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05/03/1988 City CouncilTHESE MINUTES SUBJECT TO MAY 3. 1988 APPROVAL EDMONDS CITY COUNCIL MINUTES May 3, 1988 The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Larry Naughten at the Library Plaza Room, 650 Main Street, Edmonds. All present joined in the flag salute. PRESENT Larry Naughten, Mayor Steve Dwyer, Council President Laura Hall Roger Hertrich Jo -Anne Jaech Bill Kasper John Nordquist Jack Wilson Martha Dubick, Student Rep. rnNCFNT AapNnA STAFF Scott Snyder, City Attorney Peter Hahn, Com. Svs. Dir. Jim Barnes, Parks/Rec. Mgr. Mary Lou Block, Plan. Mgr. Bob Alberts, City Engineer Bobby Mills, Pub. Wks. Sup. Jerry Hauth, Hydraulics Eng. Duane Bowman, Asst. City Planner Sharon Thatcher, Personnel Mgr. Jackie Parrett, City Clerk Karin Noyes, Recorder Mayor Naughten said Item (E) on the Consent Agenda, Authorization for travel to Moody's Invest- ment Services Office to Present City's Position for Bond Rating, should be removed and continued to the June 7, 1988 meeting. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER NORDQUIST TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items.on the consent agenda include the following: (A) ROLL CALL (B) APPROVAL OF MINUTES OF APRIL 19, 1988 a, (C) APPROVAL OF 1988 EDMONDS ARTS FESTIVAL CONTRACT �•Go'+� t (D) APPROVAL AND AUTHORIZATION FOR MAYOR TO SIGN 1988 PUBLIC WORKS LABOR AGREEMENT (F) AUTHORIZATION TO AWARD CONTRACT FOR ANDERSON CENTER GYM WALL TO BRADSHAW CONSTRUCTION ($7,212.90 INCLUDING SALES TAX) (G) ACKNOWLEDGMENT OF RECEIPT OF CLAIM FOR DAMAGES FROM STEVE MONTGOMERY ($200+) Y% (H) ADOPTED RESOLUTION 674 ADOPTING HIGHWAY 99 CORRIDOR STUDY (I) ADOPTED ORDINANCE STREET INANC2669 REVISING VACATION OF UNBUILT RIGHT-OF-WAY OF 7TH AVENUE SOUTH, SOUTH OF AUDIENCE Victor Schultz, 8305 224th S.W., said he is the president of the Action Council for Esperance and came to the meeting to respond to a number of reports received from people in the Esperance ar- ea. He said he received reports that during the past month, Mayor Naughten has been meeting with various associations responsible for the activities in the Esperance area. These reports indi- cate some level of negotiations taking place between these associations and Mayor Naughten regard- ing a drive toward annexing the Esperance community into the City of Edmonds. Mr. Schultz asked for answers to the following questions: 1. Are these meetings being held? 2. Has the City received any organized request from any active organization in the Esperance area requesting another annexation drive? 3. Has the Council officially supported or requested the Mayor to take this action? 4. Will these discussions lead to a special election to be held in February, 1989? Mayor Naughten replied that it is no secret that over the last year and a half the Council and Mayor have received inquires into annexation. He said he has been talking with elected officials in the Esperance districts about this possibility. Mayor Naughten informed Mr. Schultz that the Council will be discussing this issue at their retreat on May 7. Mayor Naughten said he has talked with elected officials in Esperance to gather some information before the Council discuss- es the possibility of annexation further. Mayor Naughten said the Council has not yet taken a position on the issue because they will be discussing it at the retreat. Mayor Naughten indicated that if it is decided by the Council to try another annexation drive in Esperance, there will be a special election. The date for the special election has not been set. Mr. Schultz inquired if the City has received any organized requests for annexation. Mayor Naughten replied negatively. Mr. Schultz asked how many individual requests for annexation the City has received. Mayor Naughten answered that he has been receiving requests for the past year and a half, but he does not have the actual number of requests. Mr. Schultz asked if the Mayor felt it would be in the best interested of the residents of Esperance to annex into the City. Mayor Naughten replied affirmatively, but he said the Council needs to decide if it is in the best interest of the City of Edmonds to allow this area to be annexed. Mr. Schultz asked that the Council reconsider their course of action regarding Esperance. Mayor Naughten said the Council will not drop their discussion regarding annexation but will carry forth as planned with this discussion at their retreat. He said it will be up to the Coun- cil whether or not they want to pursue the annexation. If they choose to pursue the annexation, the voters will have the opportunity to make the final decision. Mr. Schultz asked that the Council look at the information he has provided and the unsuccessful drives from the past. He said these drives turned out to have a "chilling" affect on the public works activities in the area. Mr. Schultz said this issue will go through another long campaign, cost a lot of money, and will probably be defeated. The result will be a delay of County public works programs to improve the Esperance Community. Mr. Schultz noted that the Esperance community and the City have come a long way through the years in regard to cooperating with each other. He felt if the Council decides to pursue another annexation attempt, it could harm this relationship. Councilmember Nordquist said in the past, the Council had the philosophy that they would not annex one portion of an area into the City unless the entire area were annexed. He said, howev- er, that over the past few years, the Council has developed a policy of openmindedness to listen to each presentation and consider portions of an area being annexed. Councilmember Nordquist said the City has received numerous telephone calls from the County plan- ning department asking what the City's Comprehensive Plan is for the Esperance area. Mr.— Schultz said the County is working with the City in regard to planning the Esperance area. He•said the City has the right to voice their opinion on land use in the Esperance area. Councilmember Nordquist commented that nobody is trying to upset the Esperance community. He indicated that he has received numerous telephone calls from people in the Esperance area who wish to be annexed into the City. Councilmember Nordquist said he could get a count of these people for Mr. Schultz within the next week. Mayor Naughten introduced Don Schroeder, Chairman of Friends of the Library. Mayor Naughten said Mr. Schroeder would be informing the Council of a recent award the Friends of the Library re- ceived. d� Mr. Schroeder indicated that Friends of the Library recently were awarded a Certificate of Merit by the Washington Library Association for their Friends group. He said their Friends group is the most active group in the Sno isle Library System. Mr. Schroeder said the group's goal is to make their library the best in the system. He said the Friends of the Library do not work to receive recognition, but it is nice to receive. Mr. Schroeder said that the group would not be able to do half of what they have done without the support from the City of Edmonds employees, Council and Mayor's office. Mr. Schroeder said the group is going to continue to work and do the best they can. Warren Bohan, 21606 - 79th Avenue West, brought up the City of Edmonds Code 20.90.020 which says, "Any hearing may be continued to obtain information needs for a proper decision or for good cause. No further notice of the continued hearing should be required if the hearing is continued EDMONDS CITY COUNCIL MINUTES Page 2 May 3, 1988 to a set date." It also says that, "If any new materials raised by these questions or for any new materials discussed, a public hearing may be reopened for comment on the new material." Mr. Bohan pointed out that there is some new material made available to him since the last City Council meeting, and it is very relevant to the day care issue. He believed there was no ques- tion in anybody's mind that this is a very significant and controversial issue. Mr. Bohan asked that if the Council has not planned for additional discussion at this time, that they make a provision for it at a later date. CONTINUED COUNCIL DELIBERATION ON PLANNING BOARD RECOMMENDATION TO AMEND EDMONDS COMMUNITY DEVELOPMENT CODE REGULATIONS REGARDING HOME DAY CARE (FROM APRIL 5, PUBLIC HEARING Mary Lou Block, Planning Manager, noted that this matter was continued from the April 5, 1988 City Council meeting. She indicated that the Council received minutes from the Planning Board meeting, original Planning Board recommendation, and the minutes from the April 5 City Council meeting in their packets.' Councilmember Kasper indicated that he has listened to the tapes of the April 5 meeting and read the Code section and minutes regarding this discussion, and he intends to vote. Councilmember-Hertrich noted that day care operations and home occupations are listed separately in the Code. He asked if the City Attorney would interpret a day care operation to be an econom- ic enterprise. City Attorney Scott Snyder answered that the way it is defined by the Code, it would be an econom- ic enterprise. Councilmember Hertrich pointed out that would mean a day care, being an economic enterprise, would be a home occupation. City Attorney Snyder said this is correct assuming the activity is for a fee and not conducted charitably without charge. Councilmember Hall said that perhaps they had better amend the Code, because she has problems with what Mr. Hertrich is stating. There could be people babysitting in a barter situation. This type of activity should be allowed. Councilmember Hall said..there.are four things to deal with on this issue. 1. Land use regulations for home day care operations of six or fewer children. 2. Home occupation requirements for home day care operations of six or fewer children. 3. Land use regulations for mini day care operations of seven to twelve children. 4. Home occupation requirements for mini day care operations of seven to twelve children. COUNCIL PRESIDENT DWYER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO AMEND THE CODE TO ALLOW STATE -LICENSED HOME DAY CARE OPERATIONS OF SIX OR FEWER CHILDREN AS AN OUTRIGHT PERMITTED USE IN ALL ZONES. Council President Dwyer said the purpose of his motion is to clarify the zoning status of those day care operations with six or fewer children. Councilmember Jaech said she would vote against the motion, not because she doesn't want day cares, but she felt the City does need to have some type of review process. She said this revie% could be a staff review for safety precautions. Councilmember Hall said that she understands where Councilmember Jaech is coming from, because the issue is very volatile. She pointed out that neighborhood situations would regulate the issue. If there is a problem, the appellant can present the problem to the Council and they car. deal with it at that time. Councilmember Hall preferred to keep the controls off at this time. Councilmember Jaech said if home day care operations were permitted as an outright use in the neighborhood and a problem does arise, those operations in existence will be grandfathered in anc there is nothing the City can do to prohibit them. Councilmember Hall said that unless a problem arises, there is no need to make any more regula- tions. EDMONDS CITY COUNCIL MINUTES Page 3 May 3, 1988 Councilmember Hertrich pointed out the present Code regulating home day care operations states that the Hearing Examiner or Community Development Director can grant the approval for these operations. He read the requirements for a home day care, and it is his understanding that any- body wanting to run a home day care has to meet these requirements. Councilmember Hertrich felt these requirements were essential in making sure that the day care is safe for the children. Council President Dwyer felt the Council should not get involved in imposing parking requirements when the maximum trips per day in and out of the day care over a one day period is only ten. Council President Dwyer pointed out the state has gone to great lengths to develop requirements for day care operations. He said that placing additional requirements would preclude some chil- dren from being able to attend a day care that is licensed by the state and meets the state re- quirements. Council President Dwyer stated the Council should encourage day care operators to become licensed by the state. Council President Dwyer referred to a letter written by Representative John Miller discussing the fact that on the federal level they are receiving numerous requests for action on day care is- sues. They have established a May 21 date for a conference on day care issues in the first dis- trict. Council President Dwyer felt this letter highlights the fact that this issue is coming to the front and there is a great demand for safe, licensed day care. Council President Dwyer pointed out that his motion includes the condition that the home day care must be licensed by the state. This will insure the children will be taken care of properly. Councilmember Hertrich asked if Council President Dwyer was worried about the City's liability if requirements such as parking were not placed on the home day care operation. Council President Dwyer said that Councilmember Hertrich is reaching for a reason not to support the motion. The liability issue is not important enough to preclude the Council from approving the motion. Councilmember Hertrich said that liability is a big issue on everything the City does these days. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCILMEMBER HERTRICH, COUNCILMEMBER JAECH, AND COUNCILMEMBER NORDQUIST OPPOSED AND COUNCILMEMBER HALL, COUNCIL PRESIDENT DWYER, COUNCILMEMBER KASPER AND COUNCILMEMBER WILSON IN FAVOR. COUNCIL.PRESIDENT DWYER MOVED, SECONDED BY COUNCILMEMBER WILSON, AMEND THE CODE TO MAKE STATE -LI- CENSED HOME" DAY CARES OF SIX CHILDREN OR LESS WHICH QUALIFY AS OUTRIGHT PERMITTED USES EXEMPT FROM THE REQUIREMENTS OF A HOME OCCUPATION PERMIT HEARING SYSTEM. Councilmember Hertrich said it was apparent that Council President Dwyer wants to opt for no regulations. He wondered if it was the fee for the hearing that troubles Council President Dwyer. Councilmember Hertrich said that he is comfortable with the recommendations from the Planning Board. Council President Dwyer said he is trying to clean up the Code. Because the Council has moved to amend the Code and allow home day cares as an outright permitted use, it would be contradicting to require a hearing process for the permit. Councilmember Hertrich agreed with the recommendations of the Planning Board and felt the Council was going overboard on this issue. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCILMEMBER HERTRICH, COUNCILMEMBER JAECH, AND COUNCILMEMBER NORDQUIST OPPOSED AND COUNCILMEMBER HALL, COUNCIL PRESIDENT DWYER, COUNCILMEMBER KASPER AND COUNCILMEMBER WILSON IN FAVOR. COUNCIL PRESIDENT DWYER MOVED, SECONDED BY COUNCILMEMBER HALL, TO REQUIRE MINI DAY CARE OPERA- TIONS OF SEVEN TO TWELVE CHILDREN TO OBTAIN A HOME OCCUPATION PERMIT WITH AN OPTIONAL STAFF HEAR- ING PROCESS. IF THE CODE HAS TO BE CHANGED TO MAKE THIS POSSIBLE THAT SHOULD BE DONE. HE IS NOT TRYING TO FORCE SOMETHING INTO THE CODE. Mr. Hahn said that the definition states that the home occupation operation must be contained entirely within the home. Council President Dwyer felt this would not be a problem because hE stated in the motion that he did not want to force this into a different definition. He said they could create a new definition and define things the way they want to. EDMONDS CITY COUNCIL MINUTES Page 4 May 3, 1988 A ROLL CALL VOTE WAS TAKEN. MOTION FAILED, WITH COUNCIL PRESIDENT DWYER, COUNCILMEMBER HALL, AND COUNCILMEMBER WILSON VOTING IN FAVOR AND COUNCILMEMBER HERTRICH, COUNCILMEMBER JAECH, COUNCILMEM- BER KASPER, AND COUNCILMEMBER NORDQUIST OPPOSING. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER KASPER, TO ENDORSE THE PLANNING BOARD'S RECOMMENDATION ON MINI DAY CARE OPERATIONS OF SEVEN TO TWELVE CHILDREN WITH THE EXCEPTION THAT THE EMPLOYEES BE REQUIRED TO PARK ON SITE. Council President Dwyer asked if the motion supports the five parking space requirement. Council - member Hertrich answered affirmatively. He said his motion would require at least one of the five required parking spaces be located on site for employee parking. Councilmember Hertrich commented that he is open for further discussion on the five parking space requirement. Councilmember Hall said that she is concerned about the day care centers in older neighborhoods. These neighborhoods do not have on site parking and she did not want to penalize these people. She felt the Council should be careful if they want to encourage young families to move into the bowl area. Council President Dwyer said he has a problem with the requirement of five parking spaces and Councilmember Hertrich said he would be willing to go slightly lower. Councilmember -Kasper said he believed young children belong in day cares in the residential ar- eas.. However, his observation from when there were no day care regulations, was that they would make room for day care operations in their home by converting a garage, etc., and their cars then must go out into the street. Councilmember Kasper felt there should be some control on the park- ing; maybe it could be reduced from five to three spaces. He also saw a need for the requirement of 300 feet between day care operations. Because the parking situation will vary from area to area, Councilmember Jaech recommended that the Council leave the parking requirement up to staff to determine based upon the need. If staff finds a problem with this, they can come before the Council and request a change in the Code. Councilmember Hall felt the Council should trust the system and if there is a problem, the staff can come back to them. She said that five spaces is far too many. Councilmember Hertrich said that he supports the Planning Board's recommendation on parking and hopes that as many of these five parking spaces as possible can be located on site. He suggested that a minimum requirement was needed rather than leaving it entirely up to staff to decide. COUNCILMEMBER HERTRICH CHANGED HIS MOTION TO INCLUDE A MINIMUM OF THREE PARKING SPACES BEING REQUIRED. COUNCILMEMBER KASPER, SECONDER OF THE MOTION, AGREED WITH THIS CHANGE. City Attorney Snyder clarified Councilmember Hertrich's motion to approve the recommendation of the Planning Board noting that Councilmember Hertrich amended his motion to reduce the number of spaces required for a mini day care operation from five to three. City Attorney Snyder asked if this motion was intended to offset the prior approved motion of Council President Dwyer giving outright approval for home day care operations. Councilmember Hertrich said his motion was deal- ing with mini day care operations of seven to twelve children only. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCIL PRESIDENT DWYER, COUNCILMEMBER HALL, AND COUNCILMEMBER WILSON OPPOSING THE MOTION AND COUNCILMEMBER HERTRICH, COUNCILMEMBER JAECH, COUNCIL - MEMBER KASPER, AND COUNCILMEMBER NORDQUIST VOTING IN FAVOR OF THE MOTION. ISION REGARDING HEIGHT VARIANCE ON LOTS 2, 3, 7, AND 9 Mary Lou Block, Planning Manager, said that on March 14, 1988, the Hearing Examiner conducted a public hearing on the variance request of Richard Nord to allow four lots in the Planned Residen- tial Development (PRO) of Eagles Crest to exceed the permitted height limit of 25 feet. She said the Hearing Examiner issued his decision to approve the variance request subject to the condi- tions listed in his report. On April 13, 1988, Walter and Koleta Dastis filed an appeal, object- ing to the Hearing Examiner's decision. Ms. Block indicated that staff recommends the Council adopt the Hearing Examiner's decision Ms. Block displayed on the overhead projector a graph depicting the elevation of the proposed properties. She pointed out that because of the steep topography, the proposed developments will appear from the road to be single story homes. EDMONDS CITY COUNCIL MINUTES Page 5 May 3, 1988 Duane Bowman, Assistant City Planner, pointed out the road elevation. He said the tallest home will be on lot 11. This home is proposed to be 15 feet above the road. To clarify for the Council, Peter Hahn, Community Services Director, said the homes will only be 25 feet high in structure. However, the City measures the 25 feet height from the original eleva- tion, not the elevation;after filling. The developer has added some fill dirt, creating a need for a variance. Council President Dwyer inquired what is different about the plans for this PRO than those ap- proved in 1981. Staff indicated there has been some modification in the lot spacing on the build- ing plats. Council President Dwyer asked if the scale of the houses was discussed when the original PRO was approved. Ms. Block answered that the reason for the variance is not the size of the house but the request to raise the height of the houses so they relate to the roadway. Council President Dwyer asked how it was determined to put the road where it is. Ms. Block indi- cated that the road follows the topography of the site. Council President Dwyer inquired why the height issue was not discussed as part of the original PRD approval. Ms. Block said that after the final topography is done and the underbrush has been removed, the applicant received a more clear picture of the grade of the lots. Ms. Block reviewed some slides of the subject area. Councilmember Kasper inquired what the elevation of the applicant's house was. Ms. Block replied that she did not have that information. Councilmember Wilson asked how much of the appellant's view will be destroyed if the variance is approved. Ms. Block said there did not appear to be any impact on the appellant's view. Walter Dastis, 7202 - 172nd S.W., said he is appealing the Hearing Examiner's decision on this variance. He said he was out of the state at the time of the March 14 hearing. He submitted six photographs depicting his view and how the proposed variance would affect him (see Exhibit 1). Mr. Dastis said that since he has a front row view of this development, they have observed the development.and.grading. He said that as a result of the grading, the elevation of the roadway and lots 9 and 10 were raised approximately 10 feet. He estimated that 1,400 cubic yards of fill dirt was used. Mr. Dastis pointed out that in the Community Development Code (CDC) it lists six criteria to be used to determine if a variance will be granted. He said the Code states that all six of these criteria must be satisfied before the variance is granted. Mr. Dastis reviewed the first three criteria: 1. Special Circumstances: Mr. Dastis said it is his contention that the special circumstances of this topography grade were caused by the applicant's grading and filling. He said lots 9 and 10 were raised approximately 10 feet. 2. Special Privileges: Mr. Dastis said the concept of a PRD allows a developer to develop properties different from other lots to enhance the special features. He said the approval of the PRD granted special privileges to the developer. Now the developer is asking for more special privileges for a height variance for a special circumstance that was created by the developer. 3. Not Detrimental: Mr. Dastis said the CDC states a variance, as approved, will not be significantly detrimental to the view of others in the vicinity. He said that his view will be blocked if the variance is granted and it will affect the enjoyment of his property. Mr. Dastis stated that the developer has created a problem which he calls a special circumstance and is asking for a special privilege that would be detrimental to the adjacent property owner. Therefore, he requested that the variance be denied. EDMONDS CITY COUNCIL MINUTES Page 6 May 3, 1988 Councilmember Wilson asked Mr. Dastis to be more specific on how the variance would affect his view. Mr. Dastis said the height, requested by the developer would cause their home to look right into the windows and walls of the hbme on the adjacent property and not over the top of them. Councilmember Wilson inquired how close the appellant is to the proposed homes. Mr. Dastis said his home is within 60 feet of the first lot that is being developed. Councilmember Wilson inquired if the variance was approved and the houses were built, would the appellant still have some peripheral view out each side. Mr. Drastic said that looking towards the west, there will a divided view because of a house built in front of them. Looking to the northwest, they will be looking at a home instead of the sound. Councilmember Hall said that she visited the property and tried to visualize the effect of grant- ing the variance. She asked the appellant if he is sure he would have a view if the variance were not granted. Would the house block his view regardless of the height variance? Mr. Drastic said that if the variance is denied, the applicant will not be able to build the house up the additional amount that would cause the blockage of his view. CounciImember-Kasper inquired if the appellant has any pictures of his view to the north before the project was started. Mr. Drastic said that he did have a view to the north, they could look right through the trees and see Whidbey Island. Councilmember Hertrich asked where Mr. Dastis stood when he took the pictures. Mr. Dastis indi- cated he stood down in the middle of the proposed building sites 9 and 10. He took the pictures looking out to the north and northwest. The Council indicated they would like to see some pictures taken from the Dastis property to get an idea of how the view loss would occur. Richard Nord, 11809 Northeast 74th Street, Kirkland, explained that his company took over the project after the original approval of the PRD. The existing layout and topography of the lots had already been approved by the Hearing Examiner. Mr. Nord explained that the property was originally owned by Peter Bilder. The property was taken back by the finance company after the PRD was approved. Since that time, they have done some grading. on.the.si,te.. He said the road elevation was a critical factor on the site. The applicant said he was required by the Engineering Department to meet certain criteria for the road elevations and storm drainage. The dirt that was removed was to facilitate these require- ments. Mr. Nord said that under the current Code, they are allowed to build 25 feet above the average lot elevation. He said they are somewhat limited because the building sites are the same size as the buildings themselves. Council President Dwyer inquired why the Hearing Examiner omitted the criterion of determining whether a specific significance exists. He asked why the way Mr. Bilder designed the PRD, a factor personal to the owner, is not directly related to the special circumstances the applicant contends requires a variance and, therefore, makes the Council unable to grant the variance re- quest. Mr. Nord felt they are faced with a unique set of circumstances with a PRD. They were trying to obtain combined decisions rather than asking for one variance at a time. The law exists to allow people who own lots, whether they originally developed the. lot or purchased it later, to build a house on a steep lot. He expressed his opinion that special circumstances do exist. For the Council's information, Mr. Nord said they have an architectural control committee. Mr. Young from that committee was present and could answer some of the Council's questions. Mr. Nord explained that they have tried to create a conformity of elevation on the lots. They have low- ered the elevation on three of the lots. Council President Dwyer asked the applicant why he would be wrong to conclude that the special circumstances that exist (the design of the lots and topography of the land) were created by Mr. Bidder. Council President Dwyer stated that Mr. Bilder made that a factor personal to him and this disqualifies the applicant from obtaining a variance. Mr. Nord said that he did not know how anybody could know prior to this time that a variance would be required to develop the lots. EDMONDS CITY COUNCIL MINUTES Page 7 May 3, 1988 Councilmember Kasper asked if the City changed the grades or engineering requirements on the property after the PRD was approved for things the City did not perceive. Mr. Nord said the City allowed them to use a new technique to install the storm and sewage sys- tem. This technique prevented the applicant from having to removing large swatch of timber to get the system in. Mr. Nord said the Council also granted the elimination of a sidewalk. Councilmember Hertrich referred to testimony from Mr. Young, the architect for the applicant and Mr. Bowman that if the variance was not granted, the buildings would not be architecturally com- patible. Mr. Hertrich asked for clarification on why these buildings would be incompatible if a variance were not granted. Mr. Robert Young said that if the variance is not granted some of the houses will be built below the road and be hard to access. He said it would be incompatible to have one house sitting up in the air and one house sitting below the road. When discussing compatibility, they are referring to height compatibility. Mr. Young pointed out that if the variance is granted the height of the roof tops will all be about the same. Mr. Young stated the Council should keep in mind the fact that the houses are very close together and variances in the heights could make it appear archi- tecturally incompatible. Council President Dwyer pointed out that Mr. Bilder decided the number of houses to be placed on the property.- He said that the applicant should be required to stick to Mr. Bilder's original plan unless he can point out that a specific significance exists for the variance. Mr. Nord said the access points are laid out to step down as you go toward the water. He said they are trying to keep these access points relatively consistent in elevation so they look the way they were intended to look. Mr. Nord did not think that Mr. Bilder could anticipate the fact that some of the elevations would be as drastic as they are. Mr. Nord said that when the PRD was approved, it was on the condition that the design be consis- tent with the neighboring areas. Mr. Nord stated his opinion that the appellant's view will not be affected if the variance is granted. He said he contacted the appellants twice to inquire if he could discuss the variance with them and place some poles to show the proposed elevations. He indicated the Dastises did not feel this was necessary. Mr. Nord said that if the Dastises have a view of the sound looking north, the closest house to them on Lot 11 is higher than the ones proposed below. This house will block any view the Dastises might have. Mr. Nord hoped the Council would consider their request for the variance. He did not feel they are asking for anything out of line, and he believes the project would be much better for the community if the variance were granted. Councilmember Jaech said she was on the Council when the original approval was given. The houses on this proposed plan are very different from the houses on the original plan. She said the houses on the original plan were designed to fit the slope of the area and to fit in with the environment. Mr:. Nord said the original plans included homes in the $300,000 to $400,000 price range. It would have been difficult to get a house this large on a small piece of property. Councilmember Jaech inquired if any grading had been changed from the original proposal. Mr. Nord said the plans were not changed other than moving the access road. Councilmember Jaech inquired if the applicant has filled. Mr. Nord said they filled on lots 9 and 10 because of the steep grade. Council President Dwyer pointed out that when determining if a special circumstance exists, the Code states they should consider whether, because of special circumstances, the zoning ordinance would deprive the owner of uses, rights, and privileges provided to other property owners in the vicinity with the same zoning. Council President Dwyer inquired if the applicant felt he was being deprived of uses, rights, and privileges provided to other property owners in the vicinity with the same zoning. Mr. Nord answered that there are some very large lots through the area. Mr. Nord indicated that he is asking for a variance he feels is reasonable. He feels that anybody in that area woulc have the same problem with developing on the steep topography. Mr. Nord said because of the terrain, the circumstances are special and anybody else in this situation would have these same special circumstances. EDMONDS CITY COUNCIL MINUTES Page 8 May 3, 1988 Council President Dwyer inquired how the Council can determine if the variance is for the minimum necessary. Mr. Young said that the requested amount of variance is necessary to raise the homes, thereby allowing for access at a level with the road. The Council discussed whether granting the vari- ance would solve the access and parking problem. The Council discussed other options that may be available to the applicant to provide access without a variance. Councilmember Hall said she is against the variance based on the purpose of a PRD. The purpose of a PRD is to allow a developer to use creativity in developing difficult topography. She sug- gested that there may be ways to develop the property consistent with the existing Code. Councilmember Hertrich inquired if the appellant was appealing the variance for all four lots or just lots 9 and 10. Mrs. Dastis indicated they are appealing the variance on all four lots. She said the City has a 25 foot height limit that has been established. She felt the City should protect themselves by sticking to this limit. Councilmember Hertrich asked if the houses were built to the heights allowed in the Code without the variance, would that save the Dastis' view. Mrs. Dastis indicated that it would. Herdis Svensson, 17336 - 72 Avenue West, said she has been looking at the lots for years. She strongly supports the Dastises. She said that every time she turns around, the applicant is asking for another change. Warren Falls, 7207 - 173rd Street said it sounds as though when the original PRD was allowed, the proposed development would be impossible given the topography. He suggested that if the Council had known what difficulties would arise from the topography, they probably would not have ap- proved the PRD. Mr. Falls indicated he has a nice view from his back yard and doesn't like to see variances granted for PRD's that probably shouldn't have been allowed in the first place. Mrs. Dastis indicated that they did not take the pictures from his home. She said that because of the closeness of the homes, the height of the homes becomes more important. Mrs. Dastis point- ed out that the special circumstances and privileges have not been demonstrated. She believes that they have the right to come and ask the Council to abide by their own Code and deny the variance. Mr. Nord said it is unfortunate that Mr. and Mrs. Dastis feel their view is being affected. He said the intent was not to cause problems with the neighbors. He said he would still like to go out and put up stakes showing the proposed elevations of the homes for the Dastises' review. Mr. Nord feels that by doing this, the Dastises will find that the roof line on the subject property will be lower than the roof line of those further down. Mr. Nord commented that they are not asking for anything drastic and the intent was to enhance the development. They are not asking for anything special beyond what is the right of property owners in coming to the Council. Mr. Nord feels the development will be well served if the vari- ance is granted. Councilmember Hall inquired if the hearing could be extended to allow the Dastises to bring back photographs of how their view will be affected. Mr. Nord said it would be more appropriate for the applicant to put some stakes up before the pictures are taken to depict the actual height of the proposed buildings. Mr. Nord said he would have no objections to doing this for the Council. Councilmember Hall inquired if staff suggests to the applicants that the Council is quite strin- gent about encroachment on someone's view. She suggested that if the staff would be up front with the applicants and tell them the Council's view, the Council could avoid many of the appeals. Ms. Block indicated that staff does inform the applicant of the Council's view. She said that there have not been many variance requests regarding PRDs. Council President Dwyer commented that the Council should not try to redesign the PRD. They should determine if the applicant has presented the Council with evidence that would allow them to determine if all of the required criteria in Section 20.85.010 can be met. He said the appli- cant has failed to do this. COUNCIL PRESIDENT DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO DENY THE VARIANCE REQUEST ON THREE BASIS, ANY ONE OF WHICH WOULD BE SATISFACTORY, IN AND OF ITSELF, TO DENY THE VARIANCE AND WHICH TOGETHER ARE SUFFICIENT TO DENY THE VARIANCE. EDMONDS CITY COUNCIL MINUTES Page 9 May 3, 1988 THE SPECIAL CIRCUMSTANCES WHICH ARE CLAIMED TO HAVE ARISEN IN THIS CASE DID ARISE FROM THE ACTIONS OF A PRIOR OWNER OF THE SAME PROPERTY; AND, THEREFORE, THE REQUEST DOES NOT MEET THE REQUIREMENTS OF SECTION 20.85.010 (A) (2). THE APPLICANTS HAVE FAILED TO ESTABLISH THAT THEY ARE BEING DEPRIVED OF USE RIGHTS AND PRIVILEGES WHICH ARE AVAILABLE TO OTHER OWNERS IN THE VICINITY, AND THEREFORE, HAVE NOT MET THE REQUIREMENTS OF 20.85.010 (A). THE APPLICANTS HAVE NOT MET THEIR BURDEN OF PROVING THAT THE REQUESTED VARIANCE IS THE MINIMUM NECESSARY TO GIVE THEM USE RIGHTS AND PRIVILEGES WHICH ARE DENIED TO OTHER OWNERS OF OTHER PROPERTIES IN THE VICINITY, THEREFORE FAILING TO MEET THE REQUIREMENTS OF 20.85.010 (F). Councilmember Kasper said he has never seen a subdivision that did not require a variance. They all have engineering problems that are not recogni4ed until they actually begin to develop the area. He did not think the Council should deny the variance before obtaining additional informa- tion. If the appellant is willing to drop their protest of lots 3 and 5, the Council grant a variance for those two lots. Councilmember Kasper suggested that they keep in mind the fact that errors are made when surveying the property and problems arise after development begins. Councilmember Kasper feels it is unfair to deny the variance based on Mr. Bilder's original plans because these plans are not functionally the way they were approved. The project has been rede- signed and there are still errors, but they should continue to discuss this issue and gather more information. Councilmember Kasper suggested that the hearing be continued to allow the appellant and applicant to present more information, including pictures of view blockage, for the Council to review. Councilmember Wilson indicated he would also vote against the motion because he cannot understand where the heights will be and how they will affect view. He would like the discussion to be continued to deal with the issue of the height and the impact on the Dastises' property. Council - member Wilson pointed out that it could well be that if the variance is not granted, their view will be gone anyway. He would like to see poles erected to depict where the height will be and how it will affect the Dastises' property before he votes in favor of the motion. Council President Dwyer indicated that the reason he made the motion was the applicant was not able to show that the first three criteria can be met. He pointed out that all of the six crite- ria must be met before a variance can be granted. Council President Dwyer said the applicants had several opportunities to show how they could meet the criteria and they failed to do this. He pointed out.. there is nothing to preclude the applicant from coming back before the Council with a redesign. Council President Dwyer did not see how going to the Dastises' home and taking pictures of their view would help the applicant meet the criteria. Councilmember Hertrich inquired if the appeal was for all four lots or just lots 9 and 10. City Attorney Snyder indicated the Council has never required a formal pleading on appeals. He said the Code requires that the original applicant has the same burden of proof that they do in the original application. City Attorney Snyder stated that once the variance is appealed, the applicant is responsible for justifying his original application request to the City. He said that because they have failed to address all of these criteria, that would be sufficient reason for the Council to deny the variance. Councilmember Hertrich said that all of the discussion has been on lots 9 and 10. He added if the appellant is only appealing lots 9 and 10, there is no reason to discuss the other two lots. City Attorney Snyder said the record states that all four lots are being appealed. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED. WITH COUNCILMEMBER WILSON AND COUNCILMEMBER KASPER OPPOSING THE MOTION. A short recess was taken, following which the Council recessed into an executive session at ap- proximately 9:30 p.m. The Council reconvened at approximately 9:45 p.m. HEARING ON APPEAL OF HEARING EXAMINER RECOMMENDATION TO AMEND OFFICIAL STREET MAP TO REDUCE PROPOSED RIGHT-OF-WAY FOR PINE STREET., BETWEEN 3RD AVE. S. AND 5TH AVE. S., FROM 50' TO 40' CT 100]rTTV AC CnMnK1nC Peter Hahn, Community Services Director said that the Hearing Examiner held a public hearing on the request by the City of Edmonds to amend the Official Street Map to reduce the proposed EDMONDS CITY COUNCIL MINUTES Page 10 May 3, 1988 right-of-way for Pine Street, between Third Avenue South and Fifth Avenue South from 50 feet to 40 feet. He said the Hearing Examiner issued a report recommending that the proposed amendment be approved. Mr. Hahn indicated the Engineering Department does not feel the City needs this right of way for future transportation needs. Mr. Hahn presented the Council with slides of the subject area. Councilmember Hertrich inquired what the width of the street is. Mr. Hahn answered that the width of the street is 22 feet. Mr. Hahn indicated the width of the existing right of way and how the proposed change would affect the area. Councilmember Kasper inquired what the attitude of the neighborhood is. Mr. Bob Alberts, City Engineer, said he had some conversation with the neighbors after the Hearing Examiner's deci- sion. The neighbors are in favor of anything that keeps the street from being widened. Councilmember Hertrich, in regard to encroachment of traffic, said that one of the most obvious routes from Fifth Avenue to the ferry holding area includes this street. City Attorney Snyder said that most of the traffic for the ferry does not originate in town or on Fifth Avenue. Most of it comes from SR 104. Mr.- Snyder said that perhaps Mr. Alberts might want to refer to the Comprehensive Street Plan which shows the streets in relation to the ferry docks. The criteria in the ordinance says that changes of this sort should be consistent with the Comprehensive Street Plan and Official Street Map. There is a circulation established and right-of-way set aside for this issue. The Council inquired whether this street was considered a collector or arterial street. Mr. Al- berts indicated that Pine Street east of Fifth Avenue is considered a collector, but the section of street under discussion tonight is not considered a collector. Finis Tupper said that in looking at this subject on the agenda and speaking with Mr. Hahn, he finds it interesting that a legal claim against the City generates a change in the Official Street Map. The fact that this person is also claiming damages for lost of income is not going to change the legality of holding back his project. Mr. Tupper said another issue is the City is granting a special privilege along the South side of Pine Street between Fifth and Third Ave- nues.- If they are going to give back dedicated land, they should do it equally between the south and north side of the street. They should not give it entirely to one side of the street to get out of a legal issue. City Attorney Snyder said the Council has an obligation to consider this request without regard to the settlement. They have the obligation to consider the application to reduce the right-of- way. Mr. Snyder said he advised staff that the City does not have the authority to require the dedica- tion of a right-of-way except in specific instances. Mr. Snyder indicated that this right-of-way has never been dedicated to the City. What they are talking about is changing the right-of-way on the map to prohibit the building of future roads. He said the question before the Council is, "will the City need this right-of-way for future purposes?" Mr. Snyder stated that Mr. Tupper is correct that there is no linkage between this reduction of right-of-way and the dismissal of Mr. Kennedy's claims. The issue needs to stand or fall itself. Jeff Palmer, 17510 - 76th Avenue West, said there is no need to create a bottleneck. If the City already has that kind of width running from Ninth Avenue all the way to SR 104, why ask for prob- lems later down the road. Mr. Snyder said that this is not a dedicated street right-of-way. The bottleneck is already there. If the City were to widen the street, they would have to acquire the right-of-way from the property owners. He said the City does not own the right-of-way. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCIL PRESIDENT DWYER, TO EXTEND THE MEETING PAST 10:00. MOTION CARRIED. Councilmember Hertrich stated that from the pictures, he sees an area that someday could be a major route from Fifth Avenue to the ferry holding lanes. He would like some footage figures to EDMONDS CITY COUNCIL MINUTES Page 11 May 3, 1988 deal with how far back the rights -of -way would extend and what would happen to the existing hous- es if the street was punched through. Mr. Alberts referred to the slides and tried to answer Councilmember Hertrich's concerns. Councilmember Kasper asked if the street were to be widened, would the City Engineering Depart- ment recommend a diagonal linkage between the two Pine Streets. Mr. Alberts said he would proba- bly recommend a small S curve. Councilmember Kasper inquired what the ramifications of widening the street would be. Mr. Al- berts said the City would have to acquire property from all of the property owners between Fifth and Third Avenues. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCIL PRESIDENT DWYER, TO ADOPT THE HEARING EXAMINER'S RECOMMENDATION AND DIRECT THE CITY ATTORNEY TO PREPARE THE NECESSARY ORDINANCES TO AMEND THE OFFICIAL STREET MAP. Councilmember Jaech said that if they are going to vacate anything, the vacation should be done equally on both sides of the street. Council President Dwyer pointed out this is not a vacation. Councilmember Jaech said they are still removing the right-of-way. She said if the City ever wants to expand that road, they will take the width of of one side, only. MOTION CARRIED, WITH COUNCILMEMBER JAECH OPPOSING. APPROVAL OF AGREEMENT FOR WASTEWATER TREATMENT, DISPOSAL, AND TRANSPORT SERVICES Mr. Hahn distributed a Council requested letter from Hugh Spitzer. Mr. Hahn indicated that staff has addressed the concerns of the Council and the agreement has been reviewed by City Attorney Snyder. Mr. Hahn said Olympic View Water District reviewed this contract on May 2 and all three members of their Commission approved the contract. Ronald Sewer District has also approved the con- tract. Mr. Hahn said the contract will be on the Mountlake Terrace Council's consent agenda at their next meeting. Mr. Hahn indicated staff recommends approval of the agreement with the language suggested by Mr. Spitzer stating that the approval be subject to the condition that any additions or modifications are consistent with the purposes of the agreement. COUNCIL PRESIDENT DWYER MOVED, SECONDED BY COUNCILMEMBER HALL, TO APPROVE THE AGREEMENT WITH THE CHANGE SUGGESTED IN MR. SPITZERS LETTER OF MAY 2, 1988, AND AUTHORIZE THE MAYOR TO SIGN ON BEHALF OF THE CITY COUNCIL. MOTION CARRIED. DISCUSSION OF PROPOSED ORDINANCE ESTABLISHING STORMWATER MANAGEMENT UTILITY Mr. Hahn said the Council requested that the City Attorney, working with Hugh Spitzer's law offic- implements a stormwater utility. Mr. Hahn said Mr. Spitzer has es, draft an ordinance which recommended an approach and Joni Ostergaard from the law offices of Foster, Pepper, and Shefelman will present this approach. Councilmember Jaech commented that the Council's concerns were not only for the future, but they are taking a certain amount of money and putting it in the drainage utility. She inquired how this would affect the City's current bonding. Ms. Ostergaard said the reason her company was involved in the drafting of this ordinance is because in the ordinance, the storm drainage utility is created and combined with the existing storm water and sewer facility. In the future when you issue bonds for any one of these facili- ties, you will be doing it based on the revenues of all three. She said it is important to make sure that this is done in accordance with the existing ordinance. She said they have reviewed this and determined that everything is in accordance with the existing ordinance. Ms. Ostergaard said the question raised by Councilmember Jaech is addressed in the Accountancy Act Issue. Ms. Ostergaard explained that they have worked on this in the past with the City and with other jurisdictions. She said this accountancy law considers all of the utilities as EDMONDS CITY COUNCIL MINUTES Page 12 May 3, 1988 one. She said the City may want to account for them separately and collect rates separately. She said the City may collect money based on the revenue from the three different utilities. Once the money is collected, it belongs to the general fund for all three utilities. Mr. Hahn indicated that separate accounts have been set up to keep track of how much is spent and collected on each utility. City Attorney Snyder said any motion to approve the ordinance should include the name of the fund to be inserted at the bottom of page 5. Councilmember Hertrich inquired whether the rates were addressed in the ordinance. Mr. Hahn answered that the rates are a complex subject and will come before the Council in the future. City Attorney Snyder said this ordinance is ready for passage. The Council decided the name of the fund will be Combined Utility Fund. Given the discussion by the Council and the assurance that there will be no problems with the existing bonding, COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER HALL, TO APPROVE ORDINANCE 2670 ESTABLISHING A STORM MANAGEMENT UTILITY. Councilmember Kasper asked if this is a City-wide management utility. City Attorney Snyder an- swered affirmatively. Councilmember Hertrich inquired about a public hearing on this issue. Mr. Hahn indicated that this is an administrative issue. Staff will schedule public hearings when they begin discussing the rates. MOTION CARRIED. MAYOR Mayor Naughten indicated that May 3 was "Edmonds in Bloom" day. Ladies were out planting plants in all of the flower beds. He said there will be 19,000 square feet of flower beds this year. They have expanded to Five Corners, Sixth and Main, Sunset and Main, and Fifth and Walnut. He said it will be a beautiful summer. rrniNrT1 Council President Dwyer said that the retreat on May 7 will begin at 9:30 a.m. because of the ferry schedule. The ferry departs at 7:10 and 8:40 a.m. The 8:40 a.m. ferry should get the participants there in time for the 9:30 a.m. meeting. p�Councilmember Hertrich asked for information regarding how much money was spent on the flower program this year. C'ouncilmember Hall said that Bill the Barber will be retiring after being in business for 35 years in downtown Edmonds. She proposed that he receive a Community Service Award. Councilmember Hall said she was told at a Chamber of Commerce meeting that the City has been offered upwards of $25,000 for fireworks to be displayed 1,000 feet out into the water. She said that apparently, police and fire officials declined this offer. She felt this was no more of a hazard than cramming all of those people into the play field. Mayor Naughten said he has not received any such offer. The offer he received was to display the fireworks off of Norma Beach a mile away. Snohomish County declined this offer. Mayor Naughten pointed out that in the past, the Council decided that it created too much liability and prob- lem. If the Council wants to discuss the issue again, they can do this. Councilmember Hall requested that this discussion be scheduled on an upcoming agenda. Council President Dwyer suggested that the Council wait until they receive a proposal for this donation before placing it on the agenda. If there is a proposal before the May 10 meeting, the Council will place the discussion on the May 17 agenda. Councilmember Hall said she distributed a Health District packet from the Finance Committee. She explained the committee is facing financial problems because the County did not give them their payment. She said she wanted the Council to be aware of this issue and asked them to review this packet. EDMONDS CITY COUNCIL MINUTES Page 13 May 3, 1988 Councilmember Nordquist said he would be attending the Health Board Meeting with Councilmember Hall. There being no further business to come before the Council, the meeting was adjourned at 10:30 p.m. These minutes are subject to May 10, 1988 approval. JACQUELINE G. PARRETT, City Clerk LARRY S. NAUGHTEN, Mayor EDMONDS CITY COUNCIL. MINUTES Page 14 May 3, 1988 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM -LIBRARY BUILDING 7:00 - 10:00 P.M. MAY 3, 1988 FLAG SALUTE 1. CONSENT AGENDA (A) ROLL CALL (B) APPROVAL OF MINUTES OF APRIL.19, 1988 (C) APPROVAL OF 1988 EDMONDS ARTS FESTIVAL CONTRACT (0) APPROVAL OF AND AUTHORIZATION FOR MAYOR TO SIGN 1988 PUBLIC WORKS LABOR AGREEMENT (E) AUTHORIZATION FOR TRAVEL TO MOODY'S INVESTMENT SERVICES OFFICE TO PRESENT CITY'S POSITION FOR BOND RATING 2. 3. 4. 5. 6. 7. 8. 9. (F) AUTHORIZATION TO AWARD CONTRACT FOR ANDERSON CENTER GYM WALL TO BRADSHAW CONSTRUCTION ($7,212.90 INCLUDING SALES TAX) (G) ACKNOWLEDGMENT OF RECEIPT OF CLAIM FOR DAMAGES FROM STEVE MONTGOMERY ($200+) (H) PROPOSED RESOLUTION 674 ADOPTING HIGHWAY 99 CORRIDOR STUDY (I) PROPOSED ORDINANCE 2669 REVISING VACATION OF UNBUILT RIGHT-OF-WAY OF 7TH AVE. S., SOUTH OF FIR ST. AUDIENCE CONTINUED COUNCIL DELIBERATION ON PLANNING BOARD RECOMMENDATION TO AMEND EDMONDS COMMUNITY DEVELOPMENT CODE REGULATIONS REGARDING HOME DAYCARE (FROM APRIL 5 PUBLIC HEARING) HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING HEIGHT VARIANCE ON LOTS 2, 3, 7, AND 9 OF EAGLE'S CREST PRD AT 172ND ST. S.W. AND 72ND W. (AP-9-88/V-3-88) (APPELLANTS: WALTER AND KOLETA DASTIS) HEARING ON HEARING EXAMINER RECOMMENDATION TO AMEND OFFICIAL STREET MAP TO REDUCE PROPOSED RIGHT-OF-WAY FOR PINE ST., BETWEEN 3RD AVE. S. AND 5TH AVE. S., FROM 50' TO 40' (ST-1-88/CITY OF EDMONDS) APPROVAL OF AGREEMENT FOR WASTEWATER TREATMENT, DISPOSAL, AND TRANSPORT SERVICES DISCUSSION OF PROPOSED ORDINANCE ESTABLISHING STORMWATER MANAGEMENT UTILITY MAYOR COUNCIL (20 MINUTES) (45 MINUTES) (25 MINUTES) (30 MINUTES) (30 MINUTES) THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE HANDICAPPED ACCESSIBLE