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10/18/1994 City CouncilAPPROVED CITY COUNCIL MINUTES Approved on 10/2"4 EDMONDS CITY COUNCIL APPROVED MINUTES OCTOBER 18,1994 Mayor Laura Hall called the meeting of the Edmonds City Council to order at 7:00 p.m. in the Library Plaza Room, 650 Main Street. The meeting was preceded by the flag salute. ELECTED OFFICIALS PRESENT Laura Hall, Mayor John Nordquist, Council President William J. Kasper, Council President Pro -tern Barbara Fahey, Councilmember Steve Dwyer, Councilmember Michael Hall, Councilmember Tom Petruzzi, Councilmember Dave Earling, Councilmember (7:15) APPROVAL OF AGENDA STAFF PRESENT Wally Tribuzio, Asst. Police Chief Bob Alberts, City Engineer Brent Hunter, Personnel Manager Paul Mar, Community Services Director Noel Miller, Superintendent of Public Works Gordy Hyde, Engineering Coordinator Jeff Wilson, Current Planning Supervisor Scott Snyder, City Attorney Phil Albrecht, City Attorney Rhonda March, City Clerk Christine Laws, Recorder COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCILMEMBER BARBARA FAHEY, TO APPROVE THE AGENDA. MOTION CARRIED. CONSENT AGENDA Councilmember Tom Petruzzi asked'to pull Items B and K, and Councilmember Bill Kasper asked to pull Item G from the consent agenda. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER MICHAEL HALL, FOR THE PASSAGE OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED. The agenda items passed are as follows: (A) ROLL CALL (C) APPROVAL OF CLAIM WARRANTS #944842 THRU #945206 FOR THE WEEK OF OCTOBER 3, 1994 AND CLAIM WARRANTS 9944482 THRU #945345 FOR THE WEEK OF OCTOBER 10, Approved City Council Minutes October 18, 1994 Page 1 1994; AND APPROVAL OF PAYROLL WARRANTS #945021 THRU #945319 FOR THE PERIOD OF SEPTEMBER 16 THRU SEPTEMBER 30, 1994 (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM GARY C. ALSTON, LARRY WAX, AND WILMA SNYDER ($95,000 EST.) AND FROM WARREN W. LEE, JR. ($36.31). (E) AUTHORIZATION FOR MAYOR TO SIGN AMENDMENT # 1 TO PROFESSIONAL SERVICES CONTRACT WITH REID MIDDLETON & ASSOCIATES TO PROVIDE ADDITIONAL DOCUMENTATION FOR UNDERWATER PARK DNR LEASE (#2,500) �r (F) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE HEARING HELD Y7, SEPTEMBER 19, 1994, AND CONTINUED TO OCTOBER 4, 1994 UPHOLDING THE APPEAL OF THE HEARING EXAMINER'S APPROVAL OF A CONDITIONAL USE PERMIT FOR AN ACCESSORY DWELLING UNIT LOCATED AT 23910 74TH AVE. W (Appellant: William Landcaster and C.D. Coffelt / File No. AP-94-12)[from October 4, 1994] (i i) ACCEPTANCE OF QUIT CLAIM DEED FROM MICHEL CONSTRUCTION, INC. FOR RIGHT- OF-WAY DEDICATION ON ALOHA PLACE Q (I) REPORT ON BIDS OPENED OCTOBER 10, 1994 FOR FENCING AT NEW PUBLIC WORKS MAINTENANCE AND OPERATION CENTER AND AWARD OF CONTRACT TO ANCHOR FENCE COMPANY ($13,980.52) (J) AUTHORIZATION FOR MAYOR TO SIGN CONTRACT WITH LUNDS' OFFICE ESSENTIALS FOR OFFICE SUPPLIES, FURNITURE AND EQUIPMENT FOR REMAINDER OF 1994 AND y7 CALENDAR YEAR 1995 (referred from Finance Committee on October 11, 1994) Councilmember Tom Petruzz► stated he had pulled Item B because he was not in attendance at the last u� meeting and didn't feel it appropriate to participate in the approval of those minutes. COUNCILMEMBER MICHAEL HALL MOVED, SECONDED BY COUNCILMEMBER BARBARA FAHEY, TO APPROVE THE MINUTES OF OCTOBER 11, 1994. MOTION CARRIED. Councilmember Bill Kasper had requested pulling Item G because of an error that was discovered in the Findings of Fact and Conclusions of Law. City Attorney Scott Snyder indicated he would be redrafting the document to include the information contained in Councilmember Kasper's motion regarding the 2T roadway. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER BILL KASPER, TO MOVE ITEM G TO THE CONSENT AGENDA FOR OCTOBER 25,1994. MOTION CARRIED. The agenda item continued is as follows: (G) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE HEARING FOR PRELIMINARY APPROVAL OF A PROPOSED 6 UNIT/LOT PLANNED RESIDENTIAL DEVELOPMENT/PRELIIvIINARY SUBDIVISION LOCATED AT 8606 196TH ST. SW (Applicant: Jordy Kstelyk/File No. PRD-94-12)[from October 4, 1994] 1� Approved City Council Minutes October 18, 1994 Page 2 Councilmember Tom Petruzzi requested pulling Item K because he desired clarification of the figures fisted regarding Staffs recommendation of a 10% contingency. Upon such information from City Engineer Bob Alberts, COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCILMEMBER 1� BILL KASPER, TO APPROVE ITEM K. MOTION CARRIED. Item K is as follows: (K) REPORT ON BIDS OPENED OCTOBER 4, 1994, FOR 88TH AVE. WEST STREET DAPROVEMENTS PROJECT (LID 214) AND AWARD OF CONTRACT TO TYDICO, INC. ($265,982.32, INCLUDING SALES TAX) Council President John Nordquist welcomed "alum" Jeff Palmer. AUDIENCE Mel Critchley, 705 Driftwood Place, spoke with regard to the railroads and their different problems. He cited property damage and accident statistics he had compiled, including numerous instances of overheated or burning wheel bearings. He mentioned other perceived safety hazards such as overloading. He referred to the waterfront as being virtually a playground. He suggested a reduced speed and showed a sign made for that purpose. He advised the Council of conversations with Oregon Senator deFazio pertaining to railroad safety issues and relayed the received suggestions. UPDATE BY CON UgUNTTY SERVICES DIRECTOR PAUL MAR REGARDING TRANSPORTATION ISSUES AND FUNDING FOR THE MULTIMODAL PROJECT Paul Mar, Community Services Director, called the CounciPs attention to the exhibits in their packets. He indicated not much had taken place since the consultant completed the Phase I report. They have had a number of presentations. Councilmember Petruzzi asked how much was the pre -engineering portion of the project. Mr. Mar responded that to get to the environmental process was estimated to be $1'/2-2 million. With the funding recently received from the federal government, and based upon their understanding of what remains to be done, it is believed there are sufficient funds to meet the needs of the pre -engineering process. Councilmember Petruzzi asked if plans were being made for Phase H funding. Mr. Mar answered that data collection on Phase II has begun. They have approval from DOT to spend those monies. Mr. Mar will be attending a meeting next Thursday with the full consultant team and technical committee to go over all aspects of Phase H and finalize what will be done in the next six months. He will report back to the Council when that information is put together. They are estimating being completely through with the engineering effort in late 1995 or early 1996. Mr. Mar further reported that on November 1 they will be having a meeting with the Native American Tribes to explain the objective of the project and elicit comments from that group. The WUTC will be having its hearing in Edmonds on the train speed issue on November 15-16. In response to a question asked last meeting, Mr. Mar indicated he had been advised that each hearing will have its own decision issued. There will probably be three hearings in all, the one last week in Ferndale, the upcoming hearing in Edmonds, and the other will possibly be in Marysville. He is presently working with City Attorney Scott Snyder to determine how the City will proceed at its upcoming hearing. They also Approved City Council Minutes October 18, 1994 Page 3 intend to talk with Mr. Critchley and his neighbors to attempt to orchestrate how the testimony will be presented, as well as having similar discussions with the DOT. Mr. Mar reserved his remaining time for use by Maria Cantwell at such time as she should at -rive. CONTINUED HEARING ON PROPOSED VACATION OF THE EASTERN 150' OF THE PUBLIC ALLEY LOCATED BETWEEN 7TH AVENUE NORTH AND 8TH AVENUE NORTH, SOUTH OF SPRAGUE STREET AND NORTH OF EDMONDS STREET / File No. ST-94-121 (Continued from September 19,1994) Jeff Wilson, Current Planning Supervisor, reminded the Council that this vacation request was continued to allow the petitioner to meet with the adjacent property owner to the south to see if a resolution could be reached. He indicated he had received no additional material. City Attorney Snyder reminded those present that anything said at the prior hearing was a part of the record and need not be repeated. Spencer Frazer stated they have done considerable research and now have a full understanding of what is involved. They believe there is a win -win situation for all involved. He stated he appreciated the receipt of the letter from Lynette Callahan retracting her previous statement. He reiterated that the City had a potential liability with regard to the slope that the applicants are willing to address through use of a retaining wall. They have accepted that they will probably only end up with 7.5 feet of the vacated alley. He addressed Ms. Mary Hennum's concerns addressed at the last hearing. They have accepted the fact that they will be financially responsible for the City's fees of vacation even if they only receive one-half of the alleyway. Ms. Hennum and the other two property owners will obtain an additional 7.5' of property at no cost to them. He suggested that if Ms. Hennum or any of the other property owners do not wish to pay taxes on that portion, they can either refuse to pay or can quit claim deed the property to the Frazers at which time they will pay all of the associated fees. He feels that the City will then have no inaccessible right-of-way. He again explained there is no hidden agenda with regard to building on the property. Mr. Frazer asked the Council to vote in favor of the vacation since the alleyway is unusable, has potential liability, will generate revenue for the City, and they are willing to foot the bill not only for themselves but for their neighbors. Councilmember Kasper noted that he had not attended the last hearing, but that he had read the minutes, reviewed the tapes and had visited the property. He feels he is fully advised of the situation and qualified to participate in this continued hearing. There were no objections to his participation. John Christiansen, attorney for Mr. and Mrs. Frazer, deferred. Karen Fiorito said her questions had already been addressed. Walt Sellers, 402 - 5th Avenue South, Edmonds, represents Mary Hennum on this matter. He believes Mrs. Hennum had only one remaining concern about the proposal. He confirmed with City Attorney Snyder that if the vacation occurs, and the property owners obtain the additional 7.5', the building setbacks would also be moved by that 7.5 feet. Mrs. Hennum's sole remaining concern is the potential blockage of her view corridor and her desire to keep it protected. If this concern is adequately addressed, Mrs. Hennum is willing to withdraw her objection. He requested, if the applicant was willing, to continue this matter until this question can be addressed. City Attorney Approved City Council Minutes October 18, 1994 Page 4 Snyder reminded the Council that it can reserve an easement from the vacation prohibiting the construction of any structure not intended for land stabilization. In that event, the Council may wish to look at reducing the amount of compensation. Councilmember Tom Petruzzi asked Mr. Frazer if he understood Mr. Snyder's comments. He told Mr. Frazer that instead of the Council imposing a restriction upon the vacation, it would be better if an agreement could be reached. He further asked Mr. Frazer if he would prefer another continuance so that further discussion regarding the view could be had. T Councilmember Steve Dwyer stated that what the Council is confronted with is a situation where it is being asked to sell public land when one person will be better off and one worse off. He questions why they would want to do something where someone is left in a worse position. Discussion ensued as to whether the vacation would ultimately be considered a sale. Mr. Frazer indicated he did not fully understand the total nature of the remaining objection. City Attorney Snyder recommended continuing the matter to later in the agenda to give the parties an opportunity to go out and talk, with Mr. Snyder advising them on the type of reservation he had in mind as a plausible solution. Councilmember Kasper asked Mr. Frazer about the cost and location of the planned retaining wall. Mr. Frazer responded that the wall would be approximately 75' long, 5-6' in height, and cost about $10,000. Councilmember Mike Hall asked how it would hurt the process for the City to retain the suggested easement. Mr. Frazer stated he would not have a problem with that situation as he now understood it. He was concerned that the view concerns were broader and covered trees already in his yard which block his view of neighboring houses. If the trees were concerned with the easement, he would have a problem; if it merely refers to building in the alleyway, he would have no problem. Councilmember Kasper questioned the location of the property line. He stated Frazers would gain no property inside of their yard by replacing the fence with a retaining wall. Councilmember Petruzzi said he did not feel it appropriate for the Council to resolve the final issue. He spoke in favor of City Attorney Synder's recommendation to take a few minutes to discuss this and come back later on the agenda. COUNCILMEMBER BILL KASPER MOVED, SECONDED BY COUNCILMEMBER q MICHAEL HALL, TO CONTINUE THIS HEARING TO AN UNSPECIFIED TIME ON TONIGHT'S AGENDA WHEN MARIA CANTWELL IS THROUGH SPEAKING. q MOTION CARRIED. MARIA CANTWELL Mayor Laura Hall introduced Representative Maria Cantwell and offered her personal thanks for all the good work Ms. Cantwell has done, especially in connection with the recent federal $400,000 grant for the multimodal project feasibility study. She noted that Ms. Cantwell is on the House Public Works Approved City Council Minutes October 18, 1994 Page 5 and Transportation Committee and the subcommittee on surface transportation. Ms. Cantwell applauded the Council for its long-range vision in trying to make the difficult decisions necessary to accommodate such a project. Now that the appropriation has been made, her next task is to make sure the money is received as soon as possible. It is hoped the funding will be received in the next couple of weeks. She also congratulated the City Council, Mr. Paul Mar, and the others involved for putting before Congress a project which represents a new way of transportation planning. To talk about seven modes of transportation integrated into one system is a national example of the type of infrastructure funding that Congress is looking for in the future. Councilmember Dave Earling reminded the Council that he had met with Ms. Cantwell on transportation issues related to the multimodal and the Regional Transit Authority. He thanked Ms. Cantwell for her hard work and her responsiveness to the suggestions and needs of the City of Edmonds and the region. Mayor Hall told Ms. Cantwell that the visit by Secretary Pena was greatly appreciated. She further relayed his feeling that the multimodal project could be a model for the nation. HEARING ON AN APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY A VARIANCE REQUEST FOR REAR YARD SETBACK REDUCTION FROM REQUIRED 25 FEET TO 7.5 FEET FOR PROPOSED STORAGE STRUCTURE AT 23901 76TH AVE. W. (Applicant/Appellant: Loren Nordby and Thomas Daniels / File Nos. V 94-125 and AP-94-159) Current Planning Supervisor Jeff Wilson gave a brief history of the appealed matter which concerns a variance requested to reduce the required street setback from 25' to 7.5' for the construction of a 14'x20' detached garage to be used as a storage facility. He advised that the Hearing Examiner found that no special circumstance exists which would allow approval of the variance as defined by code -- that there were no environmental factors which created special circumstances. The applicant states that a hardship exists because the lot is not accessible from any place on the lot except the easement. The Hearing Examiner felt that granting the variance would be a grant of special privileges because other properties in the area of comparable size, shape, topography and zoning experience the same limitations. As part of the Hearing Examiner's rationale, it was stated that the requested variance does not appear to be the minimum necessary as the proposed garage is located at the very front of the property more than 15 away from the existing house and that the site already contains an existing two - car garage which could be used for such storage purposes. He related that the appeal was brought on several grounds, including content of the findings and conclusions as well as appeal of the decision itself. Councilmember Kasper asked for clarification as to access on the panhandle lot. His property faces the neighbors' rear yards. Loren Nordby, 23901 - 76th West, introduced himself as a 22-year homeowner and resident. He presented the Council with copies of his presentation materials. Mr. Nordby believes that the information on which the decision was made was in error. He feels a variance should not be required Approved City Council Minutes October 18, 1994 Page 6 for a building permit. He cited the ECDC with regard to setback and street lot line definitions. None of his property lines border a street or easement, so are not subject to a street setback. With regard to there being a special privilege if the variance was granted, Mr. Nordby identified other neighboring properties with detached garages located within the setback areas. He feels that because his proposed garage is 132' from the street and out of view of the street, it does not constitute a special privilege over the other homes. He further pointed out ECDC provisions as they relate to calculations of setbacks and irregular, flag lots. He stated that if he were to go with City recommendations that the garage be moved back to allow the setback, he would have to remove an ornamental dogwood tree, and the garage would restrict access to the detached garage and block light from his living room window. He called the Council's attention to Drawing No. 3. Mr. Nordby believes there were procedural violations as far as the timeliness of the scheduling of the Hearing Examiner's hearing, the response, and even this Council meeting as defined in the code. He first hired Thomas Daniels on June 2, and the building permit was applied for shortly thereafter. It has now been four months. He does not wish to take an adversarial position with the City, but is asking for help in removing the roadblock. He called Council attention to Findings 8 and 9 wherein the Hearing Examiner stated that to allow a variance on the site would not necessarily be contrary to the Comprehensive Plan and that it would not be detrimental to the public health, safety or welfare. Mr. Nordby indicated that the easement does not actually abut his property, but touches only one small portion. Councilmember Kasper asked questions as to the width of the easement and the distance between the neighboring house and the garage. Councilmember Hall asked what was on the piece of property to the south. Mr. Nordby responded that there was a 250' lot with one house in the center. There is also a driveway that goes up that side of his property line. Mr. Nordby commented that he has letters from neighbors on both sides indicating they have no problem with his building this garage and, in fact, support the project. The remaining neighbor has vocalized the fact he has no objections, though he hasn't been home recently in order to sign a letter. Councilmember Barbara Fahey asked for clarification regarding the location of the two houses that Mr. Nordby cited as not having setbacks. Using the overhead, Mr. Nordby provided the information. City Attorney Scott Snyder spoke on the variance provisions of special circumstances. He mentioned Section 2 which states that special circumstances should not be predicated on any factor personal to the owner. He questions why this criteria was not applicable since the request is to facilitate boat storage. Councilmember Fahey asked for clarification on what of the material handed out was new information not previously submitted. Mr. Nordby identified the information regarding the other houses with non- complying garages as not previously provided. Other information was previously submitted. He also indicated that at the hearing he had presented 13 pictures which were not listed as evidence. Councilmember Fahey stated that she did not recall previous reference to the street setbacks and the record of it being a flag lot. The fact that it is a flag lot and not adjacent to the street was submitted at the original hearing. Mr. Nordby believes the only new information to prepare for this hearing was the Approved City Council Minutes October 18, 1994 Page 7 research of the code book which he quoted and the other lots in the area that do not comply with the setback. Under the public portion of the hearing builder Thomas Daniels spoke on his belief that having a flag lot is a special circumstance since Mr. Nordby lives in everyone's back yard. Jeff Wilson explained that in determining the setbacks, the basis is on the average setback for the dwelling units on the properties and does not include accessory structures. House placement is based on the average of the other residences. It does not, however, exempt garages from any setback. The only exception in the code presently is that of a detached garage of less than 600 square feet which may be located within 5' of the rear property be. There has been an unwritten policy, placed into writing in December 1991, that set a standard on how on a uniform basis the City would apply the setback standards. That policy states that on a flag lot one of the two property lines is to be determined as the front setback which is the property owner's determination at the time of the original building permit. Councilmember Petruzzi asked Mr. Wilson to again go over from where setbacks come. He questioned the fact that the Hearings Examiner's findings reference a street setback line, and there is no street. He asked if the policy set in writing covers this situation. Mr. Wilson said that policy established how to determine setbacks for this type of lot, the unusual lots, that it established the process whereby the setbacks were determined by one of two lot lines adjoining where the easement comes into contact with the property. The policy is to determine how street lot is defined. He also stated that the panhandle does not effect the buildable portions of the site; it is just a means of access. The point Staff was trying to make is that there is no special circumstance based on size, shape or topography of the lot itself that would warrant granting a variance. In response to Councilmember Kasper's question, Mr. Wilson stated that an easement can in effect create a corner lot with two fronts and two sides, but no rear. City Attorney Snyder discussed Section 16.20.030 of the code which addresses site development standards which provide for street setback, rear setback and side setbacks. Part of the problem with street setbacks in the code is not necessarily in your front yard. The City policy allows the owner to choose which is his front yard. The purpose of the setback is to provide for air, light and some feeling for space. Based on discussion regarding the neighbor's ability to place a similar structure on his property, Councilmember Petruzzi noted that it was literally possible for the neighbor to do so and be in compliance where this applicant could not. Mr. Wilson confirmed that appraisal. Councilmember Petruzzi has trouble with the City's and the Hearing Examiner's position as a matter of equity. He pointed out that while the code provides for the provision of light, air and space, if Mr. Nordby is required to move his planned structure to comply with setbacks, we will encroach on light and open space. He expressed his opinion that while the City is attempting to establish a policy by which these determinations can be made, it is not reasonable to expect that the policy should be applied in all instances. Mr. Wilson stated that this lot is not unique as far as flag lots are concerned. He went on to say that it is the City's duty to maintain strict application of the code and the applicant's burden to prove how the reasonable use of the property would be denied to him if a variance is not granted. With an Approved City Council Minutes October 18, 1994 Page 8 existing house and detached garage, how is reasonable use going to be denied' by not allowing an additional garage? City Attorney Snyder commented that while it was not his practice to try to steer the Council in any particular manner he wished to address the equity issue. He confirmed Mr. Wilson's position. He further stated his feeling that this was a circumstance personal to the owner. He suggested that even though this does not qualify as a variance situation, if it is determined there is ambiguity in the code which is to be viewed in favor of the property owner, they may be creating a loophole. If they provide for a variance, it provides for permanent usage of that space for a garage. If they find ambiguity, you would have a non -conforming garage that would eventually become conforming. He does not feel relief can be provided the property owner with a variance. If the Council is inclined to find an ambiguity in the code, and rule in favor of the property owner as to the fact there is no street setback, any loophole created could be closed within three or four months through the upcoming revision of the zoning code. He pointed out the Council would then need to consider possible ramifications in creating such a loophole. Mr. Wilson feels the window of opportunity would be closer to six months to a year and would lend to more confusion. Mr. Snyder suggested the Council could propose a moratorium on it. Councilmember Hall asked for clarification as to why the property to the north of the applicant's differs from the applicant's property. Councilmember Petruzzi stated that while he would like to find some reason to overturn the ruling, he feels it would create the potential for mischief and that this is one of those times where he has to uphold the ruling even though he does not agree with it. Councilmember Hall asked if the Council were to find an ambiguity would that not allow them to deal with this on a case -by -case basis on future flag lot variance requests. The City Attorney reminded the Council that this was not an appeal of a Staff determination, but a variance. Councilmember Hall identified himself as a property rights person and feels the request is reasonable and pointed out there were no objections made to his plans. Councilmember Dave Earling identified himself as a people rights person also. However, he also views himself as a code person and feels that because of historic practice and code he feels bound to uphold the determination. COUNCILMEMBER DAVE EARLING MOVED, SECONDED BY COUNCILMEMBER TOM PETRUZZI, TO UPHOLD THE RECOMMENDATION OF THE HEARING EXAMINER AND DENY THE APPEAL. CITY ATTORNEY SNYDER REQUESTED THE INCLUSION OF THE LANGUAGE ON PERSONAL USE WHICH WAS NOT USED IN THE HEARING EXAMINER'S FINDINGS. COUNCILMEMBER HALL AND COUNCILMEMBER KASPER VOTED NO. MOTION CARRIED. CONTINUATION OF ITEM 5 DISCUSSION City Attorney Scott Snyder advised the Council that the parties are very close to reaching agreement. Mr. Sellers needs to communicate with Mrs. Hennum to obtain the necessary authorization. One of the points of discussion is under the City's new critical areas ordinance and setback requirements, and the City's landslide hazard ordinance, Mr. Snyder will provide Mr. Sellers with those provisions for his use. Mr. Snyder expressed concern over the city maintaining any easement. One of the reasons they are looking at vacating the property is to eliminate the liability of maintaining that slope, and to Approved City Council Minutes October 18, 1994 Page 9 maintain an easement could potentially keep the City involved. He again suggested the Council consider the possibility of reducing the City's compensation in view of the public benefit. He requested a two week continuance. COUNCIL PRESIDENT JOHN NORDQUIST MOVED, SECONDED BY COUNCILMEMBER STEVE DWYER, TO CONTINUE THE HEARING TO NOVEMBER 1 TO ALLOW THE PARTIES ADDITIONAL TIME IN WHICH TO REACH A n RESOLUTION. MOTION CARRIED. HEARING ON APPEAL OF THE CITY OF EDMONDS SEPA RESPONSIBLE 6+ OFFICIAL'S ENVIRONMENTAL DETERMINATION (DNS - DETERMINATION OF NONSIGNIFICANCE) ISSUED FOR A PROPOSED 6 UNIT/LOT PLANNED RESIDENTIAL DEVELOPMENT / PRELIMINARY SUBDIVISION AND STREET MAP �P AMENDMENT (FILE NOS. PRD-94-16 AND ST-94-102) SUBMITTED BY THE EDMONDS BUILDING COMPANY FOR THE PROPERTY LOCATED AT 1312 9TH AVENUE NORTH (Appellant: Roger Hertrich / File No. AP-94-135) Councilmember Fahey advised that one of the principals of Edmonds Building Company is a long time friend of the family and also one of her campaign contributors. She did not feel that her participation would be effected by these facts. Councilmember Steve Dwyer revealed that he, Council President Nordquist and Councilmember Kasper were all on the Council with Mr. Roger Hertrich. Councilmember Hall stated he had run against Mr. Hertrich. City Attorney Snyder indicated that campaign contributions, duly revealed on the appropriate forms, do not constitute an appeamess of fairness doctrine challenge. He then swore in all individuals to be testifying before the Council. There were no objections to the participation of any of the individuals on the Council. Jeff Wilson indicated that the Edmonds Building Company requested approval from the City of Edmonds for a 6-lot/unit Planned Residential Development/Preliminary Plat for property located at 1312 9th Avenue North and, in addition, requested a street map amendment. On July 8, 1994, the City of Edmonds, the lead agency for the Environmental Review, issued a Determination of Non- significant (DNS) for the proposed project. On July 22, 1994, Roger Hertrich filed an appeal of the environmental determination on the grounds that certain responses to elements of the Environmental Checklist were lacking (Land Use --compatibility, Aesthetics --views, and Transportation --parking and impacts/controls). On September 1, 1994, the Hearing Examiner for the City of Edmonds held a hearing to gather facts on the appeal and on September 20 the Hearing Examiner issued recommendations to deny the appeal and allow the Determination of Nonsignificance to remain. He responded to Councilmember Kasper's question regarding the status of the culdesac as not as fully developed in the picture. Council's attention was drawn to Exhibit 1 to the Agenda Memo, that being the Findings and Recommendations of the Hearing Examiner of the City of Edmonds. Councilmember Dwyer asked about the page 10 comments on clustering. Mr. Wilson explained the process as having included pre -hearing interviews with the neighborhood residents. Due to procedural errors correctly pointed out by Mr. Hertrich, that once the Council makes a determination on the environmental portion of the process, they will be going back before the Hearing Examiner. The action taken by the Council may effect how far back in the process they must go. Councilmember Dwyer Approved City Council Minutes October 18, 1994 Page 10 asked for confirmation of his understanding that the ADB has made their review, but the Hearing Examiner had not. Mr. Wilson responded that the ADB had conducted its review, as had the Hearing Examiner, but because of procedural errors, the matter would be going back before the Hearing Examiner. City Attorney Snyder pointed out that unlike a subdivision, a PRD is reviewed by the ADB under 20.35.040; the architectural design criteria in 20.10.79(c)(3) provides that buildings taller than two stories would be reviewed to the extent that it would block views of the surrounding property. Councilmember Kasper asked if the pre -application hearing was pertinent and whether all this information was presented to them. Mr. Wilson stated that it had been presented in a conceptual manner. The initial project that went to the pre -application hearing was as a 9-unit configuration. Part of the initial proposal was for a rezone to provide for greater density. That request was dropped and the decision made to comply with the existing zoning designation. Councilmember Fahey indicated that the documentation referenced that Puget Way was serving five additional houses. She asked where they were located and how they related to the project. The existing residences are located on the south side of Puget Way. She asked further if this were not a PRD and this tract of land were simply being developed with an appropriate number of houses if there would be a SEPA evaluation. Mr. Wilson indicated that the street map amendment and the plat application require them to go through the SEPA process. Roger Hertrich, 1020 Puget Drive, introduced a drawing he believes will answer Councilmember Fahey's question as to the other residences. He reported that neither the City nor the Hearing Examiner found an effect of this project on traffic based on present thresholds. He is very concerned about the potential impact of traffic entering 9th Avenue. He feels his exhibits show concerns other than the threshold. He brought up accident information on 9th, most of which are in the left turn lanes, which he feels should be of concern to the City. He feels that those entering Puget Way would be utilizing a shorter left turn lane which he sees as a potential problem. He suggested the need for a traffic study. Mr. Hertrich provided to the Hearing Examiner other possible options only and did not make them specific requests. He also showed a diagram of present view corridors. The tighter the cluster, the less view blockage. He suggested that it be proved there isn't a view blockage before the PRD is allowed. He briefly described the handouts he provided to the Council. He reiterated that he has an accident study that dates back to 1985 and cited some of the property damage specifics. He called attention to the fact that other letters had been written, and a petition filed by the Laurelhurst Park Resident Association requesting a traffic study be completed. Councilmember Dwyer asked what would be studied in the traffic study. Mr. Hertrich indicated it would be to determine how people would get in and out of the development. A three minute break was called in order to get the exhibits in order. Brian Zigler spoke on behalf of the Edmonds Building Company. He stated that they have done more than what can be expected of the typical client, in part through the pre -design meeting. The project size was reduced and the peapatch eliminated as a result of this meeting. The units have been clustered to pull away from the street, provide for a landscape gateway, and to take advantage of the PRD Approved City Council Minutes October 18, 1994 Page 11 ordinance. The homes are estimated to be at the $400,000 range for empty nesters. The target market will not be competing for peak hour trips. Traffic is also a concern of Edmonds Building Company which is why they have structured ingress and egress as they have. They don't look at the entire traffic problem as being a concern of this project. Mr. Zigler stated that the traffic increase for the four additional units would be minimal. He agreed there will be impact on views and traffic but that those are unavoidable. He described the project as well thought out and an exceptional addition to the area. He thinks the real issue is the potential for view blockage from across the school grounds. He thinks they have addressed that as much as they can with their design package. The audience portion was opened by Dave Chapin, 858 Puget Way, who challenged the assumption that six empty nesters would not negatively impact traffic. He feels it is more probable there would be an additional 12 cars which would cause a great impact to the already problematic intersection. He also expressed concern over the shortened turn lane. He thinks there will be sufficient impact to warrant a traffic study. Mr. Wilson clarified that under SEPA analysis they are to make a determination as to whether a project is to have probable significant adverse impact and to consider the background traffic. They can only base their evaluation on the four new units. Staff does not feel the four unit increase does not present enough to mitigate beyond what has been done. Councilmember Dwyer asked at what stage the issue of shortening the turn lane would get addressed. Mr. Wilson answered that if this project warranted such an evaluation, it would be done at this stage. Councilmember Dwyer asked if the traffic issue in terms of volume, as an engineering or design issue, was a SEPA question. Mr. Wilson turned the matter over to Gordy Hyde, Engineering Coordinator, for further clarification. Mr. Hyde was then sworn in. Mr. Hyde indicated they would probably make a requirement for restriping the pavement as part of the civil site plan. Councilmember Dwyer asked about the impact of changing the length of the turn lane and whether that was a SEPA question. Mr. Hyde said it was SEPA and they would go back to the point of whether there was significant impact which must include a professional call as to whether changing the length would produce a substantial impact. It has been determined at this point that there was not enough impact to warrant mitigation. City Attorney Snyder pointed out the recent Washington State Supreme Court decision where it was stated that the city cannot deny a project or mitigate a project to require the developer to address general societal ills or background situations. He asked Mr. Hyde's opinion with regard to that aspect. Mr. Hyde said it was difficult to make that type of determination in this setting, but that overall he felt that a 15' difference was not a significant impact factor. He explained there is an outside issue in response to the residents of Puget Way across from the planned project. Their concerns over issues of ingress and egress of the location of islands, and that it indicates there are other issues which do not impact the developer. He indicated his desire to respond to existing troubles and not to respond to this particular developer. Councilmember Kasper asked about the impact of narrowing the street. Mr. Wilson indicated his understanding the street map amendment had already been approved. The question is whether there is an impact caused by the reduction of the right-of-way because of SEPA, but the present determination Approved City Council Minutes October 18, 1994 Page 12 is that it would not pose a significant impact. In terms of the environmental process, the net outcome is that the five existing units and the other units proposed, the right-of-way would be sufficient to handle the number of units involved. Therefore, it was determined a reduction would not have environmental consequences to be mitigated. Councilmember asked how they measured those who use that culdesac to drop their children off at school. He was answered that that would be considered background traffic. COUNCILMEMBER MICHAEL HALL MOVED, SECONDED BY COUNCILMEMBER DAVE EARLING, TO DENY THE APPEAL. COUNCILMEMBER DWYER EXPRESSED TWO CONCERNS: 1) THE QUESTION OF CLUSTERING AND THE PROJECT'S EFFECT ON VIEW AS STILL REMAINING AND, 2) THE IMPACT OF MOVING PUGET WAY 15' TO THE NORTH AND THAT IMPACT. COUNCILMEMBER DAVE EARLING DOVETAILED MR DWYER'S COMMENTS, AND STATED HE FEELS COMPELLED TO VOTE FOR THE MOTION. MOTION CARRIED. DISCUSSION ON EXEMPT EMPLOYEES AND FAIR LABOR ACT Brent Hunter, Personnel Manager, introduced City Attorney Scott Snyder as this matter originated with his office. Mr. Snyder indicated through representation of other municipal clients that the City of Lake Stevens is involved in litigation. In requesting a stay they provided the personnel policies of 30 _ cities other than their own as reasons why a stay should be granted. UPON MOTION DULY MADE AND SECONDED, THE MEETING WAS EXTENDED. Mr. Snyder went on to indicate the issue basically is that most of these personnel policies are aimed at the vast majority of their 'employees -- they are not exempt employees and subject to overtime requirements and that exempt employees are required to be paid a salary. Both the Department of Labor and federal courts have found that if you dock the pay of an exempt employee for absences less than a day or for disciplinary purposes where they are suspended without pay except in very limited situations that individual is not being paid a salary. He believes the City has never enforced its policies in a way to counter the Fair Labor Standards Act principles. He is suggesting that the code be amended as insurance to indicate that you are doing right and will continue to do right. Basically you would be administering your policies by adopting the federal standard into them. COUNCILMEMBER STEVE DWYER MOVED, SECONDED BY COUNCILMEMBER DAVE EARLING, TO ADOPT ORDINANCE NO.2993. MOTION CARRIED. MAYOR Mayor Hall announced she had provided the Council with her reply to President Clinton, the Post Office commemoration and historical plaque presentation is upcoming, and that on November 5-10 visitors will be here from Edmonds' sister city of Hekinan. That delegation will be at the November 7 meeting. Discussion was held regarding a gift to be presented. Mayor Hall further reported that she j had spoken on Saturday morning before the Washington State Sister City Commission. She announced that Yost Pool revenues recovered 100% of its expenses. She called the Council's attention to the packet information regarding dogs. She stated there will be discussions with the Planning Board concerning these dogs. Approved City Council Minutes October 18, 1994 Page 13 COUNCII. Council President Nordquist led a discussion of the agenda for next week's meeting, and several revisions were made. �P Councilmember Earling reported he is guardedly optimistic with regard to the serious negotiations being conducted by the RTA and there has been real progress. He hopes a plan will be developed for the whole region, and the goal is to pass a final plan at the October 28 meeting. The election will probably be in March. Councilmember Kasper commended the three persons involved in their efforts. He also suggested that it may not be appropriate for the record to in any way state how long someone will be absent from " Council meetings. Councilmember Hall passed out a press release regarding the airing of the City Council meetings. The first evening airing will be Wednesday, October 19, at 7:00 p.m. on Channel 36. Broadcast has been verified for Wednesday evening and Monday and Friday at Noon. Pursuant to question, discussion was held concerning how the broadcast times came about. COUNCILMEMBER STEVE DWYER MOVED, SECONDED BY COUNCILMEMBER DAVE EARLING, TO EXCUSE THE ABSENCE OF COUNCILMEMBER TOM PETRUZZI AT THE OCTOBER 11 MEETING. MOTION CARRIED. Councilmember Petruzzi reported briefly on his vacation. He further commented on proposed budgets being presented to the public prior to being presented to the Council. Some of the concerns dealt with 1994 expenses having been factored into 1993 and therefore projecting an erroneous 1994 budget. It �i is hoped that this doesn't happen again. He would like to see an accurate and actual budget presented to the public, including a percentage of increase. Councilmember Fahey reported that several meetings ago when she and Councilmember Petruzzi were working with the zoning ordinances and ways of improving the ADB response to the community, it was suggested access to a laptop computer could speed the response time. She requested this item be �t) included in the process on an upcoming committee night. Councilmember Fahey was also advised by tX Paul Mar of a workshop to be held regarding cable franchise issues which she attended. She requested reimbursement for the fees involved. COUNCILMEMBER TOM PETRUZZI MOVED, SECONDED BY COUNCILMEMBER DAVE EARLING, TO REIMBURSE COUNCILMEMBER FAHEY $75 FOR THE WORKSHOP. MOTION CARRIED. Councilmember Kasper announced that there were no pricing regulations on any new stations added to TV. City Attorney Snyder indicated that will be a what the market will bear situation. At 10:25 p.m. the Council adjourned to executive session on a real estate matter and adjourned from there at 10:40 p.m. THE ORIGINAL SIGNED COPY OF THESE MNUTES, AS WELL AS A TAPED RECORDING OF ALL COUNCIL MEETINGS, CAN BE LOCATED IN THE CITY CLERK'S OFFICE. City Council Minutes October 18, 1994 Page 14 CALL TO ORDER - 7:00 P.M. FLAG SALUTE AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM - LIBRARY BUILDING 7:00 -10:00 p.m. APPROVAL OF AGENDA OCTOBER 18, 1994 2. CONSENT AGENDA ITEMS (A) ROLL CALL (B) APPROVAL OF MINUTES OF OCTOBER 11, 1994 (C) APPROVAL OF CLAIM WARRANTS #944842 THRU #945206 FOR THE WEEK OF OCTOBER 3, 1994 AND CLAIM WARRANTS #944482 THRU #945345 FOR THE WEEK OF OCTOBER 10, 1994; AND APPROVAL OF PAYROLL WARRANTS #945021 THRU #945319 FOR THE PERIOD OF SEPTEMBER 16 THRU SEPTEMBER 30, 1994 (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM GARY C. ALSTON, LARRY WAX, AND WILMA SNYDER ($95,000 EST.) AND FROM WARREN W. LEE, JR. ($36.31) (E) AUTHORIZATION FOR MAYOR TO SIGN AMENDMENT #1 TO PROFESSIONAL SERVICES CONTRACT WITH REID MIDDLETON & ASSOCIATES TO PROVIDE ADDITIONAL DOCUMENTATION FOR UNDERWATER PARK DNR LEASE ($2,500) (F) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE HEARING HELD SEPTEMBER 19, 1994, AND CONTINUED TO OCTOBER 4, 1994, UPHOLDING THE APPEAL OF THE HEARING EXAMINER'S APPROVAL OF A CONDITIONAL USE PERMIT FOR AN ACCESSORY DWELLING UNIT LOCATED AT 23910 74TH AVE. W. (Appellant: William Lancaster and C.D. Coffelt / File No. AP-94-144; Applicant: Antonia Bryant / File No. CU-94- 108) (G) APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE HEARING FOR PRELIMINARY APPROVAL OF A PROPOSED 6 UNIT/LOT PLANNED RESIDENTIAL DEVELOPMENT / PRELIMINARY SUBDIVISION LOCATED AT 8606 196TH ST. SW (Applicant: Jordy Kostelyk / File No. PRD-94-12) [from October 4, 1994] (H) ACCEPTANCE OF QUIT CLAIM DEED FROM MICHEL CONSTRUCTION, INC. FOR RIGHT-OF- WAY DEDICATION ON ALOHA PLACE (1) REPORT ON BIDS OPENED OCTOBER 10, 1994 FOR FENCING AT NEW PUBLIC WORKS MAINTENANCE AND OPERATION CENTER AND AWARD OF CONTRACT TO ANCHOR FENCE COMPANY ($13,980.52) (J) AUTHORIZATION FOR MAYOR TO SIGN CONTRACT WITH LUND'S OFFICE ESSENTIALS FOR OFFICE SUPPLIES, FURNIITURE AND EQUIPMENT FOR REMAINDER OF 1994 AND CALENDAR YEAR 1995 (referred from Finance Committee of October 11, 1994) (K) REPORT ON BIDS OPENED OCTOBER 4, 1994, FOR 88TH AVENUE WEST STREET IMPROVEMENTS PROJECT (LID 214) AND AWARD OF CONTRACT TO TYDICO, INC. ($265,982.32, INCLUDING SALES TAX) 3. AUDIENCE 4. (10 Min.) UPDATE BY COMMUNITY SERVICES DIRECTOR PAUL MAR REGARDING TRANSPORTATION ISSUES AND FUNDING FOR THE MULTIMODAL PROJECT Continued EDMONDS CITY COUNCIL AGENDA OCTOBER 18, 1994 PAGE TWO 5. (30 Min.) CONTINUED HEARING ON PROPOSED VACATION OF THE EASTERN 150' OF THE PUBLIC ALLEY LOCATED BETWEEN 7TH AVENUE NORTH AND 8TH AVENUE NORTH, SOUTH OF SPRAGUE STREET AND NORTH OF EDMONDS STREET / FILE NO. ST-94-121 (Continued from September 19, 1994) 6. (20 Min.) HEARING ON AN APPEAL OF THE HEARING EXAMINER'S DECISION TO DENY A VARIANCE REQUEST FOR REAR YARD SETBACK REDUCTION FROM REQUIRED 25 FEET TO 7.5 FEET FOR PORPOSED STORAGE STRUCTURE AT 23901 76TH AVE. W. (Applicant/Appellant: Loren Nordby and Thomas Daniels / File Nos. V-94-125 and AP-94-159) 7. (30 Min.) HEARING ON APPEAL OF THE CITY OF EDMONDS SEPA RESPONSIBLE OFFICIAL'S ENVIRONMENTAL DETERMINATION (DNS - DETERMINATION OF NONSIGNIFICANCE) ISSUED FOR A PROPOSED 6 UNIT/LOT PLANNED RESIDENTIAL DEVELOPMENT/ PRELIMINARY SUBDIVISION AND STREET MAP AMENDMENT (FILE NOS. PRD-94-16 & ST-94-102) SUBMITTED BY THE EDMONDS BUILDING COMPANY FOR THE PROPERTY LOCATED AT 1312 9TH AVENUE NORTH (Appellant: Roger Hertrich / File No. AP-94-135) 8. (10 Min.) DISCUSSION ON EXEMPT EMPLOYEES AND FAIR LABOR ACT 9. (5 Min.) MAYOR 10. (15 Min.) COUNCIL 11. (15 Min.) EXECUTIVE SESSION ON A REAL ESTATE MATTER Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at 771-0245 with 24 hours advance notice for special accommodations. The Council Agenda and delayed telecast of this Meeting appear on Chambers Cable, Channel 32.