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2018-07-25 Planning Board MinutesCITY OF EDMONDS PLANNING BOARD MINUTES July 25, 2018 Chair Monroe called the meeting of the Edmonds Planning Board to order at 7:00 p.m. in the Council Chambers, Public Safety Complex, 250 — 5r' Avenue North. BOARD MEMBERS PRESENT Nathan Monroe, Chair Matthew Cheung, Vice Chair Phil Lovell Daniel Robles Mike Rosen BOARD MEMBERS ABSENT Todd Cloutier (excused) Alicia Crank (excused) Carreen Nordling Rubenkonig (excused) READING/APPROVAL OF MINUTES STAFF PRESENT Rob Chave, Planning Division Manager Kernen Lien, Environmental Programs Manager Brad Shipley, Planner Jeff Taraday, City Attorney Jerrie Bevington, Video Recorder Karin Noyes, Recorder BOARD MEMBER LOVELL MOVED THAT THE MINUTES OF JULY 11, 2018 BE APPROVED AS PRESENTED. VICE CHAIR CHEUNG SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ANNOUNCEMENT OF AGENDA The agenda was modified to add a discussion about the Critical Areas Ordinance (CAO) as Item 5b and a discussion about the Board's retreat as Item 8a. The remainder of the agenda was accepted as presented. AUDIENCE COMMENTS No one in the audience indicated a desire to comment during this portion of the meeting. DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD Chair Monroe referred the Board Members to the written Development Services Director's Report and invited Board Members to comment. Board Member Lovell announced that he attended the July 181 Economic Development Commission meeting where they agreed to cancel their August 151 meeting. AMENDMENTS TO THE CRITICAL AREAS ORDINANCE (CAO) Mr. Lien reviewed that the Planning Board held a public hearing on CAO updates to specific wetland regulations on July 1 I' and forwarded a recommendation of approval to the City Council. He recalled that the purpose of the proposed amendments was to bring the wetland regulations in the CAO up to date with the Department of Ecology's (DOES) 2016 Guidance. The intent was to adopt the updated CAO sections as part of the Shoreline Master Program (SMP) during the upcoming periodic review resulting in one set of wetland regulations that apply citywide. However, he received an email from the DOE on July 121, announcing new wetland guidance. He has since verified the City Council's intent to update the wetland regulations with the most recent guidance, which requires the Board to consider additional updates. The additional updates will be presented to the Board on August 22nd, and the Board will need to hold another public hearing before forwarding a recommendation to the City Council. Mr. Lien reviewed the four sections of the CAO that were part of the update to be consistent with the 2016 guidance. He explained that the new 2018 guidance pertains primarily to the buffer sections and the wetland ratings would remain nearly the same. The 2016 guidance has four sets of wetland buffers based on habitat scores, and the 2018 guidance only has three sets of buffers and the habitat scores are calculated differently. In the 2016 guidance, the lower Category 5 habitat score was not much different than the Category 3 and 4 habitat scores, so it was combined with Category 4. PUBLIC HEARING ON PERMIT DECISION MAKING -QUASI-JUDICIAL PROCESSES Mr. Lien reviewed that the City Council adopted Resolution No. 1367 (Attachment 1) in 2016, expressing the intent to adopt revisions to the Edmonds Community Development Code (ECDC) that will remove quasi-judicial decision -making responsibility from the City Council and other volunteer citizen boards to the extent allowed by law. The resolution requests that the staff and Planning Board prepare and forward to the City Council code revisions that are consistent with the resolution. Mr. Lien explained that the City currently has 5 decision processes as spelled out in the table in ECDC 20.01.003: • Type I are staff decisions with no notice and include lot line adjustments, critical area determinations, shoreline exemptions minor amendments to planned residential development (PRD), minor preliminary plat amendments and staff administrative design review. • Type II are staff decisions with notice and include accessory dwelling units (ADUs), State Environmental Policy Act (SEPA) determinations, preliminary short plats, land clearing and grading, revisions to shoreline management permits, administrative variances, and shoreline substantial development permits where a public hearing is not required. Type III are quasi-judicial decisions. Type III -A decisions include critical area variances, contingent critical area review if a public hearing is required, shoreline substantial development permits where a public hearing is required, shoreline variances, and shoreline conditional uses. Type III -A decisions are not appealable to the City Council. Type III-B decisions include outdoor dining, contingent critical area review if a public hearing is requested, shoreline substantial development permits where a public hearing is required and shoreline conditional uses and variances. Type III-B decisions are appealable to the City Council and include essential public facilities, design review where a public hearing by the ADB is required, conditional use permits and home occupation permits where a public hearing by the Hearing Examiner is required, variances, preliminary formal plats and preliminary planned residential developments (PRDs). • Type IV are quasi-judicial decisions that are appealable to the City Council. They include final formal plats, final PRDs and site -specific rezones. • Type V are legislative decisions that include development agreements, zoning text amendments, area -wide zoning map amendments, Comprehensive Plan amendments, annexations and development regulations. Mr. Lien explained that legislative decisions establish policies for future application and quasi-judicial decisions are the application of those policies. Quasi-judicial decisions have stricter procedural requirements that include proper notice of hearing, providing everyone with an interest in the proceedings an opportunity to be heard and to hear what others have to say, full disclosure of all facts being considered by the decision -making body, impartial decision makers free from bias and conflicts of interest, and decisions that are based on the facts of the case rather than on political pressure or vocal opposition. Mr. Lien reviewed that during the City Council's discussions relative to Resolution No. 1367, Councilmembers voiced frustration with the ex-parte contact prohibitions and concern about potential liability issues. They asked the staff and Planning Board to prepare and forward revisions to the code that would remove the City Council from quasi-judicial decision -making Planning Board Minutes July 25, 2018 Page 2 making responsibility. Some code changes have already been implemented since adoption of the resolution. For example, the City Council was removed from the appeal process for decisions related to the Critical Areas Ordinance (CAO) and Shoreline Master Program (SMP). He reviewed the current proposal as follows: • The Table in ECDC 20.01.003 would be modified by changing all Type III-B decisions that were appealable to the City Council to Type III -A decisions that are appealable to Superior Court and not the City Council. The Type III-B decision process would then be eliminated. • The Table in ECDC 20.01.003 would also be modified to make development agreements, which are currently listed as Type V legislative decisions, Type IV quasi-judicial decisions. As proposed the process for development agreements would be similar to the process for site -specific rezones. • A number of amendments are proposed to update existing code language to be consistent with the changes proposed in Table 20.01.003. These changes were identified via an electronic search of the entire code. • The proposal would move final plat approval for subdivisions and PRDs from being Type IV -A quasi-judicial decisions before the City Council to being Type I administrative decisions. Subdivisions and PRDs require a multi- step process that starts with preliminary plat approval by the Hearing Examiner who may identify a number of conditions. The next step is civil design and infrastructure work. By the time final plats and PRDs get to the City Council for final approval, all of the preliminary requirements have been met and often all of the improvements have been installed and there is very little the City Council can do to affect change. Consistent with recent Senate Bill 5674, which allows legislative authority to be delegated to administrative personnel, proposed amendments to ECDC 20.75 and ECDC 20.35 would remove the City Council from the final approval process. • An additional change would be made to ECDC 20.75 to update the approval time periods. During the recent economic downturn, changes were made to extend the approval period for final and preliminary plats. However, this provision has expired and will be removed. • All references in the code to Community Development Director will be changed to Community Services Director. • ECDC 17.00.030.0 would be amended by eliminating the sentence that requires the City Council to review public agency variance requests. Currently, the Hearing Examiner makes a recommendation to the City Council, and the City Council holds a closed -record hearing and makes the final decision. This amendment would take the City Council out of this quasi-judicial process. • ECDC 20.100.040 is currently a problematic code section that is likely noncompliant with State law. It allows a property owner within a certain distance of a subject property to request that the permit be opened up again once it has been approved. Essentially, the provision could result in endless public hearings and was drafted prior to the Regulatory Reform Act of 1995, which limits the number of open record hearings to just one. The provision also runs counter to the Land Use Petition Act (RCW 36.70A), which states that once a land use permit has been approved and no appeal has been timely filed, the land use permit can no longer be judicially appealed even if it did not comply with permitting criteria when approved. It also prohibits projects from being collaterally attacked through other administrative permit review processes. Given these legal ramifications, staff is recommending that the provisions be deleted. However, to ensure that the City retains the right to suspend or revoke permits that fail to comply with conditions of approval or misrepresentations made in the application, a new section (ECDC 20.110.045) would be added. • There is confusion between Open Record Public Hearings (ECDC 20.06) versus Closed Record Public Hearings (ECDC 20.07). Currently, appeals of Type II staff decisions reference ECDC 20.07 for the appeal process, but appeals of Type II decisions are heard before the Hearing Examiner in an open record public hearing. The proposal is to combine the two sections into a single chapter and provide additional details about the appeal format and procedures before the Hearing Examiner. Planning Board Minutes July 25, 2018 Page 3 ECDC 20.01.003 currently identifies the approval process for development agreements as a Type V legislative action. The City Attorney has recommended that the approval process for development agreements be modified to a Type IV process with an open record public hearing before the Planning Board who would make a recommendation to the City Council. The City Council would hear the proposal in a closed record hearing format. Development agreements are similar to contract rezones and provide a way for the City to place more restrictive requirements on a project than the underlying zoning would allow. The development agreement review process should be generally consistent with the review process for other project permit applications that would likely be processed in conjunction with the development agreement. For example, a site -specific rezone is one type of project permit application that would likely be sought in conjunction with a development agreement. Therefore, it makes sense to use a similar quasi-judicial process. Board Member Lovell clarified that, as currently proposed, Type III decisions would require an open record public hearing before the Hearing Examiner. Mr. Lien said that would be true in most cases, but the ADB would participate in the design review process for applications that require SEPA. He referred back to the Table in ECDC 20.01.003, which outlines the types of actions and their respective review processes. As proposed, all of the permits that are appealable to the City Council now would be changed to be appealable to Superior Court. The only exception would be site -specific rezones and development agreements, which would be appealable to the City Council via a closed record public hearing. Board Member Lovell asked if the City Council would have an opportunity to negotiate with the developer about what the appropriate conditions of a development agreement might be. City Attorney Taraday described how he envisions the development agreement process moving forward, starting with him working with the staff and applicant to craft a draft development agreement to present to the Planning Board in an open record public hearing. The Planning Board would accept testimony from the applicant and public and then forward a recommendation to the City Council as to what the terms of the development agreement should be. Following a closed -record public hearing, the City Council can adopt the development agreement exactly as recommended by the Board or they can modify it based on their discussion. Because the City Council's hearing would be closed record, they would not be able to solicit any new information or ask questions about things that are not already on the record. If the Board doesn't ask the questions and get all of the pertinent information into the record during its hearing, it cannot be added to the record at a later time as part of the Council's review. The Planning Board would be the finders of fact for the City Council. The development agreement process is similar to the process the City currently uses to review site -specific rezones. However, instead of voting on an ordinance to adopt a development agreement, the City Council would vote to accept or modify the terms of the development agreement that is put forward by the Planning Board. Board Member Rosen asked if there is a financial impact associated with sending appeals to Superior Court as opposed to the City Council. City Attorney Taraday answered that judicial appeals typically cost more than administrative appeals. However, it is important to keep in mind that not everything would remain the same. For example, taking the City Council out of the appeal process would liberate them to participate in the hearing process and to appeal decisions made by the Hearing Examiner and ADB to Superior Court. Currently, the City Council does not have the ability to appeal Type III-B decisions because they are the body who hears the appeals. If a judicial appeal is initiated for a Type III-B decision, the appellant would have to move the appeal forward with no help from the City. Under the proposed amendment, if the appellant and the City are aligned and have the same consensus, the City Council can appeal a Hearing Examiner decision on its own, saving the taxpayers and citizens a lot of money and time. Essentially, the City Attorney would be responsible to appeal the decision to Superior Court. He summarized that significant changes take place when you free up the City Council to appeal its own Hearing Examiner decisions. Mr. Lien advised that the fee for appealing decisions to the City Council is currently $500, and City Attorney Taraday added that the fee to appeal a Land Use Petition Act (LUPA) decision to Superior Court is $250. The big cost difference is related to attorney fees, as many people do not have the ability to file appeals to Superior Court on their own. He also agreed that appellants are probably less likely to appeal actions to Superior Court than to the City Council. Mr. Lien pointed out that appellants often hire attorneys to present their cases to the City Council, as well. Chair Monroe recognized that Resolution No. 1367 mandates that the City Council be removed from the quasi-judicial decision - making process. He asked if staff believes the proposed amendments are the only way to implement the resolution. Mr. Lien said he does not know of any other way to accomplish the task other than altering the processes. City Attorney Taraday agreed Planning Board Minutes July 25, 2018 Page 4 that, from a high-level overview, there is no other way to accomplish the task, but the details of the process could certainly be modified, as well. He expressed his belief that the proposed changes represent what the City Council asked the staff and Planning Board to do. Board Member Lovell asked if the proposed changes would take the City Council completely out of quasi-judicial decisions that are made by the Hearing Examiner. Mr. Lien responded that would be true unless the City Council opposes a decision made by the Hearing Examiner and decides to appeal to Superior Court. City Attorney Taraday explained that potential liability to the City and individual Councilmembers was a significant factor in the City Council's decision to adopt Resolution No. 1367. City Councilmembers are elected to be legislators and represent their constituents, not to be judges. It is difficult for Councilmembers, who are accustomed to being responsive to their constituents, to play the role of judge and judicially apply the code based on the record in front of them. Some are unable to fill this role, and they end up making arbitrary and capricious decisions that are not consistent with law or the record. When this occurs, the City could be subjected to millions of dollars in damages. These same risks would not be present if the City Council were to appeal a Hearing Examiner decision to Superior Court. While the City may not win the appeal, the risks would be minimized. City Attorney Taraday explained that, under the current process, City Council Members are unable to participate in public hearings for quasi-judicial actions because it would disqualify them from hearing an appeal under the Appearance of Fairness rules. If they no longer have to serve in this capacity, they could feel free to be a party of record and participate in hearings to represent their constituents' viewpoints. Vice Chair Cheung asked about the process the City Council would use to appeal Hearing Examiner decisions to Superior Court. City Attorney Taraday answered that the City Council would probably meet in an executive session with their attorney to discuss the Hearing Examiner decision, as well as the pros and cons of moving forward with an appeal and the likelihood the City would prevail. Ultimately, the City Council would make a legislative decision about whether to appeal or not. No public hearing would be required, but the vote would need to take place in a public meeting. Vice Chair Cheung asked if the City would be responsible to pay additional attorney fees associated with the appeal. City Attorney Taraday answered that the City Attorney's Office is retained on a flat -fee basis. They get paid the same amount every month regardless of whether there is litigation or not. Mr. Lien pointed out that the City has incurred additional attorney fees for closed record appeals to the City Council when an independent attorney must be hired to represent the City's case while the City Attorney represents the City Council. Board Member Lovell asked how other cities have addressed this issue. City Attorney Taraday advised that the Washington Cities Insurance Authority (WCIA) pleads with cities to do this because it significantly reduces risk. Before the City Council adopted Resolution No. 1367 in 2016, the Executive Director of the WCIA asked them to please consider getting out of the quasi-judicial decision -making process because of the risk it creates to the City and the public. Chair Monroe reminded the Board that the purpose of the hearing is not to debate the merits of Resolution No. 1367, which has already been adopted by the City Council. The purpose of the hearing is to decide if the proposed amendments are the right way to implement the resolution. Gary Nelson, Edmonds, observed that this issue has been debated by many jurisdictions for a number of years. Three months following the City Council's adoption of Resolution No. 1367, Proposition 4 appeared on the ballot to change the charter for Snohomish County. The issue had come before the County Council twice before and was defeated both times. The results of the ballot measure in Edmonds was interesting, as 57.7% of the precincts voted no. It appears that the majority of City residents have strong feelings about what their City Council and appointed officials are responsible to do. He said he is concerned that the proposed amendments would significantly increase the cost of appealing quasi-judicial decisions. In addition to a filing fee, appellants may have to hire an attorney to assist in the appeal to Superior Court. Mr. Nelson commented that staff put a lot of thought into many of the proposed changes, and most appear to be very reasonable. However, it is not likely that the proposed changes to the quasi-judicial appeal process will be acceptable to the residents of Edmonds. While City Attorney Taraday suggests the changes will liberate the City Council and eliminate potential conflicts, most citizens of Edmonds expect their elected officials to carry on their current role and make responsible decisions regardless Planning Board Minutes July 25, 2018 Page 5 of their personal opinions. They have been elected to study the facts and make decisions based on law. He is disappointed with Councilmembers who say this responsibility is too difficult, and perhaps they should consider resigning their positions. The appointed officials are very responsible and capable of providing recommendations to the City Council, but the City Council should retain the right to make the final decision. Mr. Nelson expressed his belief that the current approach for appeals is accurate and responsible and the City should simply maintain this process and table the proposed amendments. However, he would like the other proposed amendments to go forward as presented. He referred to written comments (Attachment 8) he submitted prior to the meeting, including a list of LUPA issues. He summarized that although neighbors sometimes quarrel over issues, none of the issues are so difficult that appeals to Superior Court are warranted. He said he supports the current process of a Hearing Examiner decision that is appealable to the City Council. He pointed out that appealing decisions to the Superior Court can be costly and take significantly more time. In most cases, appellants have to hire an attorney to represent their case. He encouraged the Board to consider what is in the best interest of the citizens of Edmonds. They should strive to avoid increasing the financial impacts to citizens and prolonging the process of appeals. Sending appeals to the City Council is a timely approach that works. Board Member Lovell referred to Mr. Nelson's written comments (Attachment 8), which state that RCW 36.70C defines land use decisions as "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals. " He expressed his belief that the Hearing Examiner meets this criterion. The Hearing Examiner has the background, experience and know how to make decisions based on all the facts and City regulations, and their decisions should stand. If someone wants to appeal, they should have to go to the higher authority, which he believes is the Superior Court. He said he supports the changes as proposed. Vice Chair Cheung asked how often quasi-judicial decisions are appealed. Mr. Chave reviewed that the permit review process was originally set up in 2009 to take the City Council out of closed record appeals, but it was put back into the process in 2010. Since that time, the City Council has only heard a few appeals. Vice Chair Cheung asked if there are any other appeal options the Board could consider other than City Council or Superior Court. Mr. Lien pointed out that appeals to shoreline permits go to the Shoreline Hearings Board rather than to Superior Court, but if the Council is removed from quasi-judicial decision making, Superior Court would be the next step for all other appeals. Chair Monroe expressed his belief that the City Council is in the best position to make decisions for Edmonds. He questioned why the City Council does not want to retain this decision -making ability. He said he is a little leery of giving up the values of Edmonds into the hands of the Snohomish County court. Vice Chair Cheung said he understands that the City Council would prefer not to have to make these decisions, but the same could be said for citizens who are asked to serve on juries. He recognized that there are a lot more opportunities for ex-parte communications to occur with the current process, but these same concerns could be attributed to someone who is asked to serve on a jury. Mr. Lien explained that the amendments would not remove the City Council from the process. The City Council would still be responsible for establishing the policies and regulations that are applied to specific permits. Chair Monroe agreed but pointed out that the proposed amendments would remove the City Council from the role of interpreting the rules and policies. He understands why the City Council supports the change, but he is not sure it will benefit the citizens and the City. Board Member Robles cautioned that a certain balance must be made between risk and inherent risk and decisions should not be made based on monetary aspects alone. He recalled a recent rezone that came before the Planning Board. A lot of work was done by the applicant and staff, but the public was not properly notified of the proposal and were ill prepared to participate in the hearing. The developers seemed to have an advantage over the citizens and the Board was constrained by the facts and couldn't help represent the citizen's concerns based on the constraints of the quasi-judicial process. He asked if that is analogous to what the City Council would be faced with because they would be constrained to talk only about the facts of the proposal. City Attorney Taraday commented that the Board has more latitude in an open record public hearing than the City Council has in a closed record public hearing. The Board should never feel constrained in collecting the facts and information needed to make a recommendation. Planning Board Minutes July 25, 2018 Page 6 City Attorney Taraday referred to Vice Chair Cheung's earlier comment comparing the City Council's role to that of a jury. He explained that for site -specific rezone applications and development agreements, the Planning Board would serve as the jury in the sense that the Board would conduct the hearing and collect testimony and evidence from witnesses. The Board gets to make factual findings based on everything they hear and see and then forward a recommendation to the City Council. The Hearing Examiner would play this same role in Hearing Examiner permits. Even with the current process, the City Council does not get to play that role because they are limited to the evidence collected by the Board or Hearing Examiner. He summarized that, in court, juries are not asked to make legal decisions or answer questions of law. The judge hears the legal stuff and the jury hears the factual stuff and they come together to make a decision. Currently, the City Council is frequently asked to make legal decisions when they are sitting in a quasi-judicial capacity. BOARD MEMBER LOVELL MOVED THAT THE BOARD FORWARD THE PROPOSED AMENDMENTS RELATED TO PUBLIC HEARING PERMIT DECISION MAKING AND QUASI-JUDICIAL PROCESSES TO THE CITY COUNCIL WITH A RECOMMENDATION OF APPROVAL AS OUTLINED IN THE STAFF REPORT DATED JULY 25, 2018. Chair Monroe recognized that the City Council has already made the decision to remove themselves from quasi-judicial decisions via Resolution No. 1367, and the proposed amendments are intended to implement this earlier action. However, he suggested that the motion should include a recommendation that the City Council carefully consider the concerns that have been discussed by the Board before taking final action. Mr. Lien commented that the Board can recommend approval or denial of the proposed amendments or recommend changes, regardless of the Council's direction in Resolution No. 1367. Mr. Chave referred to Mr. Lien's earlier comment about how the monetary impact of the proposed amendments would be less if you consider the overall process and risks. The real question is if you want the City Council to be more involved in the legislative role where they are able to represent the interest of their constituents. As pointed out by Mr. Lien and City Attorney Taraday, there are struggles that any City Council will encounter when they try to work both roles because it requires them to step out of one to be in the other. Councilmembers are elected to represent their constituents, and that is difficult to do when they are required to act as judge on quasi-judicial decisions. This conflict of roles is at the heart of the proposed changes. Mr. Chave commented that very few appeals end up before the City Council. If there are few appeals, maybe the risk isn't so high. On the other hand, if there are few appeals, the proposed amendments would not create a significant impact to citizens. As a staff person, he supports wanting the City Council to represent its citizens. They are most effective when they are able to develop and oversee regulations. Citizens are much better off having their voices heard during the legislative processes that establish codes and regulations. It is better for the City Council to make decisions at the rule level rather than at the end of the process trying to figure out how to not follow the rules in order to represent their constituents. Board Member Robles observed that one law of risk management is you want the entity that is best qualified to handle the risk to carry the risk. He asked what type of citizens would end up having to litigate their way back to wholeness if the amendments are adopted as proposed. In other words, he asked who would be impacted the most? Mr. Lien said it could be anyone, from major land owners to single property land owners. Everyone would be treated the same. He advised that in most of the appeals he has heard before the City Council, attorneys have been involved. Sometimes property owners pool their resources to get representation, but it is not a requirement. City Attorney Taraday said he can think of several LUPA actions (not more than 10) that have been appealed to the City Council during his tenure as City Attorney. In at least three cases the appellants were pro say. He explained that a LUPA action is on the record and appeals to Superior Court do not require witnesses or cross examination. The court simply reads the facts from a sheet of paper. The appeal decision is based on the same record that would be sent to the City Council for consideration. Board Member Robles asked how undue influence could play into a Councilmember's decision. City Attorney Taraday explained that anyone sitting in a quasi-judicial capacity is required to disclose relationships that could cause bias. A Councilmember who is strongly anti -development would not necessary be required to disclose this information but basing a decision solely on this strong bias could create liability for the City, and that is where the biggest risk lies. Planning Board Minutes July 25, 2018 Page 7 Board Member Rosen said the severity of the situation appears to come from City Councilmembers who cross the line. It would help him to better understand the problems they are trying to solve. Is the problem based on exposure to risk they have encountered over the many years they have been doing quasi-judicial appeals, or were the amendments initiated based on feedback from the WCIA? Mr. Chave answered that in his tenure with the City he has seen things that concerned him in terms of how things play out at the Council level. This is not simply an academic discussion but based on real -life experiences. Board Member Rosen asked, in the scheme of risk, how does the Council's involvement in quasi-judicial appeals compare. City Attorney Taraday said the amendments are intended to manage but not eliminate risk. In his opinion, the amendments represent a very sensible way to manage risk. Divorcing politics from the land use issues, you get a better land use application process and better policies. It is important to understand that, while the City Councilmembers may have a better sense of the values of the City than a Hearing Examiner or judge, those values are not supposed to be expressed when processing land use applications. They are supposed to be expressed when adopting code regulations. Mr. Lien referred to City Attorney Taraday's 2016 memorandum stating that not only is it a risk to the City but individual Councilmembers could also be liable for decisions made in the quasi-judicial process. CHAIR MONROE SECONDED THE MOTION. Chair Monroe voiced reservations about the proposed amendment to take the Council out of the quasi-judicial decision -making process, recognizing that it is nearly impossible to write codes that developers cannot eventually find loopholes around. He said he is shocked that the City Council wants to give away this power. He believes the proposed changes will eventually be adopted by the City Council but the Board should emphasize the need for the Council to take a hard and careful look at the pros and cons before making a final decision. CHAIR MONROE MOVED TO AMEND THE MOTION TO ADD THAT THE BOARD ADVISES THE CITY COUNCIL TO TAKE A HARD LOOK BEFORE GIVING AWAY THIS PUBLIC TRUST. VICE CHAIR CHEUNG SECONDED THE MOTION TO AMEND. Vice Chair Cheung voiced concern about turning over quasi-judicial decisions to a judge who may not be as familiar with the City's codes as the City Council. The City Councilmembers are accountable to their constituents. He understands the potential conflicts of interest but agrees the Council should carefully weigh the pros and cons before making a decision. It is different for petitioners to stand in front of a judge who would expect them to present their appeal in a more legal manner versus speaking before the City Council. On the other hand, it sounds like appeals are not common and most people who appeal are probably more experienced and have their own counsel. THE MAIN MOTION, AS AMENDED, WAS UNANIMOUSLY APPROVED. Chair Monroe closed the public hearing. The Board took a 5-minute break at 8:32 p.m. They reconvened the meeting at 8:37 p.m. PUBLIC HEARING ON REZONE AT 9107 AND 9111— 236TH STREET SW FROM RS-8 TO RM-1.5 Chair Monroe reviewed the rules and procedures for the public hearing and then opened the hearing. He reminded the Board of the appearance of Fairness Doctrine and asked if any member of the Board had engaged in communication with opponents or proponents regarding the issues in the rezone application outside of the public hearing process. All Board Members answered no. He also invited Board Members to disclose any ex-parte communications, and none indicated any. He asked if any member of the Board had a conflict of interest or believed he/she could not hear and consider the application in a fair and objective manner. None indicated a concern. Lastly, he asked if anyone in the audience objected to any Board Member's participation as a decision maker in the hearing. No one in the audience indicated a concern. All those who planned to participate in the hearing were asked to stand, raise their right hand, and affirm that the testimony they give would be the truth, the whole truth and nothing but the truth. Mr. Shipley presented the Staff Report and Martin Reimers was present to represent the applicant. Planning Board Minutes July 25, 2018 Page 8 Mr. Shipley advised that the applicant is proposing to rezone the subject sites (9107 and 9111 — 2361 Street SW) from Single - Family Residential (RS-8) to Multi -Family Residential (RM-1.5). The two sites are currently developed with a single-family residential use and a legal, non -conforming multi -family use. If adopted, the proposal would bring the non -conforming multi- family use into compliance with the zoning ordinance. The parcels were developed under Snohomish County zoning between 1958 and 1970, and the subject site was annexed into the City in 1997. Mr. Shipley reminded the Board of the criteria it must consider when reviewing site -specific rezone applications: Comprehensive Plan. Whether the proposal is consistent with the Comprehensive Plan. The Comprehensive Plan Map designation change from Single Family Urban I to Edmond Way Corridor was heard by the City Council on October 17, 2017. The Council made the motion to approve the map change, but the amendment was inadvertently omitted from the ordinance adopting the 2017 Comprehensive Plan amendments. The Council is scheduled to take action on the 2018 Comprehensive Plan amendments on August 21 ". Once adopted, the zoning proposal will be consistent with the Comprehensive Plan. The proposal is also consistent with the Comprehensive Plan Policy that multi -family uses must be located near arterial or collector streets. The parcels are located on 236r' Street SW but are within 300 feet of Edmonds Way where there is public transportation. Therefore, the proposal meets the criteria for being adjacent to a major arterial. • Zoning Ordinance. Whether the proposal is consistent with the purposes of the zoning ordinance and whether the proposal is consistent with the purposes of the proposed zone district. The current zoning designation allows one single-family home per lot, and the proposed new zoning designation would allow a density of six units on the 9107 property and 14 units on the 9111 property. If the lots are combined, a total of 21 units would be allowed. Rezoning the property would bring the current multi -family use into conformance with the code. • Surrounding Area. The relationship of the proposed zoning change to the existing land uses and zoning of surrounding or nearby property. Surrounding uses in the subject area are primarily multi -family and single-family residential. There is some light commercial at the corner of 236' Street SW and SR-104. The subject site is bordered on three sides by multi -family (RM-1.5) zoning, and single-family (RS-8) zoning abuts the subject site to the west. Staff believes the proposed rezone is compatible with the surrounding area. • Changes. Whether there has been sufficient change in the character of the immediate or surrounding area or in city policy to justify the rezone. The proposed zoning is justified as the area is already developed with multi -family residential that has existed since the late 1970's. Rezoning the property would bring the current non -conforming multi -family use into compliance. • Suitability. Whether the property is economically and physically suitable for the uses allowed under the existing zoning and under the proposed zoning. One factor could be the length of time the property has remained undeveloped compared to the surrounding area and parcels elsewhere in the same zoning. The neighborhood surrounding the subject parcels has long been developed with either single-family homes or apartments. The site is located about 300 feet from a major arterial so the traffic impact to the neighborhood would be minimal. If rezoned for multi -family use, a future development application would be required to submit a traffic impact analysis. A SEPA and Architectural Design Board review would also be required for any proposal with more than four units. • Value. The relative gain to the public health, safety and welfare compared to the potential increase or decrease in value to the property owner. There would be an increase in value to the property owners if the proposal is approved, and the greatest impact of future development would be to the single-family zone adjacent to the subject site. During the Comprehensive Plan amendment public hearing, one neighbor voiced concern about the allowable building heights under RM-1.5 but appeared satisfied after the discussion. There have been no comments or questions related to the rezone proposal to date. Mr. Shipley recommended the Planning Board make a recommendation to the City Council to approve the requested rezone as outlined in the Staff Report. The applicant, Martin Reimers, did not have any additional comments to add but indicated he was available to answer questions. Planning Board Minutes July 25, 2018 Page 9 John Lange, Edmonds, said that until three years ago, he was the property manager for the apartment units located on the subject site. He was impressed with the quality of the owners. The owners repaired things and managed the properties well, doing upgrades when needed. They did not let them fall into disrepair with the hope of getting a rezone at some point in the future. They maintained high -quality tenants, as well. The property was a benefit to the community. Board Member Lovell asked about access to the property, and Mr. Shipley answered that each property has a separate access from 236' Street SW. Board Member Lovell asked if surrounding property owners have commented regarding the proposed rezone, and Mr. Shipley answered that no comments were received relative to the rezone application, but one adjacent property owner voiced concern during the Comprehensive Plan amendment hearing about height. After he let her know that the height limit would not be significantly different, she appeared to be satisfied with the proposed change. Board Member Lovell asked if the property owner intends to demolish the existing buildings and redevelop the site. Mr. Reimers indicated the intent is to redevelop the site under the RM-1.5 zoning. Chair Monroe asked how many people live on the subject site now, and Mr. Reimers answered that there are seven apartment units and one single-family home. Chair Monroe pointed out that the rezone would allow up to 21 units, depending on whether or not the lots are combined. He asked about traffic impacts, and Mr. Shipley reminded the Board that a traffic study would be required as part of any development application. Board Member Robles pointed out that 236r' Street is posted as 25 miles per hour and is a major driveway to Madrona School. It also connects with SR-104, which has a D rating for traffic with a recent motorcycle accident. It is important to note that a traffic study will be required. Board Member Robles asked if adjacent property owners were actively notified of the proposed change, and Mr. Shipley answered that notices were posted on the site and mailed to property owners. Notice was also published in the local newspapers and on the City's website. Board Member Robles recalled that there were some recent problems with stormwater runoff during a significant storm. He asked if stormwater issues would be addressed as part of a development proposal. Mr. Shipley responded that improvements have been made in the area recently and stormwater would be reviewed by the Engineering Department prior to issuance of a development permit. BOARD MEMBER LOVELL MOVED THAT, BASED ON THE FINDINGS OF FACT, ANALYSIS, CONCLUSIONS AND ATTACHMENTS IN THE STAFF REPORT, THE BOARD FORWARD A RECOMMENDATION TO THE CITY COUNCIL TO APPROVE THE REQUESTED REZONE FOR PROPERTY LOCATED AT 9107 AND 9111- 236TH STREET SW FROM SINGLE-FAMILY RESIDENTIAL (RS-8) TO MULTI -FAMILY RESIDENTIAL (RM- 1.5). CHAIR MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. DISCUSSION ON POTENTIAL PLANNING BOARD RETREAT In light of the Board's recent work on the Housing Strategy, Board Member Lovell suggested it would be helpful to talk about one or more aspects of the strategies implementation at their retreat. Options include: • Invite a developer to talk about what they need to develop affordable housing on a given piece of land in Edmonds. • An independent discussion and presentation by staff as to the available lands. The Available Lands Inventory could be used to identify where different types of housing might be developed. • Pick a hypothetical property that may involve a rezone to accommodate affordable housing. What would the steps and process be to get that done? Chair Monroe noted that Board Member Crank previously suggested that a representative from Blockable be invited to share information with the Board. The Board decided to postpone further discussion about the retreat until more Board Members were present to participate. They were invited to email potential agenda topics to staff. Planning Board Minutes July 25, 2018 Page 10 REVIEW OF EXTENDED AGENDA Chair Monroe reviewed that the August 8' agenda will include a discussion about the SMP periodic review and potential dates and agenda topics for the retreat. The August 22nd agenda will include continued discussion about the SMP periodic review and a presentation on additional amendments to the Critical Areas Ordinance. PLANNING BOARD CHAIR COMMENTS Chair Monroe did not provide any additional comments. PLANNING BOARD MEMBER COMMENTS There were no Board Member comments. ADJOURNMENT The Board meeting was adjourned at 9:10 p.m. Planning Board Minutes July 25, 2018 Page 11