to be reviewed for a recommendation by the Council and then set for a public hearing. Mr. Snyder noted that only the recommendation regarding the permit is before the Council and not the permits that were not appealed. The meeting recessed to an Executive Session at 7:26 p.m. for legal advice and discussion regard- ing the challenges and reconvened at 7:35 p.m. Councilmember Wilson said he felt he could be objective in the hearing process. He said he has, for some time, philosophically believed that the appeal process could be changed to include a filing fee. He said he has never experienced difficulty in being objective when reviewing an appeal and for those reasons would participate in the hearing that evening. Councilmember Hall said the statements she made at a previous hearing with regard to the problems encountered during an appeal process related to the appeal process in general and not to the issue before the Council. Councilmember Hall said the statement that Kevin Hanchett was her Godson surprised her. EDMONDS CITY COUNCIL MINUTES Page 2 MARCH 21, 1989 Councilmember Hall said she contacted the Hearing Examiner in the past for Ms. McCormick and Ms. Humola to request tapes of a hearing that they wished to listen to. She said, however, she was unaware of what transpired after that. Councilmember Hall elected to participate in the hearing. Mr. Snyder asked Councilmember Hall if she was related to Kevin Hanchett. Councilmember Hall replied negatively. Mr. Snyder noted, for the record, that the appearance of the fairness doctrine, as it relates to challenges, states that challenges must be made at the earliest opportunity so any challenge not made at that time was waived under State law. Mr. Snyder requested the Council to reveal any ex parte communications and the dates that were received by them. The Council received the following letters: Laurine Hanchett - March 16; Diane Vehrs - March 15; E. Larry McNight - March 10; Kenneth and Shirley Bushy; Mrs. Ken Stefenson - March 17; Karen Columbo- undated. Mr. Snyder requested that copies of those letters be placed on the table near the door for public review and that the City Clerk retain copies for the record. Mayor Naughten reviewed the time parameters and procedure of the hearing. Derrill Bastian, Lynnwood, attorney for the McCormicks, objected to the time parameter allotted to the applicant because he said it was a denial of due process. Mayor Naughten acknowledged his objection. Mayor Naughten recognized Port Commissioner Roger Stubbs in the audience. Finis Tupper, 711 Daley St., objected to Council discussion of any issue related to the hearing during the Executive Session. He said the Council was obligated under RCW to discuss issues at an open meeting. Mr. Snyder stated that the purpose of the Executive Session was to review legal advice and not to deliberate in private. He noted that the Open Public Meetings and Record Act provides an exception for legal advice. Planning Division Manager Mary Lou Block reported that on or about December 8, 1988, a letter was submitted by Hall, Humola and McCormick requesting a review under the provision of Code section 20.100.040 regarding the development of the Harbor Hills subdivision. In their letter, the com- plainants cited damage to their homes from vibration and other causes as reasons for the request- ed review. Ms. Block said after receiving the request, Staff asked the permittee (Kevin Hanchett) to perform vibration tests. The Building Official conducted an inspection of the complainants' homes to assess their condition. The owners were asked to submit any pertinent information they might have on the alleged damage. Ms. Block said on February 13, 1989, Hearing Examiner pro tem John Galt held a five hour public hearing on the requested review. Numerous exhibits were submitted at the hearing, including a report from the McCormicks' inspector, Jack Swardz. Ms. Block said it should be noted that the Staff report (which was included in the Council packets) does not address much of the evidence that the Hearing Examiner referred to in his findings because most of the evidence was not submit- ted prior to the hearing. Ms. Block said the Hearing Examiner pro tem issued his recommendation on February 27, 1989 and recommended the following: 1) that the preliminary plat be temporarily suspended; 2) the condi- tional use permit be revoked; 3) and the right-of-way construction permit be temporarily suspend- ed. She said the hearing Examiner further recommended that a geotechnical analysis be undertaken to determine if construction activities associated with the development of the plat will exacer- bate damage to adjoining properties and whether conditions may be imposed to limit such damage, and that the cost of the geotechnical study is to be borne by the Hanchetts. Ms. Block noted that copies of the Hearing Examiner's recommendation and other exhibits were included in the Council packets. She said copies of all exhibits were left in the City Council office for review prior to the hearing. Ms. Block noted that the preliminary subdivision is essentially complete with the exception of the paving of the roadway into the plat. Additionally, she said that due to the steepness of the lots and the evidence of earth subsidence in the area, the construction of each home in the devel- opment will be subject to the requirements of Chapter 19.05 of the Edmonds Community Development Code (ECDC), Building Permits - Earth Subsidence and Landslide. This chapter requires geotechnical reports, bonding and insurance to cover damage to other properties. Ms. Block reviewed the recommendation of the Hearing Examiner. EDMONDS CITY COUNCIL MINUTES Page 3 MARCH 21, 1989 Councilmember Dwyer inquired if the motion for reconsideration filed by Ms. Mattison was the only one made. Ms. Block replied affirmatively. Councilmember Dwyer inquired if an appeal has been filed. Ms. Block replied negatively. Councilmember Dwyer inquired when Building Official Hal Reeves observed the applicants' homes. To allow Mr. Reeves to check the file to refresh his memory, Mr. Snyder noted that the evidence at the hearing before the Hearing Examiner and any previous hearings is cumulative; that is, the City Council considers all of the evidence presented. It should considered, he said, in light of Mr. Bastian's challenge regarding the opportunity to be heard, that all of the testimony and evidence presented at previous hearings have been available to the Council prior to the hearing that evening. COUNCILMEMBER DWY-ER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO EXPAND THE PUBLIC PARTICIPATION TIME TO ALLOT THREE MINUTES TO EACH PERSON WHO SIGNED UP TO SPEAK. MOTION CARRIED. In response to a question by Councilmember Dwyer, Mr. Reeves said he observed the three homes in mid -January, sometime between the loth and 23rd. He said he has the exact dates and times in his field notes. Hulda Humola, 516 Olympic Ave., said the request for review of the permits was made on the basis that the permitted activity was causing a nuisance or hazardous condition. She said she had previously expressed her concern to both the Hearing Examiner and City Council regarding the approval of the subdivision and 20 foot wide access road and a setback of only 10 feet from the McCormick home rather than the Code requirement of a 40 foot wide access road and 25 foot setback. Ms. Humola said although she recognized the rights of the Hanchetts to develop their property, she maintains her right to protect her life and property from harmful effects. She cited section 20.85.010 (E), which addresses the public health, safety, and welfare when a variance is approved. Ms. Humola said she and the McCormicks opposed the granting of a permit to construct the proposed access to Harbor Hills because they believed it would be significantly detrimental. She said their testimony wash"ignored or rated as insignificant" by the Hearing Examiner and Council. Ms. Humola said construction activities have disrupted her life and caused damage to her home. Despite complaints to the City, Ms. Humola said the work has proceeded. Ms. Humola said contrary to Mr. Hanchett's statement that the Hanchetts would be cooperative with adjacent property owners, he protested the petitioners' request for a Hearing Examiner pro tem in order to abuse the process and to take advantage of an administrator with experience in the issue before the Council. Ms. Humola urged the Council to uphold the recommendation of the Hearing Examiner. Mrs. Donald Hall, 432 Olympic Ave., submitted a document to the Council. Ms. Hall said construction activities have caused damage to her home and property. She said the vibration from construction equipment has caused the asbestos in the ceiling to fall into her home, and experts have advised that it be removed. Ms. Hall said it was her understanding that it will take at least six months to ascertain the extent of the damage to her home after the vibration has stopped. Ms. Hall believed the permits were issued with the condition that the ground be monitored for vibration while construction activity takes place, as was recommended by the permittee's geologi- cal engineer. She said, however, those tests have not been conducted. Ms. Hall submitted a statement from Northwest Inspection to the City Clerk, which was marked Exhibit 2. Ms. Hall requested that construction of the road be disallowed. She submitted a video tape of a King 5 news report of the construction at Harbor Hills and the effect to the neighboring homes, which was played for both the Council and audience (tape was Exhibit 3). Bill McCormick, 502 Olympic, said the applicants submitted evidence to the City as early as Au- gust 1988 that problems existed at neighboring homes, and they appeared before the Council on several occasions with the same complaint. Mr. McCormick said he believed that a liberal inter- pretation of the Code would not prevent the City from disallowing future damage to their homes. During his testimony Mr. McCormick displayed to the Council a box of broken glass which he did not identify (later designated as Exhibit 22). EDMONDS CITY COUNCIL MINUTES Page 4 MARCH 21, 1989 Mr. McCormick noted that Cascade Testing recommended to the Hanchetts on 7-20-87 that surrounding buildings be evaluated and documented before and during construction and monitored in all phas- es. He said it was Staff's responsibility to insure that the damage that occurred to the appli- cants' home did not occur. Mr. McCormick submitted a document from Cascade Geotechnical (marked Exhibit 4) to the City Clerk, two photographs of two fireplaces dated December 1988 (marked Exhibit 5), and two photo- graphs of the same fireplaces, dated 3-26-89 (marked Exhibit 6). Mr. McCormick said he did not believe testing was necessary to determine the cause of the damage which has occurred to his home while construction occurred. Mr. McCormick asked why a construction timetable was requested by the City when construction activities have taken place beyond the time lines identified in that table. Mr. McCormick submitted to the City Clerk a box containing the record of previous hearings up to 1987 (marked Exhibit 7 through 13). Mr. McCormick said contrary to a statement by Mr. Hanchett, neither he nor his attorney has re- quested permission to review the damage to the applicants' homes. He said if the City Council or Staff wished to observe the homes, they were welcome any time but a protective mask would be necessary when entering his home. Mr. McCormick said the applicants requested that a pro tem Hearing Examiner preside over the February 13 hearing because they wanted an impartial and "fresh" examiner to an emotional issue. Mr. McCormick submitted two documents to the City Clerk, page 3 of Response of Plaintiffs McCormick (marked Exhibit 14) and page 5 of a Memorandum in Opposition to the appeal (marked Exhibit 15) stating in essence, that the applicants will lose the lawsuit they have brought. Mr. McCormick emphasized that the Council has receipt of evidence that the lawsuit brought by the applicants is not frivolous. He noted that a geologist .had stated, "It will take at least six months for it to settle (the earth), then, if ever. If you continue to live in the house, there will always be additional cracks ... you have stressed a house that will never be the same". Mr. McCormick said the Hanchetts convinced the City by inaccurate information to grant a modifica- tion, which he was unsure was issued properly. He said the Hanchetts and their construction manager violated every ethical code a building project would ever allow. Mr. McCormick said he and his family were damaged; their property was damaged; and the quality of their lives ruined and they were driven from their home. Mr. McCormick requested the Council to uphold the Hearing Examiner's recommendation. Kevin Hanchett, 8504 - 231st S.W., said he felt the Hearing Examiner's recommendation should be disregarded by the Council,for the following reasons: 1) the Hearing Examiner did not do the job required of him in accordance with ECDC 20.100.010; 2) the 90 day period for review of the plat has passed; and 3) all conditions that were imposed by the City have been complied with during the completion of the subdivision. Mr. Hanchett said although he would not refute the testimony that damage has occurred to the applicants' homes, he pointed out that no one has established the cause of that damage. He said he has told the applicants that he would fix a problem that was caused by construction of the subdivision; however, no claim has been made to him. Mr. Hanchett said the Hearing Examiner's recommendation was flawed because he did not review the complete administrative file, as required by ECDC 20.100.010, but relied upon five hours of testi- mony on the date of the hearing he presided over to make his decision. Mr. Hanchett said in order to make an adequate review, the full record must be considered. Additionally, the recommen- dation exceeded the Hearing Examiner's authority because it went beyond the period of time which a subdivision can be reviewed. Lastly, Mr. Hanchett said the permittees have complied fully with requirements imposed by the City. Mr. Hanchett said the permittees' experts have stated that the impact of pavement of the access road to adjacent properties was nonexistent. George Lamb, Cascade Geotechnical Testing, 3109 East Laurel St. Dr. N.E., Seattle, consulting geotechnical engineer, said he has worked in soils groundwater surface flows and foundation work in the Puget Sound area since 1958. Mr. Lamb said his firm has been involved with the Harbor Hills development since 1984. He noted that their recommendations have been carefully followed by the Hanchetts. He said the Hanchetts \ have gone. through painstaking and expensive efforts to mitigate the impact of development to the neighbors. EDMONDS CITY COUNCIL MINUTES Page 5 MARCH 21, 1989 Mr. Lamb said the firm recommended that adjacent buildings be documented before and during con- struction so that any changes could be observed and monitored. Mr. Lamb said the comments with respect to excavation stability and safety were made in relation to ditch boxes and shoring to protect the construction workers. Councilmember Dwyer requested Mr. Lamb to comment on the firm's recommendation' in 1984 that no work in Phase I be done on site between November and March of any year. He noted that construc- tion of the access road into the site was part of Phase I. Mr. Lamb said that Phase I was, in large part, completed before October but some portions were constructed into later periods. Councilmember Dwyer inquired if Phase II has commenced. Mr. Lamb replied negatively. Councilmem- ber Dwyer inquired, then, what work was being performed at the present time if it was not Phase I. Mr. Lamb replied the access road. Councilmember Dwyer inquired if that was not part of Phase I. Mr. Hanchett clarified that a pioneer road was built in the development as a staging area for construction. Before final plat approval, a coat is put on top of that road. He said the pio- neer road was completed before the end of September. Councilmember Dwyer referred to the firm's letter of July 20, 1987 and quoted, "Utility excava- tions will encounter wet to saturated soil conditions. Sloughing soils will be a problem. Exist- ing structures within the layback margins may be affected by the excavations causing foundation support undercut resulting in differential settlement". He inquired if the applicants' homes were within the layback margins. Mr. Lamb said they no longer were because the developers rede- signed the utilities away from the homes. Councilmember Dwyer referred to the letter again as follows, "Both deep excavations and dewatering of the excavations will impact upon adjacent struc- tures". He asked Mr. Lamb to comment whether or not that was still the firm's position. Mr. Lamb said that prediction was no longer an issue when the utility line was relocated and groundwa- ter was not encountered. Councilmember Dwyer inquired if the firm was led to believe that there would be no impact to adjacent homes as a result of utility relocation and conditions related with excavation. Mr. Lamb said he concluded that the impact would be reduced. Councilmember Dwyer requested an accounting of the impact on the adjacent structures. Mr. Lamb said he could not give a proper engineering opinion until he conducted a study. Councilmember Dwyer inquired if Mr. Lamb had the information necessary to provide answers to the inquiries made by the Hearing Examiner without doing a further study. Mr. Lamb said he could not testify as to the cause of damage to the applicants' homes but had enough information to proceed with a study to formulate those answers. Councilmember Dwyer inquired if the firm could give an opinion as to what condi- tions would be necessary to guarantee that there would not be further damage to adjacent struc- tures. Mr. Lamb said he could develop that information. Mr. Snyder inquired if Mr. Lamb was familiar with the soils in the right-of-way area. Mr. Lamb replied affirmatively. Mr. Snyder inquired if the firm conducted a soils analysis of the entire site. Mr. Lamb replied affirmatively. Mr. Snyder inquired if there was anything unusual about the soils within the access road area. Mr. Lamb said the soils were wet, fairly shallow depth, and there was some question in the upper portion as to whether the material was fill down to approximately 9 feet. He said boring II revealed some heaving at approximately 22 feet. Mr. Snyder inquired if Mr. Lamb has, during the course of his profession, had an opportunity to evalu- ate soils regarding their appropriateness for road construction. Mr. Lamb replied affirmative- ly. Mr. Snyder inquired if there was anything unusual or incompatible in the soils type that was found on the site in question with road use. Mr. Lamb replied negatively. Mr. Snyder inquired what factors would be present in soil which would enhance its ability to transmit vibrations. Mr. Lamb said he preferred to defer to Mr. Sigmond Schwarz. Mr. Bastien requested permission to cross examine Mr. Lamb. Mr. Snyder stated that the Council has never permitted cross examination of a witness. He said Mr. Bastien could direct his ques- tions to the Council who could then refer them to the witness if they desired answers. Mr. Hanchett said the originally -approved plans called for a 15 foot deep utility which would bisect the McCormick's yard in the City right-of-way. In response to a soils test that was con- ducted and the demolition of improvements that would have caused additional stress to all par- ties, Mr. Hanchett said the utility plan was reengineered, moved north away from the house, and more shallow ditches were dug, which avoided the dewatering phase. Sigmond Schwarz, 15317 - 62nd P1. N.E., Bothell, consulting engineer and geologist, said he has worked in the Seattle area since 1958. Mr. Schwarz said he conducted vibration measures on site of typical activities related to con- struction equipment in the area of the driveway and also measured truck traffic on Olympic Ave- nue. He noted that the instrumentation was placed at the curb line rather than next to the ap- plicants' homes because he was directed not to trespass in any way. He said as a result, the sensors were within inches of the vehicles as opposed to 10 to 30 feet, which would be the ordi- nary case, and the measurements were much larger than usual but, nevertheless, certainly very small. EDMONDS CITY COUNCIL MINUTES Page 6 MARCH 21, 1989 Mr. Schwarz explained the theory of vibration and standard levels of vibration that are used in the industry. He said particle velocity expressed in inches per second is used to describe the intensity of vibration with respect to its ability to damage structures and also for human re- sponse to those vibrations. Mr. Shwarz said .012 is the point beyond which a human being can begin to feel vibrations. He noted, however, that it is easy to imagine the sensation of vibra- tion below those levels when a person can see or hear the source. Mr. Schwarz said the maximum level of vibration that was measured during the study he conducted was .08. The level beyond which damage is likely to occur, he said, to residential structures is at 2.0 inches per second. Mr. Schwarz used overhead transparencies during his testimony, and copies of the transparencies were marked Exhibits 16 to 21. Councilmember Dwyer inquired if Mr. Schwarz had an opinion as to whether or not the construction activity that took place caused the damage to the adjacent structures. Mr. Schwarz said it seemed impossible, based on measurements that he took, that any damage could have been caused. Councilmember Dwyer inquired if Mr. Schwarz would apply the same methodology to determine what vibration levels would be allowable for future construction work. Mr. Schwarz said he would conduct measurements while construction took place so that the conditions of construction were known. Mr. Snyder inquired if Mr. Schwarz could express an opinion, based upon tests, regarding the impact on the immediately adjacent homes, if any, of normal vehicular traffic utilizing the road- way. Mr. Schwarz said normal vehicular traffic would have no more of an impact to the immediate- ly adjacent homes than a well -loaded truck travelling down the main street at a high speed. Mr. Hanchett reiterated that the Hanchetts will repair any damage to the adjacent homes that was caused from construction activity. Mr. Hanchett pointed out that only one week remains to complete the site. He said experts who have tested future paving on the site stated that no damage will occur from that activity. Based on that opinion, Mr. Hanchett requested the Counci.1 to disregard the Hearing Examiner's recommen- dation. He recommended, however, if the Council imposed a new standard that they adopt the stan- dards that have been utilized across the country. Mr. Snyder pointed out that Staff's recollection was that relocation of the ditch away from the McCormick home was a requirement imposed as a condition of the issuance of the right-of-way con- struction permit after review by the Hearing Examiner and was not an initiative of the permittees. Mr. Hanchett acknowledged that his previous statement may have been a misstatement. Mr. Snyder inquired if the July 20, 1987 letter was received by the Hanchetts in January of 1988. Mr. Hanchett replied affirmatively. Mr. Snyder inquired if the City was provided a copy of that letter. Ms. Block said she did not recall seeing it. Mayor Naughten opened the public portion of the hearing. Jeff Palmer, 17510 - 76th Ave. W., said failure of the Hearing Examiner to conduct a review of the permits prospectively has led to flawed conclusions and recommendations. He said if damage has occurred to nearby homes as a result of soil conditions, it was unfortunate but not conclu- sive evidence that the condition is present throughout the site and that future damage will oc- cur. He.noted that the Hearing Examiner concluded that there was no evidence that would quantify the amount of vibration created by the compacting equipment; no evidence that would quantify the amount of vibration that will be generated from the passage of construction and normal vehicular traffic on Daley Place once the road is complete; and that it is impossible from the evidence to conclude which activity(s) in particular contributed the most to the vibration problem, nor wheth- er work on particular portions of the site contributed more to the vibration problem than did work on other portions of the property. He inquired how the Hearing Examiner could draw a conclu- sion with those statements in mind. Mr. Palmer said future events cannot be predicted based on the past. He contended that the Hear- ing Examiner overstepped his bounds by attempting to predict the future. Mr. Palmer said permits were issued after exhaustive studies. He said the question is whether or not the actions taken by the applicant were within the bounds of those permits. Chuck Jenson, 515 Olympic View Ave., said his home is across the street from the construction site. He said construction equipment has used an alley which is located ten feet away from his home to access the development, and he has not experienced damage to his property or home. Mr. Jenson said even the large garden fish pond in his back yard, which is old and fragile, has re- mained intact. Mr. Jenson was in favor of continued construction so that the development can be completed. EDMONDS CITY COUNCIL MINUTES Page 7 MARCH 21, 1989 Karen Folden, 16329 - 4th Ave. S.E., Bothell, youngest daughter of the McCormicks, said her par- ents recently moved away from their home because the loosened asbestos has created a hazardous living condition. She said she was fearful that her parents may die of cancer from the asbes- tos. She asked the Council how they would feel if their parents died because of asbestosis. Ms. Folden said the laws of the City were enacted to protect innocent people. She inquired if the Council would not uphold those laws. She said tests have been conducted which revealed that the McCormick house will "continue to fall apart" if construction continues. Robert Ahlbeck, 731 Brookmere Dr., reminded the Council that his past testimony revealed that the amount of material that will be removed from the project to install utilities far exceeds the specified amount in the permit. He said the permit should definitely be revoked. Mr. Ahlbeck said soil with water in it, in an explosive test, does not move but the energy trav- els through it. Brenda Wren, 13726 - 25th Ave. S.E., Bothell, daughter of the McCormicks, said she spoke with Kevin Hanchett, who stated to her that "they were only doing what the City is allowing them to do". She said if that is the case, the City should stop any future damage that is "sure to hap- pen". Ms. Wren said the City was told repeatedly that damage would occur to adjacent homes and it has occurred. Reginald Wren, 13726 - 25th Ave. S.E., Bothell, said expert testimony can be given over and over again. He said, however, someone is going to have to make a decision that corrects the situation sooner or later. Linda Mattison, 520 Olympic Ave., said her letter for reconsideration was to address issues that were not discussed at the Hearing Examiner proceeding or not discussed in length. Ms. Mattison said the two permits that were appealable were not appealed and, therefore, she assumed that the right-of-way permit was revoked and the conditional use permit was suspended and that the permittees agreed with Mr. Galt's recommendation to conduct a geological study. Ms. Mattison said numerous conditions that were imposed on the project have not been complied with, i.e., location of drainage utilities. Finis Tupper, 711 Daley St., said the applicants have proven that there is probable cause and damage to their homes and the permittee has acknowledged that. Mr. Tupper suggested that the issue be remanded for further review because conditions imposed at the original hearing by Hearing Examiner Driscoll have not.been complied with. Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCIL - MEMBER HALL, TO CONTINUE THE MEETING UNTIL THE COUNCIL RENDERED A DECISION THAT EVENING. MOTION CARRIED. Mr. Tupper said the variance that was granted to the permittee was improperly issued, and he cited sections of the Code, 20.75.075 and 20.85, to support his statement. Dick Hill, 1242 Coronado P1., said it was becoming very apparent to everyone in the room that the City made a terrible mistake when it granted the variance and that the time to correct that mis- take had arisen. Mayor Naughten reviewed the time allotment for rebuttal. Mr. Bastian protested the time allot- ment because he said it was impossible to make the applicants' presentation in that amount of time. Mr. Bastian said the permitted activities at Harbor Hills have caused a nuisance, are hazardous, and should cease. Mr. Bastian said vibration measurements were not taken of equipment that was actually used on site,. nor was a request made of the applicants for permission to take such measurements near their homes. Mr. Bastian said if the Hanchetts had made such a request, they would have certain- ly been given permission. In addition, the condition of all adjacent buildings was not carefully documented before and during construction. Mr. Snyder asked Mr. Bastian if he felt there were any inaccuracies or omissions in the Hearing Examiner's report that he thought the Council should review in particular. Mr. Bastian replied EDMONDS CITY COUNCIL MINUTES Page 8 MARCH 21, 1989 negatively. Mr. Snyder inquired if there were any parts of the report from prior proceedings that Mr. Bastian would direct the Council's attention to. Mr. Bastian replied affirmatively. He said he could provide for the Council the references in the record where testimony was given. Mayor Naughten closed the public portion of the hearing. The Council recessed to an Executive Session at 10:15 p.m. for legal advice and reconvened at 11:02 p.m. Mr. Snyder, in response to Mr. Bastian's concern regarding whether or not the Council reviewed the full record, inquired if Mr. Bastian wished to continue the hearing to allow the Council an opportunity to review the full record or whether he believed the Hearing Examiner's recommenda- tion, in conjunction with the exhibits, was adequate. He pointed out that Council review of the full record, including all of the exhibits provided that evening, would be time consuming. Mr. Bastian said the Council, and not he, must decide whether they are sufficiently informed to make a decision. Mr. Hanchett said he felt there was adequate time for both parties to present their case. He said he was present at prior hearings and felt the facts set forth in the Hearing Examiner's report were a fair and accurate summary. Based on that, he believed the Council could make an educated decision. Councilmember Dwyer said he felt the Hearing Examiner's report was one of the better products that has been before the Council, given the complexity and emotionality of the issues. He said it was his impression that the nature and extent of the record with regard to the geotechnical analysis and the vibration analysis was inadequate for the Council to be confident that continued problems will not occur. Councilmember Dwyer did not think there was any fair-minded person who, after hearing the testimony and reviewing the record, would have any real question that the con- struction activity caused the damage to neighboring homes. He said it did not appear that the experts can give a reasonable prediction or recommendation as to what to expect in the future. For that reason, Councilmember Dwyer believed that the Hearing Examiner's recommendation that future studies be conducted was soundly based and correct. Councilmember Jaech said after reviewing the record and listening to the testimony she, too, would uphold the Hearing Examiner's recommendation. Councilmember Hall felt the Council did not positively know whether any or all of the damage was caused by construction. She advised the parties to resolve that issue through a civil action. Councilmember Wilson expressed concern that the Hearing Examiner did not avail himself of all of the evidence before he rendered a decision. He said, however, he would vote to deny the applica- tion because the work is completed and the roadway easement was extensively reviewed during the preliminary plat review process. He noted that past damages was not a matter for the Council to resolve but was a civil matter. Councilmember Kasper believed the petition should be denied because he said nothing would be gained by stopping the progress of the project. He said considerable water damage will occur to properties below if the plat is not completed. Councilmember Nordquist said he would support the Hearing Examiner's recommendation. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER KASPER, TO DENY THE HEARING EXAMINER APPLI- CATION P-6-84. A ROLL CALL VOTE WAS TAKEN. A TIE VOTE WAS MADE WITH COUNCILMEMBER KASPER, COUN- CILMEMBER HALL, AND COUNCILMEMBER WILSON IN FAVOR; COUNCILMEMBER DWYER, COUNCILMEMBER JAECH, AND COUNCILMEMBER NORDQUIST OPPOSED. MAYOR NAUGHTEN VOTED IN FAVOR OF THE MOTION TO BREAK THE TIE VOTE. MOTION CARRIED. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HALL, TO CONTINUE THE MEETING FOR FIVE MIN- UTES. MOTION CARRIED. MAYOR Mayor Naughten said a liquor license application will be forwarded to the State for Red's Steak House if no objection was noted. No objection was noted. R Mayor Naughten noted that Washington Cities & Towns meeting is scheduled on March 23. COUNCIL Council President Kasper requested the Council to submit their recommendations regarding the retreat format to him as soon as possible. EDMONDS CITY COUNCIL MINUTES Page 9 MARCH 21, 1989 Student Representative Dave Berdine said he received several complaints and inquiries regarding the cancellation of the spring cleanup. Mayor Naughten said he would provide him with details. Mr. Berdine inquired if a date has been set for the dinner meeting between the School Board and �� w the City. Council President Kasper said the City suggested a date but it was in conflict with ,d,,�o the School Board's schedule and he was waiting for the School Board to suggest a date. Councilmember Dwyer said he would appreciate an update on the Hearing Examiner selection process in next week's Council packet. Councilmember Wilson said those. who attended the "Save Edmonds High School" meeting were "outgunned" but he thought the Mayor stood firm and tall. He suggested to Council President Kasper that the City be the aggressor and not wait for the School Board to contact the City with a date for the dinner meeting. The meeting adjourned at 11:32 p.m. T ESE MINUTES ARE SUB ECT TO MARCH 28, 1989 APPROVAL. JACQUELINE G. PARRETT, City Clerk LARRY S. NAUGHTEN, Mayor EDMONDS CITY COUNCIL MINUTES Page 10 MARCH 21, 1989 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM -LIBRARY BUILDING 7:00 -- 10:00 P.M. MARCH 21, 1989 CALL TO ORDER FLAG SALUTE 1. CONSENT AGENDA (A) ROLL CALL (B) APPROVAL OF MINUTES OF FEBRUARY 28, 1989 AND MARCH 7, 1989 (C) PROPOSED ORDINANCE 2704 AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE SECTION 20.90.020 REGARDING TESTIMONY AT PUBLIC HEARINGS (D) PROPOSED ORDINANCE 2705 AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE SECTION 20.105.060 TO REFERENCE PENALTY PROVISIONS SET FORTH IN EDMONDS CITY CODE 5.50 (E) AUTHORIZATION TO PAY COMPENSATION TO MR. AND MRS. LEONARD HONCOOP FOR EASEMENT FOR SEWER IMPROVEMENTS ALONG TRACTION RIGHT-OF-WAY ($500) (F) ACCEPTANCE OF QUIT CLAIM DEED FROM CLYDE A. AND JANICE L. MILLER FOR STREET RIGHT-OF-WAY AT 16320 75TH PL. W. (G) AUTHORIZATION TO PURCHASE CARPET CLEANER FOR FACILITIES MAINTENANCE ($1,500) AND 20-GALLON PORTABLE SPRAYER FOR GROUNDS MAINTENANCE ($800) 2. AUDIENCE 3. HEARING ON PROPOSED ORDINANCE 2706--FIREWORKS ORDINANCE MODIFICATIONS (30 MINUTES) 4. HEARING ON HEARING EXAMINER RECOMMENDATION REGARDING REVIEW OF APPROVED (90 MINUTES) PERMITS FOR THE PRELIMINARY PLAT OF HARBOR HILLS AT 1100 DALEY PL. (P-6-84) (PERMITTEE: HANCHETT FAMILY / APPLICANTS: HUMOLA, HALL, AND McCORMICK 5. MAYOR 6. COUNCIL THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE HANDICAPPED ACCESSIBLE