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HomeMy WebLinkAbout19840403 City Council MinutesI I I I I 8pri] _;3, 1984 The. regular. meeting of the_ Edmonds Ci~y CouQcil ,.was .cal leq .tQ order ~t 7:.35 p.m. by Mayor Larry Naughten in the ·Plaza Meeting Room 6f 'the Edmonds ·Library~ All ·present.joined in the flag salute. PRESENT Larry Naughten, Mayor Jo-Anne Jaech Bill Kasper Jack Wilson Lloyd Ostrom Steve Dwyer John Nordquist CONSENT AGENDA ABSENT Laura Hall Brian Stewart, Student Rep. STAFF PRESENT Art Housler, Finance Dir. Jackie Parrett, City Cl erk Jim Jessel, Property Manager D~n P~inz, Acting Police Chief Mary Lou Block, Planning Director· Mark Eames, City Attorney _Jim Adams, City Engi~eer Ron Schirman, Ass't Fire Chief M. J. Hargraves, Recorder Item (D) and (E) were removed from the Consent Agenda. COUNC1LMEMBER NORDQUIST MOVED, SECONDED BY COUNCIL~EMBER JAECH, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items on the Cons~nt Agenda included the following: (A) Roll Call (B) Approval of Minutes of March 20 and 27, 1984. (C) Authorization to Advertise and Purchase Portable Generator for Sewage Lift.· Councilmember Jaech indicated that she removed item (D) to give updated information to the Council received from the Finance Director. The bids received were from People's Bank and Rainier Bank; People's Bank submitted the most acceptable quote. Councilmember Jaech suggested that Mr. Housler review the bidding process for the Council. Mr~ Housler~indicated that they were seeking a Bond Anticipation Note for interim financing of an L.I.D. -People's Barik presented two options: An interest rate of 7% on the face of the bond itself, to .be payp.ble on February 1, 1985, which they would di.scount at 99-1/4% of the par value. The total cost of interest during the 291_ days the City would have that money would be $74,145.00, fixed rate~ Option 2 is an 8% fixed rate interest with a:time frame of-291 days with an interest cost of $76,537. Rainier Bank bid 8.05%; the total cost for 291 days would be $77,01'5. Also~ ·they want to adjust the rate on a daily basis to 70l of prime, so it is a variable rate. Old National Bank and Olympic bank indicated they could not assist city financing at .this time. Mr. Housler recommended accepting Option.l from People's Bank; this is 7% interest discounted at 99-1/4%, at a fixed rate. Councilmember Jaech indicated that she had before her Ordinance 2423 that the Council needed to 35l pass in conjunction with the Bond Anticipation Note. If the Council decided to accept the interim bank financing, the interest rate of 7% must.be inserted in the blank on Page 3 of the Ordinance; and _in Secti.on 7, Page 5, the name People's National Bank must be inserted, as well as the 99 .. 25/100 figure .. COUNCILMEMBER JAECH MOVED THAT THE COUNCIL ACCEPT THE BID BY PEOPLE'S BANK; COUNCILMEMBER .KASPER SECONDED; MOTION CARRIED. Councilmember Dwyer brought a claim for damages before the Council which had been submitted by Mrs. Randy Nulinix. He observed in connection with the damage claim that there is apparently a requirement that if.a claimant.is married, the husband's name must be given. He feels that that is an outdated requirement. If there is a reason for someone tci name a spouse, that is all right. Having so noted, COUNCILMEMBER DWYER MOVED TO APPROVE ITEM (E), CLAIM FOR DAMAGES; COUNCILMEMBER JAECH SECONDED. MOTION CARRIED. HEARING (CONTINUED FROM JANUARY 17) ON APPEAL FROM ADB DENIAL OF EXISTING SIGN AT THE EDMONDS THEATRE, 415 MAIN STREET (APPELLANT: MAYO). The City Attorney, Mark Eames,. addressed the matter briefly. All items, he stated, no matter what the intention of the Council as to any final action, must be opened for hearing so that anyone in the audience who wishes to speak on the item may do so before the hearing is closed. The h~aring may then be continued. Councilmember Dwyer indicated .that he was on record. as having spoken out on this agenda item before he was appointed a Councilmember, and he believed he should step down during the discussion. He left the meeting at this .point. The Mayor then opened the matter for hearing. Planning Diret- tor Mary Lou Block stated that the appellant, Dr. Mayo, is out of town and is in agreement with .the.recommendation to continue this item until a later date. COUNC1LMEMBER KASPER MOVED, SECONDED , BY COUNCILMEMBER JAECH, THAT THE HEARING .ON THE ADB DENIAL OF EXISTING SIGN AT THE EDMONDS THEATRE, 415 MAIN STREET, BE CONTINUED TO MAY 15. MOTION CARRIED. Councilmember Dwyer returned. HEARING (CONTINUED FROM FEBRUARY 7) ON APPEAL FROM DENIAL OF EXISTING FREESTANDING SIGN AT DAIRY QUEEN DRIVE~IN RESTAURANT AT 7530 212TH S.W., (ADB-62-83) (APPELLANT: OLMSTED}; - The Mayri~·o~~ned~tn~ matter for hearing. As no one wished to speak, he returned the agenda item to the council. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, THAT THE HEARING BE CONJINUED TO MAY 15. MOTION CARRIED. 35~· April 3, 1984 -continued HEARING (CONTINUED FROM DECEMBER 20, 1983) ON APPEAL FROM ADB APPROVAL OF TWO SIGNS FOR SAILOR'S RESTAURANT AT 190 W. DAYTON STREET (APPELLANT: SHIPPEN). . Planning Director Mary Lou Block noted that members were in possession of information packets con- taining all documentation, including original information and Minutes of past meetings, pertaining to this hearing~ The signs for Sailor's Restuarant had been discussed by the Architectural Design Board at their October 19, 1983, meeting. The applicant had proposed two signs for the restaurant in Building One of Harbor Square: One sign was to be located on the north face of the building near the top on the east side; the other sign was proposed to be located over the entry door and awnings on the east side of the building. The signs meet the area requirements of the Community Development Code, but do not·meet what the Code indicates as a height requirement; that is, 14 feet. The height of the sign on the north face of the building is approximately 23 feet; the entry sign is about 19 feet. The ADB granted approval of.the two signs with a height greater than the Code permits, since they agreed with the applicant that the sign near the top of the north face would assist in avoiding confusion as to the second floor location of the restaurant. The sign over the entry was placed above the required height limit to avoid the proposed awnings. · Planning Director Block advised the council that they may uphold the decision of the Architectural Design-Board, overturn their decision, make modifications to the approval, or they may remand the decision to the Architectural Design Board. She noted that during the meetings in December on this .matter, the Council ~Wished to have the Planning Board take a look at the question of attached signs; specifically, the Council directed the Planning Board to look at Highway 99 and the sign code for that area, and then look at the present sign question -particularly in the Harbor Square area. The Planning Board has not yet submitted a formal recommendation; their work meetings have indicated their interest in retaining.the present ability of the ADB to look at these items on a case by case basis; but they have made no recommendation to look at the height section. The Mayor then opened the hearing. Natalie Shippen, 1022 Euclid, said she would like to go into the background of these signs just· briefly. They are new signs, on a new building, in a new development, in a highly visible area, she pointed out. The two signs exceed the Code limit; one exceeds the limit by 5 feet and the other by 9 feet. Both are illuminated signs. These would be the 5th and 6th attached new signs in this new development that are not in compliance with Code. On this one building alone, Ms. Shippen stated, there are now 5 signs: Three are painted, two are attached, and these five signs are lo- cated at four different levels and the building is not yet fully occupied. In looking through the Minutes of the various meetings where these signs have been discussed, Ms. Shippen observed that the reasons given for non-compliance are varied: One is that the design of the buildinq will not accommodate a conforming sign; that may be true, she felt, but in that case it is an issue between the builder and his architect. The architect may not have intended that signs of all sizes, shapes and colors be attached to his buildings, but it is not incumbent upon the City of Edmonds to re- solve such conflicts. Another reason given is that second story retail buildings have a particu- lar need for signs above the Code limit. Ms. Shippen said that Harbor Square already has signs above the Code limit that are not on the second floor. A third reason given is that sign locations cannot be planned because future lessees and their needs cannot be anticipated. A fourth reason given is that the Code is inadequate. In all the discussions that she has attended, Ms. Shippen noted, many parts of the sign Code have been criticized in other· parts of the City, but not in the Bowl. No one has ever suggested that the bowl sign Code was inadequate until it was needed for this duscussion. Ms. Shippen does not feel that these items she has set forth are reasons; they are excuses for inaction, she stated. The last reason often advanced, Ms. Shippen contended, is the one that is probably valid. Many people feel others are allowed nonconforming signs, so why are they not permitted to have them as well. She feels that this situation does prevail in Edmonds. These are not minor deviations from the Code, either; there are signs which exceed the Code by 7 feet, 11 feet, 8 feet, and some are almost twice the height limit and are new signs. Ms. Shippen observed that there are buildings that conform without any problems, while others do not. She believes that the chances of getting an exception and/or variance to the Code are 3 out of 4, and she believes anyone would be safe in gambling that they can get a nonconforming, noncomplying sign. She believes the question to be addressed· is: How did the City reach the point where an individual can gamble on whether or not they can get a new sign that does not comply, and why is the sign Code ignored. Ms. Shippen thought that it was because the City has an unelected Board which make law every month without the safeguards that guide the City Council. The ADB does not hold hearings or make trips to the area, nor are they required to wrestle with the dilemna of reconciling public and private interests; they simply change the sign Code every month, she said. The Architectural Design Board has fre- quently said that the buildings and signing are an inseparable design element, but she feels they still look at buildings and approve them and never inquire into the signing. The City Council, Ms. Shippen stated, has delegated responsibility to this unelected Board and hoped that the Council would retrieve a careless delegation of authority to the Architectural Design Board. Dick Beselin, Harbor Square, said he was not the applicant for Sailor's Restaurant, but was speaking as a delegate. He said he would prefer that the Council discuss Sailor's Restaurant signing, rather than the entire sign Code as previously addressed by Ms. Shippen. He reminded the Council that this issue arose originally in December and was deferred until the Planning Board could come up with some recommendations to the council in reference to height and second-story signing. He agreed with Ms. Shippen, however, that the sign Code is totally inadequate; it does not address specific .instances or issues. He said he would prefer to have this matter deferred until the final recommendation Js received from the Planning Board relating to the Codes and proposed changes. He did not believe that the issue could be resolved at the meeting that night, since there was no final recommendation from the Planning board. Ms. Shippen, previously identified, stated that she did not want to leave the impression that she though the sign Code was inherently poor. She believes that so far as the figures are concerned, the Code is satisfactory; she does believe, though, that more stringent and consistent enforcement is called for. The Mayor closed the hearing and returned the matter to the Council for action. I I I I I I I I I I April · 3, 1984 -continued 9~9· d~')f) Mark Eames,. City Attorney, requested the opportunity to make a few comments prior to deliberation by Councii. He bel~eved the Council was aware that the.criteria applied in any appeal is the same criteria applied by the Boards underneath the Council. An appeal is considered on the basis of e~idence pre- sented. He pointed out that the Architectural Design Board was required to make findings, and there- fore the Council is required to make findings: ·that;the sign is consistent with the Comprehensive Plan, that it conforms to the zoning ordinance or other adopted City policies, and that it meets the criteria of the chapter of the Cod~ triat applies to the ADB. One section of this Chapter specifies that a·sign should conform to the general design theme of the development; the ADB is required to consider all other policies the City may have that deal with signing. Councilmember Ostrom indicated that in reviewing the Minutes of past meetings and other things he had read·-on the subject, and in listening to the testi~ony, did not believe that it had been demonstrated that.any special conditions were evident at the location in question. He did not see any logic in -the decision by the ADB; he could not understand.why they granted this sign approval. Council member Jaech wanted to clarify a point for Mr. Bes el in who had spoken earlier. They do have a recommendation on the sign .Code from the Planning Board, .but it only concerned Highway 99. Mary Lou Block told the Council that the Planning Board was planning to present recommendations on attached sign.height after the April 11 meeting. Mr. Beselin, previously identified, said that it was his recollection that the hearing had been de- ferred until this date so that the Planning Board could address the issue ~nd the height require- ments in Harbor Square. In fact, he added, there was a moratorium for placement of any more signs in Harbor Square until the findings by the Planning Board came before the City Council. t. ,._.,_ COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, THAT THE MATTER BE MOVED TO APRIL 17 PENDING THE RECOMMENDATION FROM THE PLANNING BOARD. Councilmember Ostrom said .he saw no reason why the Council could not make a decision at the present meeting. He noted that Highway 99 had a kind of development entirely different from the rest·of the City, but.that was not.the case in Harbor Square .. He believed that it could become the same kind of problem if the Council allowed it to. He stressed that it is consistent for the Council to apply the same Code to Harbor Square as in the rest of the Bowl area. He did not understand why.this matter was continued in the first place and saw no reason to continue it further. Council member Kasper .responded that this is a PRD matter and that the useage is different .from that for which the Code was ~rafted; he said t~e sign Code does not address the problem and stated that unless a good .Took ·is taken at this specific case now, it will be difficult to forestall future problems when there will be considerably more building. He reite~ated his desire to continue the hearing. A ROLL CALL VOTE WAS TAKEN ON COUNCILMEMBER KASPER'S MOTION: THE MOTION FAILED, WITH COUNCILMEMBERS WILSON .AND KASPER VOTING YES, AND COUNCILMEMBERS JAECH, NORDQUIST, OSTROM AND DWYER VOTING NO. ,.. Council-member Jaech indicated that she had visited areas in Oregon and California recently where there are developments similar to Harbor Square. There were multiple-uses there, houses, stores, and the like, b.ut the.areas were not overly signed. The signing that was there was small and unobtrusive, and no.one appeared to have any trouble, nor did she, in locating the businesses or buildings. She believes that the existing sign Code is adequate; further, that those persons who design a build- ing should make allowance for areas on the buildings for signing that conforms with the sign Code. Councilmember Jaech does not believe greater signage should be allowed than is provided for in the Code. Councilmember Ostrom feared that the Council would be setting a precedent that would be difficult to break in the future if it approved the signs for Sailor'S; City Attorney.Mark Eames listed the cri- teria that the council sh,auld take into consideration: Is the sign consistent with the Comprehen- sive ~lan and other City policies? Is it consistent with zoning? Are there other criteria upon which a motion could be based? Councilmember Ostrom said he did· not believe these signs were consis- tent with the·Comprehensive Plan or zoriing, and felt that approval would be· granting a special privilege. COUNCILMEMBER OSTROM MOVED, SECONDED BY COUNCILMEMBER DWYER, THAT THE COUNCIL DENY APPROVAL OF THIS SIGN. A ROLL CALL VOTE WAS TAKEN W1TH FOUR MEMBERS VOTING YES AND TWO MEMBERS VOTING NO: (Jaech, Ostrom, Dwyer and Nordquist voted 'yes'; Kasper and Wilson voted 'no'.) MOTION CARRIED. HEARING (CONTINUED FROM FEBRUARY 7) ON APPEAL FROM ADB APPROVAL OF TWO SIGNS ON NORTH FACE OF PROPOSED EDMONDS NATIONAL BANK BUILDING AT 125, 137 AND 145 THIRD AVENUE·SO. (ADB-113~83) (APPELLANT~ HERTRICH). Pla~ning Director Mary Lou Block indicated that appellant Hertrich was unable to attend the meeting, and that the applicant for the sign, Mike Medea, understood that the Council members wished to con- tinue the hearing, so he was not in attendance either. Mr. Medea understands that the meeting is to be rescheduled for May 15 or recommended for rescheduling to May 15. COUNCILMEMBER KASPER MOVED, SECONDED BY ~OUNCILMEMBER JAECH, TO CONTINUE HEARING THIS MATTER TO MAY 15. MOTION CARRIED. HEARING (CONTINUED FROM MARCH 20) ON APPEAL OF HEARING EXAMINER DECISION REGARDING A VARIANCE TO STREET LANDSCAPING REQUIREMENT AT 23125 HIGHWAY 99 (V-19~83/BUTLER). · . ·. . Planning Director Mary Lou Block directed the attention of the council members to their information packets. The City Engineer inspected the site in question after the issue of safety was raised at the March 20 hearing. His memorandum indicates that there is no potential increase in safety hazards if both sides of the pump island are used. The use of one side was addressed and deemed not to be a problem from a safety standpoint. The issue is the request of a variance from the Code require=- ment for landscaping in CG zones. Staff recommends concurrence with the Hearing Examiner's decision on this matter in the interest of providing the landscaping and making improvements on Highway 99. Councilmember Dwyer called the Council's attention to page 2 of 'the Hearing Examiner's report which sets forth criteria that must apply as stated in Settion ~0.85.010. · It is andisp~ted that the criteria set forth in sub-paragraphs (a), (b) and (d) have been met~· he stated .. Mr. Butler indicated that he did not think Section (f) had been met. ·Thi~ section prbvides that the variance must meet a minimum "necessary to allow the same rights enjoyed by other property owners". It was Mr. Butler's feeling that the variance given him did not provide him with the same riqhts enjoyed by other property I 354: April 3, 1984 0 continued ownersc.because it did not allow him to use both sides of his pump. Councilmember Dwyer agreed with that contention. He thought that only Paragraph (e) was to be determined -whether or not.there was a reason not to give the applicant the benefit of using both sides of the pump. Paragraph (e) pro- vides that the variance 11 must not be significantly detrimental to the public health, safety or wel- fare, nor irtdLlrious to the property or improvements in the vicinity of the same zone''. Councilmember Dwyer did-not.recall any claim being made.that to allow Mr. Butler to use both sides of the island to pump gasoline would be 11 significantly detrimental to the public health". Based on a letter from City Engineer Jim Adams, he concluded that it would not be significantly detrimental to public safety to allow Mr. Butler to use both sides of the pump. *Councilmember Jaech interjected that this was an example of matters the sign Code should address. When a sign changes, or ownership changes, the Council wants the new user or owner to modify or attempt to try to come within the Code. She indicated that that was what the Council was trying to do on Highway 99 now. She noted that if the Council was going to change policy each time ownership changed and be lenient, having a Code was of no avail. She thought the Hearing Examiner was trying to.1 compromise. Technically, under existing Code, the pumps could not be used at all. Mr. Butler was given a variance so he could at least use one side of the pumps and reduce the landscaping require- ments to some extent. Councilmember Kasper said he had asked the City Attorney to address the problem, but that he had not heard from him yet regarding whether there was any alternative tempo- rizing this action; that is, could it be made temporary? Was there any way the Council could give a 5-year clause as a forbearance on a temporary basis. City Attorney Mark Eames responded that it was important to keep in mind that the matter comes before the Council as a short plat. That is how Mr. Butler came b~fbre the City originally, asking for a short plat under the subdivision ordinance. Short plats are allowed by State law, Mr. Eames said, and are much less formal than for a long subdivision or formal subdivision. State law gives the City a lot of latitude as to approval of short plats. The section of the City Code that applies to subdivisions in general, whether short plat or formal subdivisions, lists the improvements that can be required: One of these requirements is street landscaping. Then, there is a provision in the Code entitled, "Installation of Improvements", which puts a time limit on when these improvements must be put in -either before final approval, or by bonding. Mr. Eames read that portion applicable to bonding:~· ·"Where the applicant shall post a bond or other suitable surety to guarantee the comple- tion of the improvements within one year of approval of the final plat''. If the City wanted to establish a longer period of time, such as the 5 years suggested by Councilmember Kasper, special provision would have to be made for it. Planning Director Block indicated that Mr. Butler had asked for the opportunity to bond for the installation of his sidewalk and had already doe so in lieu of installing the sidewalk immediately. I ~ : I 1, Mr: Eames repeated that if the Council wanted to give anyone more time, they would have to make a change to the subdivision code. The variance process determines requirements for improvements. Currently, the Code ca1ls for 15 feet and Mr. Butler is asking for a variance from that requirement. ... Councilmember Dwyer felt that Mr. Butler was entitled to some relief and that the question before the Council was what degree of relief they were willing to give. Mr. Dwyer said that Mr. Butler is entitled to·.what the Code now provides, unless he will be given benefits later on. Where grand-' father rights are involved, Councilmember Dwyer said, we are trying to give greater benefits to those property owners to achieve something new. He did not believe in speculating on how the prob- lem might be avoided in the future at this point, and said there was existing criteria to be applied to Mr. Butler's case. The City Attorney responded that the grandfather clause was a technique, a tool, for dealing with nonconforming uses which were legal at the time they were put in but because of later changes in the Code and zoning requirements became illegal. He noted that it is a mechanism for bringing -nonconforming ~ses into conformance at some point down the road. In this case, it appears the Council is wondering how to give Mr. Butler more time, and still determine at what point it ~an require the.landscaping criteria be met. If the Council is attempting to give some time here, the adjust~ent should be made in the subdivision ordinance, he stated. Councilmember Ostrom said that it appeared to him that the only way Mr. Butler could comply would be to move· lifs building; he did not see how that could be 11 grandfathered.11 At the present moment, Councilmember Ostrom said, he did not see how Mr. Butler could be expected to comply with Code. The only way.that could be accomplished, he felt, was to state that if at any time in the future the building·is torn down and a new building constructed, then at that time the landscaping should be done. · COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER WIL~ON, TO MODIFY THE HEARING EXAMINER'S DECISION SO AS TO ALLOW MR. BUTLER THE USE OF BOTH SIDES OF THE GASOLINE PUMPS. Councilmember Jaech asked if that meant there was to be no landscaping. Councilmember Dwyer said it was his impression that there was at least 5 feet of sidewalk and 5 feet of landscaping. Planning Director Block said that it was her understanding that if the sidewalk was put in, and Mr. Butler permitted to use both sides of the pumps, there would be insufficient room for landscaping. She added that the sidewalk here was on the state right-of-way; inside there would be 11 feet of landscaping, then 2 feet to the pump island. The total distance there is 18 feet, she observed. Councilmember Wilson asked if it was intended for purposes of a motion that the Staff determine the exact footage of the'space needed to use both sides of the pump. He asked if the Staff would determine what is necessary so there would be no argument. A ROLL CALL VOTE WAS TAKEN ON COUNCILMAN DWYERS MOTION. MOTION CARRIED, with Councilmember Kasper, Wilson, Ostrom and Dwyer voting "yes" and Councilmembers Jaech and Nordquist voting "no". After some dis~ussion about the footage involved, COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCIL- * MEMBER KASPER~ THAT THE AMOUNT OF SQUARE FOOTAGE SHOULD ALLOW FOR NO LESS THAN 5 FEET OF SIDEWALK AND 5 FEET OF LANDSCAPING. Planning Director Block indicated that would not leave enough_ space for the pum~ ·island; that 11 feet are needed for the island. COUNCILMEMBER DWYER MOVED THAT THE AMOUNT OF SPACE GIVEN FOR THE USE OF ONE SIDE OF THE PUMP, THE SIDE CLOSEST TO HIGHWAY 99, NOT EXCEED 11 FEET: COUNCILMEMBER KASPER SECONDED. Further discussion ensued concerning the necessary *See April 10, 1984 Minutes I I I I I I I I I I April 3, 1984 -continued amount of footage to allow for the island, the traffic lanes, the sidewalk and the landscaping. The \ island requires 11 feet, vehicles are 8 feet wide on the average, and at least 1 foot was needed between the pump and the vehicle, City Engineer Jim Adams.advised. ~OUNCILMEMBER DWYER WITHDREW HIS PREVIOUS MOTION AND MOVED, SECONDED BY COUNCILMEMBER WILSON, THAT THE MATTER BE REMANDED TO THE HEARING EXAMINER TO DETERMINE WHAT THE NECESSARY FOOTAGE SHOULD BE. MOTi ON CARRI ED. HEARING ON APPEAL OF HEARING EXAMINER'S DECISION ON MATTER OF SHORELINE PERMIT NUMBER SM-3-83, PORT or 'EDMONDS MID-MARINA EXPANSION PROJECT' INCLUDING CONDITIONAL USE PERMIT NUMBER CU-58-83' AND VARIANCE NUMBER V-18-83. (APPELLANT: HERTRICH). Planning Director Mary Lou Block recounted progress to date on this matter. The Hearing Examiner conducted his hearing on the Shoreline Management Master Permit 3~83 on January 18, 1984, regarding the Port of Edmonds' request for the proposed mid-marina expansion, along with the Conditional Use Permit for grading, and a variance to reduce the parking setback from the bulkhead. On February 22, 1984, the Hearing Examiner issued his findings; subsequently, on March 6, 1984, Roger Hertrich filed an appeal to overturn the Hearing Examiner's decision: Mayor Naughten observed that the appellant was not present, but they had a letter from the Port of Edmonds, written by William E. Auerswald, stressing the urgency of a decision. on the matter. He also noted that representatives from the Port of Edmonds were present. At this point, Planning Director Block said she would like to summarize the points from the Hearing Examiner's decision for the benefit of those who were not familiar with the contents. Since it is a ten-page document, Ms. Block read the final order: "Based on the Findings of Fact, Conclusion, testimony admitted at the public hearing and the evidence submitted subsequent to the hearing, and the impressions of the Hearing Examiner upon a site visit, it is. hereby Ordered that the requested Shoreline Substantial Development Permit for additional moorage slips within the Port of Edmonds be granted. In addition, the requested variance to reduce the required aisle width within the parking lot from 24 feet to 22 feet, is granted. Also, the Conditional Use Permit fordredging 84,000 cubic yards of material is granted. The permits are granted subject to the following con- ditions: (1) The amount of existing transient moorage of 430 lineal feet should be retained. In addition, 14 percent increase in transient moorage is re~uired. The new lineal feet of transient moorage will be 60 feet for a total of 490 lineal feet of transient moorage within the marina; (2) the two floating piers located west of the restaurant and yacht club are to be open to the public and are not to have gates; (3) the pier located southeast of the restaurant is to be used as a public viewing area; (4) a 10-foot walkway is to be provided along the waterfront. This 10-foot walkway will be part of the setback for the bulkhead parking; (5) a minimum of 20 feet of paved area, designated as a fire lan~, is .to be provided west of the restaurant; (6) standpipes and a fire hydrant, as required by the Fire Department, will be provided; (7) an oil separator, as re- quired by the Department of Public Works, will be installed; (8) the applicant shall maintain the existing boat launcher or shall provide for at least one boat launcher ~ithin the marina; (9) the applicant shall take incentives of acquiring, developing and maintaining other public recrea~ tional facilities to meet the public demand for boat launching and transient moorage and other enjoyment of the sh6relii:ne:.; ( 10) no construction or improvement may begin without approva 1 of the Department of Fisheries, Department of Ecology and other State agencies for permits to improve the marina. Without these permits, the granted land use permits are invalid; (11) these permits are. conditioned upon the State of Washington approval of the City of Edmonds amended Shoreline Master Program. Planning Director Block said that the Hearing Examiner did find that the proposed use was consis- tent with the intent of the Edmonds Shoreline Master Program, the policy plan and the CW zoning. Councilmember Dwyer asked Planning Director Block if any or all of the approvals or permits from the state agencies or other involved agencies had been received since the Hearing Examiner filed his report. Planning Director Block replied that the permits do not come to the Staff or the City; those permits are filed with the State departments and then become a part of the overall permit that is required for the applicant to proceed. By the t.ime the City receives the building permit, they could be assured that all the requirements had been made and the permit itself would be evi ~ dence that the permit has been issued. by the Corps of Enginers. Councilmember Nordquist asked if anything was required by the Corps of Engineers in this project, and Ms. Block affirmed that a permit from them was essential. The Corps of Engineers will not issue a permit until all other involved agencies have approved the project and issued their own permits and otherwise granted permis~ion. · Councilmember Jaech asked how the 84,000 cubic yards of dirt was. to be disposed of. Planning Director Block indicated that Public Works is interested in obtaining a substantial amount of that dirt, and City Engineer Adams advised the Council that their department had a great need for that material, for there ~re two projects scheduled for completion within the next two years where the dirt will be used: On 88th Avenue, north of Main and on the new road out of Shell Valley at Pioneer Way. John Olson, Reid Middleton, 121 5th Avenue North, addressed the Council with regard to the 84,000 yards of dredging. The original permit request was.to dump that in deep-water disposal at Port Gardner Bay. At the request of the City of Edmonds for 24,000 ~ubic yards of the material, the new permit application was amended. to reduce the quantity to 60,000 yards to be dumped. The other 24,000 yards will be upland disposal. Mr. Olson indicated that they wished to work very closely with the City Engineer and the City of Edmonds, to dispose of that fill wherever the City would like to have it placed. The Port of Edmonds, Mr. Olson stated, is interested in the most economical method of disposal and will try to determine the most economical way that will suit everyone involved. If the City can use more than the 24,000 they have requested, Mr. Olson noted that everything would be done to assure that the City. receives as much as they want.. There is material which will have to go north to deep water disposal because of the locati6n;·it can not readily be reached with a backhoe. All the material that can be reached with a shore type backhoe and put directly in trucks can be disposed of wherever the City of Edmonds Public Works Department would like to have it and the City can have as ·much as they want, he repeated. He stressed that *See April 10, 1984 Minutes I :-l5ti April 3, 1984 -continued they did not approach the City for the material; that the City approached them. They have a permit to dump 60,000 yards in deep water, and there is no problem for them. Finis Tupper, 711 Daley St., indicated that he had testified on this matter in the past. He is not against the mid-marina project. He stated that he does not represent Roger Hertrich, but that he wanted to speak on the matter because he met with Herb Carpenter. recent}y and· .when .he asked what changes were taking place and Mr. Carpenter mentioned a few, Mr. Tupper felt that these were sig- nificant changes in terms of reduction to the original proposal. He stressed that the Hearinq· Examiner made his Findings of Fact based upon the original proposal and chose to limit his.condi-I tions to the issue of public access and how it pertains to th~s development .. Mr. Tupper understood · the moorage was to be reduced by half and was informed that .they would not be dredging 84,000 · . cubic yards of soil material. Mr. Tupper wonders if there are people who do not understand what a conditional use permit is. He reiterated~: that it is granted through the Hearing Examiner pro- cess, and that was the only way to get a conditional use permit.in the City of Edmonds. The process is· for the purpose of getting some degree of control ~nd to guarantee consis~en~yand compatib.il1t.)! .. to other existing permissible uses in the zone or z,ones .. , The Code sets up certain criteria that must be observed to grant a conditional use permit. Among the criteria, Mr. Tupper said, is that the project "not be detrimental 11 or "significantly detrimental 11 to the public ~ealth, I safety or welfare, nor to nearby private properties or improvements". Mr. Tupper feels that nei!het:.· of these has. been addressed in the Hearing Examiner's Findings of Fact and/or the Staff Report; neither addressed the "not detrimental" issue, nor did they addres.s the transferability issue. Mr. Tupper noted that it was customary in this City, in the event of a possible safety hazard when dredging and moving this quanti.ty of earth, for the City to place conditions on the permit. He noted that there were· no conditions placed on the Conditional Use Permit as read by Planning Director Block from the Hearing Examiner's Decision. He suggested that the applicant should be required to submit a dredging and drying plan; that the applicant should be required to show exactly how much he is going to .remove and how; how they propose to dry the fill; whether roads could bed~maged~ when the hours of operation would be. He feels the applicant should supply to the City an exact dump site. The City should decide before the permit is granted exactly how much soil they want and where tt is .to be placed. Mr. Tupper feels that only State Route 104:~ho~ld be used for to and from access from the proposed development site; that the hours should be limited to 8:00 a.m. to 5:00 p.m. Mondays through Fridays. This would preclude the development from interfering w.ith Saturday and Sunday boa.ters and others wishing to use the area. Mr. Tupper concluded by stating that· he believes the Planning Director's office may at times selectively enforce th~ Community Development Code. Herb Carpenter, Port of Edmonds, said that the Conditional Use Permit_ was granted for this site and the sites to be designated by the .City of Edmonds. If .controls are placed on disposal of the material, that. is up to the City, and Mr. Carpenter .believes the City will effectively control where the material is to be placed. He indicated further that there are solutions and answers to all objections raised by Mr. Tupper, and does not understand why there appears to be a problem. He asked the Council. if the matter .of the appeal could be d.iscussed, rather than extraneous matters. Counci lmember Jaech noted that the Council does not have any appeal; that is·, ·they have an appea 1 .·.1 but do not know the contents of the appeal at this time. Councilmember Kasper noted that so far as he was concerned the contents of the appeal were set forth in Item 39 of objections raised by appellant Herfrich; he observed that Mr. Hertrich made a written appeal. Council member Jaech felt that there was only vague criteria in Mr .. Hertrich 1 s appeal, and none upon which the Council could act. Councilmember Kasper dissented, noting that Item.39 sets forth Mr. Hertrich 1 s reasons during the hearing, and he stated he didn't agree with the Council~ Councilmember Kasper observed that Mr. Hertrich could be.absent from every meeting for the next few months and action could be deferred indifinitely. Councilmember Jaech reminded Councilmember Kasper that Mr. Hertrich had argued with them when they tried to extend his appeal on the sign code; he did not want the extension. Councilmember Kasper responded that the Council is ~ealing with another public agency, and this is an entirely different matter than when the Council is d~aling inside the City on non- controlled elements. Councilmember Jaech replied that there were also some concerns on the part of the De~~rtment of Ecology and Fisheries that the bulkheads that were originally designed may not be the bulkheads that are going in now. · Herb Carpenter, previously identified, indicated that there was a concern at one time by the Department of Fisheries with being able to get small fish to stay in the shallows along the break- water·;~· tnere ·is a sheet pile breakwater that comes out from the rock breakwater. The concern is still alive and active, and the Port of Edmonds is not attempt.in~ to go ~round it. Drawings have been resubmitted to the Corps of Engineers addressing this problem, showing sheetpile bulkhead inside the existing rock breakwater. The arrangement has been revi~wed by the Department of Fisheries and at least, administratively, has been approved. That crucial change as to where the breakwater occurs controls a lot of other things, Mr. Carpenter said. Moving the breakwater to the inside of the existing rock breakwaters reduces the amount of area available for moorage. The drawings as s~b- mitted to the Corps of Engineers make no changes to the bulkhead; the moorage has been reduced I to about 60 spaces. As a result of ~lacing the fuel dock in the most corivenient location, there is an increas~ in the amount of transient moorage, howe~er. He observed that the Council was being asked to look at the decision of the Hearin·g Examiner. The Port of Edmonds would submit its plans to the City for review, and if the plans were not withi~ the confines of the Hearing Examiner's decision, they would have to go through whatever ritual was prescribed. Councilmember Jaech inquired of Mr. Carpenter how long he thought it would be before the Corps of Engineers and Departments of Fisheries and Ecology all come to formal agreement on the needed permits. , ... · .. Mr. Carpenter indicated that there was no formal agreement per se. He explained, as the Planning Director has also, that the Corps of Engineers has the last crucial permit. They issue a permit only when all other requirements from all other agencies, state, city, have been satisfied; the Corps of Engineers has the "control" permit. They will issue the permit to allow the dredging, and that is·the·control item. In order for anyone to obtain that permit an individual absolutely has to satisfy all the agencies having an interest. For example, if the Shoreline Management Permit was not granted, then the Corps of Engineers would not issue their permit until Shoreline was satisfied; similarly, if the Department of Fisheries was at all dissatisfied with the marina, they would not issue a permit; each permit from each aqency is. predicated upon approval from the other. The Corps of Engineers will not issue a dredging permit until all agencies have been satisfied. I I I I fl I April 3, 1984 -continued John Olson spoke again to advise the Council that after the City gets the Shoreline permit they themselves send it on to the Corps of Engineers, and all the other agencies do the same thing. If the Port of Edmonds were to reduce the scope of· the= operation which has been approved, it would be all right. They have been approved for 84,000 cubic yards," but that does not mean they have to remove that much: they can remove less -say, 60,000 cubic yards, he noted. If they were to attempt to change anything from what was originally submitted, the Corps of Engineers would.readvertise and start the entire procedure over. When the ~art was given permission to build a bridge, or build anything, that did not mean it had to be built. Consequently, just be- cause they have permission to dig 84,000 yards~.does not mean that they are obligated to dig that much. They can remove that much to that extent; no more. They can only remove 40,000 if they want to remove that little. Mr. Olson indicated that he was also somewhat concerned about Mr. Tupper's remarks concerning dirt disposition and removing. He reitereated Mr. Carpenter's point: The City indicated a desire to have 24~000 cubtyards, and the Port is agreeable to giving it to them. The City will be getting a tremendous value. The Port is merely accommodating the City and the Port will put the material where and in the manner prescribed by the City of Edmonds Department of Public Works. If the City should decide that it does not want the material, then the Port will do as they originally intended before the City expressed a desire to have the material; they will haul it away to deep water. Herb Carpenter said he woul~ like to get back to the appeal matter; that there is a time problem. He stressed that he is requesting that the appeal be denied. Mr. Hertrich in his letter indicat- ed that he did not feel that the decision of the Hearing Examiner was consistent with the Communi- ty Development Code. Mr. Carpenter observed that Mr. Hertrich could have attended the present meeting, but instead is out of town. He said that the Port has had no choice in this hearing, but they tame and would like to have a decision. Mr. Carpenter told the Council that the months of June, July and August are basically the times during which the construction can occur. The Department of Ecology is reviewing the amendments to the Code for the City of Edmonds and decisions on whose will be acted upon during the period April 25-30. Immediately thereafter, the Shoreline Permit will be granted, effective with the amendments to the Code. Shortly after April 30, assuming that the Code amendments are approved, the Shor.eline Permit then comes into effect and that is forwarded to the Corps of Engineers for a 404 permit. He indicated that the Port is 11 on track 11 to get their permit from the Corps of Engineers shortly. From that they do some bidding, order materials, and then proceed. The time left to them after! the outlined procedure is very little; that is why they need to get going. They need a decision from the Council. If they do not start the project this year, this June, they will have to wait until next year. Mr. Carpenter indicated that the 11 critical window 11 .for the project is set by the Department of Fisheries; that is, when they can work around the bottom without disturbing the migration of small fish. Fisheries establishes a period when they can work, and that is when they work. Counci lmember Dwyer asked what periad of time Department of Fisheries usually prescribes; . Mr. Carpenter replied that it was between March 15 and June 15. They hope to commence their project June 15. Mr. Olson said that weather was another factor; contractors could not work much past the end of August or middle of September. The time span is as soon after June 15 as possible and to com- plete before September. The public portion of the hearing was closed and the matter returned to the Council for decision. Councilmember Ostrom asked City Attorney Eames if the Council is looking at something different from what was being discussed in front of the Hearing Examiner. Mr. Eames responded that the pro- posal that went before the Hearing Examiner is now before the Council. That is what the Council is being asked to consider. The issuance of the permit, in accordance with the application, would be the parameters within which they could work. The Council would be approvinq what the Port applied for to the Hearing Examiner. He sees no substantial change that has been proposed. Councilmember Wilson said that since the position of the Port is clear~ and time is of the essence and the content of the appellant's appeal has been well-:-published and understood, COUNCIL- MEMBER WILSON MOVED, SECONDED. BY COUNCILMEMBER KASPER, TO .REJECT THE APPELLANT.'S APPEAL. A ROLL CALL VOTE WAS TAKEN, WITH COUNCILMEMBERS WILSON, KASPER, AND NORDQUIST VOTING YES, AND COUNCIL- MEMBERS. JAECH, OSTROM, AND DWYER VOTING NO, RESULTING IN A TIE VOTE. MAYOR NAUGHTEN VOTED TO DENY THE APPEAL, AND THE MOTION CARRIED. Mayor Naughten added that he had several reasons for his vote. He felt that Mr. Hertri~h's objections were c]early stated in Items 37, 38, and 39, and there is a time requirement for the Port. He believes the applieants are mitigating problems as they arise and have been doing so. He noted that if the City should deeide they db not want the fill-dirt material, the Port has other places to put it. The project is important to the community, Mayor Naughten said; it is going to benefit the public insofar as recreation is concerned and he believes it will improve the whole shoreline and use by recreational boaters. It will certainly provide the transient moorage the City needs, he observed. For these reasons, the Mayor voted for the project, he said. Councilmember Jaech pointed.out that those among the Council who voted against denying the appeal were not voting against the Port project; they merely felt they had not heard what the appeallant's appeal was to their complete satisfaction. Councilmember Kasper stated that he felt the Council was negligent in taking appeals that were not complete, especially on major projects that affect the entire region. He did not feel that Mr. Hertrich had to have a direct interest, because this was a general subject. He also believed that appeals should be very specific, since he did not feel an appeallant had the right to hold up a project. For example, he said, on the hauling of the dirt if that were to become an issue. The City is already committed to building Pioneer Way; the dirt is needed. Whether we buy it, o~ it_is gi~e~ to us, it_is going to be hauled in there either way. It is just a matter of get- ting in pos1t1on and having appeals that are s:pec:i:fi·c and for the Council to accept them only when they are. The City is taking appeals on anything, he stated, for almost any reason. He believes that an appeal must be specific and that that point sho~ld be.addressed at a future ~ouncil meeting. . i 3,5r,: , :-I ! "3··.r':8' ,g' April 3, 1984 -continued MAYOR Mayor Naughten presented Resolution 584 to the Council for approval. This Resolution commended the Washington State Downtown Association Downtown Development Assistance Team. Councilmember Kasper noted that he.had not seen the Resolution prior to its introduction here and would like to defer if for the next meeting. After further discussion, the Council requested a rewording and rewriting of the Resolution .. Mayor Naughten read a Proclamation designating the week of April 8 -14 as Private Property Week. Mayor;· Naughten read a letter from Bruce Agnew,·chairman of the Board of Health, wherein ihat body discussed an article that had appeared in a newspaper concerning pollution of clams in North Edmonds' beaches and water pollution of Brown's Bay. Samples of the clams have been retrieved and will continue to be tested and sent to the State laboratories.for further testing. The Health District will continue to take samples for testing and notify communities should action be required .. Mayor Naughten presented an application for a liquor license application from T&D Produce, Dayton Place, 5th and Dayton, for beer and wine off-premise consumption. The application has been investi- gated and approved. This is just a recommendation for approval of the license, which then goes to the State for ulttmate approval. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, THAT THE APPLICATION BE RECOMMENDED FOR FORWARDING TO THE STATE FOR CONSIDERATION AND APPROVAL. MOT ION CARR I ED. Mayor Naughten introduced Ron Post, the new reporter for the ~nterprise, who will cover the Edmonds City Council meetings. COUNCIL Councilmember Jaech presented a letter from Northwest Engraving concerning day-care. She wanted to assure that the letter writer was apprised -Of the hearing date. Councilmember Jaech advised the Council that Jo Pendergast had received the updated 1984-85 AWC,: Washin·gton Cities Directory, for officials. Those members desiring a copy at $8.00 a copy should contact Jo. Councilmember Jaech reminded the Council that a tour has been scheduled for Tuesday, April 10, to look at the signing along Highway 99 for an indication of size and scale. The members will meet in the parking lot at Scotts, will tour the signs and return to Scotts for dinner and discussion. Councilmember Jaech presented a memorandum from Felix DeMel.lo regarding the cost of plants to support the City Beautification Program. She agreed with Mr. DeMello that buying 'plants from a greenhouse is prohibitive and starting them from scratch takes too long. Mr. DeMcllo was seeking approval for an additional greenhouse; council members advised Councilmember Jaech that the greenhouse was already tncluded in the budget. Councilmember Jaech directed the Council's attention to the fact that the Personnel Director acts both as the Council's representative from management and also represents Staff, and solicited their opiniori ~s to whether or not they felt this could be conflictive. Finally, Councilmember Jaech reminded members of the.Council of the Retreat. She suggested that council members take any drawings, sketches, whatever they wanted to bring· to the.retreat, to Jo Pendergast for photocopying. Councilmember Nordquist advised the Council that he had attended a.meeting of the Public Safety Committee .. ,: There was some concern expressed regarding enforcement of the 1 oad 1 imi t on' some streets. The Acting Chief took the matter under advisement. Another concern was that there are many houses in Edmonds that do not have house numbers. This:is inconvenient both from the standpoint of police and fire protection. Councilmember Nordquist thought the Council might want to decide if an ordinance requiring house numbers should be considered. ' *Councilmember Kasper wanted to encourage the Mayor to reinstitute a program of inspecting places of public assembly. This would be an evening program where Fire Services would inspect restaurants and other places where there might be load limits and fire exit requirements. The City has exposure so far as public safety is concerned, and an owner-operator should have some idea as to whether he is in violation of any such laws or ordinance. The program ~as discontinued, and the Council believes it should be reinstated. · Councilmember Kasper noted in the Staff minutes that it appears they are proceeding to remove fencing on the playfield to incorporate staff parking. He does not believe it has been approved, and would not approve. He does not think that the playfield area should be reduced just,to accommodate Staff parking. Councilmember Wilson asked the City Engineer if there had been any movement on the poles for the arts festival. The Engineer replied that they were still looking for the poles and three locations would be brought before the Council soon for their consideration as soon as the poles were located. There was no further business to come before the Council and the meeting adjourned at 10:00 p.m. LARRY S. NAUGHTEN, Mayot *See April 10, 1984 Minutes I I I I