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05/02/1989 City CouncilTHESE MINUTES SUBJECT TO MAY 16, 1989 APPROVAL EDMONDS CITY COUNCIL MINUTES MAY 2, 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 Jim Barnes, Parks & Rec. Div. Mgr. Bobby Mills, Public Works Supt. Duane Bowman, Assoc. City Planner Bob Alberts, City Engineer Dan Prinz, Police Chief Linda McCrystal, Arts Coordinator Scott Snyder, City Attorney Jackie Parrett, City Clerk Margaret Richards, Recorder Items (B), (E), and (H) were removed from the Consent Agenda. COUNCILMEMBER JAECH MOVED, SECOND- ED BY COUNCILMEMBER KASPER, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items on the Consent Agenda include the following: (A) ROLL CALL (C) ACKNOWLEDGEMENT RECEIPT $0FF CLAIM FOR DAMAGES FROM ERIC R. MYHRE, MARY M. MYHRE, AEMACPHER4C (D) APPROVAL OF CONTRACT WITH MAC TOWING FOR TOW AND IMPOUND SERVICES (F) RECONFIRMATION OF JAMES DRISCOLL AS HEARING EXAMINER G (G) AUTHORIZATION TO CALL FOR BIDS FOR REROOFING PORTION OF ANDERSON CENTER APPROVAL OF MINUTES OF APRIL 25, 1989 [ITEM (B) ON THE CONSENT AGENDA] Mayor Naughten referred to a memorandum from the City Clerk noting the following proposed correc- tion to the minutes as requested by the Council President: Page 5, bottom of the page, regarding the action on the street standards ordinance, in the second line of the motion to amend, follow- ing "A ROLL CALL VOTE WAS TAKEN", it should say, "MOTION TO AMEND FAILED, rather than CARRIED, WITH COUNCILMEMBERS KASPER, HALL, AND WILSON IN FAVOR, AND COUNCILMEMBERS DWYER, HERTRICH, NORD- QUIST AND JAECH OPPOSED. THE MAIN MOTION CARRIED, WITH COUNCILMEMBERS KASPER AND WILSON OPPOSED, rather than NOROQUIST AND DWYER. Councilmember Kasper also made the following correction: page 5, paragraph 11, insert the words underlined, "He said, however, the County has offered to fund their portion of the elderly handi- capped transportation services". COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO ADOPT THAT MODIFICATION. MOTION CARRIED. Councilmember Hall referred to page 5, paragraph 9, noting that the Commission and Committee will meet on May 8th rather than May 18th. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE MINUTES AS CORRECTED. MOTION CARRIED. APPROVAL OF PHOTOCOPIER REPLACEMENT POLICY AND AUTHORIZATION TO CALL FOR BIDS FOR NEW DEPART- MENTAL PHOT COPIER ITEM E N THE CONSENT AGENDAJ Councilmember Dwyer expressed concern that photocopy machines will be purchased that have extra features that some departments may not have a need for. He wondered if service for maintenance will be available beyond regular business hours for departments which operate on a 24 hour basis. Councilmember Hall said those issues were previously discussed and Councilmember Nord- quist and she felt comfortable with the decision that was reached. Councilmember Nordquist added that the Committee that was convened in the past to analyze the copier market ascertained that the proposed photocopier is now $3,000 less expensive than the machine that was recently pur- chased. He said the existing machine will be relocated to the Police Department and the new machine will be placed in the Executive building. He said the new machine was selected because it is the same brand as the existing machines and continuity in service can be maintained. Police Chief Dan Prinz noted that there is a cost differential of $2,500 between the new machine and the amount he budgeted plus an additional $750 per year for maintenance. COUNCILMEMBER NOROQUIST MOVED, SECONDED BY COUNCILMEMBER KASPER, TO REMOVE ITEM (E) FROM THE AGENDA; REMAND THE ISSUE TO THE COMMITTEE; AND REQUEST THE POLICE CHIEF TO SUBMIT HIS RECOMMENDA- TION IN WRITING FOR A PHOTOCOPIER FOR THE POLICE DEPARTMENT. MOTION CARRIED. PROPOSED ORDINANCE ADDING NEW SECTION 18.80.005 TO EDMONDS COMMUNITY DEVELOPMENT CODE PROHIBITING REDUCTIONS -IN STREET STANDARDS LITEM H N THE CONSENT AGENDAJ Mayor Naughten noted that item (H) was removed from the Consent Agenda because a hearing has not been held yet. AUDIENCE Mayor Naughten opened the audience portion of the meeting. Finis Tupper, 711 Daley St., noted that he had submitted a letter and two exhibits to the Council regarding items 5 and 6 on the agenda. He requested permission to give an explanation when those items are discussed. Jeff Palmer, 17510 - 76th Ave. W., said items 5 and 6 were not valid appeals because they were incomplete submittals and failed to meet the criteria for filing appeals. He asked the Council to reject both submittals. Mayor Naughten closed the audience portion of the meeting. HEARING ON APPEAL OF HEARING EXAMINER DECISION DENYING RE UEST FOR HEIGHT VARIANCE ON LOT 7 EAGLE'S CREST PRD V- - 9/ P-1 - 9 PPELL NT: LPH HUIZING Associate City Planner Duane Bowman reported that on February 2, 1989, the Hearing Examiner held a public hearing on a variance request of Ralph Huizinga to.allow his proposed home to exceed the permitted height limit by eleven feet. The Hearing Examiner issued his decision on March 2, 1989 denying the request on the basis that Chapter .20.35.060 of the Edmonds Community Development Code (ECDC) prohibits such variance requests. Mr. Bowman said a motion for reconsideration was filed by Finis Tupper on March 6, 1989 asking the Hearing Examiner to amend the record. On March 30, 1989, the Hearing Examiner issued his decision denying the motion. Mr... Bowman said the issue before the Council centers on interpretation of the ECDC. He noted that the City has consistently allowed individuals to apply for height variances for lots in Planned Residential Developments (PRD's). Mr. Bowman said it is Staff's recommendation to uphold the appeal and refer the matter to the Hearing Examiner to review the request in. light of the variance criteria found in Chapter 20.85 of the ECDC. Mr. Bowman noted that two exhibits that were submitted at the hearing before the Hearing Examiner were posted on the bulletin board which depicted the height of the proposed structure that would comply with the Code and the requested height. Mr. Bowman said PRD's are unique by their very nature and in most cases lots in PRD's do not have the same flexible building pads that typical lots do. He said the variance procedure allows an owner of a lot within a PRO the same rights as any other owner in any other zone if a problem exists with regard to height requirements. Mr. Bowman said Staff believes that the Hearing Examiner has reviewed the variance request incor- rectly, as height variances should be reviewed under the requirements of Chapter 20.85.010 and not Chapter 20.35. EDMONDS CITY COUNCIL MINUTES Page 2 MAY 2, 1989 Councilmember Hall noted that PRD's were once referred to as PUD's and that the Code neither prohibited nor encouraged individuals regarding request of a variance within the PUD. She in- quired if the Code has been amended since that time. Mr. Bowman replied negatively. Mr. Bowman pointed out that the original concept of the development of Eagle's Crest was approved with the first floor elevations equal to the street elevations which would, in some cases, neces- sitate a height variance. Councilmember Dwyer recalled that the issue was before the Council last spring. He inquired what the bank was seeking at that time. Mr. Bowman said the bank was seeking a height variance for four of the lots. Councilmember Dwyer inquired if the lot in question was one of the four lots. Mr. Bowman said he believed so. Councilmember Dwyer inquired if any testimony was given before the Hearing Examiner that substantially changed the circumstances between last year and the present time. Mr. Bowman said last year's application was a general application for four lots with no specific house design. He said the circumstances are different in this particular case before the Council because there is a proposal for a specific design. Councilmember Dwyer in- quired if the proposed design of the house is a factor to be considered with respect to the grant- ing of a height variance. Mr. Bowman said the slope and topography of the lot, or the uniqueness of the lot, is a consideration. Councilmember Dwyer inquired if there are any homes in RS-12 zones in Edmonds which could be built on the lot in question. Mr. Bowman said it would be very difficult to accomplish. He said the house would be well below street level. Mayor Naughten noted that a letter, written by Walter and Coletta Dastis dated April 26, 1989, was submitted to the Council, as well as a letter from Debra Von Schuessler. Copies of the let- ters.were placed on the table by the doorway for public viewing. Debra Von Schuessler, 10717 - 229th P1. S.W., representing hef parents, 'Ralph and Rosemary Huizinga, the appellants, said her parents are retired and the lot in question represents a life- time investment for them. Ms. Von Schuessler pointed out that only one home in Eagle's Crest, the Dastis home, has an actu- al view. Ms. Von Schuesller said she attended the hearing before the Hearing Examiner and he omitted perti- nent testimony in his report. She said her parents' lot, which appears as lot #5 on the site * diagram, has a legal description of lot #7. She said when the correct location of the lot was ascertained, Mr. Dastis stated that he was not overly concerned with the view in that general direction. Ms. Von Schuesller said tree surveys and aerial photography taken prior to develop- ment revealed that no view of the Sound existed from a northwest direction from the Dastis resi- dents before 1981.• Additionally, she said measurements were taken by architect Warren LaFon indicating that the roof line of the proposed home built with a variance would be at least 6 to 8 feet below the ground level of the Dastis home. Ms. Von Schuesller was concerned with the contradictory findings of the Hearing Examiner of Chap- ter 20.35.060 as the basis for his denial because she said it leads one to believe that height * variances do not exist for residential properties within the City of Edmonds. She noted, howev- er, that Chapter 20.35.000 makes reference to the PRO approval process only and not to height variances. She said Chapter 20.85.000 states that any property within a residential zone, as outlined in Chapters 16 and 17, is eligible for a height variance, provided that the owner can demonstrate compliance with the criteria of that chapter. Ms. Von Schuessler referred to a copy of a 1987 decision (V-15-87) by the Hearing Examiner in favor of a height variance for a home that was built in a PRO. She said at no time was Chapter _20.35.060 cited as a basis for denial. Ms. Von Schuessler said the request of the appellants is to follow the contour and slope of the terrain and to build 11 feet down. She said the home in question is restricted by the develop- er's specifications to build no higher than 17.77 feet above the street elevation. She said the appellants seek approval to build a safe and practical entry into their home from the street level. She submitted four exhibits, which were marked as follows: Exhibit 1 - a transcript of her address to the Council including a description of the satisfaction of the six criteria for height variance; Exhibit 2 - a topography map and project data for Eagle's Crest homes; Exhibit 3- a site map with a tree survey; and Exhibit 4 - three photographs. Ms. Von Schuessler concluded by stating that the appellants are within their rights to seek a height variance; that they satisfy the six criteria required for approval of a variance; and that they are not encroaching on anyone's view or disrupting the harmony of the neighborhood. Mayor Naughten opened the public portion of the hearing. Finis -Tupper, 711 Daley St., said the lot in question is part of a City -approved PRO in an RS-12 zone, which establishes a maximum building of 25 feet. EDMONDS CITY COUNCIL MINUTES * See Council Minutes of May 16, 1989 Page 3 MAY 2, 1989 Mr. Tupper said the language of ECDC is very clear with respect to building height requirements for all structures within a PRO. He said Staff's interpretation is without merit because it does not include one citation of the Code to support their position. Mr. Tupper said the ECDC specifi- cally prohibits the granting of a height variance for structures in PRD's. He noted that the Hearing Examiner referenced ECDC 20.35.060 stating, "RS single family residential zones are iden- tified as single-family residential and, therefore, every PRO in this zone shall be consistent with the neighborhood characteristic and maintain the building height of that zone. The City may approve a change from any of the regular development regulations except allowable density and building height. The maximum height of any building shall not exceed the height permitted in the zone in which the site is located". Councilmem6er Wilson raised a point of order. He noted that Mr. Tupper had gone beyond the time allotment. Mr. Tupper inquired if the hearing was a de novo hearing. Mayor Naughten replied affirmatively. Mr. Tupper inquired, then, if testimony could be restricted. City Attorney Scott Snyder replied affirmatively. Mayor Naughten requested Mr. Tupper to summarize. Mr. Tupper noted that 20.35.100 states that after the effective date of the approval of the ordi- nance, the City shall permit use of land and erection of structures in compliance with the plans as approved. Any use or structure inconsistent with the approved plan shall not be permitted. He submitted a transcript of his statement to the City Clerk, which was marked as Exhibit #5. Jon.McKenny, 3805 - 164th St. S.W., G-102, Lynnwood, said he and his wife are building a home on lot #1 of Eagle's Crest. He said he was opposed to the granting of the variance because it will obstruct his view. He feared that approval of the variance would be precedent setting and would be the impetus for future variance requests of several other homes in the PRO which, if granted, would further obstruct his view. Bill Semon, 303 - 5th Ave. S., representing the sellers, said most of the lots in Eagle's Crest have restrictive building pads. He said the City requires that the grade be no more than 14%, which means that the driveways will have a sharp slope downwards. Mr. Semon said the variance request will allow the home to be built on level ground. Mr. Semon said he did not believe some of the lots in Eagle's Crest were buildable. He urged the Council to uphold the appeal. Warren Falls, 7207 - 173rd St. S.W., was opposed to the granting of the variance. He wanted to preserve the character of the neighborhood. Mr. Falls said lots within Eagle's Crest were unbuildable until the PRO was established. He said citizens of Edmonds are afforded rights to develop a parcel .but must do so within the limitations of the Code. Carol Gittens, 7205 - 173rd St. S.W., was opposed to the granting of the variance. She said she and her husband moved into the neighborhood several years ago because of the lot size require- ments of an RS-12 zone and the aesthetic quality of that area. Ms. Gittens said approval of the PRD in question was based on information that was submitted by the applicant, which did not include the need to vary the height standard. She said any struc- ture which exceeds the height standard is inconsistent with the approved plans. Ms. Gittens said the City Code does not allow additional review and changes after a PRO has been approved. She noted that height standards for PRD's are mandated in Chapter 20, and not Title 16. She said Chapter 20 requirements cannot be varied unless specifically provided for in Chap- ter 20.35.000. Ms. Gittens said the Council is required to make decisions and findings based on the policies and regulations set forth in the ECDC. She said a vote by the Council to uphold the '-appeal would exceed the City's authority. Dale Watkins, U.S. Bank Corp., Real Estate Marketing Division, 111 S.W. 5th, Portland, Oregon, said the corporation is the .current owner of most of the lots in Eagle's Crest PRO. He said it will be necessary to exceed the allowable building height in some circumstances if a reasonable use of all of the lots in the PRO is to occur. Mr. Watkins said the proposal before the Council is not to build a structure that is unusually tall or out of character with the neighborhood but to build a structure very typical for hillside development. He said the peak of the roof will not be more than 13 feet above street level, which is very typical of a single -story house that is built on a flat lot. Mr. Watkins said the corporation believes that the request meets all of the criteria for a vari- ance, and the proposed development represents a reasonable and attractive use of the property. He said the corporation is in full support of Staff's recommendation. EDMONDS CITY COUNCIL MINUTES Page 4 MAY 2, 1989 Councilmember Kasper inquired if prospective buyers of the lots in Eagle's Crest were apprised that a height variance was required to develop the lots. Mr. Watkins said the height elevation formula, based on previous elevations, was explained to them. He said many of the builders are under a 30/60/90 day feasibility contract before sale of the lots close. Councilmember Kasper inquired if sale of the lot in question has been consummated. Mr. Watkins replied affirmatively. Councilmember Dwyer inquired if an explanation was given to the Huizingas that U.S. Bank Corp. had applied for a height variance last year and was unsuccessful prior to conveying the lot to them. Mr. Semon said he would have to check the file to ascertain that information. Councilmember Jaech inquired how many lots were still in ownership by the bank. Mr. Watkins replied eight. Councilmember Jaech inquired if those lots will require a height variance. Mr. Watkins said between four and six of the twelve lots may require a variance. Councilmember Wilson inquired if lot #4 will require a variance. Mr. Watkins said he believed so. Councilmember Hertrich noted that several homes on Lake Washington are access-ed from the top level where the garage is located. He inquired if a similar design has been considered for the homes in question. Mr. Watkins said most of those homes have an unobstructed view of the water- front. He said if the homes in the PRO were built ten to twelve feet below street level, they would only have a view of the valley area. He said a variance is necessary to build those homes at -street level. Councilmember Jaech asked Mr. McKenny to explain what information was given to prospective buy- ers.. Mr. McKenny said. Windermere Realty provided a vicinity map, prices, a topography map, maxi- mum building heights, grades, exterior building materials, the square footage of lots and allow- able building dimensions. Richard Nord, 11809 N.E. 74th, Kirkland, having made application for the variances last year on behalf of the bank, said none of the adjacent property owners had a view of Puget Sound until Eagle's Crest was developed. Mr. Nord said significant changes in elevations have occurred since last year when the design concept was approved by the City. He said the intent of the development when it was originally proposed was to provide a walk-in entry and walk-in garage level and a home that was residential in scale with approximately fourteen or fifteen feet of peak elevation above the road level. Mr. Nord noted that the purpose of a PRO is to cluster the homes and retain a considerable amount of open space. He said that -configuration has been accomplished in Eagle's Crest, and it is in no way detrimental -to the community. Mr. Nord pointed out that Chapter 20 refers to the bulk requirements of the PRD development pro- cess and not to individual lots within that development, and Chapter 20.35.060, "Specific Design Requirements and Criteria", refers to building heights, which is detailed in Chapter 16. Richard Hill, 1242 Coronado Pl., President of the Edmonds Council of Concerned Citizens, read a letter into the record from Walter and Coletta Dastis which stated that they believed that the Hearing Examiner's decision was correct. They were concerned about further obstruction of their view and depreciation of their property if the variance is granted. They requested the Council to deny the variance request. Greg Williams, 12038 - 1st Ave. N.W., Seattle, said he is a prospective buyer of a lot in Brookacres. He said that parcel cannot be developed without obtaining a variance, and he was apprehensive about purchasing it after listening to the issue before the Council at the present time because he feared that he would be unable to obtain a variance. Mr. Williams said he found the Hearing Examiner's decision to deny the requested variance rather bizarre and thought the Council should consider each lot in Eagle's Crest on its own merit and not preclude the granting of a variance in blanket terms. Ms. Von Schuessler said the appellants are not attempting to exceed the 17.77 foot height limita- tion that was specified by the developer but only wish to build up to that level and down on the slope. Ms. Von Schuessler reiterated that Chapter 20.85.000 allows for variances in residential zones. Mayor Naughten closed the public portion of the hearing. EDMONDS CITY COUNCIL MINUTES Page 5 MAY 2, 1989 Councilmember Kasper noted that the Council approved the development as originally proposed and the variance reflects the original intent. He said if the grade of the street is altered by direction of the City, the elevations will also be altered. Mr. Snyder stated that the issue before the Council presents conflicting maxims of interpreta- tion. He said Staff's interpretation involves two maxims of interpretation: an ordinance should be read to give effect to all of its component parts, i.e., variance authority (under the PRD provisions it is limited) and general variance authority under the zoning code. Mr. Snyder said if, on its face, a statute is unambiguous, there is no need to go beyond its provisions. He noted that the PRD ordinance states that there are to be no height variances, and the ECDC states that under the lot variance criteria that special circumstances cannot relate to the actions of a prior owner. Mr. Snyder suggested that the Council consider whether or not the variance request in the particular case before the Council was based entirely upon the prior approval and the situation that it created. Councilmember Dwyer stated that a PRD, by its very nature, is like a giant variance. He said special circumstances exist which arose from the manner in which the PRD was devised. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO UPHOLD THE FINDINGS OF THE HEARING EXAMINER ON TWO BASES: 1) THE HEARING EXAMINER WAS CORRECT IN HIS INTERPRETATION OF THE EDMONDS COMMUNITY DEVELOPMENT CODE IN THAT THE PLAIN MEANING OF THE CODE GIVES RISE TO THE CONCLU- SION THAT HE REACHED AND THAT THERE IS A LOGICAL REASON WHY THE CODE WAS WRITTEN IN THAT MANNER; AND 2) EVEN IF THE HEARING EXAMINER WAS INCORRECT IN HIS APPLICATION OF THE CODE, THE VARIANCE WOULD NOT BE GRANTED_BECAUSE SPECIAL CIRCUMSTANCES EXIST WHICH AROSE FROM THE ACTIONS OF A PRIOR OWNER. Councilmember Kasper noted that the elevations were previously established and approved by the City. He urged the Council to review those plans before voting on the motion. MOTION CARRIED WITH COUNCILMEMBER KASPER OPPOSED. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING PROPOSED SUBDIVISION AT 7226 SOUNDVIEW DR. AP-1-89/S-35-88/APPELLANTS: CHRIS AND BARBARA CAMPBELL C� Associate City Planner Duane Bowman reported that the City received a two -lot short subdivision application from the appellants in November of 1988. A hearing was held on December 8, 1988. Shortly after the hearing, it was discovered that the zoningmap was in error. Mr. Bowman said since the area was actually zoned RS-12, rather RS-8, there was not adequate area for two lots and Staff denied the short subdivision request. The appellants filed an appeal with the Hearing Examiner asking that the Staff decision be overturned. Mr. Bowman said the Hearing Examiner held a public hearing on the appeal on February 23, 1989. On March 16, 1989, the Hearing Examiner issued a decision upholding the Staff denial. An appeal of the Hearing Examiner's decision was submitted on March 29, 1989. Mr. Bowman said it is the recommendation of Staff to uphold the Hearing Examiner's recommendation. Mr. Bowman explained that the Campbell property was annexed into the City in 1963 and was zoned RS-12 in 1964 under the adoption of Ordinance 1074. He said the City annexed an area south of the subject property in in 1977 and zoned that area RS-8. Mr. Bowman said Staff recently discov- ered that an error was made in the zoning map and the subject property was shown as RS-8. Sandra Shaw, Riach, Gese, Seather, Watts & Curran, attorney representing the appellants, stated that Mr. Campbell relied upon the information given to him by the Planning Staff and Official Zoning Map when he decided to purchase his property in 1980. Chris Campbell, 7226 Soundview Dr., responded to questions that Ms. Shaw asked of him. He stated that he purchased his property with the belief that he could subdivide it at a later date if he wanted to. He said he contacted the Planning Department in 1980, 1987 and 1988 and ascertained that his property was zoned RS-8. Based on that information, he said he purchased the property in October 1980. Ms. Shaw submitted a business card to the City Clerk (marked Exhibit #1) from Associate City Planner Bruce Finke that was given to Mr. Campbell at the time Mr. Finke affirmed to him that the property was zoned RS-8. EDMONDS CITY COUNCIL MINUTES Page 6 MAY 2, 1989 Mr. Campbell said he recently had conversations with Staff, but did not learn until after the December 8, 1988 hearing for the short subdivision application that his property was zoned RS- 12. Mr. Campbell said he has suffered economic losses as a result of the City's negligence. City Attorney Scott Snyder inquired if there has been any widespread reliance on the City's error other than by Mr. Campbell. Ms. Shaw said she was not aware of any. Ms. Shaw requested that the exhibits that were submitted at the previous hearing be entered into the record. Ms. Shaw said when the City adopted Ordinance 2182, all ordinances and portions of ordinances, maps, charts, diagrams, and other provisions of the ECDC which were inconsistent with the provi- sions of the Code were superseded. She said it was her opinion that the adoption of that ordi- nance rezoned the property in question from RS-12 to RS-8. Ms. Shaw said Mr. Campbell's application is in compliance with an RS-8 zone and has received preliminary approval. She requested the Council to overturn the Hearing Examiner-'s decision and uphold the appeal. She said the Campbells will ask for damages if the appeal is denied. Mayor Naughten opened the public portion of the hearing. Marilyn Adams, 7310 Soundview Dr.; said she has lived on Soundview Drive since 1956. She said she has never been notified of a proposal to change the zoning designation of RS-12. She said she was bewildered when she learned that a short subdivision was proposed. Ms. Adams pointed out that •her east/west property line had been the boundary between Edmonds and Snohomish County after Meadowdale Sound tracts were annexed into the City. Ms. Adams said the Official Zoning Map was erroneously marked but has since been corrected. She said the properties along Soundview Drive remain as they have always been designated, and the residents expect them to continue to be designated as RS-12. Ms. Adams she said and"her neighbors concur with the findings of Staff and the Hearing Examiner. She submitted a written statement to the City Clerk, which was marked as Exhibit #2. George Adams, 7310 Soundview Dr., said Richard Cole requested him to read his letter into the record. Mr. Snyder noted that copies of that letter were submitted to the Council and it has been entered into the record. Janice Quello, 7400 Soundview Dr., encouraged the Council to uphold the Hearing Examiner's deci- sion. She said the residents of the neighborhood stated in previous hearings that they wanted the area to remain an RS-12 zone. Donald Jensen, 7216 Soundview Dr., said he was in favor of upholding the Hearing Examiner's deci- sion. He said the neighborhood should not suffer because of a misunderstanding of the zoning designation. Mr. Jensen said a gross injustice would occur to Edmonds and its citizens if the Hearing Examiner decision is disregarded. Patricia Handyside, 7411 Soundview Dr., said she was opposed to the proposed subdivision. George Handyside, 7411 Soundview Dr., said he did not feel that the residents of Soundview Drive should be penalized because of a scrivener's error on the Official Zoning Map. Mr. Handyside said Mr. Campbell has no long-term interest in the development of Soundview Drive; he only wishes to gain a higher return on his investment. Mr. Handyside said all of the residents of Soundview Drive will also be entitled to apply for a subdivision of their property if the proposed subdivision is granted, but he said that would not be consistent with the character of the area. Mr. Handyside said he was definitely against the granting of the variance. Don Thompson, 7413 Soundview Dr., said although he sympathized with Mr. Campbell, he was opposed to the subdivision request. Margaret Hoover, 7311 Soundview Dr., was opposed to the subdivision request. She said she and her husband purchased their property last year because of the,open atmosphere of the neighborhood and the RS-12 designation. She said they were sickened when they learned that Mr. Campbell had applied for a short subdivision. She noted that the Campbells have placed their home on the market for sale and will not be forced to live in a neighborhood with a subdivision. Ms. Hoover said she and her husband are strongly opposed to the proposed subdivision. EDMONDS CITY COUNCIL MINUTES Page 7 MAY 2, 1989 Mr. Snyder inquired if anyone in the audience lives within 80 feet of the Campbell residence and owned their lot in 1977 or 1980. Mr. Adams said his home is approximately 75 to 100 feet west of the Campbell property. Mr. Snyder inquired if Mr. Adams received a mailed notice or had seen a published notice from the City at anytime in 1977 to the present regarding a rezone of the Camp- bell property. Mr. Adams replied negatively. Ms. Shaw said she did not believe the Campbells should suffer economic consequences due to the City's error. Ms. Shaw submitted Ordinance 1950 to the City Clerk (marked Exhibit #3), which rezoned the proper- ty south of the Campbells: Mayor Naughten closed the public portion of the hearing. At the request of Councilmember Dwyer, Mr. Snyder advised the Council that the City can have liability for misrepresentations and the obligation to pay damages. He said the Council has the obligation to hear the subdivision request in accordance with the ordinance as it is written. He stated that the Council must take into consideration if a property can be rezoned by mistake. Mr. Snyder pointed out that section 17.00.050 states that if any provision of the Code is inappli- cable or invalid that was adopted when the Community Development Code was amended, that portion or map is deemed repealed and any prior applicable provisions are deemed reinstated. Mr...Snyder said there are two principles that address whether or not a city can take an action by mistake... estoppel and a recent Court of Appeals decision. He said courts are reluctant to apply administrative estoppel, particularly in situations where it makes it difficult for a city to exercise its police and zoning powers appropriately. He noted that there is evidence in the record before the Council that there are a number of other properties that would be affected by the same mistake and so he felt the City could refuse to apply estoppel. Mr. Snyder stated that the Court of Appeals recently held that zoning interpretations are void- able, not void; that is, if there is a procedural mistake in the adoption process they are not automatically void. He said the courts will look to see whether a substantial number of permits were issued and a large number of people changed positions. Mr. Snyder noted that in the particu- lar issue before the Council, only one person relied upon the error of the City, and it does not appear that there has been any general change in position. Mr. Snyder said he believed that the RS-12 zoning should be applied, and the Council's decision should include a finding that any action in the adoption of the Comprehensive Plan and zoning map are voidable and are found to be void because of the lack of notice to abutting property owners. He noted, however, 'that that finding may deem the City liable for damages. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER KASPER, TO UPHOLD THE HEARING EXAMINER'S RECOMMENDATION REGARDING THE PROPOSED SUBDIVISION AT 7226 SOUNDVIEW DRIVE, AP-1-89/5-35-88. Councilmember ,Dwyer requested Mr. Snyder to draft appropriate findings of fact that were consis- tent with the statements he just made. MOTION CARRIED. The meeting recessed at 9:28 p.m. and reconvened at 9:32 p.m. SET DATE FOR HEARING ON APPEAL OF HEARING EXAMINER DECISION TO INCREASE HEIGHT BY 5 FEET AT 116- 2ND AVENUE S. P-15- /V-6- PPELL NT: FINIS TUPPER APPLIC NT: R N H NSEN SET DATE FOR HEARING ON APPEAL OF HEARING EXAMINER DECISION GRANTING APPROVAL OF VARIANCE TO WAIVE REQUIREMENTS TO USE RS-6 BULK STANDARDS FOR A SINGLE FAMILY DWELLING UNIT ZONED BC AT 605 MAIN ST. P-16-89/V-7-89/APPELLANT: FINIS TUPPER/APPLIC NT: TED LINDE On April 21, 1989, Finis Tupper filed an appeal regarding the Hearing Examiner's decision on a variance request of Ron Hansen for a proposed office building at 116 - 2nd Avenue South and on a variance request of Ted Linde for a proposed building at 605 Main Street. The basis for Mr. Tupper's appeal is his statement that he was not mailed a copy of the Hearing Examiner's deci- sions. Mr. Tupper attended the hearing and signed the sign-up sheet but presented no testimony. Standard policy is to mail copies of the decision to all individuals who present testimony and/or sign the sign-up sheet. Included in the Council packets was,an affidavit of Kree Arvanitas, the Hearing Examiner's secretary, stating that all individuals who presented testimony EDMONDS CITY COUNCIL MINUTES Page 8 MAY 2, 1989 or were listed on the sign-up sheet were mailed a copy of the decisions. The appellant had not stated his interest in these matters nor had he given any reasons as to why he believed the decisions to be wrong, as required under Chapter 20.105.020 Appeal - Filing. Although Mr. Tupper stated that he did not receive a copy of the decisions, there was evidence that decisions were mailed to him. For the foregoing reasons, Staff did not believe the appeals to be valid. City Attorney Scott Snyder stated that there is a due process requirement that people be notified of a decision before their obligation to appeal commences. He said he has advised Staff on numer- ous occasions that the time period should not commence until a written copy of the decision is mailed. Mr. Snyder said the Council should address whether the Council, as a matter of interpre- tation and procedure, were going to look to mailing or receipt in order to trigger an appeal peri- od. Mr. Snyder noted that section 20.105.020, Appeal and Filing, states that appeals shall be written and shall state the following: 1) the decision being appealed, the name of the project appli- cant, and the date of the decision; 2) the name and address of the person appealing and his/her interest in the matter; and 3) the reasons why the person appealing believes the decisionto be wrong. Mr. Snyder said at least two of the criteria are lacking in Mr. Tupper's appeal. Councilmember Dwyer inquired if any attempt was made to send Mr. Tupper the Findings and Conclu- sions and start the 10 day appeal period after the appeal was received on April 21. Assistant City Planner Duane Bowman said he was not aware that that occurred. Councilmember Kasper inquired if the Hearing Examiner announces at the close of a hearing when he will render his decision. Mr. Bowman replied affirmatively. Councilmember Kasper inquired if Mr. Tupper attended the hearing. Mr. Bowman said he signed the"sign-up sheet but he does not recall his presence at the hearing. Councilmember Dwyer asked when the Hearing Examiner rendered his decision. Mr. Bowman said he would have to review the record to ascertain that information because the normal 10 day working period did not apply to AP-15-89/V-6-89 because the decision was delayed to obtain additional testimony. Councilmember Dwyer inquired how someone who appeared at the hearing would know when a decision had been rendered. Mr. Bowman said the Hearing Examiner states at the close of the hearing when his decision will be rendered and a copy of the decision is mailed to people who sign the sign-up sheet. Councilmember Wilson pointed out that Mr. Tupper failed to meet the criteria for filing an appeal. Councilmember Hertrich noted that Mr. Tupper signed an affidavit stating that he did not receive a copy of the decision and, therefore, had no reference by which to meet the criteria for filing an appeal. Councilmember Hertrich said he knew of no other course of action that Mr. Tupper could have taken in order to review the record. He suggested that a copy of the Hearing Examin- er's decision be mailed to Mr. Tupper so that he can review the record and then decide if he wishes to pursue the appeals. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER JAECH, THAT FINIS TUPPER TAKE THE PODIUM FOR A..MAXIMUM OF FIVE MINUTES SO THE COUNCIL COULD ASK HIM QUESTIONS. MOTION CARRIED. Councilmember Hall asked Mr. Tupper if he was interested in the issue AP-15-89/V-6-89. Mr. Tupper replied affirmatively. He said he attends a majority of the Hearing Examiner hearings because he is interested in how variances and conditional use permits are issued in the City. Councilmember Hall inquired if Mr. Tupper typically signs sign-up sheets so that he can receive a 1. copy of the Hearing Examiner's decision. Mr. Tupper presumed that Councilmember Hall was infer- ring that he signed the sign-up sheet but did not attend the hearing. He said he attended both hearings. Councilmember Hall assumed that the prudent course of action to take would be to call the Planning Department to ascertain when a Hearing Examiner decision will be rendered. Mr. Tupper said he has always assumed that standard procedure would be followed with respect to the mailing of decisions. He said he FAXed a request to the City for a copy of the decisions but inadvertently asked for issues other than AP-15-89 and AP-16-89. When he discovered his mistake, he said he FAXed another request on the last day of the appeal period requesting a copy of the decisions he was interested in. Mr. Tupper said he filed a motion for reconsideration on March 6, noting that the Hearing Examiner is required to make a decision within 5 working days. He said, however, his decision was not mailed until March 30. Mr._ Snyder asked Mr. Tupper if he received a copy of the decision of AP-15-89 and AP-16-89. Mr. Tupper said he made two requests for a copy of the decision but never received them. Mr. Tupper said after reviewing the decisions he will decide whether or not to pursue the appeals. As a matter of procedure, Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER DWYER, TO EXTEND THE MEETING UNTIL 10:30. MOTION CARRIED. EDMONDS CITY COUNCIL MINUTES Page 9 MAY 2, 1989 COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HERTRICH, THAT THE FOLLOWING BE ACCOMPLISHED WITH RESPECT TO AP-15-89 AND AP-16-89: 1) FAX COPIES OF THE FINDINGS AND CONCLUSIONS TO MR. TUPPER's OFFICE ON THE FAX NUMBER THAT HE GAVE TO THE CITY; 2) MR. TUPPER BE LIMITED TO A 5 DAY PERIOD COMMENCING ON MAY 3, 1989 IN WHICH TO RESPOND TO THE CITY, AND SUBMIT TO THE CITY AT THE END OF THE 5 DAYS, APPEALS WHICH STRICTLY CONFORM TO THE REQUIREMENTS OR THEY WILL BE DEEMED WAIVED; 3) SET THE HEARINGS FOR MAY 16, 1989 WITH THE UNDERSTANDING THAT THE HEARINGS WILL BE CANCELLED IF NO APPEALS ARE FILED BY MR. TUPPER; AND 4) THE COUNCIL EXPLICITLY FINDS THAT THE TIME LIMITS FOR APPEALS HAVE RUN FOR EVERYONE ELSE. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCILMEMBER DWYER, COUNCILMEMBER HERTRICH, COUNCILMEMBER JAECH AND COUNCILMEMBER NORDQUIST IN FAVOR; COUNCILMEMBER KASPER, COUNCILMEMBER HALL, AND COUNCILMEMBER WILSON OPPOSED. APPROVAL OF CONTRACT TO COMMISSION A SCULPTURE BY JAMES W. WASHINGTON, JR., ($15,000) r; P Arts Coordinator Linda McCrystal submitted a catalog of photographs of the sculptor James W. Washington's work. She introduced Edmonds Arts Commissioner Larry Hulbert. 4 Mr. Hulbert said the Edmonds Arts Commission wishes to present to the citizens of Edmonds a spe- cial gift on the 100th anniversary of the City's incorporation -- a 4 to 5 ton natural stone sculpture by James W. Washington, Jr. He said Dr. Washington is one of the Pacific Northwest's living treasures and has recently been honored with a retrospective of his work at Bellevue Art Museum. His sculptures are part of private and major corporate collections across the United States. They evoke "the spirit in the stone" and depict the animals and birds that are part of Washington's environment. Dr. Washington speaks to the young child, as well as to the spirit within all of us. Mr. Hulbert said the sculpture will be located adjacent to the main entrance of the library and children's wing. This site was selected because of the high volume of traffic in the area, the ability to get close and study the sculpture, and because it is the site that Dr. Washington preferred. Mayor Naughten asked what the sculpture would depict. Mr. Hulbert said the artwork will be an animal theme but the actual piece has not been specifically identified. Councilmember Nordquist inquired about the cost in installation. Mr. Hulbert said transportation costs will range from $500 to $800. Councilmember Nordquist inquired if Architectural Design Board approval is necessary. City Attor- ney Scott Snyder said their approval is a discretionary decision of the Council in this particu- lar instance. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE THE PROPOSED CONTRACT. MOTION CARRIED. MAYOR Mayor Naughten'announced that May 7th through May 14th has been declared as "National Music Week". COUNCIL dv* / t Council President Kasper noted that Dr. Bob Anderson and Roger McCorkel have requested to appear ' before the Council to submit a new proposal with respect to the center line right-of-way on 75th Avenue West. The item was scheduled on June 6th. Council President Kasper said he is unable to attend the AWC convention and would cancel his reservation if no other Councilmember wished to use it. The Council suggested that he leave that information with the Council resource person. Council President Kasper advised the Council of his vacation plans and inquired if anyone object- ed to the dates. No objection was noted. Council President Kasper said an extension is available for the motor vehicle tax loss to Communi- ty Transit and local cities for two years. Student Representative Dave Berdine complimented the City of Edmonds for having the second lowest property tax among the twelve major Washington cities. Councilmember Wilson proudly announced that Mr. Berdine was elected as the next Student Body President for fall and winter quarters at Edmonds High School. See Council Minutes of May 16, 1989 EDMONDS CITY COUNCIL MINUTES Page 10 MAY 2, 1989 Councilmember Jaech inquired when the Planning Board has scheduled review of the mother-in-law apartment issue. Assistant City Planner Duane Bowman replied on May 10 1989. The meeting adjourned at 10:20 p.m. THESE MINUTES ARE SUBJECT TO MAY 16, 1989 APPROVAL. ACQ LINE G. PARRETT, City Clerk � 7 C5�- LARRY S. NAUGHTEN, Ma or EDMONDS CITY COUNCIL MINUTES Page 11 MAY 2, 1989 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM -LIBRARY BUILDING 7:00 - 10:00 P.M. `v CALL TO ORDER FLAG SALUTE 1. CONSENT AGENDA MAY 2, 1989 (A) ROLL CALL (B) APPROVAL OF MINUTES OF APRIL 25, 1989 (C) ACKNOWLEDGEMENT OF RECEIPT OF CLAIM FOR DAMAGES FROM ERIC R. MYHRE, MARY M. MYHRE, AND KATHLEEN MAC PHERSON ($458.64) (D) APPROVAL OF CONTRACT WITH MAC TOWING FOR TOW AND IMPOUND SERVICES (E) APPROVAL OF PHOTOCOPIER REPLACEMENT POLICY AND AUTHORIZATION TO CALL FOR BIDS FOR NEW DEPARTMENTAL PHOTOCOPIER (F) RECONFIRMATION OF JAMES DRISCOLL AS HEARING EXAMINER (G) AUTHORIZATION TO CALL FOR BIDS FOR REROOFING PORTION OF ANDERSON CENTER (H) PROPOSED ORDINANCE 2714 ADDING NEW SECTION 18.80.005 TO EDMONDS COMMUNITY DEVELOPMENT CODE PROHIBITING REDUCTIONS IN STREET STANDARDS 2. AUDIENCE 3. HEARING ON APPEAL OF HEARING EXAMINER DECISION DENYING REQUEST FOR HEIGHT VARIANCE ON LOT 7, EAGLE'S CREST PRO (V-2-89/AP-10-89/ APPELLANT: RALPH HUIZINGA) (60 MINUTES) 4. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING PROPOSED (60 MINUTES) SUBDIVISION AT 7226 SOUNDVIEW DR. (AP-1-89/5-35-88/APPELLANTS: CHRIS AND BARBARA CAMPBELL) 5. SET DATE FOR HEARING ON APPEAL OF HEARING EXAMINER DECISION TO INCREASE HEIGHT BY 5' AT 116 2ND AVE. S. (AP-15-89/V-6-89/APPELLANT: FINIS TUPPER/APPLICANT: RON HANSEN) (5 MINUTES) 6. SET DATE FOR HEARING ON APPEAL OF HEARING EXAMINER DECISION GRANTING APPROVAL OF VARIANCE TO WAIVE REQUIREMENTS TO USE RS-6 BULK STANDARDS FOR A SINGLE FAMILY DWELLING UNIT ZONED BC AT 605 MAIN ST. (AP-16-89/V-7-89/APPELLANT: FINIS TUPPER/APPLICANT: TED LINDE) (5 MINUTES) 7. APPROVAL OF CONTRACT TO COMMISSION A SCULPTURE BY JAMES W. WASHINGTON, JR., ($15,000) (10 MINUTES) B. MAYOR 9. COUNCIL THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE HANDICAPPED ACCESSIBLE