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04/19/2005 City CouncilApril 19, 2005 Following a Special Meeting at 6:45 p.m. for an Executive Session regarding labor negotiations, the Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Pro Tern Marin in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Richard Marin, Mayor Pro Tern Jeff Wilson, Council President Pro Tem Michael Plunkett, Councilmember Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Deanna Dawson, Councilmember ELECTED OFFICIALS ABSENT Gary Haakenson, Mayor ALSO PRESENT Bryan Huntzberger, Student Representative STAFF PRESENT Gerry Gannon, Assistant Police Chief Duane Bowman, Development Services Director Brian McIntosh, Parks & Recreation Director Stephen Koho, Treatment Plant Manager Dave Gebert, City Engineer Don Fiene, Assistant City Engineer Steve Bullock, Senior Planner Star Campbell, Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder 1. APPROVAL OF AGENDA. COUNCIL PRESIDENT PRO TEM WILSON MOVED, SECONDED BY COUNCILMEMBER MOORE, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MOORE, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve 5/05 (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF APRIL 5, 2005. Minutes Approve (C) APPROVAL OF CLAIM CHECKS #78585 THROUGH #78751 FOR THE WEEK OF Claim APRIL 4, 2005, IN THE AMOUNT OF $225,428.41. APPROVAL OF CLAIM CHECKS Checks #78760 THROUGH #78934 FOR THE WEEK OF APRIL, 11, 2005, IN THE AMOUNT OF $179,944.84. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #40440 THROUGH #40522 FOR THE PERIOD MARCH 16 THROUGH MARCH 31, 2005, IN THE AMOUNT OF $821,294.18. Claim for Damages I (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM FRED J. WAX (AMOUNT UNDETERMINED), KEN AND DONNA HADALLER (AMOUNT UNDETERMINED), AND JOHN J. REED, JR. (AMOUNT UNDETERMINED). Edmonds City Council Approved Minutes April 19, 2005 Page 1 Surplus Radars (E) DECLARING SIX HANDHELD RADARS SURPLUS. (APPROVED BY THE PUBLIC SAFETY COMMITTEE ON 4/12/05.) Install (F) AUTHORIZATION FOR THE MAYOR TO SIGN AN INTERLOCAL AGREEMENT Motorcycle WITH THE CITY OF SULTAN TO INSTALL MOTORCYCLE RADIO AND LIGHTING Equipment EQUIPMENT (TOTAL COST NOT -TO EXCEED $1,500). 2005 Summer (G) AUTHORIZATION FOR THE MAYOR TO SIGN CONTRACT WITH THE EDMONDS — Markets SOUTH SNOHOMISH COUNTY HISTORICAL SOCIETY FOR THE 2005 MARKETS. Edmonds Arts Festival (H) AUTHORIZATION FOR MAYOR TO SIGN CONTRACT WITH THE EDMONDS ARTS FESTIVAL ASSOCIATION FOR THE 2005 EDMONDS ARTS FESTIVAL. Senior Center (I) REPORT ON BIDS OPENED ON MARCH 22, 2005 FOR THE 2005 SENIOR CENTER Elevator ELEVATOR REHABILITATION PROJECT, AND AWARD OF CONTRACT TO R.C. ZEIGLER COMPANY, INC. ($107,555.09). Treatment Plant (J) REPORT ON BIDS OPENED APRIL 5, 2005 FOR THE PURCHASE OF TREATMENT Chemicals PLANT CHEMICALS AND AWARD TO NORTHSTAR CHEMICALS, INC. FOR SUPPLYING SODIUM HYDROXIDE AND SODIUM BISULFITE. Treatment Plant (K) REPORT ON BIDS OPENED APRIL 5, 2005 FOR THE PURCHASE OF TREATMENT Chemicals PLANT CHEMICALS AND AWARD TO PIONEER AMERICAS, LLC FOR SUPPLYING SODIUM HYPOCHLORITE. Influent and Effluent (L) REPORT ON BIDS OPENED APRIL 13, 2005 FOR THE INFLUENT AND EFFLUENT Pump PUMP VFD REPLACEMENT PROJECT AND AWARD TO TECHNICAL SYSTEMS, INC. FOR THE AMOUNT OF $192,286.91, INCLUDING SALES TAX. Ord #3545 Vacations (M) ORDINANCE NO. 3545 AMENDING THE PROVISIONS OF ECC CHAPTER 2.35.010 DEFINITIONS TO ADD A NEW DEFINITION OF THE WORD "DAY," RENUMBERING THE OTHER SUBPARAGRAPHS OF SAID SECTION, AMENDING THE PROVISIONS OF ECC 2.35.030 VACATIONS TO ADJUST THE VACATION ACCRUAL OF DIVISION MANAGERS AND CLARIFYING PROVISIONS RELATING Ord #3546 TO DIRECTORS. (APPROVED BY THE FINANCE COMMITTEE ON 4/12/05.) 6 -Year CIP (N) ORDINANCE NO. 3546 ADOPTING A SIX -YEAR CAPITAL IMPROVEMENT PLAN FOR THE YEARS 2005 THROUGH 2010. EPOA Agreement (0) APPROVAL OF LABOR AGREEMENT BETWEEN CITY OF EDMONDS AND EDMONDS POLICE OFFICERS' ASSOCIATION (COMMISSIONED MEMBERS). Loyalty Day 3. PROCLAMATION IN HONOR OF LOYALTY DAY, MAY 1, 2005 Mayor Pro Tem Marin read a proclamation declaring May 1, 2005 as Loyalty Day. He presented the Proclamation to Duane Pounds, Commander, and Buck Weaver, Member, of VFW Post 8870 who expressed their appreciation to the Council for the proclamation. dd RS -10 and RS -MP 4. PUBLIC HEARING TO AMEND CHAPTER 16.20 OF THE EDMONDS COMMUNITY Zones DEVELOPMENT CODE (ECDC) ADDING A NEW RS -10 (SINGLE FAMILY RESIDENTIAL — 10,000 SO. FT. MINIMUM LOT SIZE) ZONING CLASSIFICATION AND A NEW RS -MP (SINGLE FAMILY MASTER PLAN) ZONING CLASSIFICATION. (FILE NO. CDC- 05 -33) Development Services Director Duane Bowman explained the proposed amendments to add a new RS -10 (single family residential 10,000 square foot minimum lot size) zoning classification and a new RS- Edmonds City Council Approved Minutes April 19, 2005 Page 2 Master Plan (Single Family Master Plan) zoning classification were necessary to be consistent with the recently adopted Comprehensive Plan. He advised the Planning Board conducted a public hearing on the proposed amendment on March 23 and recommended approval of the amendments to the Council. He explained the 2004 update of the Comprehensive Plan established the direction for land use and zoning and required urban densities to meet the Growth Management Act (GMA) requirement of a minimum four dwelling units per acre. Mr. Bowman explained there were two public hearings tonight, the first (agenda item 4) was to create the new RS -10 and RS -MP zones and the second (agenda item 5) to consider zoning for three specific areas to be consistent with the updated Comprehensive Plan. He provided a table illustrating the Comprehensive Plan designation, Single Family Urban 3, which corresponds to RS -10 zoning that provides for a maximum density of 4.4 dwelling units per acre. Single Family Urban Master Plan designation corresponds to RS -6 or RS -8 with a master plan overlay which could allow up to 7.3 dwelling units per acre. Mr. Bowman reviewed a table of bulk and dimensional requirements for the RS -10 zone — maximum density 4.4 dwelling units per acre, minimum lot width 75 feet, a reduction in the rear yard setback from 25 feet to 20 feet, and the same street and side setbacks, building heights and lot coverage, and minimum parking spaces as the RS -12 zone. He explained in the RS -MP zone, development at a higher urban density lot pattern equivalent to RS -8 or RS -6 may be permitted in accordance with a duly adopted master plan under the provisions of Chapter 16.20.045. He identified the area proposed for RS -MP zoning, an area east of the ferry holding lanes on SR -1.04 with limited access. He noted some properties in this area have developed but there is the potential for redevelopment to occur. He also identified the areas proposed for RS -10 zoning. Mr. Bowman described the recommended action, a motion to direct the City Attorney to prepare the necessary ordinance amending Chapter 16.20 adding the new zoning classifications of RS -10 and RS -MP, as recommended by the Planning Board. Council President Pro Tern Wilson referred to the table of site development standards in Chapter 16.20.030, inquiring about the 3.7 maximum density shown for the RS -MP zone. Mr. Bowman referred to the footnote that indicates the densities can be higher with an approved master plan. Council President Pro Tern Wilson asked whether an equivalent maximum density would be identified in the master plan process. Mr. Bowman answered that would be developed as part of a master plan depending on what the developer chose, either RS -6 or RS -8. Council President Pro Tern Wilson clarified the maximum density could range from 3.7 to 7.3 dwelling units per acre. Mr. Bowman agreed. Councilmember Dawson inquired how it would be determined as part of the master plan process whether RS -6 or RS -8 zoning was appropriate. Mr. Bowman answered it would be done via consideration of the proposed design, the relationship of the design to surrounding properties as well as the layout and traffic analysis. He noted that review would be conducted by the City and ultimately approved by the Council. Councilmember Dawson questioned why there were two zoning densities within the master plan designation and what standards would the Council apply in determining which zoning density was appropriate. She expressed concern with the increase in density from RS -12 to RS -6. Mr. Bowman answered the actual rezone is the subject of the next agenda item. He referred to the criteria for approving a master plan contained in Chapter 16.20.045(B), "Properties seeking to develop at RS -8 or RS -6 densities shall be developed according to a master plan (such as through a PRD) that clearly demonstrates the following: 1) that access and lot configurations shall not result in additional curb cuts or unimpacted traffic impacts on SR -104; at a minimum, a traffic study prepared by a traffic engineer approved by the City shall clearly demonstrate this requirement, and 2) that the configuration and arrangement of lots within the master plan area provide for setbacks on the perimeter of the proposed Edmonds City Council Approved Minutes April 19, 2005 Page 3 development that are compatible with the zoning standards applied to adjoining developed properties. For example a master plan adjoining developed lots in an RS -MP zone that was developed under RS -12 standards shall have RS -12 setbacks along common property lines, although the lot sizes, widths, and other bulk standards may conform to the higher density lot configuration approved through the master plan." Councilmember Dawson observed the area surrounding the proposed RS -MP zone was zoned RS -8 and asked whether there was any RS -6 zoning in that area. Using the map on page 17 of Agenda Item 5, Mr. Bowman identified the areas zoned RS -6 fronting on SR -104, RS -12 behind, BN zoning to the south and east, and RS -8 zoning to the south across 226th and RS -6 across the street. Councilmember Dawson inquired about Woodway zoning across 226th. Mr. Bowman answered it was likely 12,000 or 20,000. City Attorney Scott Snyder answered the Woodway lots were developed with 12,000 — 20,000 square foot lots but the designation was lower in compliance with GMA. Mr. Bowman pointed out the existing RS -12 pattern in the area, noting that to be compliant with GMA and due to the issues with access, the parcels would have the potential for RS -6 or RS -8 with an approved master plan. Councilmember Dawson asked whether staff had considered allowing only RS -8 with a master plan. Mr. Bowman answered there was a combination of RS -8 and RS -6 zoning in the area, RS -8 south of 226th and RS -6 fronting SR -104. Therefore allowing a PRD to use either RS -6 or RS -8 as part of a planned development would be consistent with existing development patterns. Councilmember Dawson noted the Council could choose either a zoning density of either RS -6 or RS -8 with an approved master plan. Mr. Bowman agreed that would be possible. Mayor Pro Tem Marin opened the public participation portion of the public hearing. Roger Hertrich, 1020 Puget Drive, Edmonds, expressed concern with the combination of zones with the RS -MP zoning, finding there was not a good reason for this major change other than development constraints. If the intent was to constrain curb cuts, he preferred a regulatory approach. He expressed concern that the staff did not provide the Council a map of the affected properties which added to the confusion. He noted any property had the ability to be developed via a PRD and questioned whether the master plan would create new standards for a PRD. He questioned whether commercial and/or multi family uses would be allowed as part of a master plan. He concluded the RS -MP zoning needed further study including the reason for creating this zone. He agreed with the proposed RS -10 zoning. Hearing no further public comment, Mayor Pro Tem Marin closed the public portion of the public hearing. In response to Mr. Hertrich's comments, Mr. Bowman explained any development as a PRD would follow the adopted PRD guidelines. The zoning as proposed was entirely residential with no commercial uses. He noted the constraints with regard to access to SR -104 were the reason for the proposed rezone to RS -MP. He explained RS -6 and RS -8 were proposed due to the existing development pattern; a master plan would be required for either. He noted a master plan would most likely be accomplished via a PRD which requires review by the Hearing Examiner and ADB. Councilmember Plunkett asked why this area was proposed to be rezoned. Mr. Bowman answered GMA. Councilmember Plunkett noted GMA did not require RS -6. Mr. Bowman agreed RS -8 would meet GMA requirements; RS -6 and RS -8 were selected based on the existing development pattern, however, the Council could choose RS -6 or RS -8. Mr. Snyder advised both GMA and the City's Comprehensive Plan encouraged the development of population nodes to enhance mass transportation along arterials. Because of the development constraints Edmonds City Council Approved Minutes April 19, 2005 Page 4 in this area such as limitations on access, substantial mitigation fees would be required. He recalled the entire corridor has been rezoned to higher densities through the Westgate Chapel area. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER OLSON, TO DIRECT THE CITY ATTORNEY TO PREPARE THE NECESSARY ORDINANCE AMENDING 16.20 ADDING THE NEW ZONING CLASSIFICATIONS OF RS -10 AND RS -MP, AS RECOMMENDED BY THE PLANNING BOARD. Councilmember Dawson indicated she would vote against the motion as she was not convinced densities as high as RS -6 were necessary. She was also troubled by two zoning densities and preferred RS -8. Councilmember Orvis indicated he would not support this motion unless the density in the RS -MP were limited to RS -8. Councilmember Plunkett commented there was a big difference in the lot size between RS -6 and RS -8; an 8,000 square foot lot still had a backyard whereas there was little yard in a 6,000 square foot lot. He noted there was more difference in the perception between a RS -6 and a RS -8 zoned lot than there was between a RS -8 and RS -10 zoned lot. Council President Pro Tern Wilson indicated he also would not support the motion. He noted another GMA goal was affordable housing which 6,000 square foot lots may assist with, however, there were no goals as part of the RS -MP zone to provide affordable housing. He found it more appropriate to limit the density and number of vehicle trips in this congested area. He preferred 8,000 square foot lots as part of the RS -MP zone. COUNCILMEMBER DAWSON MOVED, SECONDED BY COUNCILMEMBER OLSON, TO AMEND THE MOTION TO CHANGE THE DESIGNATION OF THE RS -MP ZONE TO ALLOW UP TO RS -8 ZONING. MOTION CARRIED UNANIMOUSLY. VOTE ON THE MAIN MOTION AS AMENDED CARRIED UNANIMOUSLY. Rezone 5. PUBLIC HEARING TO CONSIDER CHANGES IN ZONING FOR THE FOLLOWING Three Areas PROPERTIES: to RS -10 & • AN EXTENSIVE RS -12 ZONED AREA LYING GENERALLY SOUTH OF SOUTH Zones COUNTY PARK, EAST OF 94TH AVE W, WEST OF 80TH on AVE W, AND EXTENDI ones ....�r..,r� ..,- ... NTH • AN RS -12 ZONED AREA LYING GENERALLY BETWEEN 8" AVE S AND 98" AVE W FROM PINE ST TO 220TH ST SW, PROPOSED FOR A CHANGE IN ZONING TO "RS -10." • AN RS -12 ZONED AREA NORTHWEST OF SHERWOOD ELEMENTARY LYING ALONG SR -104 PROPOSED FOR A CHANGE IN ZONING FROM RS -6 AND RS -12 TO "RS -MP SINGLE FAMILY MASTER PLAN." (FILE NO. R- 05 -34) Mayor Pro Tern Marin advised he would abstain from the vote as he lived in one of the areas proposed to be rezoned. Senior Planner Steve Bullock explained this action would apply the zoning districts approved in the previous agenda item to specific areas. He recalled during the Comprehensive Plan analysis, direction from the Growth Management Hearings Board and GMA was that zoning classifications must comply with urban densities unless there was a large scale, environmental feature that justifies zoning classifications of RS -13 or larger. He explained staff's analysis of the critical area and RS -12 and RS -20 zoned areas revealed the Seaview neighborhood contained a large section of RS -12 zoned properties that had few environmental features, making it difficult to justify the larger zoning. He identified two other Edmonds City Council Approved Minutes April 19, 2005 Page 5 areas of RS -12 zoning, 1) 9"' Avenue South between 220t' to the south and Pine Street to the north, and 2) the area south of SR -104 and north of 226th that did not have significant environmental features to justify the larger zoning classification. Mr. Bullock concluded the direction of the Growth Management Hearings Board was to zone such areas consistent with urban densities of four dwelling units per acre or greater; the new zoning classification of RS -10 or RS -MP would qualify. Mr. Bullock relayed the Planning Board's recommendation to change the RS -12 zoning in the Seaview neighborhood to the new zoning classification of RS -10. Staff and the Planning Board found the RS -1.2 zoning classification was justified in the remaining areas to the north and west due to underlying critical areas related to slopes and streams. Staff and the Planning Board also recommend rezoning the area of 91h Avenue South between 2201' to the south and Pine Street to the north from RS -12 to RS -10. The result would be the area would be surrounded on the east and south by RS -8 zoned properties and RS -6 zoned properties on the north and west. Mr. Bullock relayed staff and the Planning Board's recommendation to rezone the area south of SR -102 and north of 226`h to RS -MP. He noted if development occurred on a lot -by -lot basis, development would comply with RS -12 zoning standards; development via a PRD or master plan, based on the action taken in Agenda Item 4, development would be permitted at RS -8 densities. Councilmember Dawson asked whether the area proposed to be rezoned RS -MP was currently all RS -12 or if a portion was RS -6. Mr. Bullock answered the strip along SR -104 was zoned RS -6. He noted this was the reason for proposing RS -6 or RS -8 densities. Councilmember Dawson questioned whether the Council could omit the RS -6 zoned property from the proposed rezone and only rezone the RS -12 lots to RS -MP. Mr. Bullock answered that could be done, one of the difficulties was the RS -6 zone district extended approximately 60 feet from SR -104 and did not follow property lines as it was intended to be a buffer along SR -104. He noted determining the zoning for lots with split zoning was awkward and a consolidated zoning was preferable. Councilmember Dawson inquired whether the Council would be endangering any property rights by rezoning the properties currently zoned RS -6 to RS -MP. Mr. Snyder answered constitutionally the Council would not be depriving a property owner of a vested right; if any of the properties were developed, they would have non - conforming use rights, however, none of the property lines mirror the zone district line. Referring to the requirement under GMA to rezone the Seaview area from RS -12 to SR -10, Councilmember Dawson noted the Growth Management Hearings Board implied there may be reasons other than critical areas that would allow cities to retain larger lot designations. Mr. Snyder agreed, noting the Growth Management Hearings Board has not yet articulated those reasons. He explained Woodinville, Issaquah and Bellevue are involved in litigation resulting from challenge by Futurewise (formerly 1000 Friends of Washington). He pointed out if the Growth Management Hearings Board provided additional reasons for retaining larger lot designations, the zoning and Comprehensive Plan designation could be changed again via the annual process. Mr. Snyder explained the Woodinville, Issaquah and Bellevue cases were not consolidated because their records are distinctly different; Woodinville and Issaquah are citing existing development patterns and Bellevue has better reasons in their record. He offered to report to the Council regarding the outcome of the cases. Councilmember Dawson concluded the Council would prefer to retain the existing zoning but were bound under existing law to change the designation; should that change, the zoning /designation could be changed. Mr. Snyder answered because properties in Edmonds were for the most part developed, staff did not anticipate much physical change to occur as a result of the rezone. He noted any change likely would take years to occur via consolidation of properties. Councilmember Dawson noted Edmonds City Council Approved Minutes April 19, 2005 Page 6 the rezone would also not result in an increase in density. Mr. Snyder pointed out the importance of establishing an appropriate record, i.e. if the City were provided an appropriate basis for maintaining larger lot zoning, the Council could build a record similar to what was done for the areas with environmental constraints that will retain the larger lot zoning. Councilmember Moore inquired about the status of the legislation that would allow averaging under GMA. Mr. Snyder answered that legislation was dead for this year. Councilmember Dawson advised the legislation also would not have applied to Edmonds as it applied only to rural areas. For Council President Pro Tem Wilson, Mr. Snyder anticipated the Woodinville, Issaquah or Bellevue cases would result in some direction from the Growth Management Hearings Board or the courts with regard to other reasons for retaining larger lot zoning. Council President Pro Tem Wilson inquired about the timing of those hearings. Mr. Snyder answered the first briefs from Futurewise were due today or tomorrow. He offered to email Councilmembers the hearing date. Mayor Pro Tem Marin opened the public participation portion of the public hearing. Roger Hertrich, 1020 Puget Drive, Edmonds, commented the Planning Board had packets available for the audience; this evening only one packet was provided for the audience to peruse. Mr. Hertrich considered the proposed RS -MP to be a spot rezone and found many of the definitions to be unenforceable. He noted rezones were supposed to protect against encroachment of view of existing homes by new construction, however, a PRD could impact the views of surrounding lots. He noted the compatible zoning for Single Family Urban 1 was RS -6 and RS -8 and the compatible zoning for Single Family Urban 2 was RS -8. He preferred each correspond to only one compatible zoning classification. Ray Martin, 18704 94t'' Avenue W, Edmonds, a resident of the Seaview area that would remain RS -12, questioned whether there were market implications of the rezone from RS -12 to RS -10 such as would a buyer pay more for an RS -12 zoned lot than an RS -10 zoned lot, would property values decrease if the zoning were reduced to RS -10, would the value of adjacent property zoned RS -12 increase and would there be an impact on the taxes. Rowena Miller, 8711 182nd Place SW, Edmonds, explained she supported the goals of GMA to save rural areas and keep growth in cities. However, she pointed out by saving rural areas, parts of the city were being destroyed by increased density. She suggested the Council delay the rezone until the Woodinville, Issaquah and Bellevue cases were resolved. She noted trees, green space, open space and quality of life should be considered environmental features that would allow the City to retain larger lot zoning. She concluded the proposed rezone would likely have little affect on her neighborhood in Seaview unless five houses were redeveloped into six lots which would result in less green space, less trees, less aesthetics and less quality of life. Hearing no further public comment, Mayor Pro Tem Marin closed the public portion of the hearing. In response to audience comments, Mr. Bullock explained staff and the Planning Board did not consider the RS -MP to be a spot rezone as there were issues specific to that area that justified the proposed zoning and the Comprehensive Plan directs that zoning. With regard to the economic impact in the Seaview neighborhood of the rezone from RS -1.2 to RS -10, Mr. Bullock explained staff and the Planning Board anticipated no economic impact. With regard to waiting to rezone these areas, Mr. Bullock explained the City's eligibility for Public Works Trust Fund loans, a critical component of some capital improvements, was contingent on the City's regulations complying with the Comprehensive Plan. Edmonds City Council Approved Minutes April 19, 2005 Page 7 COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER OLSON, TO CONFIRM THE RECOMMENDATION OF THE PLANNING BOARD AND APPLY THE NEW ZONING CLASSIFICATION TO THE THREE AREAS. Councilmember Plunkett acknowledged he also had originally believed it preferable to wait to rezone these areas, however insofar as there would be little change as a result of the rezone and to avoid the loss of the Public Works Trust Fund loans, he found it compelling to move forward. He pointed out property values would not decrease anywhere in Edmonds and certainly not the Seaview neighborhood. He noted property values nationally increased approximately 5% per year; in Edmonds property values increased 7- 12% per year and approximately 8% per year in Seaview. He concluded he would support the motion. Councilmember Moore indicated her support for the motion, agreeing the Council was not interested in changing the character of Seaview. She noted it would be easy to change the zoning again if the court cases indicated that was appropriate. Council President Pro Tern Wilson spoke in favor of the motion, pointing out the area proposed to be rezoned RS -MP had issues with access to a State highway and the only way to facilitate resolution was to develop the properties via a master plan process whereby the consolidation of properties could consolidate driveway accesses as well as better control access to the south. He concluded a master plan would allow better control of these issues and ensure a positive outcome as well as allow a reasonable use of the properties along SR -104. MOTION CARRIED (6 -0 -1), MAYOR PRO TEM MARIN ABSTAINED. Mr. Snyder advised he would draft implementing ordinances to rezone the property which would appear on a future Consent Agenda following the ordinance implementing the preceding item to create the zoning classifications. school 16. PUBLIC HEARING ON EDMONDS SCHOOL DISTRICT #15 CAPITAL FACILITIES PLAN District CFP I UPDATE Bret Carlstad, Director of Planning, Property, Risk, Safety, Custodial and Emergency Services, Edmonds School District, recalled when presenting the district's Capital Facilities Plan (CFP) to the Planning Board, questions arose regarding the lack of transportation elements in the CFP. As he advised the Planning Board, the school district's CFP focuses on schools including enrollment patterns and facilities for existing and future students and transportation issues associated with the reconstruction or remodel of a school were addressed in the project specific elements of the school remodel /reconstruction. He explained the district's CFP considers schools in the Edmonds School District and children of school age drawing from the boundaries of the Edmonds School District and the interplay between the two and did not, by direction and intent, consider transportation issues. Mark Zandberg, Planning and Property Management Specialist, Edmonds School District, presented the Edmonds School District's 2004 -2009 CFP which replaced the 2002 -2007 CFP. He provided background information including Edmonds School District being the largest school district in Snohomish County covering 36 square miles with a student population of 20,175 and a total of 35 schools serving the cities of Edmonds, Lynnwood, Brier, Mountlake Terrace, Woodway and areas of unincorporated Snohomish County. He explained the CFP was a planning document required by GMA that examines student generation rates, school capacity on a school -by- school basis, student enrollment and school facility needs. The planning objective of the CFP is to assess existing school facility capacities, forecast future facility needs within 6 and 20 -year planning horizons, and articulate a facility and financing plan to address any identified needs. Edmonds City Council Approved Minutes April 19, 2005 Page 8 Mr. Zandberg reviewed the timeline for development of the CFP including SEPA completion on August 2, 2004; adoption of the CFP by the Edmonds School Board on October 5, 2004, adoption by Snohomish County on September 11, 2004, presentation to the Edmonds Planning Board on March 9 and 23, and presentation to the Edmonds City Council tonight. Mr. Zandberg explained the CFP demonstrates the district did not currently qualify to collect school mitigation fees as the district's facilities needs have been met by voter- approved capital construction funding. However, the Edmonds School District encouraged Edmonds to adopt a school mitigation ordinance in the event mitigation fees were needed in the future. Mr. Zandberg provided a graph of forecast models used by Edmonds School District, the Office of the Superintendent of Public Instruction (OSPI), and Snohomish County. He noted the upward enrollment trend on the graph was from Snohomish County which assumed as population growth occurred, the student percentage of the population (14.6 %) remained static. Edmonds School District's forecast model reflected an overall downward trend in student population to 18,000 in 2009. He displayed tables from the CFP that illustrated projected decline in enrollment in 2004 -2010 for elementary, middle and high school students. He displayed the 2014 -2024 enrollment forecasts using Snohomish County figures that illustrated a slightly upward trend which conflicts with the OSPI and Edmonds School District figures. He displayed a table of student capacity based on 2003 actual capacity that illustrated the district's capacity to accommodate more students increased as enrollment diminished. Mr. Zandberg displayed a table of long range projection of unhoused students for 2014 that illustrated a surplus of space. Councilmember Dawson inquired why consideration was being given to making improvements at Lynnwood High School where the student population was decreasing rather than putting money into a high school where student population was increasing. Mr. Carlstad answered there were no plans to put money into Lynnwood High School other than operations; the district was interested in relocating the high school from its current location near the mall to property owned by the district in the eastern portion of the district. He noted once funds were available to build a new school, the Lynnwood High School property would be available for ground lease. Growth throughout the district was disproportionate; growth was occurring in the north and east portions of the district, primarily unincorporated Snohomish County where larger lots are being redeveloped with higher density. He acknowledged student enrollment was decreasing in the southwest corner of the district. He explained the CFP considered enrollment and facilities because while school sites were fixed and students generated from specific areas, they had the ability to attend any school within the district, likewise students from outside the district could attend Edmonds School District schools. Councilmember Dawson inquired about transportation in the district. Mr. Carlstad answered transportation was offered for some programs, CT was offered for some and for others parents were required to provide transportation. Councilmember Dawson inquired about the projected date for moving Lynnwood High School. Mr. Carlstad answered unless someone provided a great deal of money, voter approved funds would be necessary to provide funding to construct the school and vacate the current site. Council President Pro Tern Wilson inquired about the district's interest in incorporating into the CFP a partnership with the City to build walkways to provide pedestrian access to school sites. Mr. Carlstad answered the district did participate in walkways on a limited basis, for example the district had participated with Edmonds on State grants requests for 2 -3 walkway projects as well as Mountlake Terrace and Brier. He pointed out the district's funds were limited and their charter and mission by state law and direction as a special purpose district was the education of students K -12. He concluded their Edmonds City Council Approved Minutes April 19, 2005 Page 9 ability to do general infrastructure improvements unless a regulatory requirement was limited. He referred to an infamous case where a sewer line extension constructed by the Peninsula School District was ruled a gift of public funds because the sewer line served other properties along the route and it was done not as a regulatory requirement of construction of the facility but to get off a holding tank and pumping system. Council President Pro Tem Wilson commented the district should assume an equal burden for construction of a walkway that served a school. He noted because the district required students within a certain radius to walk to school, it was in the district's best interest to provide a safe walking environment. He recommended incorporating a mechanism for future capital construction bonds into the school district's CFP to provide funds for ancillary improvements necessary to provide safe pedestrian access to the facility. Council President Pro Tem Wilson asked whether the district was asking the Council to take a position with regard to adopting a mitigation fee ordinance. He suggested if the district wanted the City to consider a mitigation fee, the district take a more active role in funding walkways that serve schools. Mr. Carlstad advised consideration would be given in the next CFP to general construction issues such as incorporating walkways. He noted the CFP had no direct discussion or direction asking the City to adopt a school mitigation fee ordinance. He noted school mitigation funds have been used in the past to address school housing needs. Now thanks to voters, the district is no longer in that situation but encouraged cities during this resting time to consider passing a school mitigation fee ordinance. Council President Pro Tem Wilson inquired about the accuracy of enrollment projections in the past. Mr. Zandberg answered the Edmonds School District's forecasts have been very close. Mr. Carlstad noted the district's enrollment projections needed to be as accurate as possible as finances were connected to enrollment. Student Representative Huntzberger reported a high school student was hit in a crosswalk near the high school today. He suggested the district install lighted crosswalks in school areas. He also inquired about the plans for the district property on 156th and 154th. Mr. Carlstad answered the property was programmed for an elementary school in the future, therefore, there were no plans to sell the property. With regard to the student hit in a crosswalk today, his understanding was the sun was in the driver's eyes and he was unable to see the student. He advised the district had installed flight lights (flashing lights in the crosswalk) between Meadowdale Elementary and Meadowdale Middle School. Mayor Pro Tem. Marin opened the public participation portion of the public hearing. Al Rutledge, 7101 Lake Ballinger Way, Edmonds, reported he had attended several School Board meetings over the past year; the school district was worried about enrollment projections. He recalled a projected 4,000 -5,000 decrease in enrollment in the next 3 -4 years. He then advised the school district had ten surplus properties and they planned to sell up to three. He theorized that the district planned to sell the property so that they could retain more teachers to accommodate smaller class sizes. He pointed out there was a 6% increase in property taxes paid to the school district in 2005. He pointed out the average assessed value in Edmonds increased from $278,000 in 2004 to $301,500 in 2005, an 8.9% increase which would result in approximately a $350 increase in property taxes. Hearing no further public comment, Mayor Pro Tem Marin closed the public portion of the hearing. Mr. Carlstad explained by law when the school district sold real estate, the funds must be placed in the capital project fund and could not be used to pay for staff. He agreed the school district worked hard to buffer any cuts and /or budget shortage from the classroom. Their priority is and has been to keep class Edmonds City Council Approved Minutes April 19, 2005 Page 10 sizes small and keep the classroom environment as rich as possible given available resources. He clarified enrollment in the Edmonds School District was trending downward, the graph illustrated three demographic models the district was required to use in their CFP. The projections by the district indicate enrollment is trending downward approximately 1500 students in the planning horizon. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO DIRECT THE CITY ATTORNEY TO DRAFT AN ORDINANCE FOR COUNCIL CONSENT APPROVAL ADOPTING THE ANNUAL UPDATE TO THE EDMONDS SCHOOL DISTRICT NO. 15 CAPITAL FACI.LITIES ELEMENT OF THE COMPREHENSIVE PLAN. MOTION CARRIED UNANIMOUSLY. Closed 7. CLOSED RECORD REVIEW OF AN APPEAL OF THE HEARING EXAMINER DECISION TO Record APPROVE A SETBACK VARIANCE TO REDUCE A REAR SETBACK FROM 25 FEET TO 10 Review - 1142 Siena FEET FOR THE CONSTRUCTION OF A NEW SINGLE FAMILY RESIDENCE (V- 2004 -8). THE Place SITE IS LOCATED AT 1142 SIERRA PLACE AND IS ZONED SINGLE - FAMILY RESIDENTIAL (RS -12). (APPELLANTS: MARK DREYER AND SHELLEY DREYER GREEN / APPLICANTS: DARRYL AND SHARI LEWIS, FILE NO. AP- 05-40) As this was a quasi judicial matter, Mayor Pro Tern Marin inquired whether under the Appearance of Fairness Act any Councilmember had any disclosures or ex parte communication. Councilmember Dawson advised she drives near the subject property daily but did not believe it would impact her ability to consider the matter. She clarified she had not looked at the subject property or spoken to anyone regarding the property. Hearing no objection to Councilmember Dawson's participation, Mayor Pro Tern Marin advised all Councilmembers would participate. Planner Star Campbell explained this was an appeal of an application by Darryl and Shari Lewis for a reasonable use exception and critical area variance that included a setback variance to build a single family residence at 1142 Sierra Place. She explained the site was significantly encumbered by a stream and wetland and associated critical area buffers. The setback variance was to reduce the 25 foot rear setback from the north property line to 10 feet. A public hearing was held on the application on January 20, 2005 and the Hearing Examiner issued a decision to approve the application with conditions. Following the Hearing Examiner's decision two reconsideration requests were received, one from the project applicants Darryl and Shari Lewis and one from Mark Dryer and Shelley Dreyer Green. The Hearing Examiner then issued a revised reconsideration decision that approved the project and changed some of the conditions of approval. Following the Hearing Examiner's reconsideration decision, an appeal was submitted by Mark Dreyer and Shelley Dreyer Green. The main issue raised by the appellants is that granting the variance would potentially allow a maple tree to be damaged, a tree the appellants feel is partially located on their property which is located to the north of the subject property. Conversely, the applicants believe the tree is entirely on their property. Staff finds the issue constitutes a boundary line /property line dispute, a private matter between the property owners. The City is legally obligated to remain uninvolved in private property disputes and must review an application in accordance with the applicable review criteria which has been accomplished as documented by the Hearing Examiner's decisions and conditions of approval. Ms. Campbell concluded the appellants have not raised any issues related to the project's ability to meet the decision criteria but have raised a private property dispute upon which a decision to approve or deny a proposal cannot be based and the City cannot legally become involved. Staff recommended the Council deny the appeal and uphold the Hearing Examiner decision to approve the proposal with conditions. Edmonds City Council Approved Minutes April 19, 2005 Page I1 Councilmember Orvis inquired about changes that were made in the reconsideration decision to the conditions in the Hearing Examiner's original decision. Ms. Campbell referred to conditions contained in the Hearing Examiner's initial decision, pages 62 -63 of the record, which requested the deck, which is the portion of the house primarily within the reduced setback area be constructed, remained uncovered and that the fireplace be eliminated. The reconsideration decision, on pages 75 -76 of the record, withdrew condition #3 regarding the deck remaining uncovered and eliminating the fireplace, and added two new conditions. First, that no part of the deck shall intrude into the 10 foot north setback including but limited to eaves, roof, fireplace and appurtenances, and second, that the north 10 foot setback shall be kept free of construction materials, heavy equipment, and fill and the structure constructed in a manner that minimizes damage to mature trees. Mark Dreyer, 1142 Vista Place, Edmonds, owner of the property immediately adjacent to the property owned by Darryl and Shari Lewis at 1142 Sierra Place, explained they were appealing the decision of the Hearing Examiner dated February 28, 2005 allowing for reduction of the setback of the northern boundary of the Lewis property from 25 feet to 10 feet and the inclusion of a wood - burning fireplace on the structure adjacent to the setback. He disagreed with the Hearing Examiner's findings and the contention of the Hearing Examiner and staff that the issue raised in the appeal constituted a property line dispute which is a private matter between property owners. He acknowledged the City was obligated to remain uninvolved in private property disputes but contended the City's allowance of the variance directly involves it in the expropriation of their own private property and by ignoring the valid concerns regarding the credibility and competence of the applicant's submission, the City necessarily assumed the position of bias toward their rights. Mr. Dreyer asserted that the City was not remaining neutral and uninvolved and was taking a particularly partisan approach while hiding behind a bureaucratic fagade of legality. He asserted that in allowing for this variance the City created conditions that almost certainly ensured that the Lewis residence would encroach into the setback. He noted the Lewis residence, if constructed as indicated by the site plans submitted to the Planning Department, would intrude into the setback. He asserted the City could not willfully ignore the provision of competent and legally binding evidence by interested parties in favor of assertions that would not be founded, as to do so would amount to complicity by the City and the taking of private property. Mr. Dreyer pointed out the City had requested licensed surveys to clarify questions of fact in the past and the City was obligated to protect the applicant's rights as well as the rights of other parties affected by the City's actions. He expressed their continued concern that the reduction of the setback on the Lewis property from 25 feet to 10 feet would endanger a triple trunk maple that straddles the border of the properties. He found the conditions imposed by the Hearing Examiner insufficient to protect the tree from damage or destruction. He pointed out that due to the location of the tree on the borderline of the properties, it was common property. Allowing reduction of the setback to 10 feet with consequent damage to the tree would allow for the destruction of their private property (the maple tree). He referred to the applicant's January 28, 2005 submission that states the tree would be impacted by the construction of their residence regardless of the deck. He pointed out the deck was less than 10 feet from the tree and the residence less than 20 feet from the tree, both within the tree's drip line. Mr. Dreyer pointed out the site plan provided by the applicant was neither stamped nor signed or attested to by a licensed survey nor was it legally recorded in Snohomish County. He concluded this was not even a survey. He explained at their own expense they commissioned Lovell- Sauerland & Associates (LSA) to prepare a registered survey that was recorded in Snohomish County on February 22, 2004. He explained using registered stakes, LSA staked the common boundary and showed that the boundary runs through the tree. He noted the McAndrews Group did not use their own registered stakes and did not stake along Edmonds City Council Approved Minutes April 19, 2005 Page 12 the northern boundary of the Lewis property. He pointed out the site plan provided by the applicant for the variance was inconsistent with the submission for the recently approved partial vacation of Sierra Place. He noted two submissions by the same applicant using the same engineering firm and same surveyor each had different lengths of the northern boundary of the property at 1142 Sierra Place. He noted the surveyor was unable to provide an explanation regarding this inconsistency. Mr. Dreyer summarized they appealed the decision of the Hearing Examiner regarding the proposed reduction of the setback to 10 feet for the northern boundary of the property based on its clear potential to harm their property. He asserted the City had the duty to demand clarification of this issue before this or any further decisions were made by the City regarding the property at 1142 Sierra Place. He pointed out if the City wished to remain entirely uninvolved, any decision on the variance should be suspended until the applicant could provide competent and credible evidence regarding the property. In this manner, the City did not become involved in a boundary dispute but ensured that the rights of all interested parties were recognized. He concluded they were willing to work out a settlement with the Lewises to avoid further delay in their site development, however, they enjoined the City to refrain from this or any other decision until settlement was reached. Councilmember Plunkett asked Mr. Dreyer whether he would be making the appeal if the tree were located entirely on the subject property. Mr. Dreyer answered no. Applicant Darryl Lewis, 1445 NW 1.86th Street, Shoreline, pointed out the history of this property, recalling in late 2004, they requested a street vacation to preserve and accommodate as much of the wetlands and streams on the property. Subsequent to the approval of the street vacation, staff reviewed the application again and determined because 25 feet of the street remained unvacated, a street setback would be required. As a result, the setbacks were reversed from 10 feet to 25 feet for what they believed to be the front to back and 10 feet for the side to side which necessitated applying for the variance. He explained applying for the variance required another application fee, another variance request and another 6 -8 month delay. He noted the review process for siting their residence on this property has taken approximately two years. Mr. Lewis asserted they had done everything within their power to site the residence on this property in a manner that preserved the property as much as possible. He recalled conversations with Mr. Dreyer regarding retaining the maple tree on the border of their property including an arborist report that instructs construction to accommodate preservation of the tree. He noted the arborist's opinion was this could be accomplished via the proposed mitigation. With regard to the survey, Mr. Lewis asserted their survey was licensed and stamped and was a requirement of the street vacation process. He explained it may not have been recorded when Mr. Dreyer conducted his research because the City had not done the final approval of the street vacation which was accomplished 2 -3 weeks ago. He indicated he was unable to speak to the difference in the boundary line; however, construction of the house could preserve the tree to the best of their efforts. He concluded every effort possible was made to position the house appropriately on the property. He noted the site was over an acre and their plans avoid the wetland and stream at a substantial cost to locate the house and driveway in the proposed location. He recalled additional adjustments that occurred during the street vacation process to move the house and further limit the available space due to an easement through the property that provides utilities to properties on 12 . Mr. Lewis encouraged the Council to uphold the Hearing Examiner's decision to allow the process to move forward. He indicated he was happy to work with Mr. Dreyer, and had been unaware of any conflict until the appeal was filed. Edmonds City Council Approved Minutes April 19, 2005 Page 13 Councilmember Plunkett asked if Mr. Lewis believed the tree was solely on his property. Mr. Lewis stated adequate steps had not been taken to determine whether the tree was in fact solely on his property. He assured whether the tree was on their property or not, they planned to take steps to preserve it. Appellant Rebuttal Mr. Dreyer referred to the unstamped, unregistered site plan, the site plan on which the City based its decision. He noted the street vacation was a separate action and the surveyor could not account for the discrepancy between the site plan length of the northern border and the survey provided for the street vacation. Mr. Dreyer alleged it was untrue that there had been no communications with Mr. Lewis; his request for a follow -up discussion to their March 4, 2004 letter was declined. He noted it was also untrue that Mr. Lewis was unaware of any concerns. With regard to whether the tree was on the boundary and Mr. Lewis' ambiguous offer to try to preserve the tree, he pointed out the issue was not only preservation of that tree and other nearby trees but also the location of the boundary line. Mayor Pro Tem Marin provided an opportunity for parties of record to speak; there were no parties of record who wished to speak. Mr. Snyder summarized there were two issues raised by the appellant, 1) damage to the tree and common tree, and 2) the City's action in approving a permit when there is notice of a property line dispute. Taking the appellant's evidence in its best light, that the tree was on the property line, Mr. Snyder explained the issue of common boundary line trees was resolved by a State Supreme Court decision in 1921 which allowed either property owner to cut limbs, tree and roots on their side of the property line. He concluded there was no obligation by either property owner to preserve the tree under common law or Washington law and either property owner was free to destroy their half of the tree as they deemed appropriate. Further, either party could request a court order to remove the tree in its entirety as a public nuisance based on shade and other principles. With regard to how the City responds to property line disputes, Mr. Snyder referred to Halverson v. Bellevue, a 1991 Division 1 Court decision that ruled in the subdivision process when a city is advised of a property line dispute, it must follow the path the appellant suggests — stop development until the property owners resolved the dispute. He noted that decision was limited to subdivision properties because in a subdivision all persons with ownership interest are required to sign the dedication provisions. He pointed out there was no such requirement for ownership approval, providing the legal basis for staff's determination that this was a private property dispute. He noted the approval of the 10 foot setback did not resolve the issue as staff would be required to measure the property line as part of a building pen-nit and if a dispute arises, the process would stop and the property owner required to prove the stake locations were where the survey indicated. He concluded only the Superior Court of Washington could determine where the property line was. Councilmember Orvis observed there were two variances, the critical areas variance and the setback variance. He asked whether the Council must apply the five criteria to each variance. Ms. Campbell answered the variance criteria was applied to the critical area and the setback variance separately. Councilmember Orvis commented the setback variance appeared to be primarily to allow for a deck on the north side of the home. He asked whether there was anything in the record indicating why the deck was necessary. Ms. Campbell explained portions of the residence were within the 25 -foot setback although she acknowledged it was primarily the deck. She read from page 62, item 5C, in the Hearing Examiner's original decision, "The applicant and staff have rightfully pointed out the numerous constraints on this property. However, inclusion of ' the deck on the north side of the proposed house is Edmonds City Council Approved Minutes April 19, 2005 Page 14 not strictly necessary to allow reasonable use of this property, but it also does not impose any substantively greater impact to the site. As long as the deck remains uncovered and no appurtenances extend into the proposed 10 foot setback, then the request would appear to be the minimum necessary." She noted this was from the Hearing Examiner original decision. In the reconsideration request, the Hearing Examiner considered additional documentation from the applicant and appellant that resulted in the Hearing Examiner changing the condition regarding the fireplace and covering the deck. Ms. Campbell referred to the transcript of the Hearing Examiner hearing regarding orientation of the house being longer north to south than east to west in consideration of the placement of the house in relation to the wetland on the west two - thirds of the property. She noted typically with an RS -12 zoned property, there was a 25 -foot street and rear setback and 10 foot side setbacks. She noted the residence was sited as far east on this property due to the wetland and buffer on the west two - thirds. She noted another point raised in the staff report and at the Hearing Examiner hearing was that a 10 -foot setback appeared to be a reasonable distance as it was the depth of a typical side setback in an RS -12 zone and consistent with surrounding properties. She referred to other options for setbacks in the RS -12 zone such as a corner lot where there were two 25 -foot street setbacks and two side setback or a flag or interior lot that has 10 -foot setbacks from all property lines. Councilmember Orvis asked whether all five criteria needed to be met to grant a variance. Mr. Snyder answered yes. Councilmember Orvis observed in his decision, the Hearing Examiner appeared to make a tradeoff between the minimal necessary and substantially greater impact to the site. Mr. Snyder pointed out this was the reasonable use exception, whereby in order to avoid constitutional taking, property owners of a single family property were allowed to build a single family dwelling (the lowest minimum reasonable use). Then the variance criteria would be used to determine what other adjustment would be necessary. He clarified each of the five criteria must be individually satisfied and the Council needed to make findings regarding how that had been accomplished. Councilmember Moore inquired about the change made to the street vacation. Ms. Campbell explained the applicant was initially proposing vacation of the entire undeveloped right -of -way of Sierra Place directly south of the property. Via the process it was determined that only half of the street would be vacated and the applicant made a decision only to pursue vacation of half the street with direction from the Engineering Division. Because a portion of the right -of -way remained, a street setback was still required. Had the entire street been vacated, a street setback would not have been required from the south property line. Councilmember Dawson asked whether the Council was limited to the issues raised on appeal or issues raised before the Hearing Examiner. Mr. Snyder answered the Council was limited to the facts in the record and the issue raised on appeal. Councilmember Dawson noted even if she were to find this was not the minimum necessary for a variance, that issue could not be considered because it was not the subject of the appeal. Councilmember Dawson concluded that although the issue raised by Councilmember Orvis may be valid, it was not raised on appeal and the Council could not consider it. Council President Pro Tem Wilson asked whether the applicant was required to submit a survey with the variance application. Ms. Campbell answered that was not a standard requirement. She advised a survey could be requested at the building permit stage. She noted the record did not contain a survey submitted by the applicant or a stamped survey submitted by the appellant, only a portion of what the appellant indicated was a survey. For Council President Pro Tem Wilson, Mr. Snyder explained consideration should be given to whether the Council was, by allowing destruction of a common tree, allowing a special circumstance /special privilege to the applicant. Because state law allows either property owner to remove /destroy their portion Edmonds City Council Approved Minutes April 19, 2005 Page 15 of a boundary line tree, he suggested it was not a special privilege because both property owners had that right. Therefore approving the variance was not granting a special privilege. Council President Pro Tem Wilson pointed out if the north property were not in dispute and the applicant were requesting a variance for another reason, the applicant would have the right to remove half the tree. Mr. Snyder agreed, noting often one property owner destroys the root system on their side of the property line which kills the tree. Council President Pro Tem Wilson asked whether it would be appropriate to characterize the appellant's appeal as not being detrimental. Mr. Snyder read the definition in chapter 20.85.010, "Not detrimental. That the variance as approved or conditionally approved will not be significantly detrimental to the public health, safety and welfare or injurious to the property or improvements in the vicinity in the same zone." Hearing no further questions for staff, Mayor Pro Tem Marin remanded the matter to the Council. COUNCILMEMBER DAWSON MOVED, SECONDED BY COUNCIL PRESIDENT PRO TEM WILSON, TO DENY THE APPEAL AND UPHOLD THE HEARING EXAMINER'S DECISION TO APPROVE THE PROPOSAL WITH CONDITIONS. Councilmember Dawson explained based on the issues before the Council on appeal, it was appropriate to uphold the Hearing Examiner's decision. She expressed concern with the Hearing Examiner's decision, combining the minimum necessary criteria with the not detrimental criteria and his indication in his findings that the layout was not the minimum necessary. She concluded that although this was a concern, it was not an issue for Council consideration as it had not been raised on appeal. Councilmember Moore indicated her support for the motion, pointing out this was an example of restrictions on the Council's actions in a closed record review. Council President Pro Tem Wilson recommended in the future the Hearing Examiner be encouraged to provide more details regarding how their decisions relate to the criteria. He concurred this was a property line dispute in that both property owners had equal rights to affect the outcome of the tree. He noted there was nothing that prevented either the applicant or the appellant from removing or damaging half the tree. He encouraged staff to work with the Hearing Examiner to strengthen his decisions and the record. Councilmember Olson noted she would support the motion and urged both the applicant and appellant to retain the tree. MOTION CARRIED (6 -1), COUNCILMEMBER ORVIS OPPOSED. Mr. Snyder suggested the Community Services /Development Services Committee discuss the need to provide greater detail in the variance criteria. He referred to "design based variances," noting it was difficult when someone wanted to build a specific design to apply criteria that were developed to provide a cookie - cutter footprint. He anticipated in 15 years someone may want to redesign a house approved via a variance with specific elements, requiring another variance process to make a change. 8. AUDIENCE COMMENTS sea°on I Ray Martin, 18704 941h Avenue W, Edmonds, referred to Mayor Haakenson's article in the Edmonds Article Beacon, questioning whether it promoted harmony and good feeling, whether it would be useful in bringing people together to solve the growing number of problems in the City, whether it indicated to citizens who might consider speaking out they might be demonized if the mayor didn't agree, and whether the mayor focused on the next election major issue — building heights — or attempted to divert Edmonds City Council Approved Minutes April 19, 2005 Page 16 attention away from building heights. Mr. Martin noted Council President Pro Tem Wilson was the only supporter of higher building heights up for reelection; he encouraged anyone who disliked Edmonds small town atmosphere to vote for him. Mr. Martin expressed his support for Councilmember Orvis suggestion at the retreat to place the issue of building heights on the ballot, a suggestion Mayor Pro Tem Marin omitted from his report on the retreat and that was met with silence by Mayor Haakenson, Council President Marin, and Councilmembers Moore, Olson and Wilson. Mr. Martin commented he was stunned by Mayor Haakenson's article; in the future he planned to ask more questions and make fewer statements. He concluded he would not be driven out of the city and hoped others would not be intimidated by Mayor Haakenson's article. Campbell Marie Mason, 8201 Lake Ballinger Way, representing the landlord and tenants of Village Nelson Construction Apartments, submitted a petition from the tenants of the Village Apartments to prevent Campbell Nelson . dealership from installing a 5 - 8 foot bullet -holed fence blocking air and sunlight from the first floor apartment building windows and providing a blind spot for illegal activities. She noted the landlord was not notified of the building constructed next to the building. She explained after nine months of construction noise and numerous work hour violations, she learned the project includes a 5 - 8 foot 50% bullet -holed fence located four feet from tenants' bedroom windows. She explained Campbell Nelson indicated the ADB mandated the fence and according to Development Services Director Duane Bowman, there was nothing that could be done; Campbell Nelson could have constructed the building four feet from the apartment. She noted there have also been lights installed that are bright enough to create daylight at night. Mayor Pro Tem Marin advised staff would research the situation. Campbell Joseph Clark, 8201 Lake Ballinger Way, Village Apartments, explained the lights installed on the ens tr Campbell Nelson roe were very annoying and all the residents of the apartments disliked them. He Construction p property �' � y g p explained the lights cause him to wake often each night, resulting in his being tired and not performing well at school. He recommended the lights be removed or dimmed. Kathy Cobb, 800 Hindley Lane, Edmonds, the only house adjoining a public pathway installed by the Street ere City 8 -10 ears ago that connects Brookmere Street to the west portion of Hindle Lane. She noted until Street Y y g p y Vandalism the path was installed they never experienced any vandalism or crime. In the past six years, they have Issue experienced six incidences of vandalism including a tennis ball full of rocks thrown through a window, eggs thrown at the house, a car prowl and theft of a car phone, theft of a decorative water pump, and damage to a fig tree. The most recent incident was vandalism to a bridge over the creek that will require replacement of the bridge at a cost of approximately $300. She asked what recourse she had. Mayor Pro Tem Marin advised staff would research the situation. Bauer �. Steve Bernheim, 216 4t" Avenue, Edmonds, referred to comments made at the last Council meeting that Edm °nom the City lost the Bauer v. Edmonds case because the development code was ambiguous. As a participant in that case, he wanted to be clear that that was not the reason the case was lost; the judge said the height limit statute was not ambiguous but had been improperly applied by the City planners, ADB and Council. Roger Hertrich, 1.020 Puget Drive, Edmonds, urged the Council to modify the ADB decision with regard to the fence that was impacting the apartment building, noting the ADB likely did not hear any testimony from the apartment residents because it was likely they were not notified. He inquired whether there would be audience participation during the next two Council meetings when workshops were Beacon scheduled. Mayor Pro Tem Marin answered there would not be audience participation during the Article Council's deliberation. Mr. Hertrich referred to Mayor Haakenson's article in the Edmonds Beacon, noting he qualified under Mayor Haakenson's definition as someone who was involved as he had served on the Council. He expressed concern that Mayor Haakenson felt only the Council spend time studying issues, noting many members of the public also spend time studying issues. He explained he provides public comment, at times in an effort to modify the Council's opinion or provide a new idea and other Edmonds City Council Approved Minutes April 19, 2005 Page 17 times to help the TV audience understand what was taking place at Council meetings. He commended Councilmember Orvis for the pointed questions he asked about variances, noting the procedures the Hearing Examiner used were somewhat questionable. He concluded if there were numerous problems with Hearing Examiner decisions, the Council should question the service he was providing. 13anfelas Al Rutledge, 7101 Lake Ballinger Way, Edmonds, commented the condition of youth ballfields in the City was not as good as other fields around the country. He was concerned with the fate of the elementary school if the City did not purchase the property. He cited fees in the area to use fields. He pointed out there were eight new teams this year and there were not enough fields. If the City wanted to keep families, he recommended allocating funds in the budget to upgrade youth facilities. Councilmember Moore asked whether the ADB mandated the fence as part of the Campbell Nelson project. Development Services Director Duane Bowman answered the ADB considered landscaping in that location. During the combined hearing with the Hearing Examiner, an exhibit was submitted at the Hearing Examiner that called for a fence trellis along the east property line. He referred to a past court case that ruled if an appeal was not filed within the time period allocated for the appeal, no further appeals were allowed, concluding there was little that could be done now to compel Campbell Nelson to remove /change the fence. Mr. Bowman said that in response to a call from Ms. Mason last week, he visited the site and spoke with the contractor and Kurt Campbell regarding Ms. Mason's concerns. At that time, the framing for the metal fence had been installed. Mr. Campbell voluntarily agreed to reduce the height of the fence to five feet. Due to a drop between the level of the Campbell Nelson property and the ground level of the apartment building, a five foot fence would be at approximately the level of the top edge of the first floor windows. Councilmember Moore noted the fence has been installed and it is 8 feet tall. Realizing that the City could not compel Campbell Nelson to take any action, she asked whether a chain link fence had been discussed with Campbell Nelson. Mr. Bowman answered no because Campbell Nelson had already purchased the fence material. City Attorney Scott Snyder explained governmental agencies had no ability to reopen a decision outside the appeal period. The only way to seek relief was to ask for assistance and offer to process any change at the city's cost. Councilmember Moore inquired about the notice provided with regard to this action. Mr. Bowman answered it appeared notice was sent to some apartment units but it did not appear the property owner received notice. He noted ownership of the property changed in March and the hearing occurred in early March. Even a problem with the notice procedure did not allow the city to reopen the decision. Councilmember Moore advised the only recourse for the city was to ask Campbell Nelson for a fence that did not block air and light. With regard to lighting, Mr. Bowman advised Mr. Campbell offered to change the concave bulbs to a convex bulb and recess the bulbs to make the light more directional. Mr. Campbell also agreed to consider placing the lights on the east side of the building on a timer or motion detector. 9. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF APRIL 12 2005 Due to the late hour, Mayor Pro Tern Marin deferred this item to next week's meeting. 10. MAYOR'S COMMENTS Mayor Pro Tern Marin welcomed Pauline, the new front desk employee at City Hall. He reported Linda Carl, Mayor Haakenson's Executive Assistant, was recovering and expected back next week. Edmonds City Council Approved Minutes April 19, 2005 Page 18 Mayor Pro Tern Marin advised the Hwy. 99 Taskforce had not met in recent months as they were awaiting the traffic study report. 11. COUNCIL COMMENTS Councilmember Dawson reported she was asked recently to speak on a panel at a Young Democrats Convention regarding involvement of young people in politics. She noted when the panel broke out into smaller groups where she spoke about the differences she perceived in running for office as a young woman versus a young man, only young men attended her subgroup. She found it discouraging that none of the young women attending were interested in being a candidate for office. She encouraged young women in the community to consider running for office. Councilmember Plunkett advised he would be willing to place building height limits on the ballot. With no further business,the Council meeting was adjourned at 10:05 p.m. G ' E SON,MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes April 19,2005 Page 19 41" AGENDA i:�" EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 5th Avenue North 7:00 - 10:00 p.m. APRIL 19, 2005 6:45 p.m. - Executive Session Regarding Labor Negotiations 7:00 p.m. - Call to Order/Flag Salute 1. Approval of Agenda 2. Consent Agenda Items (A) Roll Call (B) Approval of City Council Meeting Minutes of April 5, 2005. (C) Approval of claim checks #78585 through #78751 for the week of April 4, 2005, in the amount of $225,428.41. Approval of claim checks #78760 through #78934 for the week of April 11, 2005, in the amount of $179.944.84. Approval of payroll direct deposits and checks #40440 through #40522 for the period March 16 through March 31, 2005, in the amount of$821,294.18.* *Information regarding claim checks may be viewed electronically at www.ci.edmonds.wa.us (D) Acknowledge receipt of Claim for Damages from Fred J. Wax (amount undetermined), Ken and Donna Hadaller (amount undetermined), and John J. Reed, Jr. (amount undetermined). (E) Declaring six handheld radars surplus. (Approved by the Public Safety Committee on 4/12/05.) (F) Authorization for the Mayor to sign an Interlocal Agreement with the City of Sultan to Install Motorcycle Radio and Lighting Equipment (total cost not-to- exceed $1,500). (G) Authorization for the Mayor to sign Contract with the Edmonds - South Snohomish County Historical Society for the 2005 Markets. (H) Authorization for Mayor to sign Contract with the Edmonds Arts Festival Association for the 2005 Edmonds Arts Festival. Page 1 of 3 CITY COUNCIL MEETING AGENDA APRIL 19, 2005 (I) Report on bids opened on March 22, 2005 for the 2005 Senior Center Elevator Rehabilitation Project, and award of contract to R.C. Zeigler Company, Inc. ($107,555.09) (J) Report on bids opened April 5, 2005 for the purchase of treatment plant chemicals and award to Northstar Chemicals, Inc. for supplying sodium hydroxide and sodium bisulfite. (K) Report on bids opened April 5, 2005 for the purchase of treatment plant chemicals and award to Pioneer Americas, LLC for supplying sodium hypochlorite. (L) Report on bids opened April 13, 2005 for the Influent and Effluent Pump VFD Replacement Project and award to Technical Systems, Inc. for the amount of $192,286.91, including sales tax. (M) Proposed Ordinance amending the provisions of ECC Chapter 2.35.010 Definitions to add a new definition of the word "Day" renumbering the other subparagraphs of said section, amending the provisions of ECC 2.35.030 Vacations to adjust the vacation accrual of Division Managers and clarifying provisions relating to Directors. (Approved by the Finance Committee on 4/12/05.) (N) Proposed Ordinance adopting a Six-Year Capital Improvement Plan for the Years 2005 through 2010. (0) Approval of Labor Agreement between City of Edmonds and Edmonds Police Officers' Association (Commissioned Members). 3. ( 5 Min.) Proclamation in honor of Loyalty Day, May 1, 2005. 4. (30 Min.) Public Hearing to amend Chapter 16.20 of the Edmonds Community Development Code (ECDC) adding a new RS-10 (Single Family Residential - 10,000 sq. ft. minimum lot size) zoning classification and a new RS-MP (Single Family Master Plan) zoning classification. (File No. CDC-05-33). 5. (45 Min.) Public Hearing to consider changes in zoning for the following properties: • An extensive RS-12 zoned area lying generally south of Southwest County Park, east of 94' Ave W, west of 80' Ave W, and extending south to 196th St SW, proposed for a change in zoning to "RS-10." • An RS-12 zoned area lying generally between 8' Ave S and 9e Ave W from Pine St to 22e St SW, proposed for a change in zoning to "RS-10." • An RS-12 zoned area northwest of Sherwood Elementary lying along SR- 104, proposed for a change in zoning from RS-6 and RS-12 to "RS-MP, Single Family Master Plan." (File No. R-05-34) 6. (20 Min.) Public Hearing on Edmonds School District #15 Capital Facilities Plan Update. Page 2 of 3 CITY COUNCIL MEETING AGENDA APRIL 19, 2005 7. (45 Min.) Closed Record Review of an appeal of the Hearing Examiner decision to approve a setback variance to reduce a rear setback from 25 feet to 10 feet for the construction of a new single family residence (V-2004-8). The site is located at 1142 Sierra Place and is zoned Single-Family Residential (RS-12). (Appellants: Mark Dreyer and Shelley Dreyer Green / Applicants: Darryl and Shari Lewis, File No. AP-05-40) 8. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings. 9. (10 Min.) Report on City Council Committee Meetings of April 12, 2005. 10. ( 5 Min.) Mayor's Comments 11. (15 Min.) Council Comments ADJOURN Parking and meeting rooms are accessible for persons with disabilities. Please contact the City Clerk at(425) 771-0245 with 24 hours advance notice for special accommodations. A delayed telecast of the meeting appears on cable television-Government Access Channel 21. Page 3 of 3