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03/13/2001 City CouncilJ 1 -- -w- f 1 - .. - EDMONDS CITY COUNCIL APPROVED MINUTES March 13, 2001 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Gary Haakenson in the Council Chambers, 250 5t' Avenue North, Edmonds, followed by the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Dave Earling, Council President Thomas A. Miller, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Dave Orvis, Councilmember Christopher Davis, Councilmember Richard Marin, Councilmember APPROVAL OF AGENDA STAFF PRESENT Tom Tomberg, Fire Chief Al Compaan, Assistant Police Chief Duane Bowman, Development Serv. Director Stephen Clifton, Community Services Director Peggy Hetzler, Administrative Services Director Lyle Chrisman, Development Services Engineer Don Fiene, Assistant City Engineer Meg Gruwell, Senior Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER DAVIS, FOR APPROVAL OF THE AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Marin requested Item D be removed from the Consent Agenda. COUNCILMEMBER DAVIS MOVED, SECONDED BY COUNCIL PRESIDENT EARLING, FOR APPROVAL OF THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF MARCH 6, 2001 (C) APPROVAL OF CLAIM CHECKS #46870 THROUGH #74024 FOR THE WEEK OF pprove MARCH 5, 2001, IN THE AMOUNT OF $430,080.14. APPROVAL OF PAYROLL laim DIRECT DEPOSITS AND CHECKS #1502 THROUGH #1004 FOR THE PERIOD hecks FEBRUARY 16 THROUGH FEBRUARY 28, 2001, IN THE AMOUNT OF $721,856.01. ITEM D: Authorization for Mavor to Provide a Maintenance Easement to Washington State Department of Transportation (WSDOT) ment Councilmember Marin explained he looked at this electrical box in front of a resident's yard and was oT appalled by the size and the location. In light of future development of SR104, he preferred to leave open the opportunity of moving the box closer to SR104. Edmonds City Council Approved Minutes March 13, 2001 Page 1 COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PETSO, TO APPROVE THE ACCESS IN THE FORM OF A LICENSE WITH A ONE YEAR DURATION TO ALLOW WASHINGTON STATE DEPARTMENT OF TRANSPORTATION ACCESS TO THE BOX. Assistant City Engineer Don Fiene advised the box had been in that location for 30+ years. The area where the box was located was City right-of-way that was deeded to the City by the Washington State Department of Transportation (WSDOT) in 1978. When. WSDOT deeded the property to the City in 1978, they neglected to obtain an easement to maintain the box, and therefore are requesting an easement at this time to allow WSDOT to make modifications within the box for their variable message sign project on SR104. Jeff Lundstrom, Project Engineer, Washington State Department of Transportation, advised WSDOT acquired the property from the property owner when SR104 was widened and improved approximately 30 years ago. That portion of the right-of-way was deeded to the City in 1978. However, WSDOT neglected to request an easement at the time the property was deeded to allow them to maintain the electrical box. The lack of an easement had been undetected since 1978 and was realized in preparation for the upcoming installation of cameras and variable message signs on SR104. City Attorney Scott Snyder asked whether a one-year license to access the box would be adequate for this project. Mr. Lundstrom answered a one-year license would be adequate for this project but WSDOT needed to continue to maintain and access the box in the future. He said one year would not be enough time to :arrange relocation of the box. Mr. Snyder said his understanding of Councilmember Marin's motion was to provide a period of time to discuss potential movement of the box; WSDOT could request an extension of the license if necessary. Council President Earling asked whether the box was on Mr. Locke's property. Mr. Lundstrom answered the box was located on the City's property in front of Mr. Locke's property. Council President Earling asked whether ingress/egress on Mr. Locke's property would be necessary. Mr. Lundstrom answered no. For Council President Earling, Mr. Snyder explained the difference between a license and an easement; a license was a revocable right typically for a period of one year or less and an easement was a permanent transfer of land. For the length of the license, it would provide the same rights to maintain and work in the box as an easement. Council President Earling asked whether there were other WSDOT boxes in the City right-of-way. Mr. Lundstrom answered every signal in the City had a cabinet, but he was unsure whether these were located on City or State property. He said WSDOT's preference was to have the boxes as far from traffic as possible. He reiterated it was due to an oversight that a permanent easement was not obtained at the time the property was deeded to the City. Council President Earling asked Mr. Lundstrom to determine the number of boxes along SR104 that were on City right-of-way or on State property. Although he supported the concept of a one-year license, he did not want to force WSDOT to move electrical boxes located on City property due to the impact it would have on project costs. Councilmember Miller questioned how WSDOT would access the box once the one-year license expired, particularly in an emergency. Mr. Snyder answered in the event emergency repairs were necessary, WSDOT could contact the City Engineer to obtain a right-of-way use agreement for a one-time access. Edmonds City Council Approved Minutes March 13, 2001 Page 2 Councilmember Plunkett said some Councilmembers may be concerned with what will occur over the next year as it was conceivable Pine Street could be closed. If Pine Street were closed, it would no longer be associated with SR104 but a residence on Pine Street would continue to have the box in their yard. He questioned how far up Pine Street the SR104 right-of-way went. He supported the motion as it provided an opportunity for further review of the issue. He suggested Mr. Snyder draft a license for Council consideration. Mr. Snyder said only very minor revisions were required to the agreement; an alternative would be for the Council to approve the agreement for the Mayor's signature in the form of a one-year license. Council President Earling clarified although it may appear the box is in a resident's front yard, it is actually on City right-of-way in front of the resident's yard. Mr. Snyder reviewed the changes that would be required (replacing the five occurrences of "easement" with "license" and adding a termination clause that states, "This license shall expire on its terms on April 1, 2002."). Mayor Haakenson restated the motion as follows: AUTHORIZE THE MAYOR TO PROVIDE A MAINTENANCE LICENSE TO WASHINGTON STATE DEPARTMENT OF TRANSPORTATION (WSDOT) THAT WOULD EXPIRE ON APRIL 1, 2002, WITH THE WORD EASEMENT CHANGED TO LICENSE THROUGHOUT THE DOCUMENT. MOTION CARRIED UNANIMOUSLY. Ielands ivision 3. CLOSED RECORD MEETING — APPEAL OF THE HEARING EXAMINER'S DECISION aview APPROVING AN APPLICATION FOR A FOUR -LOT SHORT SUBDIVISION CALLED SEAVIEW HIGHLANDS. THE PROPERTY IS LOCATED AT 18111 — 84TH AVENUE WEST AND IS ZONED SINGLE-FAMILY RESIDENTIAL (RS-12). (Applicant: Orlo Fuller / Appellant: Dennis and Carla O'Leary. File No. 5-2000-50 / AP-2001-17) Council President Earling recused himself due to a conflict of interest because the applicant, Orlo Fuller, was an agent in his real estate office. Council President Earling left the Council dais. Councilmember Orvis recused himself, explaining the attorney for the applicant, Randy Boyer, was the attorney for his condominium association and he and Mr. Boyer were about to commence some business. City Attorney Scott Snyder agreed the potential business relationship between Councilmember Orvis and Mr. Boyer would violate the Appearance of Fairness Doctrine and recommended he step down. Councilmember Orvis left the Council dais. Councilmember Plunkett disclosed one of the parties of record, Rob Michel, called his office on March 6, the day this item was originally scheduled on the Council agenda to inquire whether the item would be discussed that evening. Councilmember Plunkett advised him it likely would not because a notice requirement had not been fulfilled. Mayor Haakenson asked whether there were any objections to Councilmember Plunkett's participation. There were no objections voiced by the audience members. Edmonds City Council Approved Minutes March 13, 2001 Page 3 Mayor Haakenson advised the Council received a letter from the appellant, Dennis and Carla O'Leary, and a letter from Randy M. Boyer, the attorney representing the applicant, .Orlo Fuller. Mayor Haakenson advised Mr. Snyder determined the letters could be provided to the Council. Mayor Haakenson described the guidelines for the hearing; staff would be allowed ten minutes for their presentation, the applicant would be allowed a ten minute presentation and could retain time for rebuttal, the appellant would be allowed a ten minute presentation, followed by comments from parties of record, rebuttal from the applicant and staff response to Council questions. Mayor Haakenson indicated the parties of record were Orlo Fuller, John Mellor, Steven Kastner, Michelle Luccio, Dennis and Carla O'Leary, Rob Michel, Samuel Jacobs, and David and Joan Forbush. Mayor Haakenson explained no new information could be submitted into the record as this was a closed record hearing. Senior Planner Meg Gruwell explained the proposal was to divide an existing lot into a 4-lot subdivision, creating three additional lots. The lots met the required lot size and lot width. The process to -date includes submittal of a short subdivision application and the City's issuance of a Determination of Non - Significance that was appealed. The SEPA appeal and the short subdivision decision were consolidated with the Hearing Examiner holding the only open record public hearing on the application. The Hearing Examiner's February 2, 2001 decision was to deny the SEPA appeal and approve the short subdivision with conditions. Ms. Gruwell noted there was no provision for a SEPA appeal to the City Council and was not part of tonight's discussion. The Hearing Examiner's decision regarding the short subdivision was appealed (Exhibit 2) based on street standards and how street improvements are required. Ms. Gruwell commented that although the letters provided to the Council tonight raised some additional issues that were addressed during the Hearing Examiner's hearing, the appeal was limited to the four items listed in Exhibit 2 and she recommended the discussion focus on those issues.: Ms. Gruwell reviewed the options available to the Council: 1) modify the action of the Hearing Examiner, 2) reverse the action of the Hearing Examiner, or 3) remand the matter back to the Hearing Examiner. However, she pointed out due to the required 120 day review, remanding the matter back to the Hearing Examiner was not an option as the time limit expired next week. Staff recommended the Council deny the appeal and affirm the Hearing Examiner's decision. Development Services Engineer Lyle Chrisman referenced Item #1 of the appeal (the right-of-way and paving requirements will apply to any property upon subdivision), pointing out the City has consistently required developers of a short plat to do improvements across their frontage as well as place specific requirements on the short plat. In this instance, the City has required widening of the street to 22 feet across the property as well as a portion of 84'h Avenue West where a rockery will be replaced. The developer will not be required to construct any improvements the length of the street. Regarding Item #2 of the appeal (past practice and interpretation of the code), Mr. Chrisman said staff attempts to be as consistent as possible in requiring developers to do certain improvements based on the City's codes. One of the items mentioned in the appeal was a cul-de-sac; Mr. Chrisman explained there was not sufficient right-of-way to incorporate a cul-de-sac and the City's official street map did not indicate a cul-de-sac in this area. Regarding Item #3 of the appeal, Mr. Chrisman said staff did not feel there was sufficient impact by to the number of lots being created to require improvements in addition to those already identified. In response to Item #4 of the appeal, Mr. Chrisman said staff was unaware of any safety issues prior to the application. As a result of previous court cases, Mr. Chrisman explained a developer could not be required to construct improvements beyond their property line. Edmonds City Council Approved Minutes March 13, 2001 Page 4 Applicant Randy Boyer, attorney representing the applicant, OrIO Fuller, reserved five minutes for rebuttal. Mr. Boyer explained Mr. Fuller complied with the City's requirement for a short plat. He said the only issue on appeal was whether the entire length of the street leading to the plat should be improved. He observed the objection appeared to be that in the past, the City seemed to be requiring developers to improve streets outside their development as a condition of plat approval. The Hearing Examiner found the improvements were proportional to the increase in usage caused by the plat. Mr. Boyer said the appellant's counsel before the Hearing Examiner stated approval of the plat resulted in a 50% increase in the road usage. Mr. Boyer said the approval actually adds only three parcels as one parcel already has access. Dividing the three parcels by the total number of parcels (11) results in a 27% increase, not 50% as alleged by the appellant's counsel. Mr. Boyer said the applicant, Mr. Fuller, was already required to make extensive improvements to the street, even beyond their property including widen the street to 22 feet and improving the rockery by installing a retaining wall. If there was any conflict with the City Code, Mr. Boyer explained it was answered by court cases as indicated by the City Attorney's memorandum to the Hearing Examiner explaining the consequences of these court cases that the City Code requirements cannot require one development to pay for improvements beyond the burden it places on the City. In this instance, the appellant asks that all owners on 84th Avenue West benefit by bringing the street up to the City's standards. As the City Engineer stated, Mr. Boyer noted there were no complaints prior to this appeal but now there is a horrendous traffic problem. Mr. Boyer pointed out if a horrendous traffic problem existed, it was a public problem and the applicant should not be required to pay for the repairs. He commented they did not believe a significant problem existed based on the evidence submitted. Further, the Hearing Examiner did not find concrete evidence of a problem or an impact and no studies or other information was provided as supporting evidence, only emotional testimony of the dangers of children walking on the street. He said before a municipality could impose conditions upon a developer, they must show concrete evidence it was justified. Mr. Boyer requested the Hearing Examiner's decision be affirmed. Appellant Dennis O'Leary, 84th Avenue W, contended the Hearing Examiner should have entered a decision to deny the short plat or condition the approval of the project on complying with Edmonds City Code requirements in regard to subdivisions and street standards. Their belief was based on the fact that 84th Avenue West was, as staff stated, a narrow, steep winding road that did not comply with City Code requirements in at least these respects: (1) The street currently has approximately 16 feet of paving width rather than the 22 feet required by ECDC 18.80.010. The 22-foot width requirement was mandated in cases where there were between 10 and 15 units gaining access from a street. 84th Avenue West currently offered access to 7 units and the proposed development would increase the number of units gaining access to 11 units. (2) 84th Avenue West lacks a sidewalk as required by ECDC 18.90.030 for a street in excess of 300 feet. (3) 84th Avenue West did not have a cul-de-sac at its terminus as required by ECDC 18.80.010. (4) Parts of the road exceed the maximum grade of 12% permitted by ECDC 18.80.070. Mr. O'Leary stated the Hearing Examiner failed to deny the project or condition the project's approval on complying with the City Code requirements because he has incorrectly interpreted the Code when he stated that section 18.80.010 only applied to "streets that are constructed within new developments to serve the new developments." Mr. O'Leary said this interpretation was incorrect since there was nothing Edmonds City Council Approved Minutes March 13, 2001 Page 5 in the City Code that stated the above referenced standards were to be applied only for streets within new developments and Section 18.80.010 of the City Code in regard to street standards specifically states "The right-of-way and paving requirements will apply to any property upon subdivision." If the Hearing Examiner had not interpreted the Code incorrectly, he would have found in their favor and denied the short plat or conditioned the approval of the project on complying with the Code requirements in regard to subdivisions and street standards. The Hearing Examiner failed to explain if his interpretation of the Code was correct, how city staff would be allowed to require any street improvements to any subdivision that did not propose a new street within a new development. Mr. O'Leary questioned why the Hearing Examiner allowed city staff to require any street improvement for this subdivision or any other past or future proposed subdivision if it was not constructing a new street within a new development. He said this would set a dangerous precedent for the City since future developers may attempt to use the Hearing Examiner's incorrect application of the Code in a an effort to circumvent performing any street improvements on subdivisions that did not require a new street within a new development. The Hearing Examiner's decision and city staffs recommendations were in contrast to the past practice of the City's Planning Department. Over the past few years, city staff told numerous residents including himself, that any attempts to develop the property would require full street improvements. According to Development Services Director Duane Bowman stated in a letter dated December 29, 2000 (Exhibit 4, attachment 1), "previous staff interpretation of the Code would require full street improvements to 84th Avenue West." Mr. Bowman went on to state "in reviewing the actual Code requirements, staff could not justify such requirements." However, Mr. Bowman failed to cite any specific provision in the Code that would contradict staff s previous interpretation or when the City Code had been changed to justify staffs interpretation. Mr. O'Leary said Mr. Bowman was unable to explain staffs new interpretation of the Code because the Code had not been recently, fundamentally changed by the City Council in regard to street standards as they relate to subdivisions. He said to at least give the appearance of fairness to residents who have previously inquired about this property, the Code should be consistently applied to this case. Staff and the Hearing Examiner suggest they cannot impose the Code required street improvements on this subdivision because in their opinion it failed the rough proportionality test relative to the impact of the subdivision and the conditions imposed. Mr. O'Leary pointed out this 4-lot short plat provided an increase in the number of units gaining access from 84th Avenue West from 7 to 11.. Further, it was only with the addition of the proposed 4 lots that 84th Avenue west shifted from 5-9 unit section of the table in Section 18.80.010 regarding street standards to 10-15 units. The increase from 7 to 11 units gaining access from 84th Avenue West and the corresponding move to the 10-15 units. section of the table triggered the shift to the street standards previously discussed including a 22 foot right-of-way width, curbs, gutters, sidewalks, and a cul-de-sac at its terminus. He commented the distinction in the City Code between the number of units gaining access to a street was due to safety issues that arise from increased units. If the proposed subdivision was the solitary reason causing an increase in the number of units was sufficient to place the street in a new standard according to the City Code, this subdivision clearly met any test of rough proportionality. Mr. O'Leary pointed out written and oral testimony provided at the hearing documenting significant safety concerns with regard to 84th Avenue West was given very little mention by the Hearing Examiner or city staff. He disagreed with the Hearing Examiner's statement that no substantive information was submitted to show how the impact of this development would significantly impact the safety of pedestrians. Edmonds City Council Approved Minutes March 13, 2001 Page 6 Mr. O'Leary pointed out the addition of traffic from 4 new houses on 84th Avenue West constituted a 37.5% increase in traffic on this substandard. and unsafe road. City staff acknowledged the safety problem in their report to the Hearing Examiner as shown by paragraph C.6.c on page 6 of the staff report, which stated in part, "hazards to children would come ... from walking alongside the road. A pedestrian trail near but not directly on the road would be the safest for pedestrians but no pedestrian trails are being proposed or required." Paragraph C.7.g on page 6 of the staff report reads in part "increased hazards to pedestrians due to the increase in traffic and the narrowness of the road will increase with additional houses..." Mr. O'Leary pointed out further safety concerns that were not addressed by city staff including 1) school children walking along 84th Avenue West to get to the school bus stop on 184th Avenue SW, 2) mailboxes for 84th Avenue West are on 184th Avenue SW because the Post Office believes the roadway is too dangerous for its trucks, 3) lack of shoulder and a 10-15 foot drop-off and lack of painted street lines that would not be corrected with the recommended improvements. He pointed out paragraph C.6.c of the staff report acknowledged that more houses would increase the danger of the narrow winding road due to the lack of sight distance but he felt staff incorrectly theorized that because the road was narrow and winding, cars would not speed. Mr. O'Leary said under state subdivision law, particularly RCW 58.17.110 and 58.17.060, a short plat may only be granted if adequate provision is made for public health, safety and general welfare and roads. In this case, the inadequacy of right-of-way width, the steepness of the grade in places and the lack of a cul-de-sac demonstrate that the proposed short plat failed these standards. Further, both of these sections also give particular and special deference and attention to safety walking conditions for schoolchildren. The documented pedestrian safety problems demonstrates that the proposed short plat failed to meet the scrutiny required for pedestrian access for schools children. Mr. O'Leary pointed out the narrative to the City Council stated that the site could be accessed from Olympic View Drive on a narrow, winding private road but because of safety issues, the engineering division was requiring all lots to gain access from 84th Avenue West. He questioned the difference between the narrow, winding private road and 84th Avenue West which staff refers to as a narrow, winding and steep road. He asked why the safety of residents on the private road more important than the safety of the residents of 84th Avenue West. He questioned why the engineering department did not allow two of the houses to be accessed from Olympic View Drive (a city street that met all City Code standards) and two from 84th Avenue West which would reduce the number of units gaining access from 84th Avenue West to 9 rather than 11 and would have resulted in a move from the 5-9 units table in the Code and not require the improvements he cited. Mr. O'Leary summarized the City Council via its Code, established clear, specific and mandatory right- of-way improvement standards. According to the Development Services Director, the Code has been uniformly interpreted and administered in the past to require full right-of-way improvement including 22- foot street width, curb, gutter, sidewalk, cul-de-sac at the end of the road and a reduction to the slope of the road. He said although it may not be their intent, the Hearing Examiner and staff were attempting to de facto change the Code or fundamentally alter how it was administered in this case which he said was not the place. of either the Hearing Examiner or staff. The City Council was the only entity authorized to make alterations to the Code via proper channels. Parties of Record Rob Michel, 7907 212th Avenue West, Edmonds, said there had been inconsistencies in how the city applied the street standards to different developments. He questioned the purpose of requiring the road Edmonds City Council Approved Minutes March 13, 2001 Page 7 be widened the width of the property and construction of a sidewalk if the improvement was not required the entire length of the street. He said a cul-de-sac could be constructed within a 60-foot right-of-way; there were other examples of this throughout the City. He pointed out the applicant and the Hearing Examiner cited the lack of complaints regarding the safety of the road, commenting a lack of complaints did not mean a safety issue did not exist. He recalled testimony at the Hearing Examiner hearing regarding safety concerns, pointing out they were not directed by staff to have a traffic safety study prepared for the hearing. At Mayor Haakenson's request, Mr. Snyder described provisions of Regulatory Reform that limited land use petitions to one hearing. In this instance, the open record hearing was held before the Hearing Examiner, therefore, the Council was limited to the testimony of that proceeding and comments from the parties who participated. Applicant Rebuttal Mr. Boyle said other than complaints to the Hearing Examiner, the facts did not support that 84`h Avenue West was a narrow, winding steep road. He said the 16-foot width adjacent to the property would be improved to a 22-foot width; the remainder of the road, as shown in Exhibit 75, was 20-30 feet. Further the road was a fairly straight road and the sight distance issue would be addressed by moving the wall and widening the roadway. Although the road would not be brought up to the standards of a new roadway, he said it was not fair to require the applicant to improve the entire street. He said what residents had been told in the past should not affect this project as the Hearing, Examiner determined what the requirements would be. In response to issues raised, Mr. Snyder explained the Council was limited in making their decision to the record compiled by the Hearing Examiner, which was brief and spare. He pointed out this was an apples/oranges situation, the application of the subdivision provisions was relevant to the Council's approval of the subdivision; the street standard provision that has been quoted addressed what occurred upon subdivision and clearly referred to the subdivision of land process. The "orange" was the extent to which the Council could apply SEPA by determining the subdivision created an impact that was not addressed and require improvement via the mitigation process. He referred to the Sparks court case that was cited in the materials, which applied the nexus test, and found a subdivision could be required to make improvements off site. He cautioned that situation required a subdivider to make improvements based on the impacts of the subdivision. In this instance, one of the problems is the testimony regarding safety refers to an existing safety situation, not one created by the subdivision. He referred to Mr. Kastner's testimony on page 13, Mr. O'Leary's testimony on page 15, Mr. Michel's testimony on page 17, and tonight's testimony regarding the Post Office. Mr. Snyder said the Council's challenge in upholding the appeal was to identify a basis in the record that detailed the impacts the subdivider created that were not being mitigated and in addition to finding it was not proportional. He commented 841h Avenue West was a city street and obligation and the city cannot be required to improve its roads. A developer may be required to make a contribution to impacts from the development to the extent it was in proportion to those impacts but the responsibility to widen the road was ultimately the city's to be determined by the Council when it was appropriate. He noted other funding options include placing the project on the City's CIP or initiating an LID to have all residents participate in improving the road. Councilmember Petso observed the Code stated the standards for "all" street construction shall be as shown in the table, recalling "all" and "shall" were commanding legal terms. She pointed out the Hearing Examiner decided to disregard that and presume the legislative intent of the Council was that did not apply. She pointed out there was no evidence in the record for the Hearing Examiner to determine Edmonds City Council Approved Minutes March 13, 2001 Page 8 the legislative intent of the Council other than it had always been applied. She questioned how to interpret the Code that stated it would be required when proportionality and nexus must also be considered. Mr. Snyder said the section referred to a standard for street construction but raised the issue of when the streets must be constructed, returning consideration to SEPA and mitigation requirements. If a developer created impacts off -site (i.e. the Sparks case), the Council could, upon finding the impacts from the development were not adequately mitigated, require the developer to make those improvements. He said the street standards table addressed the width a street must be developed upon construction. He pointed out during subdivision, it was common for a developer to construct half the road. He said the Council frequently requires a contribution to a sidewalk fund, if it is determined there are sufficient impacts. Those funds can be held for up to six years and used in conjunction with other funds for sidewalk improvements. He emphasized there was nothing in the street standards table that triggered the construction; the triggering mechanism was in the subdivision ordinance or the SEPA ordinance. Councilmember Miller observed the traffic safety testimony referred to the road as windy and steep and that people drive like banshees. He asked whether any consideration had been given to the developer constructing a speed hump in the 22-foot area he was developing. Mr. Chrisman answered staff did not consider speed humps, commenting one speed hump did not work; a series of speed humps was necessary to slow traffic. Councilmember Miller asked if there were other traffic mitigation methods that could be included in the roadway. Mr. Chrisman answered no, a traffic slowing device could create more of a bottleneck in this area, requiring more improvements to ensure the roadway was wide enough for emergency vehicles, etc. He commented the road was not very windy, other than where the rockery was; once that sight distance was addressed, many of the sight distance problems would dissipate. Councilmember Plunkett asked Mr. Chrisman to address the comment that a cul-de-sac could be constructed in this area and that there were others in the city. Mr. Chrisman was uncertain which streets Mr. Michel was referring to and whether they met the Fire Department's requirements for turnaround. He said in plats where cul-de-sacs were required, the minimum radius was 27 feet to the curb and 10 feet to the right-of-way, which would require more than 60 feet. Councilmember Plunkett clarified although there were cul-de-sacs in the City that were not constructed to Code, the required minimum radius was not available on this roadway. Mr. Chrisman agreed. Councilmember Plunkett referred to paragraph 2.3.2 on page 107 of the Council packet, the appellant's attorney's brief, and questioned whether the attorney was suggesting, in opposition to Sparks, a Substantive Due Process test of the Constitution and that the City Attorney's analysis was not on point. Mr. Snyder responded in theory the appellant's attorney was correct; the City could adopt Substantive Due Process regulations. The difficulty with that was the City had not done it, and if the City did so, it would need to be done pursuant to Chapter 82.02.020 of the statute which states, "except as provided in 82.02.050, no city or other municipal corporation shall impose any tax, fee, charge, either direct or indirect on the construction or reconstruction ... or on the development, subdivision, classification or reclassification of land." Chapter 82.02.050 identifies how cities adopt impact fees pursuant to local ordinance. He said this was not addressed in the City Attorney's brief because the City had not adopted that type of regulatory provision and continued to use SEPA and mitigation requirements. He reiterated the lack of evidence in the record that this development caused this problem. For Councilmember Plunkett, Mr. Snyder said the Sparks case was what the Council would need to cite in order to impose off -site mitigation but the problem was that the record referred to an existing problem, not a problem caused by this development. Mayor Haakenson remanded the matter to Council for action. Edmonds City Council Approved Minutes March 13, 2001 Page 9 Councilmember Petso said her opinion was there was a clear error in the Hearing Examiner's decision, specifically Conclusion #1, "the Hearing Examiner believes the City Council meant for the section to apply to streets that were to be constructed within new developments to serve the new developments, not to existing streets that already serve a number of homes." She said this was an erroneous finding as there was no evidence in the record that the Council intended this to apply only to new development. She said evidence in the record showed staff had, for many years, considered this applied to subdivision as well as other circumstances. Although she preferred to remand this to the Hearing Examiner, that option was not available to the Council. As there was an error in the interpretation that street standards applied only to new development and therefore the street standards should apply to this development, she supported requiring 84th Avenue West meet the street standards as a condition of this development. However, if that were required, she noted the City would likely be sued. Councilmember Miller said regardless of whether the Hearing Examiner was in error with respect to the interpretation of the Council's intent regarding street improvements, he said his understanding of Sparks was the mitigation proposed by Mr. O'Leary was in excess of the impacts created by the development. He noted the frontage of the development had undergone significant change, dedication of roadway and improving the roadway to 22 feet. The Hearing Examiner pointed out there was room for further development on that road and his intent appeared to be when that development occurred, they would be required to make Code improvements that linked to this improvement, eventually connecting sidewalks and 22-foot wide street sections. He said the areas where gaps existed were the responsibility of the City to make connections via future capital improvements. COUNCILMEMBER MILLER MOVED, SECONDED BY COUNCILMEMBER MARIN, TO UPHOLD THE HEARING EXAMINER'S DENIAL OF THE APPEAL AND APPROVE THE PLAN AS PROPOSED. Councilmember Marin said property owners had the inherent right to use their property and to develop it. He pointed out GMA will force the City to develop lots that were previously not developed including demolishing buildings and constructing multifamily projects in order to achieve the goals of GMA. His observation has been that easy lots are developed first and the more difficult lots remained. When the more difficult lots are developed, there were significant issues. He said it was not fair to require a developer who was developing later to bear the cost of improving the entire street. If residents were concerned with the safety of the streets and lack of sidewalks, perhaps an LID would be appropriate. He supported denying the appeal. Councilmember Petso objected to the easy versus difficult to develop parcel as a basis for a decision. She said if the City needed to change its Codes to make it possible to develop difficult properties, that needed to be done via amendments to the ordinance, not randomly changing staff s interpretation of the City's ordinances. She urged the Council to evaluate the City's ordinances rather than addressing development of difficult lots via individual appeals. MOTION CARRIED (4-1), COUNCILMEMBER PETSO OPPOSED. (Council President Earling and Councilmember Orvis did not participate in the vote.) With no further business, the Council meeting was adjourned to committee meetings at 8:12 p.m. ARY AKENSON, MAYOR ii/JT/uPV Vi/ -/ 4 la SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes March 13, 2001 Page 10 1 AGENDA EDMONDS CITY -COUNCIL Council Chambers, Public Safety Complex 250 5th Avenue North 7:00 -10:00 a.m. MARCH 13, 2001 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 MARCH 6, 2001 (C) APPROVAL OF CLAIM CHECKS #46870 THROUGH #47024 FOR THE WEEK OF MARCH 5, 2001, IN THE AMOUNT OF $430,080.14. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #1502 THROUGH #1004 FOR THE PERIOD FEBRUARY 16 THROUGH FEBRUARY 28, 2001, IN THE AMOUNT OF $721,856.01. (D) AUTHORIZATION FOR MAYOR TO PROVIDE A MAINTENANCE EASEMENT TO WASHINGTON STATE DEPARTMENT OF TRANSPORTATION (WSDOT) 3. (45 Min.) CLOSED RECORD MEETING — APPEAL OF THE HEARING EXAMINER'S DECISION APPROVING AN APPLICATION FOR A FOUR -LOT SHORT SUBDIVISION CALLED SEAVIEW HIGHLANDS. THE PROPERTY IS LOCATED AT 18111 — 84TH AVENUE WEST AND IS ZONED SINGLE-FAMILY RESIDENTIAL (RS-12). (Applicant: Orlo Fuller / Appellant: Dennis and Carla O'Leary. File No. S- 2000-50 / AP-2001-17) ADJOURN TO COMMITTEE MEETINGS The City Council Committee meetings are work sessions for the City Council and staff only. The meetings are open to the public but are not public hearings. The City Council will meet separately as committees in different meeting rooms as indicated below. 4. COMMUNITY SERVICES/DEVELOPMENT SERVICES COMMITTEE (Council Chambers) (A) REVIEW OF SIDEWALK LANDSCAPING FOR CHAMBRE CONDOMINIUM (555 WALNUT) (B) DISCUSSION ON TRAFFIC CALMING APPROACHES (C) DISCUSSION OF ENGINEERING INSPECTION AND REVIEW FEE, AND DEVELOPMENT PROJECT PEER REVIEW FEE 5. PUBLIC SAFETY COMMITTEE (Police Training Room) (A) DISCUSSION OF ADDENDUM TO BLUMENTHAL'S UNIFORM CONTRACT (B) DISCUSSION OF SNOHOMISH COUNTY INTERLOCAL LAW ENFORCEMENT MUTUAL AID AGREEMENT (C) DISCUSSION OF DWI VEHICLE IMPOUND PROPOSAL 6. FINANCE COMMITTEE (Jury Room) (A) CONTINUING DISCUSSION ON ELECTRICAL UTILITY TAXES Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771-0245 with 24 hours advance notice for special accommodations. The Council Agenda appears on AT&T Cable, Channel 21.