2000-02-03 Hearing Examiner MinutesHEARING EXAMINER HEARING OF FEBRUARY 3, 2000
VERBATIM TRANSCRIPTS
File No. SM-99-176
Don Largen, Hearing Examiner
Mr. Largen: The case before us is Case No. SM-99-176 for the Burlington Northern Santa Fe Railroad to put up, basically,
a safety fence along Sunset Avenue. Contrary to the name that you see in front of you, my name is actually Don Largen. I
am the Hearing Examiner Pro Tern for Ron McConnell when he is otherwise occupied as he is today. Before we get started,
I want you to understand that I have been through the entire file and testimony from a previous round of permitting for this
project. I am familiar with the area involved —both the technical aspects of the application, itself, and the testimony that has
been presented on this case previously. It is my understanding, Jeff, that there has been no substantive change to this
application?
Mr. Wilson: That is correct.
Mr. Largen: And I am assuming that the residents' concerns remain the same. So, let's get this started. First of all, Jeff, I
would like you to give us a very brief overview of what is involved in the application and how we have ended up here today.
Mr. Wilson: Okay. Thank you Mr. Examiner. My name is Jeff Wilson, with the Planning Division for the City of
Edmonds. As the Examiner briefly explained, this is a reapplication for a previously approved permit for the development of
a fence along Sunset Avenue. The fence is approximately 1,500 feet in length, running from Kaspers Street on the north
down to approximately Edmonds Street. The fence is about three to four feet in height. It is a tubular steel fence. I will put
up an overhead that will give a graphic representation of it. It is, basically, a two rail fence —top rail, middle rail —
approximately three to four feet in height. The reason for the variation in height is because the property along the top of the
bluff that the fence is to be located on is not flat in all locations. There are some dips and raises, so that will account for why
there is a variance in height of that fence along the route.
Mr. Wilson: Background on the application is that this was previously heard before the City back in 1995. There was an
application submitted by Burlington Northern. The reason they submitted the application was that it was part of an order
from the WUTC (Washington Utilities and Transportation Commission) as a requirement placed on Burlington Northern to
install safety fences in two locations. One is on Sunset Avenue and the other is on Ocean Avenue. Back in 1995 Burlington
Northern applied for the necessary shoreline permits to receive approval for both of the fences, and they were both approved.
The one on Sunset Avenue was approved and then the one on Ocean Avenue. They were held as two separate applications.
Part of the reason we are back here today... Since both of these could essentially be constructed at the same time as part of
the same project to minimize the cost of installation and mobilization, they were waiting until they had the final approval of
both permits. The permit on Ocean Avenue, (by way of background) which was filed under File No. SM-95-86, was
appealed. It was appealed at multiple levels. Those levels included administrative appeal to a local authority, in this case the
City Council. The City Council upheld the permit. It was appealed then to the State Shorelines Hearings Board, which is the
governing body or the appeals board for any shoreline permit application. It was upheld by the Shorelines Hearing Board.
Subsequently, it was appealed to the Superior Court for Snohomish County and ultimately to the Court of Appeals for the
State of Washington.
Mr. Wilson: In all instances the permit was upheld. However, knowing how the judicial system works, it took many years
for that to occur. It was not finally filed until the beginning of 1999. We went through approximately a four-year process of
appeals. Under the State Shoreline Management Act, which is a state regulatory document that sets forth the standards, they
have very specific standards on the approval of a shoreline permit. Once the permit is approved, an applicant has two years
to basically begin substantial work towards completion of the project. If that is a construction project, they either have to
apply for or obtain permits. Basically, they have to initiate the development process. By permits, I mean building permits
that they need to construct —any permit they need to actually physically go out there and construct. That has to occur within
two years and the project has to be completed within five years. While we are still within five years of the date of the
original approval, no permits were obtained to actually construct the fence. The building permit aspect of that was not
obtained within the first two years, partly because they wanted to do both projects at once. They were waiting, hopefully, for
a resolution on the fence application on Ocean Avenue so that they could construct both at the same time. They finally got
the final approval on Ocean Avenue, but unfortunately, it was well after the two-year period so their permit expired.
Mr. Wilson: As the Examiner indicated, there is no substantive change to the application at this time. It is for the same
project, the same location, same design. As part of the record created, all of the history and background information related
to the previous permit approved back in 1995 has been included as part of the attachments and as part of the factual
information related to this report.
Mr. Wilson: That gives a little bit of background and a brief history on it. Just for the record, the staff report (I see they are
all gone in the back) was prepared as part of the official record and that is Exhibit A to the Examiner's decision. Then, there
was a letter submitted by Mr. and Mrs. Ricker et al since there are numerous other parties assigned to it. That was brought in
this morning, which I have also given to the Examiner and asked it be Exhibit B to the official packet. That all becomes part
of the factual history and basis of this application.
Mr. Wilson: That really provides the basis of the application. The only discretionary permit in the City that is required for
this application is the shoreline substantial development permit because the project does cost more than $2,500 and it is
located within 200 feet of the shoreline —Puget Sound —which requires that it fall under the shoreline jurisdiction under the
State Shoreline Management Act. The City is responsible for administering permit applications within that jurisdiction —
within the City limits —but we follow the criteria set out in two documents. One is the regulations, rules and provisions
under the Shoreline Management Act, and secondly is the goals and policies that the City adopted in its local shoreline
master program. That information was part of the original application and was also contained in here in terms of an
evaluation of it. Through staff analysis of it, as in the previous analysis, we determined that the proposal was consistent with
both the requirements under the shoreline management act as well the City's local goals and policies under our shoreline
master program.
Mr. Wilson: Several issues have been raised, and it was raised in the letter from Mr. and Mrs. Ricker, and I think I want
touch upon it because it was also one of the focal points of the application back in 1995, and that is regarding the location of
fencing. To boil it down, the issue is placement of the railing on top of the bluff verses placement of the rail down at the base
of the bluff. As part of the testimony and as part of the record from the previous application, Burlington Northern indicated
that they couldn't place the fencing at the base of the bluff for multiple reasons, one of which is safety to BN crews and
operations at the rail track. They need to have a minimum width of separation. The primary focus of the fence and the
purpose of the fence and the basis for the WUTC ruling was to provide a delineation —a demarcation —of BN property
because it is privately held property. Any movement on said property is technically trespassing on their property. What this
fence is intended to do is provide that delineation to indicate where the boundaries are so that the public can stay on one side
verses trespassing over the property onto the other side. In this case it would be over the top of the bluff and down into the
rail tracks where it creates some very significant safety problems for anybody who gets caught in that predicament.
Mr. Wilson: There are multiple locations looked at besides the base and the top. It was also looked at regarding midway
down the bluff which became problematic in terms of maintenance and problematic in terms of providing that delineation and
separation to indicate that people should not trespass pasted a certain point. As part of the requirements to fulfill the WUTC
ruling they would place the fence, and then on the fence there would be placards to indicate "Burlington Northern Santa Fe
property —no trespassing." These would be placed at multiple locations along the entire length.
Mr. Wilson: Originally, when the conditions first came out of the WUTC, the WUTC first wanted a far more substantive
fence. Essentially, they were looking for a six-foot chain link fence as that barrier to fulfill the requirement. It was through
negotiations and discussion with both Burlington Northern and with the City that the WUTC indicated that they would accept
a fence of this style and size as providing that separation for meeting their requirements. The reason the City got involved in
that discussion is that they were concerned about the impact of the placement of the fence along Sunset Avenue. We would
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 2
all agree that that is a very scenic point in the City and an important point for the public to gather. The purpose of designing
the fence the way that it was designed was to come up with a fence that was as unobtrusive as possible while still providing
that physical barrier (delineation or demarcation) to separate from safe areas to unsafe areas in terms of public protection.
That is how we ended up with the proposal that is back before the Hearing Examiner again this morning.
Mr. Wilson: Let me provide a couple of overheads. One just shows the entire length of it which I described from Edmonds
Street to Kaspers. It has a very small view of what the fence would look like. I enlarged that so that you can get a better
view of what it might look like. As I mentioned in the application, the length of the fence is about 1,500 feet and would be
from approximately Edmonds Street up to Kaspers Street at the northern end. It would be located along the top of the bluff.
You can see at the upper right hand corner a graphic of what the fence is intended to look like. It is made of two-inch tubular
steel with posts approximately ten feet apart with two railings. Again to provide that separation while trying to be as
unobtrusive as possible —trying to maintain as much openness and visual aesthetics of the area as possible. Hopefully, this is
a little bit clearer to read. Again, it shows two-inch tubular steel. It is intended to be coated -steel pipe. The posts would be
set in concrete into the ground in order to maintain the fence posts so that the fence cannot be knocked over easily. Again, it
keeps the separation at ten feet to provide as much separation and as little view blockage or as little impact or impairment of
view as possible. The railings are approximately 18 inches from the ground to the first railing and another 18 inches to the
top railing. Again, to provide that visual barrier. It was never intended to perform the function of keeping absolutely
everybody out. There is no way you could do it with the fence. The only way you could do it (and we all know people find
ways around these things) would be with a six-foot chain link fence. We also know that would have a greater impact and
cause an even greater concern for the residents as well as a significant amount of concern for the City to have something of
that nature along that point.
Mr. Wilson: The compromise, again, was to come back with something in this fashion. The reason they have to place the
placards is primarily for their property ownership and liability requirements to indicate that it is no trespassing to make sure
that the public is aware that is a point they are not supposed to go beyond. Those signs will not be placed every two feet.
They will try to find a location that is as far apart as possible to provide that notification to the public but not so close that
they become another visual impairment. Burlington Northern has been trying to work as much as possible with the
sensitivity of the area.
Mr. Wilson: With that, Mr. Examiner, I will conclude and will be happy to answer any questions you might have or respond
to any comments that come up during the hearing.
Mr. Largen: Thank you, Jeff. I think I have two questions for you. One, just to make sure I am on the same page here. I
have taken a look at the site plan, but just for the record, the height of the bluff that we are talking about, the half grade is
approximately ten feet above sea level. What is the top of the bluff?
Mr. Wilson: It will vary. It rises as you go to the northern boundaries of the fence location. The lowest point above the
railroad tracks will be at the southern end of it. Actually, the applicant might have more detailed information about the
height of it, but it is going to at least be around ten feet as a minimum at that location rising probably within the 15 and 20
foot range as you go to the north. In some cases, it is almost a sheer cliff with a vertical face and in other locations along it it
has a little bit of a grade, but it is still a very steep and significant grade —one that is not easy to scramble up should you need
to if you are trapped down there. One that makes it very difficult to stop your momentum as you are going down it. It has a
very steep face along the entire length of the fence location.
Mr. Largen: Okay. I did not notice (and forgive me if I didn't see it in here) ... We talked about coating these tubular
bars. Do we have a color in mind?
Mr. Wilson: There has been no color stated other than it is meant to be a neutral color as much as possible. Some of the
specifics of how that will be done have not been laid out other than it is intended to be a neutral coating. That is about as
much information as I can tell you right now. The applicant may have some more detailed information.
Mr. Largen: Two questions relative to the placards that will be placed along the fence. First of all, what kind of size are we
talking about on these things?
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 3
Mr. Wilson: The size of the placard I do not recall specifically. If you will allow me a moment I will look. It was discussed
as part of the previous testimony. I am not going to state the absolute size, depending upon the message they are trying to
convey.
Mr. Largen: I might have run across that information in here but it might have easily slipped my mind.
Mr. Wilson: It was really indicated that placards would be placed, but it did not give specificity as to exactly what the
language would state other than it was Burlington Northern Property. Now that it is Burlington Northern Santa Fe, the name
has been changed. It would be posted as no trespassing.
Mr. Largen: Let me state this another way. Is there a minimum size to be met to convey the information?
Mr. Wilson: Not one that would convey the information from the City's standpoint in establishing minimum size. Any
minimum size might be dictated by their legal counsel in terms of meeting the intent of avoiding as much liability as possible.
It would be more from a legal standard based on what is adequate signage to convey that message so that people are aware.
Mr. Largen: In that same context, any notion of separation between the signs?
Mr. Wilson: More than likely, the closest placement that I think you would see them put would be ten feet apart. That
would be the closest because I image they would try to keep them on the vertical posts.
Mr. Largen: Is there any reason why we can't make that separation greater?
Mr. Wilson: I don't think there is any... Again, the only basis that may dictate the separation is what is defined by their
legal department as meeting what they believe is the minimum legal requirement for providing adequate notice of no
trespassing. They will probably use that as their standard, but I don't believe that the ten -foot spacing is required nor do I
believe that was intended on their part. If you look at Ocean Avenue as a location, and even at the top of Sunset, I believe
they presently have some stand alone signs that were placed along the bluff. The separation is fairly significant. It is at least
greater than 50 feet if not quite a bit more.
Mr. Largen: Thank you, Jeff. Is there a representative for the applicant here today? I asked that knowing that there is. If
you will state your name please.
Mr. Linn: My name is Mike Linn. My business address is 121 Fifth Avenue, City Hall.
Mr. Largen: Do you swear and affirm that the testimony you are about to give is the truth as you understand it.
Mr. Linn: Yes, I do.
Mr. Largen: Okay, you have heard how the staff has summarized the project. I just wanted to give you an opportunity to
fill in any gaps if you see any. I don't have any questions of you at this point, but if there is something more that you could
add to this, I would appreciate it.
Mr. Linn: There are a few things. I think Jeff did a good job of laying this all out. The City is acting as an agent to
Burlington Northern Santa Fe Railroad to design, permit and construct a fence. We are doing everything in accordance with
WSDOT standards. Unfortunately, WSDOT did not have the particular detail sto meet these requirements, so we had to put
it upon themselves to design the fence. We designed it in a modular format so that we could put it together a lot easier
because the parameters of having to construct something like this in long links takes a lot of time and it is difficult. We
wanted something that would be adaptable to the environment. This fence will kind of snake at certain points along the bluff.
Color was a question. From what we had in our research, we believe a light bluish gray would be the best color to blend in
with the surrounding environment. We do presently have the contract for the Ocean Avenue fence approved and they are
about to start with that in the next three weeks.
Mr. Largen: And the color of that fence will be?
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 4
Mr. Linn: We put it in our specifications that we want to see color samples to select, but we did have light bluish gray as the
color.
Mr. Largen: I am assuming that these colors are of a matte and non -glare reflective?
Mr. Linn: That is correct.
Mr. Largen: Have there been any discussions with the City as to ongoing maintenance of this piece of property and the
fence, in particular.
Mr. Linn: I believe in the future it would be done by WSDOT. I could be incorrect on that, but that was my assumption.
We do have the fence powder coated, which is a very durable finish which you need to have. The fence, itself, is galvanized
and then you put the powder coating over the top of it. This is a harsh ocean environment.
Mr. Largen: Do you have any estimate, given the salt water and all, of what the functional life of the fence might be.
Mr. Linn: I would have to check with the manufacturer. I couldn't tell you that.
Mr. Largen: Any other clarifications you would like to give us today.
Mr. Linn: Not at this time, but I would be happy to answer any questions.
Mr. Largen: That is all the questions I have at this time. Thank you very much. I believe you all have signed up. I don't
think we need to go in any particular order. So, anyone who would like to get up and state either opposition or affirmative
action on this, please do so.
Ms. Wassall: My name is Sally Wassall. I don't know if you can hear me. My address is 342 Sunset Avenue North. My
husband, Jim, brought home this stack of paper for me.
Mr. Largen: I am sorry. I have to swear you in. Do you affirm or otherwise state that you will be telling the truth today?
Ms. Wassall: Yes. I will tell the truth as far as I know it. Anyway, my husband brought me this stack of paper which you
have all seen —different colors —most of the same information except the color of the paper is different. These are about the
various meetings and exhibits from Burlington Northern and the City of Edmonds. The citizens of Edmonds (mainly the
homeowners on Sunset) are definitely against this fence for many worthwhile reasons. They have all been stated in the past,
and I am not going to repeat them. First of all, one of the reasons I don't want the fence is that it really won't improve the
safety. Most of the people who get on the tracks do so from Main Street. They don't come across from Sunset. Secondly, I
would like to refer you back to Exhibit 7 back from previous meetings. These are pictures that were shown at the December
5, 1995 meeting of the Council. Some of these pictures show the fence which would be similar to the one to be constructed
here but were taken at White Rock, B.C. I am very familiar with White Rock because I was raised about five miles from the
beach at White Rock and have crossed the railroad tracks there many times. My husband and I own 12'/z acres of property.
This property belonged to my family when I was growing up in Surrey, adjacent to White Rock. So I am concerned about
the happenings in that community, also.
Ms. Wassall: Even though White Rock has this fence, which you saw on these pictures, two young people were killed on
this track during the last couple of years. I don't remember the details, but one of the fellows was well aware the train was
coming but crossed the track anyway and was killed by the train. The fence has not prevented people from being killed in
White Rock, nor do I believe that it would prevent people from being killed in Edmonds if they insist on being on the tracks.
I would be willing to bring in these newspaper articles for the City of Edmonds to look at.
Ms. Wassall: Thirdly, Burlington Northern has not built the fence even though this process has been going on for years. We
have had the increase in the speed of the trains. Amtrak still stops here and picks up passengers. We have had no fatalities
on the track. We, obviously, do not need the fence. Let's leave well enough alone, please.
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 5
Mr. Largen: Thank you. Anyone else?
Mr. Ricker: My name is Don Ricker. I live at 350 Sunset.
Mr. Largen: How are you doing today, Don?
Mr. Ricker: Fine.
Mr. Largen: Excellent. And do you today affirm or otherwise swear that you will be giving us the facts as you understand
them?
Mr. Ricker: Absolutely. On page 9 of 13 of the handouts (the first pink section) one of the justifications for the fence is
(and I love this) the proposed fence will help to enhance (get that word, enhance) public visual access to the shoreline of the
Puget Sound (which is kind of an interesting statement) from the top of the bluff overlooking the shoreline by providing a
visual reminder of the edge. So, just remember when that fence is up there, that is going to improve your view. The second
thing is that because this is a rehearing, so to speak, because for whatever reason the construction of the fence was delayed, I
feel it is time that we ought to relook at this fence. This is a good opportunity. If they didn't build it before, we ought to look
at in the sense that it is a brand new deal. Hopefully, we would not take into consideration that a fence does enhance our
public view.
Mr. Ricker: The third point that I will ask as a question is in the Shoreline Management Act does WSDOT specifically state
that if a fence is put in, how far it must be from the tracks. A side point to that is if you go down to the existing waterfront
and take a look at the railroad station down there, the fence is a lot closer to the tracks than we were told earlier that the fence
had to be away from the tracks. I have gotten two different answers on who is going to do the maintenance. Actually three:
one by the City, one by BN and one by WSDOT. My concern is that if you look at the present pipe fencing that is there now,
it has never been maintained and I won't go into that because the rest is in my letter. But I point that out. If we are looking
at Washington State with I-695, the only painting that is going to be done on that fence will be done by the homeowners. I
also would ask how often are they going to paint it in response to the current pipe out there is rusted and more than one color.
Mr. Ricker: Next, there was a point made by Jeff earlier as far as the number of signs that might be put up on this. Without
trapping Jeff into a corner, if we put a sign every ten feet, that is approximately 150 signs over 1,500 feet. We certainly
would get to know whose property it is. Lastly, I am not an engineer, but I have built a number of things. This is probably
anti to what I am talking about, but if you put two-inch pipe on ten -foot centers, all it takes is someone even my weight to sit
on that pipe and it is going to sag. Then how long is it going to take someone to come out and straighten the pipe up. I thank
you for the opportunity to speak.
Mr. Largen: Thank you very much.
Ms. Abbott: I am Janet Abbott at 18728 801h Avenue West. I don't live by the waterfront. I wish I did, but I don't.
Mr. Largen: Do you swear or otherwise affirm...
Ms. Abbott: I will tell the truth. I came to the Council meeting about three years ago, whenever it was. I walked away so
frustrated because the only thing we talked about was this pipe fence. One of my questions is, you had mentioned that the
chain link was disregarded and we didn't want to have that. Is this our only option for a barrier that would create a property
demarcation? Are you saying that this is required by law, so what we are sharing here is a formality? Is this our only option?
Mr. Largen: Jeff, I don't mean to put you on the spot, but...
Mr. Wilson: I was just collecting all of the questions and then waiting at the end for some rebuttal.
Mr. Largen: That would be fine. Does that meet...
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 6
Ms. Abbott: Okay, because I have been through mediation training and one of the things we do in conflict resolution is hear
both sides and then talk about options. It seems to me that would be an incredibly fair way to involve citizens as opposed to
having a meeting if we have no choices. If you are saying that we didn't do a chain link fence so we are going to do this,
then why are we here to express our views? I am hoping that we would have an option of considering... And I would be
happy to be on any kind of citizen board to put my time in. I think I come down to the waterfront eight to ten times a week. I
came down for lunch yesterday. I work in Lynnwood. I sit in my car. Jeff had mentioned that it is unobtrusive and I guess
aesthetics is a matter of personal taste. I find for Edmonds, where we put so much money into beautiful natural surroundings
south of the ferry... That is the coolest park. We have bought shoreline out there so we can have a continual beach access.
The Brackett's Landing area is being redone. The jetty was redone. It is absolutely wonderful.
Ms. Abbott: To refer to a pipe fence as unobtrusive, to me it is like looking through bars at a zoo. It is industrial and
practical, and I have to say it is just ugly. You talk about snaking, and to me I want to say crooked. To me it is a matter of
giving nice words to things that are really very, very unbecoming and undesirable. For the thousands and thousands of
people who come there each week (even in the wintertime) to read and drink coffee from Starbucks, it is just such a
detraction. I guess I am begging you if there is any way legally to get around this type of fence, I think we are happy as
citizens and people who enjoy the waterfront to consider options. But, if it is not intended to keep people off the track, just
off the top of my head I can think of five different ways of accomplishing the same goal. We can hear over and over again
that this is unobtrusive, and that is a matter of taste. I think most people in this room would disagree, and I don't think most
people would agree. Thank you.
Mr. Largen: Thank you Janet. Anyone else?
Mr. Hertrich: Roger Hertrich, 1020 Puget Drive, I swear that my testimony will be true. Just to bring to your attention if
you haven't read it, this whole matter started because of train speeds.
Mr. Largen: Yes, I am familiar with how we got here.
Mr. Hertrich: On April 12, 1999 the State of Washington Utilities and Transportation Commission made a decision that in
order to be able to raise the train speeds the City would agree to put in a fence. Not that that fence was going to be practical
or useful, but that was the trade off. That was as a condition. Now, when we read the original findings and conclusions of
the Hearing Examiner on this there are a couple of things that stand out. Number one, he provides the information from the
intent of public access element of the shorelines code. He mentions view. It says "locate and design public access
development in a manner that will protect the natural (and I underline natural) shoreline environment and the natural
process." What we have existing today if you stand in that location all along Sunset Avenue is a view of the natural. Any
addition in that view corridor is unnatural. That violates the shorelines requirements, I believe. He also mentions in his
conclusions that the development of this fence is not specifically inconsistent with the goals. He mentioned the
inconsistency, but it is not specifically inconsistent.
Mr. Hertrich: He also mentioned, in his findings in regard to the fence, "the proposed fence will help enhance public visual
access to the shoreline." That is kind of a contrary thing here. "It does so on top of the bluff by providing a visual (underline
the word visual) reminder that the bluff is there." That is apparent that the edge of the bluff is there and the train tracks are
down below. He does not mention safety. He mentions visual recognition. Now, we have been notified that the fence is not
going to do the job, so they are going to post every pathway all along the bluff with signs. That, certainly, is a visual
recognition of what people should not do. Generally, laws work in this country because people generally obey them. We
expect that when it is signed as heavily as you expect this to be, that in itself, will provide more than ample notice that the
fence is strictly a visual item to let people know. The signs will do the same thing.
Mr. Hertrich: We acknowledge the fact that horizontal tubes are not a total obstruction or a blockage to getting through the
area. If you decide to go through the fence, you will go through the fence. So, the location of the fence is really the critical
item here. If we were to put the fence down below, there is an objection that you can't do maintenance on the railroad, it gets
in the way, etc. etc. as has already been stated. It states that we have to have it on top of the bluff, but actually, we could put
it below the line of site, off the edge of the bluff, but not that close to the railroad tracks, and still provide the same visual
recognition. When you come to the top of the bluff and stand and look down at the railroad tracks, you will see this long
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 7
piece of fencing with all the signage. Again that, in itself, provides the visual notification. At no time do I see anything in
this proposal that says the fence will keep you off the tracks. They can't.
Mr. Hertrich: So, I believe that in order to satisfy the public and the requirement of the shoreline code, the public should be
satisfied. This can be accomplished by one simple change, and that is to change the location of the fence. That can be done.
If it needs to be appealed, let the state appeal it and let the citizens' representative at the City Council level make a decision
that the citizens are right or wrong. You can find for the fence and you can find that the location is inappropriate because of
certain elements of the shoreline code, and you will continue to provide this visual notification by changing the location and
satisfy the public. Thank you.
Mr. Largen: Thank you. Anyone else like to speak?
Mr. Sullivan: My name is Steven Sullivan. My address is 18596 761 Avenue West.
Mr. Largen: Do you swear or affirm to tell the truth as you understand it?
Mr. Sullivan: Yes, I do. For the record, I feel I should clearly identify. I serve on the Edmonds Architectural Design
Review Board. I also have a terrible cold, but I decided to come anyway. I think a 1,500-foot long fence along there... I
agree with everybody here that it probably shouldn't be there. Talking from a safety standpoint of view and keeping people
off the tracks, what comes to mind to me is natural selection. If they are going to go down and get in front of a train, so be it.
Above and beyond that, if you are going to put the fence it, I think this is the most unimaginative fence I have ever seen.
Fifteen hundred feet of fence that is... And I will concur with the viewpoint that there is no way that you can set it level, and
it will be crooked in appearance. There is an opportunity when you are going to construct something of this length. You
have an opportunity to construct something of real interest there. Perhaps they should look at five or six different types of
fencing along there with nodes along the hill that maybe become little view clusters. Maybe that barrier doesn't have to be a
fence. Maybe it can be a planting. I can tell you that if you have a row of plants there, that creates a demarcation point, since
we are not talking about a safety issue anyway. If you take this fence on that ten -foot span, I agree that the pipes will bend. I
am both a licensed architect and a general contractor. I won't take that contract.
Mr. Sullivan: I also think that if you hang signs on that every ten feet, it will... It is part of the design, and that is not really
represented by the drawing up there. If they have to put boundary markers on there, they could look at something that would
be perhaps cast into the ground at the base of the posts of this, perhaps a different type of fence along there that would say,
"here is the boundary" cast in concrete. Anybody who is walking would have an opportunity to see it. It is obviously not for
people driving, and yet people sitting in their houses across the way or driving will have to get out and walk to the fence.
Something that is on the ground would be just as good if not perhaps better and more durable. Those other ones up there
probably have a high likelihood of being removed.
Mr. Sullivan: I can see a fence that was in different lengths back and forth. Maybe even moving up and down the hill as
Mr. Hertrich described, as well as perhaps developing a few little nodes along there for view points. In other words, this is an
opportunity to add to the environment and not necessarily take away from it —not necessarily fence it in or put a boundary
around. It is very unimaginative. I will again think of the Lynndale/Edmonds Skate Park up there. They could have thrown
up three rails around that skate park for the kids to lean against when they use the skate park. Instead, they had a competition
by designers and they came up with fabulous railings up there that really add to the whole environment. Something could be
done down here. Why does the fence have to be all metal? Why can't portions of it be wood? So what if it degrades over
time. I mean, that kind of represents a bit of what happens in a natural environment. Maintenance is ... There is no
difference in the maintenance of wood verses metal. There is always maintenance. You just have different types. With the
metal you will have to paint and fight the rust. With the wood, you are going to have to fight the rotting. It is not a
difference of cost, but a different type of maintenance.
Mr. Sullivan: Mostly, I see this as a great opportunity for the City to do something. If, indeed, they have to put this railing
in... First and foremost, I don't think this railing is needed. But, if they have to put it in, it is an opportunity, on a gateway
entrance into the City, to do something that is really much more spectacular than what they are proposing.
Mr. Largen: Has the Architectural Design Board had an opportunity in the past to comment on this project?
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 8
Mr. Sullivan: I can't remember. I have served on it for so many years. I think it did come in front of it, but I think with the
new permitting process and the consolidated hearings, I don't know if we had a chance to comment on it at all. I don't think
we did at all, Jeff?
Mr. Wilson: No.
Mr. Largen: Anything else?
Mr. Sullivan: No that is all. I am here as a member and also as a citizen of Edmonds. I would hate to see that area get
blemished.
Mr. Largen: I appreciate your time. Thank you very much. Anyone else like to say anything? You have all been very
stalwart and very patience this morning, and I appreciate it. Jeff, we have had a couple of questions come up. Let me see if I
can get at least an idea of where we stand on a couple of these things. I understand a couple of legal items you might not be
able to provide the answer directly. I am going to start with liability for my own edification. Is there a liablist issue involved
here with the City if (just for the sake of arguing I am going to play devil's advocate here a little bit) the fence was not there?
Does the City open itself to some liability issues?
Mr. Wilson: Not being the City Attorney, I can't give you a legal opinion from the City's perspective.
Mr. Largen: Okay, let's ask it in a different way. Does the City really have any leeway in terms of having a fence there or
not? My reading of the notes and some of the state laws involved suggest that you may not. But again, you may have more
experience with this.
Mr. Wilson: It is a complicated question to answer because ultimately the City does have leeway because we are
discretionary.
Mr. Largen: Certainly.
Mr. Wilson: We have discretionary authority over the permit. I mean, it is a discretionary permit and one that is set out by
state law. We are in one of those awkward situations where you have one state agency, through licensing requirements and
regulatory requirements over a user, telling them, specifically, that they must install a fence. Specifically, they have indicated
that it has to be on top of the bluff. That is one thing I was going to comment on. It is Attachment 20 in the packets. It is a
letter to Mr. Marr back in January of 1996. Let me just read an excerpt from this because it answers some of the questions
that were brought up as part of the testimony. The second to the last paragraph states that "in the course of the commission's
hearing process, BNSF argued that constructing the fence next to the ditch in close proximity of the track would prevent
BNSF from maintaining the ditch and restrict maintenance to the track structure. Also, BNSF argued that placement of the
fence at any other location other than the top of the bluff would not be feasible because of the slope of the hillside and
potential erosion problems. Commission staff, in their testimony, agreed with BNSF assessment, and the Commission
subsequently ordered the fencing placed on top of the bluff to provide a barrier and a warning to pedestrian not to trespass
down the bluff and across the railroad tracks to the shoreline." That is a letter from Steve McClellan who is secretary for the
WUTC. That was from 1996.
Mr. Wilson: The issue of placement of the fence was one that ...The tape stopped here. ...involved in the location on
Ocean Avenue. One of the concerns we have and one of the things that was brought up is placement of the fence somewhere
off the top of the bluff in both locations. The bluff on Ocean Avenue is not nearly as significant and severe as this. The
issues related to placing it on the bluff face, itself, are issues of concern with potential erosion problems from a) the clearing
that is going to take place, b) from artificially putting structures on that area and removing the natural vegetation, which is
going to create greater erosion problems which can potentially have an adverse effect on the drainage ditches that run along
the railroad tracks and potentially affects the condition of the track beds itself. All of these compound each other and are all a
series of issues. You can't look at just one without looking all the way down the road on this and seeing the other potential
affects.
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File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
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Mr. Wilson: It is an awkward situation. It is one that the City certainly hates to be in where we are told that someone has to
do something, but that they have to come to us to get a permit. The consequences of not granting the permit do not
necessarily put the City in a position from a liability position that I know of. That has never been raised as an issue. The
consequences are more related to interstate commerce or related to affect on rail service in the area. The original condition
(and this is also back in that same January 19 letter submitted after the first round of hearings) indicated that the fencing
requirements were a prerequisite for allowing the train speed increases. The train speed increases were a request by BNSF
related to allowing them to continue to move freight while allowing for passenger service and the Amtrak stop being
maintained in Edmonds. Otherwise, because of reduced train speed, it would have restricted the freight movement, and they
would have had to find other ways to allow that freight to continue. They indicated this would be to remove the Amtrak stop
in the City of Edmonds.
Mr. Wilson: The commission has indicated (and this goes back to 1996 and they haven't given us any written notification,
but my understanding is that they have indicated verbally since then, at least until last year) that they are aware of the issues
related to the fencing. They are aware of the permitting process. They were allowing the applicant and the City to proceed
through the permitting process as required, but they also made it clear that the temporary fencing is just that. It is temporary.
Should that be the final solution, it would not meet their requirements under their order. Therefore, it would affect their
statements and approval of the train speed increase.
Mr. Wilson: So there are a number of different factors, none of which point to the City and raise the issue of liability. But
these are all things that we have to be concerned of.
Mr. Largen: Another question. You may not be able to answer this, and perhaps the applicant's representative might be
able to. The issue of type of barrier, given that something is going to be required there. Does this need to be of wood or
steel? Can a natural barrier be put in?
Mr. Wilson: The first time through, we actually looked at that. If you really want to consider a natural barrier, it would be a
far greater visual impact along the top of the bluff because you are talking about a solid natural barrier. If you have to have
something three to four feet, then you are talking about a hedge of three to four feet in height, which has a far greater visual
impact to the shoreline from the uses of the public right of way than what was proposed. It was discussed. It was discounted
for that reason, plus I am going back to my recollection of the issue. The WUTC wanted a physical barrier of a structural
nature. Again, their first inclination is a six-foot chain link fence. If that was their starting point, it was work to get them
down to where we are at with this structure.
Mr. Largen: Understood. I have been through the record, and I am just raising these questions to get them in the record on
this time around, too. Just a moment please. The other question I have relevant to that is does V UTC state specifically that
it has to be a continuous barrier.
Mr. Wilson: They indicated the area where a barrier had to be provided. It is implied that it is a continual barrier. I don't
recall, and I can't specifically state anyplace in the record, but I think that was definitely implied.
Mr. Largen: Okay. I appreciate it Jeff. You have a question. Please come forward. You may comment again, please.
Mr. Hertrich: Some of Jeffs comments about the location of the fence... I have been at most of these hearings, and it
seems to me there was no discussion of erosion. I think the fact that they just didn't want it close to their tracks was certainly
one element. But at the same time, they wanted ... The statements had to do with safety and if the fence were placed over
the edge of the bluff, there was some weird concern that it was going to be less safe if someone went down and climbed on
the fence at that location rather than on top of the bluff. Erosion, I never heard that one at all.
Mr. Hertrich: This whole business about train speeds... They are not going to reduce the train speeds. This really started
with an agreement with one of our former mayors having to do with getting the trains to stop in Edmonds. It was one of
those deals they made. "Yes, we will go along with your train speed thing." The City appealed the train speed thing, and
they were found against as part of the decision. But, while they were in there doing all of this negotiation, the idea of a train
stopping in Edmonds was more important to the City and the people running the City at that time. An so, they didn't fight
this at all. I believe that we still have the opportunity to put it back into the hands of the elected if you make a decision that
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 10
the fence be located where it does not obstruct any view that exists today and have it set down below. Then somebody else,
if they don't like that, will have to appeal it. That puts the decision back where it should be and gives the public their
opportunity to deal with this. It gives more opportunity to deal with the design factors that really haven't been brought into
it. I don't believe that it should be your decision as to what the design should be. But, you have heard testimony that the
design is certainly lacking, possibly. Those issues can be brought back into this whole thing if you make a decision on the
present design and put it where it doesn't screw up everybody's view. If somebody doesn't like that, they should appeal it.
Mr. Hertrich: What is really wrong is that the City is doing the Department of Transportation's' work here. This should
really be ... The railroad should be in front of you going for this permit, but the City agreed to do it themselves. I think that
whole business is out of order. I believe that since we do have the City making the application, it kind of takes the people out
of the process. It should be somebody else coming into the City and making an application for their property. This is not
City property, it is railroad property. I think it was fouled up from the beginning. But you have an opportunity to put it back
into perspective. Thank you.
Mr. Largen: Thank you. Please go ahead and state your name.
Ms. Abbot: I do have a question. You had said regarding the type of fence, it was said that we had already reached a
compromise because it isn't chain link. I am still not clear as to whether in your mind this is the only option that we have.
Mr. Wilson: I guess to give a real frank answer based upon my knowledge of this application from the beginning, yes. This
is the final design that was approved as being acceptable to meet the WUTC requirements.
Ms. Abbot: I just want to say that it is so frustrating for us all to be here and hear that. We are, basically, saying this is it
when we have heard many options that we as citizens would consider that would meet the technical requirements. You are
talking about having plantings. Nobody says the plantings have to be at the top of the bluff. If you are interested in taking
care of erosion, the plantings could be over the edge and not come all the way up. Do you have any suggestions for us as
citizens about where to go to talk about options other than the tubular steel.
Mr. Largen: I will be taking some of these options into consideration and will be talking to City staff and the applicant's
representatives to get a little bit more information from them. This is not a design venue here.
Ms. Abbot: Okay. I think what is frustrating to us is that we are here to try and help and we come up with all of these plans
and our City is saying that "well, there are no choices." I don't really believe that it true in our government if we work
together. I would implore you to work with us.
Mr. Largen: I appreciate that.
Ms. Abbot: We are all on one side, I think.
Mr. Largen: Thank you. State your name please.
Mr. Ricker: In listening to one of the other fellows talking about markers, the thought came to me... Here again, if we are
going to put one every ten feet, that is 150 of these suckers. On the other hand, if you go to the Washington/Canada border
there are pylons that say "border." They may be 4 x 4 x 3 feet high. If we want to mark that bluff, you could use pylons. Or
if the fence is built, whatever it may be, consider that those signs could be on a 90 degree to the ground basis rather than a big
white sign which they have out there now which is about 8 x 10 or 8 x 12. I throw in one other thing. Are we required to
put (and this is not a laughing matter) bilingual signs in there?
Mr. Largen: Okay. Thank you. Any other comments. Okay, I am going to...
Mr. Wilson: Mr. Examiner. I do want to take a couple of points of rebuttal.
Mr. Largen: That would be fine.
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 11
Mr. Wilson: Thank you. Again, the location of the fence is one that is established by the WUTC order in terms of it being
located on the top of the bluff and not in any other acceptable location. They have made that clear in their January 19, 1996
letter. Regarding the placement of the fence, I want to make sure that it is also clear. My original statement was the closest
they would be would be ten feet only because of the placement of the vertical pipe. Not indicating that is where they are
required to be or that is how close they would be. That is what I indicated would be the most practical if they had to be close.
The final location of it... And I think BNSF is going to want to minimize the number of signs they have to put out there, but
they are going to do it in such a way that they feel that they have met their legal requirements to deal with what they believe
are liability issues. I don't believe they will be placed at a ten -foot location. I think it will be a far greater separation, but I
can't speak on their behalf in terms of exactly where they will be placed. I am sure they will talk to their legal council to find
out the minimum necessary in order to fulfill what they believe are adequate legal protections providing public notice of the
no trespassing rule.
Mr. Wilson: The other thing is one of more of a procedural nature —two items of a procedural nature. This decision or
decision coming out of it... There was a question asked about whom they can talk to. There are two routes to go. One route
is that anybody unhappy with the decision has the right to appeal. The appeal would be to the City Council. Their decision
on the appeal is going to be based on the factual record provided at this hearing and only on the factual record provided at
this hearing. There is an appeal process beyond them which is the State Shorelines Hearings Board. As I indicated earlier
and which occurred with the Ocean Avenue fence, you can ultimately take it all the way up to the State Supreme Court
should you so desire. The basis for the appeal is going to be "is this consistent with the State Shoreline Management Act?"
It does not get into the aesthetic issues or maintenance issues. Is the permit to install the fence, the location of the fence, and
the purpose of the fence consistent with the stated goals and requirements under the State Shoreline Management Act as well
as the City's local shoreline master program. Some of the other issues are peripheral issues. They are important issues —
especially to the people who reside there and I think to the community as a whole. But they are not necessarily tied or related
to or directly dealt with under the State Shoreline Management Act. It doesn't mean they are not important issues.
Mr. Wilson: Finally, at least in staffs opinion, there is a factual record that was established back in 1995. The permit was
reviewed through a hearing process. Factual information was provided. It went through the decision making process, and
ultimately a final decision was issued approving the permit. It was not overturned on appeal. That is part of the factual
record here. Staffs perspective is that anything that would cause the examiner to change that decision would have to be
based off of factual information that countered the facts provided and the decision reached in the previous hearing. There are
no changes in the substantive nature of the application. There have been no changes in state law. There have been no
changes in the City's local shoreline master program. There was no finding that the previous decision was an error, either. I
think that any decision would have to show that there was a factual root that there are changes somewhere along the route to
support that the decision today should be different than the one before. That would be my understanding of what the process
would entail at this point.
Mr. Largen: Okay. Very good. Just to make sure that this gets into the record. We did get a petition today, that is going to
be Exhibit B, as you mentioned earlier, Jeff, submitted by Don and Carol Ricker and signed by at last six residence along
Sunset Avenue. The issues raised, again, are first appropriate location of the fence. You don't mind if I summarize this do
you? The second general set of issues revolve around who will be providing maintenance to the fence, who will do any
future repair, and whose responsibility this will be in the long run. For the record, I would like to show that this has been
submitted. I want to thank all of you for your input. I am new to this issue, and as you said there is extensive record
involving it. But, the reason that we have these processes is so that the public can state what their concerns are so that I can
take them into consideration. I am going to hold this hearing open until noon Monday, Jeff, so that I can get a couple of
clarifications that I didn't find within the record, if that is all right.
Mr. Largen: Basically, two questions for me. First of all, I would like to know if there is a minimum placard size or even if
it is stated anywhere. Secondly, whether there is some minimum necessary placement in terms of distance between the little
placard signs stating that this is BNR property. The other question... While I am assuming I know the answer to this
question, I would also like to see if there is something clear-cut within the WUTC guidelines in terms of this necessarily
needing to be an unbroken barrier of some kind.
Mr. Largen: The other thing. If you could give me some kind of notion of who might be responsible for maintaining this
fence, assuming it would be BNR.
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 12
Mr. Wilson: The only thing I can say for the record is that from when this issue was first brought up and the request was
first made the issue of who would be maintaining has been under negotiation.
Mr. Largen: Between whom?
Mr. Wilson: There have been a number of different parties —anywhere from WSDOT to BNSF and the City. Partly the
City has been brought up because we are here every day. We are logically the closest entity to provide the continual
maintenance of it. But, in terms of an actual decision on it, that is one that is still being negotiated. I think they were waiting
until things were actually being constructed.
Mr. Largen: Has the Parks Department had any comment? Would they be willing to take on maintenance?
Mr. Wilson: They already maintain part of that area up on top of the bluff, anyway. But, in terms of maintaining the fence
structure, itself, I can't say if they have been a direct part of it. If it was negotiated that the City was going to undertake the
maintenance of the fence, it could be a number of ... Public Works and the Parks Department are probably the two likely
candidates to do that. That decision will be made based on whom actually has the best expertise and best equipment to do
that.
Mr. Largen: Very good. Does this give you enough time to give me that information?
Mr. Wilson: We can certainly try. I can provide only what I can provide by that time.
Mr. Largen: That is fine. That will be sufficient. Unless there are any other comments, I am going to be closing the
Hearing Examiner Hearing for February 3 at Edmonds at 10:43 a.m. Thank you all very much for coming today.
These are the official transcripts of the Hearing Examiner Hearing dated February 3, 2000. I testify that they are accurate and
complete.
Karin Noyes, Transcriber
Date
Verbatim Transcripts of Hearing Examiner Hearing
File No. SM-99-176
Hearing Date: February 3, 2000
Hearing Examiner: Don Largen
Page 13