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2016-11-02 Architectural Design Board MinutesCITY OF EDMONDS ARCHITECTURAL DESIGN BOARD Minutes of Special Meeting November 2, 2016 Vice Chair Guenther called the meeting of the Architectural Design Board to order at 7:30 p.m., at the City Council Chambers, 250 - 5t' Avenue North, Edmonds, Washington. Board Members Present Cary Guenther, Chair Tom Walker, Vice Chair Brian Borofka Lois Broadway Joe Herr (arrived at 7:35 p.m.) Lauri Strauss Athene Tarrant APPROVAL OF MINUTES Board Members Absent Staff Present Brad Shipley, Planner Mike Clugston, Senior Planner BOARD MEMBER BOROFKA MOVED THAT THE MINUTES OF SEPTEMBER 7, 2016 BE APPROVED AS SUBMITTED. BOARD MEMBER STRAUSS SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. APPROVAL OF AGENDA BOARD MEMBER TARRANT MOVED THAT THE AGENDA BE ACCEPTED AS PRESENTED. VICE CHAIR WALKER SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. AUDIENCE COMMENTS No one in the audience indicated a desire to address the Board during this portion of the meeting. MINOR PROJECTS Review of Additional Shmne for Panda Express Located at 21940 Highway 99 Mr. Shipley provided the Staff Report, explaining that the subtenant, Panda Express, is located in the westernmost retail space in the new building at 21900 Highway 99. Two code -compliant wall signs were recently approved for the space on the north and south facades, but the tenant is asking for an additional sign on the west fagade. The applicant is seeking relief from the City's sign standards for the subtenant. Specifically, the applicant is requesting an additional wall sign on a non -qualifying building fagade and additional sign area for the requested wall sign. Mr. Shipley explained that staff cannot approve such requests and review by the Architectural Design Board (ADB) is required for an application that requests a modification to any of the sign standards. The Board reviews the project and makes the final decision on whether or not the proposal is consistent with the design review and decision criteria found Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 1 of 10 in Edmonds Community Development Code (ECDC) 20.60 (Sign Code), ECDC 20.10 and 20.12 (Design Review and District -Based Design Review), the Zoning Ordinance (ECDC 16.60) and the Comprehensive Plan. According to ECDC 20.60.025.A.2, wall signage is only allowed on building facades facing a public street and/or along a side of the building containing the primary public entrance. In this case, that is the north and south facades. The request is to have an additional sign on the west facade of the building near the entrance from 220"' Street Southwest. Again, he said Panda Express already has two qualifying signs, one at the main entrance and another at the street front. Both of the existing signs have maximized the total amount of sign area allowed. The additional sign on the western facade would exceed the sign area that is regularly allowed based on the width of the tenant space. Mr. Shipley advised that sign permits are usually reviewed by staff for compliance with ECDC 20.60.015.A. However, in instances where an applicant requests a modification to the sign code, the ADB must review and approve, conditional approve, or deny the permit. As per ECDC 20.60.015.B, the ADB shall only approve modification requests that arise from one of the following two conditions: The request is for signage on a site that has a unique configuration, such as frontage on more than two streets, or has an unusual geometric shape or topography. The request for signage on a building that has unique architectural elements or features or details that substantially restrict the placement or size of signage relative to other buildings in the vicinity. Mr. Shipley reviewed that the ADB may approve the requested modification only if it meets the following criteria: The design of the proposed signage must be compatible in its use of materials, colors, design and proportions with development throughout the site and with similar signage in the vicinity. In no event shall the modification result in signage which excess the maximum normally allowed by more than 50 percent. Mr. Shipley advised that the applicant is requesting to install a wall sign on the western facade that would not otherwise be allowed. Given that the site does not have a unique configuration, frontage on more than two streets, or an unusual geometric shape or topography, staff believes a modification seems unwarranted. Specifically, he described how the application fails to meet the ADB's required decision criteria: • The request is for signage on a site that has a unique configuration, such as frontage on more than two streets, or has an unusual geometric shape or topography. The site does not front on two streets or have an unusual geometric shape. It fronts directly on 22e Street Southwest and is rectangular in shape. • The request for signage on a building that has unique architectural elements or features or details that substantially restrict the placement or size of signage relative to other buildings in the vicinity. The building where Panda Express is located is new and does not have architectural elements that restrict the placement or size of signage relative to other buildings in the vicinity. Two code -compliant wall signs were recently approved by the tenant. Mr. Shipley reviewed that Panda Express is already approved for two wall signs on the north and south facades, totaling 72 square feet, which is nearly all of the sign area allowed for the space (73.5 square feet). The additional sign area requested is 36 square feet for the proposed sign on the west facade. Staff believes the request for additional sign area is unwarranted given that the desired signage on the west facade does not meet the criteria for modification. In addition to the two wall signs already approved, there is an opportunity for additional signage on a freestanding sign adjacent to Highway 99. Based on the Findings of Fact, Analysis and Attachments in the Staff Report, staff recommends that the ADB deny the subject requests because they are not consistent with the design review criteria found in the Zoning Ordinance and the Arehitectutal Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 2 of 10 Comprehensive Plan. He concluded that he does not see the building as unique. It's rectangular in shape, and the applicant already has two qualifying signs that maximize the sign area allowed. Mr. Shipley provided an aerial photograph to illustrate the location of the subject property. He noted that there would be qualifying wall signs on the main entrance that faces the parking lot and on the facade that faces 220t' Street Southwest. The applicant is requesting a third sign on a non -qualifying frontage and additional sign area above what is already allowed on the qualifying frontages. Board Member Strauss commented that she drove by the subject property recently and noted that even if a sign were placed on the west facade, it would not be visible because trees are in the way. Board Member Broadway clarified that the two signs currently on the entry facade and on the south facade facing 220`h Street Southwest are code compliant. Mr. Shipley agreed that the two signs have already been approved. Board Member Borofka said the Staff Report indicates that Panda Express currently has approval for two code - compliant walls signs and could have an additional signage opportunity on a freestanding sign adjacent to Highway 99. He asked if ADB approval would be required for the freestanding sign. Mr. Shipley advised that no code departure would be required for the freestanding sign. It would be a staff decision that does not require ADB approval. Ron Jacobs, Berry Sign Systems, Everett, was present to represent Panda Express and their national sign company. He explained that the purpose and intent of the proposed sign on the west facade is from a pedestrian standpoint. Panda Express understands that there are a number of people roaming through the area at lunch time, and they would like to garner their share of that business. He pointed out that Panda Express rented an end space on the new building and pays quite a bit more compared to one of the interior business spaces. Having a third sign will allow them to get more value out of the space and make the business more successful. They don't have much presence out to Highway 99, which could be helped via a future freestanding sign. He concluded that the additional sign on the western facade is very important to the applicant, and they have spent a fair amount of money to present their case to the Board. He observed that a 36-square-foot sign is not a large sign for the size of the facade. Board Member Tarrant said she understands the Staff Report and she can appreciate the Staffs conclusion with respect to code compliance. However, she felt the Board should also consider the intent of the law. In her experience, the sign code is to address concerns about light pollution, streetscape, etc. The subject property is located on a very busy corridor. She has driven past several times, and it is difficult to know what businesses are there. While having three signs may sound like overkill and the third sign may be partially screened by trees, without signage on the western facade, there is nothing to identify the business to people heading eastbound on 22e Street Southwest. She said she does not believe that the proposed sign, with internal lighting, would have a significant impact to adjacent properties. She reminded the Board that the City wants to encourage business, and it is important that businesses are visible to passersby. Board Member Borofka voiced concern that the applicant is coming to the Board for approval after the fact. He would have thought they would have understood the limitations on signage location and size. He also voiced concern that approval of the request could set a precedent, both locally and citywide. At least two other tenants in the building could request the same signage. Board Member Broadway shared Board Member Borofka's concern about setting a precedent. She said she works near the subject property and has watched the walking pattern of people from the hospital and Premera for the past 10 years. Her sense is that people from the hospital will continue to walk the same path that they currently do. They do not walk to the corner of 76t' Avenue West and then come down 220t' Street Southwest. Instead, they cut through the Radia and Cancer Center properties. The Premera people come from the east rather than the west. She expressed her belief that the sign on 220th Street Southwest, the sign on the front facade, and the sign that could potentially be added to the monument sign on Highway 99 would be sufficient to identify the site. Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 3 of 10 Vice Chair Walker asked staff to describe the implications associated with setting a precedence by approving the request. Mr. Shipley said the process for sign approval would remain the same, and ADB review would be required for any code departure. One Comprehensive Plan Policy is to "upgrade the architectural and landscape design qualities of the corridor, establish uniform signage regulations for all properties within the corridor area and provide business visibility and commerce while minimizing clutter and distraction to the public. " He expressed his belief that the City should be uniform in how the sign code is applied. City Attorney Tarraday said that, technically speaking, ADB decisions do not have precedential value. However, it is important that the Board be able to articulate why they decided one way in one case and differently in another case. Whatever the Board decides, it is important that they articulate the reasons for their decision. If the facts of a future case are such that the Board can articulate reasons for a different conclusion, then so be it. But it can be seen as problematic if the facts are very similar and the Board reaches a different conclusion without being able to articulate why. Mr. Clugston once again reviewed the clear criteria the Board must consider when reviewing sign code departures. As the Board applies the criteria consistently over time, they will come up with very similar decisions. Staff does not believe that the application meets either of the two criteria the Board must look at each time it makes a decision. City Attorney Tarraday emphasized that the Board can disagree with staff s analysis and recommendation, but they must wrestle with the same criteria. They are not bound by staff's recommendation, but they are bound by the criteria that staff is applying. Chair Guenther said he does not see any extraordinary situations that convince him that additional signage is warranted. The request does not meet either of the criteria. Board Member Borofka asked if the applicant could move one of the two signs allowed on the building to the west fagade. Mr. Shipley answered now. The applicant could potentially add to the monument sign on Highway 99, but wall signs are only allowed on building facades facing a public street and/or along a side of the building containing the primary public entrance. The west fagade is not a qualifying facade. BOARD MEMBER BROADWAY MOVED THAT THE BOARD DENY THE REQUEST FOR A THIRD SIGN ON THE WEST FACADE. BOARD MEMBER STRAUSS SECONDED THE MOTION. THE MOTION CARRIED 5-2, WITH BOARD MEMBERS HERR AND TARRANT VOTING IN OPPOSITION. City Attorney Tarraday said the presumption in the motion is that the Board is adopting the rationale that was set forth in the Staff Report. He explained that it is easy if the Board is simply agreeing with staff s proposed findings and conclusions, but it is good practice to specifically state that as part of the motion. The Board Members who voted in favor of the motion indicated that they agreed with staff's findings and conclusions. The Board took a 5-minute break at 8:07 p.m. The meeting resumed at 8:12 p.m. There were no public hearings. CONSOLIDATED PERMIT APPLICATIONS (No Public Participation): There were no consolidated permit applications. Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 4 of 10 ADMINISTRATIVE REPORTSATEMS FOR DISCUSSION Presentation and Training by Jeff Taraday, City Attorney City Attorney Tarraday provided training to the Board regarding the Board's powers and duties, as well as the Appearance of Fairness Doctrine and said he is available to provide additional training to the Board upon their request. He is also available to attend their meetings if there is a particularly tricky application before them. While tonight's application was straightforward, there may be other applications that require help from legal counsel to understand the criteria, etc. City Attorney Tarraday referred to Edmonds City Code (ECC) 10.50, which is the chapter that creates the Architectural Design Board and outlines its powers and duties. He advised that the chapter was last updated in 1973, so not all of the provisions are directly applicable to the Board's current responsibilities. At some point in the future, the ADB could have a discussion about its roll and propose code amendments. He reviewed each the Board's Powers and Duties as follows: • To study and prepare a recommendation for a comprehensive architectural design plan, including recommendations of establishment of specific design districts, which shall be part of the Comprehensive Plan. • To review and study land use within the City from a design standpoint. • To establish goals, objectives and policies for design districts. • Recommend legislation to effectuate the implementation of the Comprehensive Architectural Design Plan and the goals, objectives and policies for each established design district. • And for such other matters as shall be referred to the Board. City Attorney Tarraday explained that when the Board was originally created, it appeared to have more of a legislative policy -making role than a quasi-judicial role. Many of the Board Members are design professionals, and the Board may want to return to more of a policy making role. Currently, a variety of design review decisions (other matters) have been referred to the Board. These Type III-B design review decisions that come before the Board are quasi-judicial. Board Member Strauss asked if the Board could amend ECC 10.50 to change its role in design review. City Attorney Tarraday answered that the Board could make a recommendation to the City Council that ECC 10.50 be amended. Board Member Borofka asked if the Board could recommend that energy efficiency be included as part of the architectural review. City Attorney Tarraday agreed that is an option. However, they should avoid having two boards doing the same work. He noted that some of the Board's powers and duties, as described in ECC 10.50, have actually been going to the Planning Board for a long time. The Board could review its powers and duties from a division of labor standpoint and then propose recommended changes for the Council's consideration. Chair Guenther recalled that he previously served on the Planning Board, and one of its responsibilities was to review the Comprehensive Plan. These reviews included discussions about neighborhood plans and neighborhood districts such as Five Corners, Westgate, etc. It seemed perfectly normal for the Planning Board to review the Comprehensive Plan and set the boundaries. It seems there would be an overlap if the ADB were to assume the role of developing goals, objectives and policies for design districts. City Attorney Taraday agreed it would be difficult to parcel out all of the land use issues and send those that relate to design to the ADB and all others to the Planning Board. His intent in referring to ECC 10.50 was to call attention to the ADB's historic charge. Mr. Clugston agreed that it would be appropriate for the ADB to take on the responsibility of reviewing design -based issues. For example, it would have been appropriate for the ADB to participate in the process of creating design standards for Westgate. He suggested that an effort should be made to incorporate more ADB participation in design -related issues going forward. Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 5 of 10 Board Member Borofka asked how the ADB could provide staff the tools and ability to look at design as it relates to environmental impact. He noted that design and building construction has changed substantially over the years, yet the Board does not seem to have the ability to ask questions related to energy efficiency, etc. He suggested that perhaps environmental impact should be incorporated into the design review process. City Attorney Tarraday requested clarification about whether Board Member Borofka is suggesting that environmental impact should be considered as part of design on a project -by -project basis or more on a policy -level basis. Board Member Borofka responded that the City has already established environmental policies, but there is a need to incorporate the policies in the design review of each project. Mr. Clugston advised that the Building Division reviews each application for compliance with the energy codes, but environmental policies are not currently part of the design review. He agreed that general environmental policies could be incorporated into the design review. Board Member Strauss said that while living in Alaska, she was part of a citizens' group that started a movement to establish a city ordinance that required any project funded by the City to achieve a certain LEED Standard. Board Member Tarrant asked if projects require an Environmental Impact Statement (EIS). Mr. Clugston answered that, generally, they do not. City Attorney Tarraday explained that the Appearance of Fairness Doctrine is required by State Law. As per the law, quasi-judicial hearings must not only be fair in fact, but must also appear to be fair. For example, if a Board Member meets with a proponent of a project, no matter how fair and objective you are, people will question your ability to be fair and objective. In their quasi-judicial role, the Board Members are acting more like judges than policy makers and a certain process must be followed. He emphasized that the Appearance of Fairness Doctrine is not used for legislative actions, but it does apply to quasi-judicial actions in which the Board is determining the legal rights of a parties in a hearing. He provided a list of application types that are and are not subject to the Appearance of Fairness Doctrine. City Attorney Tarraday advised that the Appearance of Fairness Doctrine prohibits ex-parte communications. That means that Board Members are not supposed to have communications with opponents or proponents of a project with respect to the proposal. If an ex-parte communication does occur, Board Members can fix it by placing on the record the substance of the communication, providing a public announcement of the content of the communication and allowing the parties to rebut the substance of it. He shared examples of ex-parte communications and how they should be resolved. Commissioner Strauss asked when Board Members should announce an ex-parte communication. City Attorney Tarraday said a script should be read by the staff or ADB Chair at the outset of every quasi-judicial hearing. Chair Guenther said that, at past hearings, he has read the script and invited Board Members to disclose ex-parte communications prior to starting the public hearing. There was some discussion about when the script is needed, and City Attorney Tarraday answered that anytime the Board is being asked to decide a permit of any kind, it should be assumed to be a quasi-judicial decision and the script should be read. He agreed that there are some actions when the requirement is unclear. When there is doubt, it is better to go through the script. Board Member Strauss asked if the Board must read the script and formally disclose ex-parte communications even when there is no one in the audience. City Attorney Tarraday answered affirmatively. In case a Board decision is challenged, it is important that the disclosures are made on the record. City Attorney Tarraday explained that, during a hearing, the Appearance of Fairness Doctrine does not prohibit the Board from seeking specific information or data from such parties, if both the request and the results are part of the record. Board Members should not be hesitant to ask questions of the applicant during a hearing. For example, they could invite the applicant to speak directly about how the project meets the criteria. The Board could also direct questions to staff regarding the Staff Report. Chair Guenther added that the Board can also question people who provide testimony during the hearing. Board Member Tarrant said her understanding is that the ADB must review each application for compliance with the code, and they cannot make a decision based on opinion if it is contrary to the code. Board Member Broadway said that when applicants request a deviation from the code, it is the Board's responsibility to evaluate whether the request is Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 6 of 10 reasonable based on the code. City Attorney Tarraday said anytime the Board finds code language that is not particularly helpful or clear, they should make note of it and provide feedback to staff. This information will be particularly helpful as the City moves through the code rewrite process. The City should not put the Board in the position of making completely discretionary decisions outside of guidance in the code. City Attorney Tarraday advised that bias comes into play if a Board Member has a conflict of interest or some type of prejudgment pertaining to a certain project, which renders him/her unable to be a fair and objective decision maker. If Board Members suspects that to be the case, they should recuae themselves from participating in the hearing and decision. In an extreme scenario, someone could challenge a Board Member's participation if they suspect bias. The audience should be given the opportunity to challenge the participation of any Board Member at the start of the hearing. Audience members must take that opportunity or they waive their right to do so. If challenges are made and multiple Board Members are required to step down, the Doctrine of Necessity Rule prohibits the Appearance of Fairness Doctrine from destroying the quorum. Board Members would be allowed to participate notwithstanding the ex-parte communication or bias. These situations are extremely rare. Aside from having the appearance of being unfair, City Attorney Tarraday explained that ex-parte communications create a bigger problem if a Board Member is making a decision based upon evidence that is not in the record. Decisions can be difficult to support from a legal standpoint if the evidence is not in the record. He said site visits can be tricky because not all Board Members visit the site, and the court is not going to visit the site. If a reference to a site visit makes its way into the proceedings, it can be potentially challenging upon review. The staff report should provide enough photographs to orient the Board and provide a sense of what is going on in the surrounding area. If not, it is okay for the Board to request more information. The Board is not bound to make a decision the same night as the initial hearing. They can continue the hearing and request additional information. City Attorney Tarraday recognized that the Board Members are all familiar with the community, and there will be situations where they have some familiarity with the circumstances of a particular property. It may not be realistic to completely divorce themselves from the situations that are already in their head, but they should not a make a special effort to walk a site. If the information would be helpful, perhaps staff could shoot a video of the surrounding area and enter it into the record. That same video would follow the record throughout the process, and everyone would have an opportunity to make a decision based on the same set of facts. Chair Guenther said the Board could also have a special meeting and visit the site as a group. City Attorney Tarraday said that would work from an Open Public Meetings standpoint, but the site visit would need to be recorded and added to the record. To provide further clarification, City Attorney Tarraday advised that having familiarity with the site does not call for recusal. For example, in the previous hearing, Board Member Broadway converted her familiarity into a few sentences that are now part of the record for anyone to read. Anyone who disagrees with her statement could provide a rebuttal. He encouraged the Board Members to get site information on the record early, ideally before the applicant speaks. If not, the applicants should be given the opportunity for rebuttal later in the process. Board Member Borofka asked if it would be reasonable for a Board Member to request staff take video or pictures prior to the hearing if they are familiar with a site and believe that the Staff Report missed important information. City Attorney Tarraday agreed that would be appropriate. He clarified that staff are not considered to be proponents or opponents of a project. They are the Board's resource. City Attorney Tarraday summarized that at the end of the day, Board Members should ask themselves, "Would a disinterested person with knowledge of the totality of my personal interest or involvement be reasonably justified in thinking that my involvement might affect my judgement." City Attorney Tarraday said it is important that the Board Members do more than just vote. If the Board Members agree with the recommendation, analysis, findings and conclusions contained in the Staff Report, they can simply move to approve an application based on the findings and conclusions in the Staff Report. However, disagreements with the Staff Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 7 of 10 Report or supplements to the Staff Report should be specifically called out in the motion. If the Board needs help from legal counsel, they can continue the hearing to a future date. Board Member Strauss asked if staff could propose a motion as part of the Staff Report. City Attorney Tarraday agreed that is an option if the Board finds it would be helpful. Chair Guenther noted that a motion proposed by staff would have to be amended if the Board wants to propose a deviation from the staff s recommendation. City Attorney Tarraday said that, with some advance notice, he could attend a Board meeting and provide direction. Board Member Broadway commented that it is difficult for the Board to know in advance when help will be needed. It typically becomes tricky when the Board wants to add on to the staff s recommendation. Again, City Attorney Tarraday reminded the Board that the hearing could be continued to allow time for the Board to seek direction from the City Attorney. Board Member Strauss suggested that the Board could also take a 10-minute break to craft language for their motion. City Attorney Tarraday agreed that would be appropriate. They could also schedule a special meeting rather than postponing a decision for an entire month. City Attorney Tarraday referred to the case Anderson vs. Issaquah, which is the most cited design review case in Washington State. It is an old case that had to do with a development proposed on Gillman Boulevard, which the Development Commission referred to as the cty's "signature" street. He provided excerpts from the case to illustrate what can go wrong in a design review hearing. He explained that, as per the Void for Vagueness Doctrine, a statute which either forbids or requires the doing of an act in terms so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. The vagueness test does not require a statute to meet impossible standards of specificity. The code does not need to be so specific as to remove all discretion from decision makers, but it cannot leave applicant's guessing as to what it means. The purpose of the Void for Vagueness Doctrine is to limit arbitrary and discretionary enforcements of the law. He referred to the Board's earlier discussion about setting a precedent. He stressed the importance of articulating the reasons for a decision as part of the motion so it is clear that the Board is not acting arbitrarily. City Attorney Tarraday summarized that in the case of Anderson vs. Issaquah, the court found that "neither Anderson nor the Commissioners may be constitutionally required or allowed to guess at the meaning of the code's building design requirements by driving up and down Gillman Boulevard looking at good and bad examples of what has been done with other buildings recently or in the past. " The court held that the code sections at issue were "unconstitutionally vague on their face. " He explained that when courts say that provisions are vague on their face, they are really saying that even if the commission had acted perfectly, they were not given the tools to make a valid decision because the criteria was too vague to be useable. He said the court also determined that the code sections at issue `failed to pass constitutional muster. " Further, "because the Commissioners had no objective guidelines to follow, they necessarily had to resort to their own subjective feelings. " City Attorney Tarraday said he always worries that there is language in the City's code that would not pass the test. He encouraged Board Members to provide feedback to staff or the City Attorney if they find problems that need to be addressed with respect to the vagueness issue. City Attorney Tarraday summarized that the Anderson vs. Issaquah case had two problems. First, the code was written in such a way that it did not give design professionals clear enough guidance. Probably the facts of the case contributed to the court's finding. Had the facts not been so bad, the court may not have reached the conclusion that the code language was void on its face. Even worse was the way the commission applied the vague language by requiring the developer to make change after change based on extremely open-ended direction. Board Member Broadway said she is particularly challenged by the interpretive language contained in the code. For example, what is meant by the term "articulated roof" City Attorney Tarraday commented that the design professionals on the Board can really add value to the analysis because the terns are used frequently in the industry. When interpretive situations come up, the design professionals should carefully explain their professional opinion as part of the record. Chair Guenther expressed his belief that design guidelines should include a certain degree of flexibility to allow for creativity. While a certain part of the construction industry wants the code requirements to be spelled out in a specific format, others believe it is too restrictive and limits creativity. The goal is to define a mid -point. Board Member Tarrant Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 8 of 10 pointed out that each Board Member may have an extremely valid, yet different, opinion on any given code provision or design guideline. If the City enforces uniformity, everything will end up looking the same. Board Member Broadway explained that, in the case of Anderson vs. Issaquah, the design commission was not specific in their direction to the applicant. She asked if the Board can request modifications, as long as they provide clear direction to make their expectations clear. City Attorney Tarraday said he has found that the most helpful design guidelines combine words with illustrations that provide clear examples of what the City is trying to articulate with the words. Legally speaking, incorporating illustrations into the design guidelines provides an escape clause that allows the City Attorney to argue to a court if the Board denies an application. Illustrations are a good way to provide artistic guidance where words often fall short. Board Member Borofka said he sometimes gets anxious when the Board gets into discussions about color and finish. The Board is often presented with panels showing a certain finish material and color and they provide feedback to the applicant. He voiced concern about how valid the Board's comments and directions are given that the code is quite vague as it pertains to colors and finish materials. City Attorney Tarraday said the City could adopt an approved color pallet, which could end up being very limiting. However, the Board cannot condition approval based on color alone, without an approved color pallet. Mr. Clugston said the City's design guidelines and codes contain very little direction about color, but the staff and Board tries to work collaboratively with the applicant. Chair Guenther recalled that 15 or 20 years ago, the ADB was considered the "color police." Since that time, there has been a deliberate move to get away from that kind of specific review. He summarized his understanding that it is within the Board's purview to talk about colors, but they should not become the "color police." City Attorney Tarraday said there is nothing wrong with having very specific conditions of approval, as long as they give clear guidance to both the applicant and staff. Chair Guenther said the Board often has questions about how specific their conditions of approval can be and still fall within the limits of their purview. While they want to be specific in their decisions, they are often unclear exactly how far they can go. Board Member Tarrant noted that some things are not quantifiable, regardless of how good the code language is written. The City must have a certain level of faith that it can be fair and just in its decision making. She summarized that, based on the City's Attorney's presentation, Board Member comments must be well considered and well delivered. The onus is upon the Board Members to backup their opinions with good substance and fair judgment. With regard to color, City Attorney Tarraday said there is less risk in telling an applicant what color to paint a building than in telling an applicant to redesign a different aspect. There is no cost associated with requiring an applicant to change a color. Vice Chair Walker agreed that conditions need to be reasonable and supported. However, he questioned the purpose of the ADB if they are not allowed to respond to a hideous color. The ADB does not have purview over the code provisions, but it is responsible for addressing the aesthetic aspects of development. While the ADB should not necessarily mandate a specific color, it could give a general opinion about what looks good in a certain context. City Attorney Tarraday said the Board has been tasked with a number of quasi-judicial responsibilities and not a lot of policy -making responsibilities. Down the road, the Board may decide they would rather focus more on design policy and send quasi-judicial applications to the hearing examiner to determine code compliance. The Board should let staff know if that is their sentiment, since it could influence the direction of the code rewrite. Board Member Herr noted that no permit is required when a building is repainted. Even if the Board approves a specific paint color, nothing would stop the applicant from repainting the building after the permit has been issued. City Attorney Tarraday advised that if Board Members visit a site before a public hearing, they should disclose their visit on the record at the outset of the hearing and let it be a basis for a possible challenge. It should be made public as if it were an ex-parte communication since it would be considered evidence outside of the record. If there are no challenges to the site visit, then the Board Member is in the clear and can participate in the hearing. Chair Guenther said this is particularly important when controversial projects come before the Board. Board Member Broadway suggested that, at the start of each hearing, the Chair could simply ask Board Members to disclose site visits. City Attorney Tarraday Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 9 of 10 asked if it would it be feasible for staff to do a site visit and create a video to display at each hearing. He explained that site visits by individual Board Members can present legal challenges. Providing a video of the site as part of the record would minimize the risk that the site visits can create down the road. City Attorney Tarraday cautioned against the Board assuming that an application is non -controversial if there is no one in the audience to participate in the hearing. It just takes one applicant to appeal and challenge that the City did something wrong. Even something that seems mundane could turn into an appeal, which could ultimately end up being a damage claim down the road. He encouraged the Board to develop good habits for all hearings. ARCHITECTURAL DESIGN BOARD MEMBER COMMENTS There were no Board Member comments. ADJOURNMENT: The meeting was adjourned at 9:35 p.m. Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 10 of 10