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12/06/1988 City CouncilTHESE MINUTES SUBJECT TO DECEMBER 20, 1988 APPROVAL EDMONDS CITY COUNCIL MINUTES DECEMBER 6, 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 St., Edmonds. All present joined in the flag salute. PRESENT Larry Naughten, Mayor Bill Kasper, Council President Steve Dwyer, Councilmember Laura Hall, Councilmember Roger Hertrich, Councilmember Jo -Anne Jaech, Councilmember John Nordquist, Councilmember Jack Wilson, Councilmember Karen Abrams, Student Rep. CONSENT AGENDA STAFF Mary Lou Block, Planning Div. Mgr. Peter Hahn, Comm. Svc. Director Bobby Mills, Public Works Supt. Bob Alberts, City Engineer Jack Weinz, Fire Chief Duane Bowman, Asst. City Planner Jerry Hauth, Hydraulics Engineer Scott Snyder, City Attorney Jackie Parrett, City Clerk Margaret Richards, Recorder Items (B), (E), (G), (H), and (J) were removed from the Consent Agenda. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items on the Consent Agenda include the following: (A) ROLL CALL (C) APPROVAL OF 1989 EQUIPMENT RENTAL RATES n (D) FINAL ACCEPTANCE WORK NWESTERN CONSTRUCTION CO., INC., ON CITY PARK COMFORT STATION, ANDSET 30 DAYRETAINAGEPERIOD (F) AUTHORIZATION TO CALL FOR BIDS FOR 1989 GASOLINE, DIESEL, AND LUBE OIL CONTRACT �z(I) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JOHN GALT FOR r HEARING EXAMINER PRO TEM SERVICES APPROVAL OF MINUTES OF NOVEMBER 15, 1988 [ITEM (B) ON THE CONSENT AGENDA] The proposed amendment was stated in the November 22, 1988 minutes. MAYOR NAUGHTEN MOVED, SECOND- ED BY COUNCILMEMBER HALL, TO APPROVE THE MINUTES AS AMENDED. Because Councilmember Hertrich wished to make a correction, COUNCILMEMBER HALL WITHDREW THE SECOND TO THE MOTION. Councilmember Hertrich referred to the motion on page 3, paragraph 7, and noted that he voted to look upon the proposal with interest and did not intend to include the word "favorable" when making the second to the motion. He said Councilmember Wilson had interjected that word during discussion of the item and it ended up as part of the motion. Councilmember Hertrich said he would like that word to be omitted from the motion. Councilmember Kasper said he had accepted Councilmember Wilson's request as part of the motion so the motion would have to be reconsidered to omit a word. Having voted on the affirmative side, COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO RECONSIDER THE MOTION. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCILMEM- BER KASPER, COUNCILMEMBER DWYER, COUNCILMEMBER HERTRICH AND COUNCILMEMBER JAECH IN FAVOR; COUNCIL - MEMBER HALL, COUNCILMEMBER NORDQUIST, AND COUNCILMEMBER WILSON OPPOSED. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO LOOK UPON THE PROPOSAL WITH INTEREST. MOTION CARRIED. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO APPROVE THE NOVEMBER 15 MINUTES AS CORRECTED. MOTION CARRIED WITH COUNCILMEMBER JAECH ABSTAINING BECAUSE SHE WAS NOT PRESENT AT THAT MEETING. APPROVAL OF NOVEMBER 22, 1988 MINUTES [ITEM (B) ON THE CONSENT AGENDA] Mayor Naughten referred to a memorandum from Judge Conroy noting the following amendments: page n 3, paragraph 4, "Judge Stephen Conroy reported that over 25,000 cases were filed with South Dis- trict Court in 1987, according to the State records, compared to 11,000 such filings in the Edmonds Municipal Court. He said he devotes one day a week in court. The total hours devoted by the judge has been approximately 50 hours per month"; page 3, paragraph 5, "Judge Conroy said the total filings were increasing now and comparable to previous years but had decreased..."; page 3, paragraph 7, "Judge Conroy said the court continues to be a service to the community. He said there is flexibility with regard to lay witnesses testifying and police officers' work sched- ules. Night Court sessions are held for the benefit of citizens who cannot afford to take time off from work to contest a relatively minor traffic infraction". Mayor Naughten noted that the date at the bottom of the minutes was incorrect and should be changed to November 22, 1988. Councilmember Nordquist inquired if Judge Conroy had listened to the tape of the meeting when making those corrections or if he simply was editing the minutes. Mayor Naughten said he did not know. City Clerk Jackie Parrett said those were his comments. Councilmember Nordquist said he would like to defer approval of the minutes until Council President Kasper had an opportunity to review the tape to verify Judge Conroy's comments. AUTHORIZATION TO OBTAIN LAND SURVEY AT 16620 - 72ND AVE. W. TO ESTABLISH DRAINAGE EASEMENT ,0 0 ITEM E ON THE CONSENT AGENDA Mayor Naughten noted that the address of the property was incorrect and should be 16220 - 70th Councilmember Hertrich noted that the Engineering Department had not indicated on the cover sheet of the memorandum that the memorandum was reviewed by that department. He requested the appropri- ate departments to review memorandums in the future to insure their accuracy and completeness before they are submitted to the Council. Councilmember Nordquist inquired why funds were requested from the Council Contingency Fund to conduct the survey when it was an Engineering concern. Community Services Director Peter Hahn said Staff requested monies from the Contingency Fund because the Engineering budget was very limited. In response to Councilmember Kasper's question, Public Works Superintendent Bobby Mills said the survey will cost approximately $1,500 and the remaining amount will be used to pay for witness fees in the event that a lawsuit is commenced. Councilmember Wilson inquired why another law firm was asked to represent the City rather than the City Attorney. Mayor Naughten said the law firm of Keating, Bucklin & McCormack were attor- neys for the insurance pool. Councilmember Jaech inquired why the money was not being taken from the professional services budget. Mr. Hahn said the money in that budget has been earmarked for already -approved projects. Councilmember Jaech inquired how the attorney fees will be paid. City Attorney Scott Snyder said the insurance pool establishes an annual risk experience. He said costs which are incurred by the insurance authority will be used to determine the City's assessment for a future year. Councilmember Jaech suggested that the Council Contingency Fund be reimbursed for the legal fees from the Engineering budget. Councilmember Hall inquired if the funds could be derived from the 1989 Engineering budget rather than the Council Contingency Fund. City Engineer Bob Alberts replied affirmatively. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO AUTHORIZE THE LAND SURVEY IN AN AMOUNT NOT TO EXCEED $3,000 AND TO BE DERIVED FROM THE 1989 ENGINEERING BUDGET. Councilmember Dwyer inquired what legal fees were paid by the insurance authority and what fees were paid by the City. Mr. Snyder said costs of litigation are normally borne by the insurance pool. He surmised that the pool may feel that the City would derive a benefit from establishing the location of the easement and, therefore, should bear the costs of litigation. COUNCILMEMBER HERTRICH MOVED TO AMEND THE MOTION, SECONDED BY COUNCILMEMBER NORDQUIST, TO ITEMIZE THE COSTS FOR THE SURVEY AND COURT COSTS. MOTION CARRIED. THE MAIN MOTION CARRIED. PROPOSED ORDINANCE 2693 DECREASING PARKING FEE TO $30 PER MONTH AT 5TH AVE. PUBLIC PARKING LOT [ITEMCGY ON THE CONSENT AGENDA Councilmember Wilson said he pulled that item from the Consent Agenda before he noticed the memo- randum indicating that the Mayor had recommended a parking fee of $25 per month instead of $30, as shown on the agenda. Councilmember Hall inquired if the City was not going to lose that park- ing lot. Mayor Naughten said discussion has taken place that it may be purchased to expand the Arco AM/PM business but no definitive plan has been made yet, and the City would recover the costs if it lost its lease. EDMONDS CITY COUNCIL MINUTES Page 2 DECEMBER 6, 1988 COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE ITEM (G) AT $25 PER MONTH. MOTION CARRIED. Councilmember Kasper inquired if revenue losses were assessed to the respective departments. Mayor Naughten said if a deficit occurs, monies will be taken from the In -Lieu -Of -Parking Fund to make up the loss. AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JAMES DRISCOLL FOR HEARING EXAMINER SERVICES 1ITEM H ON THE CONSENT AGENDAI Councilmember Nordquist noted that James Driscoll has served as the City's Hearing Examiner for several years. He said although he is satisfied with Mr. Driscoll's performance, he felt it would be in the best interest of the City to advertise the position to ascertain if there are any another qualified candidates. He suggested that the incumbent's contract continue on a month -to - month basis rather than annually but that any future contract have a renewal period every 'two years. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER JAECH, TO DRAFT THE NECESSARY DOCUMENTA- TION TO ADVERTISE THE POSITION, SALARY TO BE DETERMINED BY THE COUNCIL. Councilmember Kasper said he was not opposed to advertising the position in 1989 but did not feel the process should be undertaken at the present time. He said Mr. Driscoll has served the City well. He inquired about the necessity of advertising for the position and, also, how the candi- dates would be evaluated. Councilmember Jaech clarified that the motion included only the procedure to advertise and not the terms of the contract. Councilmember Wilson said he would vote in favor of the motion but stated that he was very pleased with Mr. Driscoll's performance and the action should be not interpreted as any aspersion on Mr. Driscoll. Councilmember Hall expressed concern that the position for the Hearing Examiner Pro Tem was not also being considered for advertisement. Councilmember Nordquist said that position was a sepa- rate issue. He said he preferred that the position not be advertised until at least next year. MOTION CARRIED WITH COUNCILMEMBER KASPER OPPOSED. PROPOSED ORDINANCE 2694 GRANTING FINAL PRO/SUBDIVISION_ APPROVAL FOR PLAT OF MEADOWDALE RIDGE PRD-1-87/P-2-87/METCO CONSTRUCTION LITEM J ON THE CONSENT AGENDA) Councilmember He-rtrich noted that the cover sheet of the memorandum did not indicate that the Engineering Department had reviewed the memorandum. Councilmember Hertrich inquired if all of the complaints by citizens have been addressed. Plan - ping Division Manager Mary Lou Block replied affirmatively. She said the City has not received any recent complaints. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE ITEM (J). MOTION CAR- RIED. AUDIENCE Mayor Naughten opened the audience portion of the meeting. No public input was offered. Mayor Naughten closed the audience portion of the meeting. HEARING ON REQUEST TO CONSIDER COMPENSATION FOR VACATING PORTION OF 68TH AVE. W. BETWEEN MEADOWDALE BEACH RD. AND 1 TH ST. S.W. ST-4-8 /L SSWELL r Assistant City Planner Duane Bowman reported that on April 11, 1984, the City Council voted to vacate that portion of the undeveloped right-of-way of 68th Ave. W. that is between Meadowdale Beach Road and the dedicated right-of-way of 174th St. S.W. At the time of the street vacation request, the City required appraisals to determine the amount of compensation for the vacated right-of-way. Since then, the Code has been amended to require compensation based upon the aver- age square foot assessed valuation of the properties that abut the right-of-way to be vacated. Using the formula set forth in Chapter 20.70.030 of the Edmonds Community Development Code (ECDC), the total required compensation for the requested street vacation of $4,750.00. Mr. Lasswell proposes to pay the City $2,310.00 for the westerly half of the vacation street and to exchange a 10 foot strip of land that he will dedicate to the City along his street frontage on Meadowdale Beach Road for the easterly half of the vacated right-of-way. EDMONDS CITY COUNCIL MINUTES Page 3 DECEMBER 6, 1988 Mr. Bowman said the request seems to be reasonable. The City has no use for the right-of-way being vacated, and the 10 foot dedication along Meadowdale Beach Road is more valuable to the City than the easterly half of the vacated street. He said Staff recommends approval of the compensation request. Councilmember Kasper inquired about the time frame for offers to vacate land. City Attorney Scott Snyder said unless the Council stipulates otherwise, the Code does not provide for a time limit. Mr. Bowman reviewed the area in question on a vicinity map. Councilmember Hertrich inquired if the neighbor to the left of 68th Ave. W. has had an opportuni- ty to purchase the right-of-way. Mr. Bowman said Mrs. Hinton, the adjacent property owner, has quit claimed her interest in that portion of the right-of-way to Mr. Lasswell. J.C. Lasswell, 4815 - 148th S.W., said Mr. Bowman accurately stated the issue and he had no fur- ther input. Mayor Naughten opened the public portion of the hearing. Lewis Gallagher, 6802 - 174th S.W., said a survey indicates that he owns a portion of the Hinton property. Mr. Bowman said be the area was inaccurately surveyed, the as -built road was constructed across several property lines. He said the road has technically bisected Mr. Gallagher's property. Mr. Bowman noted that the Council specified that the easement will stop at the north line of the dedicated right-of-way of 174th because of the survey problems. He said the intersection will be revised to configure a "T" with 174th and Meadowdale Beach Road. Mr. Bowman said the issue of property lines will eventually be decided by a judge because of conflicts of different surveys. Councilmember Jaech inquired if the ten foot dedication along Meadowdale Beach Road is usable to the City. Mr. Bowman said it can be used for additional right-of-way when the intersection is realigned or for a pathway. Councilmember Hertrich inquired if Mr. Lasswell protested the issue before the Council in any way. Mr. Lasswell replied negatively. Mayor Naughten closed the public portion of the hearing. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO ACCEPT THE COMPENSATION REQUEST, ACQUIRE THE PROPERTY BETWEEN THE LASSWELL AND HINTON PROPERTY ONLY FOR $2,310.00, AND ACCEPT THE 10 FOOT DEDICATION ALONG MEADOWDALE BEACH ROAD. MOTION CARRIED. HEARING ON APPEAL OF HEARING EXAMINER DECISION UPHOLDING APPEAL OF BYRON CLARK REGARDING ISSU- ANCE OF BUILDING PERMIT FOR FENCE AT 9826 CHERRY ST. AND STAFF INTERPRETATION OF EDMONDS COMMUNI- TY DEVELOPMENT CODE AP-28-88/ P-20-88 APPELLANTS: MELANIE GRANDFORS AND JOHN NEWLAND C Planning Division Manager Mary Lou Block reported that in July, the City received notice that a Cbrick fence was being constructed at 9826 Cherry Street on property belonging to John Newland and Melanie Grandfors. The fence had been substantially completed when the City received notice and work was immediately stopped by the City. The masonry contractor then filed an application for a building permit. Ms. Block noted that on August 2, 1988, the Building Division issued building permit #880530 to J & J Masonry for the nearly -completed fence. The permit specified the height of the fence as 6 feet. Prior to issuing the permit, Building Official Hal Reeves indicated to Mr. Newland by letter the method by which a fence is measured, with a copy to Byron Clark, an adjacent property owner and the complainant. On August 13, 1988, Mr. Clark filed an appeal (AP-20-88) challenging the Staff interpretation of fence height measurement and the issuance of the building permit. Ms. Block noted that since the issuance of the building permit, it has been discussed that the brick fence exceeds the permitted height regardless of which interpretation is used. Therefore, she said the fence must either be lowered or the owners must obtain a conditional use permit. She said a conditional use permit application was submitted and is currently being processed. EDMONDS CITY COUNCIL MINUTES Page 4 DECEMBER 6, 1988 Ms. Block said Staff's interpretation of the Code is that fences are allowed on top of retaining structures less than 3 feet in height, and height is calculated at the finished grade of the base of the fence. On September 1, 1988, the Hearing Examiner conducted a public hearing on Mr. Clark's appeal. On September 23, 1988, he rendered a decision upholding the appeal. Subsequently, Staff submitted a motion for reconsideration. The Hearing Examiner issued an order on October 25, 1988 denying the reconsideration request. Ms. Block said since the Hearing Examiner's decision goes beyond this particular fence and would change the method of fence height measurement, it has serious implications affecting the general health, safety and welfare of the community. Ms. Block said the Edmonds Community Development Code (ECDC) clearly states that the height of a fence is measured from the finished grade at the base of the fence. Finished grade is not de- fined in the ECDC. Since not every term is defined in the Code, Staff utilizes the dictionary when interpreting the Code. Ms. Block said the term "finished" clearly implies a change in grade from "undisturbed soil", a term which is defined in the ECDC. Ms. Block said Staff has compiled and illustrated a number of typical cases showing why the fence height must be measured from the finished grade and where that grade would be located. She said in some of these cases, the interpretation of the Hearing Examiner would clearly create unintend- ed, unsafe situations. Mr. Bowman reviewed the cases on the overhead projector. Ms. Block noted that the examples were included in the Council packets. Ms. Block said the ECDC allows minor construction, such as retaining walls, less than 3 feet in height on the property line. If someone places fill behind such a structure of wall (case III, IV, or V of the illustrations), there is no difference between erecting a fence on top of the wall or on the fill itself. Councilmember Hertrich inquired if any of the typical cases depicted the actual issue in ques- tion. Ms. Block replied negatively. She said she was reviewing the entire issue of fence height measurements with the Council, which was the issue that was appealed to the Hearing Examiner. Councilmember Hertrich questioned the procedure by Staff in presenting the issue to the Council because illustrations of the actual fence in question were not submitted to them. Community Services Director Peter Hahn said the methodology of fence height interpretation was the issue in question and could be explained with hypothetical cases. Councilmember Jaech inquired if a conditional use permit was submitted to the Hearing Examiner. Ms. Block replied affirmatively. Councilmember Kasper inquired why the issue was before the Council, then, if a conditional use permit application was pending. City Attorney Scott Snyder said the application was filed and the Code provides for a strict time table for review of permit issues. He said Staff's interpretation of the Code has been challenged, and the Council must determine what the interpretation of the Code is. Councilmember Hall asked what the appeal was that was before the Council. Ms. Block said Staff has been using the same methodology to determine fence heights for many years but a citizen has questioned Staff's interpretation. Ms. Block said because the fence in question is too high, the owner was advised to either lower the fence of apply for a conditional use permit. Because several Councilmembers were concerned about proceeding with the hearing prior to the Hear- ing Examiner issuing his decision on the conditional use application, Mr. Snyder said it was with- in the Council's prerogative to continue the matter to a date certain. Councilmember Dwyer point- ed out that Mr. Clark had the right to have the matter resolved in a timely fashion and urged the Council to proceed with the matter that evening. Ms. Block said because the appeal was based on Staff's interpretation of its methodology of height measurement, the Council will be presented with fence height measurements as a whole and not just an isolated case. Councilmember Hall and Councilmember Hertrich said they believed that that issue should be reviewed by the Planning Board and that the Council should review the specif- ic case before them. Councilmember Dwyer said the determination of 'Staff was being appealed. He said when the Code drafted, it was reviewed by the Planning Board and Council and then enacted and it was that Code that should be applied to the issue before the Council and not some future Code. Councilmember Kasper inquired if a retaining wall is considered a structure under the Code. Ms. Block said a retaining wall is exempted if it is less than three feet in height. Councilmember Kasper inquired if the foundation of a house was considered as a structure. Mr. Snyder replied affirmatively. EDMONDS CITY COUNCIL MINUTES Page 5 DECEMBER 6, 1988 Mr. Snyder suggested that the Council make a motion to continue the matter to a later date before any further discussion took place if they were uncomfortable proceeding with the hearing. He noted that the Council could refer the Code back to the Planning Board if they felt the Code was ambiguous and could not be applied to the issue before them, but he suggested that the Council hear the evidence before making that decision. The Council decided to proceed with the hearing. Ms. Block reviewed the five examples of typical situations involving fences and topography that were included in the Council packets. Ms. Block said undisturbed soil is referred to in the ECDC as natural grade.• She said Chapter 17.30 does not reference undisturbed soil but, rather, finished grade. She noted that cases #2 and #3 exemplified the reasoning for making reference to finished grade rather than undisturbed soil when determining a fence height. She said a fence at the bottom, or undisturbed soil, would be of no benefit but a fence at the top of the rockery would prevent a child from falling off. Ms. Block said the Hearing Examiner's decision is flawed because it disregards the ECDC's defini- tion of structures; fails to address the difference between a retaining wall and a fence; ignores the reference to finished grade, which appears in Chapter 17.30; and has the potential to create serious implications affecting the general health, safety, and welfare of the community. Ms. Block said the purpose of a fence is to provide screening, separation of properties, or safe- ty. She said a retaining wall. is designed to hold back or secure soil. Ms. Block said in some instances, a fence and retaining wall appear -to be the same from one side but, in actuality, they serve difference purposes. Councilmember Hertrich inquired about the purpose of the six foot height limitation for fences. Mr. Hahn said that, historically, the limitation was based on the height of a person and privacy purposes. Ms. Block reiterated that Staff's interpretation of the Code has been used for a number of years. She noted that Mr. Clark's appeal is the first appeal challenging Staff's position. George Cody, of the law firm Cody, Hatch & Blanchard, 3405 - 188th St. S.W., Suite #325, Lynn- wood, representing Melanie Grandfors and John Newland, said the appellants hired a contractor to remove an old six foot fence and replace it with a brick wall of approximately the same height. He said the brick wall was designed to have concrete footings and the foundation would be placed below the previous ground level. Mr. Cody said Mr. Clark appealed the determination that the wall could be erected as designed simply by the issuance of a building permit. Mr. Cody said the appellants disagree that the wall is too high to meet the six foot requirement if they are al- lowed to put back fill material that was taken out to pour the foundation and erect the wall higher than that, i.e, to the level of six feet. Mr. Cody said Mr. Clark filed the appeal be- cause the fence would be higher than six feet on his side of the fence. It is the appellants' position, however, that when a structure can be, six feet above the finished grade, that allows the owner of the property to regrade the property from its original condition and, based upon the landscaping and finishing of the grade on his side of the property, construct a fence or a wall that extends above the finished grade by six feet. Mr. Cody said finished grade can only mean the grade that is created after the property has been leveled as designed and carried out. Councilmember Hertrich inquired about the height of the brick wall. Mr. Cody said the brick wall was designed to be the same height as the previous fence. Councilmember Hertrich inquired if additional fill was put in on the owners' side of the fence. Mr. Cody said the ground level was designed to be at the same level that it was before the fence was constructed. Councilmember Hertrich inquired if the brick wall was exactly six feet above ground level. Mr. Cody said when all of the soil is put back in place, the brick wall should be six feet above ground level. Councilmember Kasper inquired if the foundation of the brick wall was the base of the wall. Mr. Cody replied affirmatively. Councilmember Kasper inquired if one side of the foundation was exposed by approximately 2-1/2 feet. Mr. Cody replied affirmatively. He said more of the founda- tion is exposed on the outer side because the fill has not been put back yet. Byron Clark, 9822 Cherry St., said he was amazed at the amount of incorrect testimony that had been given that evening. Mr. Clark said none of the scenarios presented by Staff represent the issue before the Council. He said the lot is essentially level. Mr. Clark said there has not been an accurate accounting of the sequence of events that took place. He said two-thirds of the fence was completed before he was aware that it exceeded 6 feet in height because construction of the fence began on the west side of the Newland property, which is out of his line of sight. EDMONDS CITY COUNCIL MINUTES Page 6 DECEMBER 6, 1988 Mr. Clark noted that the Hearing Examiner stated in his Findings, "Reference is also made to the Department's Petition for Reconsideration. In that document, the Department submitted scenarios about situations involving retaining walls, grades, and the height of fences. None of these scenarios are properly before the Hearing Examiner. These are administrative determinations that must be made by the Planning Department. It is suggested, however, that prior to these scenarios actually occurring, the Department should amend the ECDC to address the issues raised in this appeal". Mr. Clark said the structure in question is not a fence but, rather, a solid wall with a concrete footing. He said in some places, the foundation is above ground level, noting that that was not unusual. Mr. Clark said the brick wall was constructed to replace an old, wooden fence. The real issue, he said, was if the 6 foot height, limitation of the Code would be enforced or if Staff would be allowed to make "curious" interpretations of that Code. Mr. Clark pointed out that Chapter 17.30.000 states that the maximum fence height without the use of a conditional use permit is 6 feet. He said the purpose of fence height limitations is to protect adjoining property owners from excessive heights and, also, for aesthetic purposes. Mr. Clark said to measure a fence height from any other perspective was clearly contrary to the in- tent of the Code. Mr. Clark read a passage from a document that was issued by the Planning Department as follows: "Maximum height of a fence is 6 feet unless a conditional use permit is obtained. Height is measured from the elevation of the finished grade at the base of the fence. Fences built on top of retaining walls are measured from the bottom of the wall". He said that language is in con- flict with a letter that was issued by the City on August 3 when the permit was approved,. which stated, "Since up to 3 feet of fill may be placed adjacent to the property line, the combined height of the fence, plus any retaining structure, could be up to 9 feet on the neighbor's side". Mr. Clark said the plans and specifications that were drafted for the construction of the fence in question were .not done professionally. He said he has been a registered civil engineer for over forty years and could verify that the plans do not show where the wall is with respect to the property line and does not define what the height of the wall should be with respect to ground level because the ground levels were not indicated in the plans. Mr. Clark inquired again if the 6 foot height limitation would be enforced or if Staff would be allowed to ignore the Code and make official decisions that are contrary to the public interest and in favor of individuals who have deliberately and knowingly violated the Code. Mr. Clark requested the Council to: 1) uphold the Hearing Examiner's decision; 2) conduct a review of the existing fence Code and enact amendments so that future cases similar to the one before the Council can be prevented; and 3) limit the discretionary authority of the Planning Department. Exhibits were submitted to the City Clerk and marked for identification and then submitted to Mr. Cody and the Council. Councilmember Hertrich asked Mr. Clark to describe the base of the fence as he perceived it to be. Mr. Clark said the foundation was a common footing. Councilmember Hertrich inquired if the foundation was a necessary part of the wall. Mr. Clark replied affirmatively. Councilmember Hertrich inquired if the foundation was designed to retain anything. Mr. Clark replied negative- ly. He explained a sketch to the Council that was submitted by him and marked as Exhibit #1. Ms. Block submitted five photographs to the Council of the fence (which were in the Planning Department's file), which were marked as Exhibit #2. Mayor Naughten opened the public portion of the hearing. No public input was offered. Mr. Cody said one of the exhibits that the Council should have would be the original building application and a sketch of the design of the wall. He said the sketch depicts the footing and vertical columns of rebar above the footing. The rebar is designed to support fill material against the fence. Mr. Clark said there was erosion around the base of the previous fence which was not controlled. Mr. Cody said the wall will extend 6 feet and in some areas less than the finished grade that is left after the fill material is put back in. Mr. Cody said the question, then, is: Is that permissible by obtaining a building permit? Mr. Cody said the Hearing Examiner concluded that because the Code is silent as to which side of the fence will be used to calculate fence height and as to finished grade, the structure, as designed, cannot be constructed simply by obtaining a building permit. Mr. Cody said the issue, then, is: What is the finished grade as it applies to the design submitted by the owners of the property and where do you measure the wall? EDMONDS CITY COUNCIL MINUTES Page 7 DECEMBER 6, 1988 Councilmember Wilson said it struck him as very strange that an experienced mason would not be cognizant of Code requirements in the State of Washington. He asked Staff if they found it curi- ous as well. Ms. Block replied affirmatively. Councilmember Wilson said a policy must be estab- lished in the future which imposes some penalty when construction is started without first obtain- ing a building permit. Councilmember Wilson inquired about the purpose of a retaining wall on almost ground level. Ms. Block said in that instance, it would be for decorative purposes only. Councilmember Wilson inquired if a decorative retaining wall circumvented the height limitation for fences. Ms. Block said the Code does not address that issue. Councilmember Wilson noted that the Code is silent as to finished grade. He inquired about the language in the Code as to undisturbed soil. Ms. Block said undisturbed soil means the condition of a site at the time that a building permit is made to the City before any site work occurs. However, where the site has been altered by grading, cut- ting or filling, or similar activities before the application for a building permit, the Building Official shall make the determination from then -available data of the mean elevation of the undis- turbed soil. If the undisturbed soil elevation is not readily determined due to the demolition of an existing structure, the contours may be reconstructed by the Building Official to coincide with adjoining topography to determine the undisturbed soil elevations. Councilmember Hertrich inquired if, under the Code, the foundation of the structure in question is considered as part of the fence or as a retaining wall. Mr. Snyder said that was not a proper question for Staff but was a factual issue to be determined by the Council. He said the question would be appropriate if Staff was asked if they have developed an interpretation and applied it in the past. Councilmember Hertrich posed that question to Staff. Ms. Block said if a founda- tion has dirt behind it, it is a retaining wall. Councilmember Hall noted that the words "fence" and "wall" were intertwined in the evidence be- fore the Council. She inquired if they were synonymous. Councilmember Hall .said in her estima- tion, a wall was constructed where a fence used to exist. Mr. Snyder said a fence is defined in the Code as any construction of wood, plastic, metal, or other materials which obstructs the clear view from any angle. He said the Code does not differentiate between those materials. Councilmember Hall asked why the structure in question was referred to as a wall. Mr. Snyder said the Building Code refers to a wail as something which supports a roof, and a fence is a freestanding structure that is designed to obstruct a view. Councilmember Hall noted that the structure in question was built on footings. Mr. Snyder said the question before the Council was: Is the underpinning a structural element of the wall or is it a separate retaining struc- ture with a function of its own? Councilmember Kasper inquired if it was correct that a brick wall is always built on top of a concrete foundation. City Engineer Bob Alberts replied affirmatively. Mr. Clark said the fence height limitation was established to protect adjoining property owners. He concluded that a fence height should be measured from the outside of a property owner's fence and not from within. Mr. Clark encouraged the Council to make a site inspection of the property in question. Councilmember Jaech inquired about the dimension of the bricks that were used to construct the fence. Mr. Cody said they are 4"W'x12". Councilmember Hertrich inquired about the erosion problem on the property. Mr. Cody said dirt used to wash out at the base of the previous fence and fill the swimming pool. He said if the landscaped area is not properly retained in between the interior part of the design and bottom of the wall, it will wash out and wind up in the swimming pool. Mr. Snyder noted that the zoning codes are in derogation of common law property lines and are to be construed in favor of the property owner. He advised the Council that if they found an ambigu- ity in the Code in how the fence is to be measured or with respect to whose lot, to rule in favor of the property owner. Mayor Naughten closed the public portion of the hearing. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO CONTINUE THE DELIBERATION TO JANUARY 3, 1988 TO ALLOW THE COUNCIL TO REVIEW THE RECORD AND MAKE A SITE INSPECTION. He clari- fied that no further public input would be allowed at that meeting. MOTION CARRIED. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO RESCHEDULE ITEMS 6, 7, AND 8 ON THE AGENDA TO DECEMBER 20, 1988. MOTION CARRIED. The Council recessed at 9:43 p.m. and reconvened at 9:52 p.m. EDMONDS CITY COUNCIL MINUTES Page 8 DECEMBER 6, 1988 ;J� 17U 111-ft HEARING ON HEARING EXAMINER RECOMMENDATION NOT TO AMEND OFFICIAL STREET MAP TO REDUCE TH Planning Division Manager Mary Lou Block reported that on September 15, 1988, the Hearing Examin- er held a public hearing on the petition of a number of residents on North Meadowdale Road to amend the Official Street Map (OSM) to reduce the proposed right-of-way for the road from 60 feet to 40 feet. The Hearing Examiner issued his decision on October 4,.1988 recommending that the OSM not be amended at the present time. A motion for reconsideration was filed by Dr. Paul Joslin on October 6, 1988. The Hearing Examiner denied the reconsideration request. Ms. Block noted that copies of the Hearing Examiner's decision, a map of the area, a copy of the petition, and the reconsideration request of Dr. Joslin were included in the Council packets. Ms. Block said to date, no study has been made to determine what the ultimate pavement width should be for North Meadowdale Road based upon potential total development of the area. Until the City has made that determination, she said it is premature to amend the OSM. Ms. Block said Staff recommends that the Council uphold the Hearing Examiner's recommendation. Mr. Block reviewed the Hearing Examiner's Conclusions and Recommendation. City Engineer Bob Alberts reiterated that it would be premature to amend the OSM to reduce the right-of-way because the North Meadowdale area is growing and the City is unsure how that growth will impact road widths or the location of pedestrian walkways. Councilmember Wilson asked how long it would take to conduct a survey of the area and the cost of it. Mr. Alberts said a study of the road system would take approximately 3 to 4 months and cost approximately $10,000. Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEM- BER WILSON, TO EXTEND THE MEETING. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER NORD- QUIST, TO AMEND THE MOTION TO EXTEND THE MEETING FOR NOT MORE THAN TWENTY MINUTES. MOTION CAR- RIED AS AMENDED. Councilmember Wilson felt the study should be conducted so that residents of the area can plan for the future. Mr. Alberts said if the Council so desired, Staff could contact a consultant to ascertain the scope of work of the study. Jeanine Casper played a video tape of the North Meadowdale area to demonstrate that the 60 foot right-of-way encroaches on many residential properties. Ms. Casper said a developed 60 foot right-of-way would not be consistent with the nature of the area. She said a 40 foot right-of- way is sufficient to construct a pathway down to the water. Ms. Casper said the following crucial facts were omitted from the Hearing Examiner's report: 1) she was only one of twenty petitioners, and 100% of the property owners of 11 homes of North Meadowdale Road are the petitioners; 2) the proposed 60 foot right-of-way impinges on some proper- ty owners' homes and within 10 feet of other homes; and 3) the proposed right-of-way was initiat- ed in 1976 but no action has been taken to date. Because of the City's concern regarding the location of a pathway, Ms. Casper said it may be in the best interest of all parties to table any action until the Trail Committee and City establish that location. She said, however, it would be unfair to require the petitioners to pay an addi- tional $400 to repetition. Ms. Kasper said she legally owns 600 feet of North Meadowdale Road to the center line. She said she would quit claim 600x2O feet of her property to the City to construct a pathway if the City agreed to reduce the right-of-way. Because four people wished to testify and would only be allotted one minute each, COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER HALL, TO EXTEND THE MEETING TO 10:40 P.M. MOTION CARRIED. Mayor Naughten opened the public portion of the hearing. Frank Bonipart, 15929 - 75th Pl. W., said he was in favor of reducing the right-of-way to 40 feet. He said he believed more accidents would occur at the intersection of 75th and North Mea- dowdale Road if the roadway was developed. Mr. Bonipart said approximately 12 feet of the south- west corner of his property has been asphalted, and even more of his property will be taken if the roadway is widened. Mr. Bonipart said although he recognized the need for a pathway on North Meadowdale Road, he was opposed to widening the roadway. He said he did not want the road to be any closer to his home. EDMONDS CITY COUNCIL MINUTES Page 9 DECEMBER 6, 1988 In response to Councilmember Wilson's question, Mr. Bonipart said he intends to expand his home in the future. If the home will be demolished and rebuilt, Councilmember Wilson inquired if it could be set back from the road further. Mr. Bonipart replied negatively. Phyllis Wiggins, 16012 - 74th Pl. W., said the existing road is 22 feet wide. She said if the right-of-way is reduced to 40 feet, there would be sufficient room to make improvements. Ms. Wiggins said she did not believe that a 3 or 4 lane roadway would be conducive to the North Mea- dowdale area. Robert Anderson, 7370 North Meadowdale Rd., said the width of the road varies between 18 to 22 feet. He said the portion of the road that is 22 feet wide is approximately the same width as 76th Ave. W., north of Perrinville. He noted that that stretch of road is travelled three times as often as North Meadowdale Road and is developed with a curb and 3-1/2 foot sidewalk. Dr. Anderson said he has already given 20 feet of his property to the City and would object to giving an additional 10 feet. Dr. Anderson said developing the steep portion of the road on the south side would invite slides because the top of the slope is the edge of the blacktop. Dr. Anderson pointed out that the 40 foot right-of-way already includes all utilities. He said with 18 to 20 feet of paving, there is adequate room for a 3-1/2 foot sidewalk on either side. Dr. Anderson said the present roadway is adequate and supports the traffic pattern that exists at the present time and will support future traffic. Paul Joslin, 16219 - 70th P1. W, said he was a member of the Trail Committee. He was hopeful that the Committee will expedite its plans and bring them forth to the community so that any adjustments that may be necessary in relation to the trail width can be made. Dr. Joslin said he was opposed to widening of the road. He felt the only development that should occur on North Meadowdale Road was the construction of a pathway. Councilmember Kasper inquired if the roadway has been surveyed to determine where the center line lies. Mr. Alberts replied affirmatively. He said, however, several surveys were conducted but they conflict with the actual right-of-way. Mayor Naughten closed the public portion of the hearing. Councilmember Jaech noted, for the public's benefit, that the City has not instituted any projects other than the trail study and does not intend to widen the road at the present time. She said if the 'City is going to relinquish its ownership in any property in the North Meadowdale area, it should first conduct a survey to determine where the actual property lines lie. Councilmember Wilson said the problems should be resolved in the area and it should be done in a timely fashion. He believed that the OSM should be reduced to 40 feet. Councilmember Kasper said the Council must take into consideration alternate routes to and from North Meadowdale other than the road from Perrinville. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO DELAY FURTHER CONSIDERATION OF THE ISSUE UNTIL A SURVEY IS CONDUCTED OF NORTH MEADOWDALE ROAD TO DETERMINE THE PRESENT RIGHT-OF- WAY, NOT TO EXCEED SIX MONTHS, AND THEN PROCEED AS SOON AS POSSIBLE TO REVIEW THE SURVEY ASPECTS. Councilmember Jaech noted that the hearing could not be delayed unless it was continued. At the advice of the City Attorney, COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO CONTINUE THE HEARING BECAUSE THERE WAS INSUFFICIENT EVIDENCE FOR THE COUNCIL TO BASE ITS DECI- SION ON BECAUSE THE LOCATION OF THE ACTUAL RIGHT-OF-WAY WAS UNKNOWN. UNTIL A SURVEY IS CONDUCTED TO PROVIDE THAT ADDITIONAL TESTIMONY, THE HEARING IS CONTINUED TO A LATER DATE, NOT TO EXCEED SIX MONTHS. MOTION CARRIED. Mr. Snyder said he has submitted the Street Standards Ordinance to the Council several times, which contains a provision deleting the mandatory dedication requirement and, instead, provides the Supreme Court standard. He said the portion dealing with dedication requirements within the street map area must be submitted to the Council for constitutional reasons and, in addition, it will address people's concerns that their property will be individually reviewed. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER HALL, TO SPLIT THE ORDINANCE INTO TWO PARTS. MOTION CARRIED. EDMONDS CITY COUNCIL MINUTES Page 10 DECEMBER 6, 1988 MAYOR Mayor Naughten reminded the Council that the Christmas party will be on the 9th of December at the Senior Center. Mayor Naughten announced that Councilmember Nordquist has served on the Council for twenty-one years as of November 21. COUNCIL Council President Kasper requested that the Mayor's Staff minutes be included in the Council packets on Friday. He noted that the Council has received them a few days late several times. Councilmember Hall said it was an embarrassment to the City that the sound system at the Tree Lighting Ceremony did not work properly. She said the City should purchase a system next year that is dependable. Councilmember Hertrich noted that the speaker system has malfunctioned for three years in a row at the Tree Lighting Ceremony. He said not only was it disappointing to the people who have come from out of town for the ceremony, but it made a bad image for the City. Councilmember Nordquist said the Council discussed doing away with the Council Committee meetings next year and establishing a regular Council meeting instead because the Committee meetings are not functioning effectively. He said a portion of that meeting would be dedicated to discussing finances of the City. The meeting adjourned at 10:38 p.m. ;TS;MINUTES ARE SUBJECT TO DECEMBER 20, 1988 APPROVAL. JACQUELINE G. PARRETT,•Clty Clerk LARRY S. NAUGHTEN, Mayor EDMONDS CITY COUNCIL MINUTES Page 11 DECEMBER 6, 1988 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM -LIBRARY BUILDING 7:00 -- 10:00 P.M. DECEMBER 6, 1988 CALL TO ORDER FLAG SALUTE 1. CONSENT AGENDA (A) ROLL CALL (6) APPROVAL OF MINUTES OF NOVEMBER 15, 1988 AND NOVEMBER 22, 1988 (C) APPROVAL OF 1989 EQUIPMENT RENTAL RATES (D) FINAL ACCEPTANCE OF WORK BY HANSEN WESTERN CONSTRUCTION CO., INC., ON CITY PARK COMFORT STATION, AND SET 30-DAY RETAINAGE PERIOD (E) AUTHORIZATION TO OBTAIN LAND SURVEY AT 16620 72ND AVE.-W. TO ESTABLISH DRAINAGE EASEMENT ($3,000) (F) AUTHORIZATION TO CALL FOR BIDS FOR 1989 GASOLINE, DIESEL, AND LUBE OIL CONTRACT (G) PROPOSED ORDINANCE 2693 DECREASING PARKING,FEE TO $30 PER MONTH AT 5TH AVE. PUBLIC PARKING LOT (H) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JAMES DRISCOLL OR HEARING EXAMINER SERVICES (i) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACT WITH JOHN GALT FOR HEARING EXAMINER PRO TEM. SERVICES (J) PROPOSED ORDINANCE 2694 GRANTING FINAL PRO/SUBDIVISION APPROVAL FOR PLAT OF MEADOWDALE RIDGE (PRD-1-87/P-2-87/METCO CONSTRUCTION) 2. AUDIENCE 3. HEARING ON REQUEST TO CONSIDER COMPENSATION FOR VACATING PORTION OF (15 MINUTES) 68TH AVE. W. BETWEEN MEADOWDALE BEACH RD. AND 174TH ST. S.W. (ST-4-83/ LASSWELL) 4. HEARING ON APPEAL OF HEARING EXAMINER DECISION UPHOLDING APPEAL OF (45 MINUTES) BYRON CLARK REGARDING ISSUANCE OF BUILDING PERMIT FOR FENCE AT 9826 CHERRY ST. AND STAFF INTERPRETATION OF EDMONDS COMMUNITY DEVELOPMENT CODE (AP-28-88/AP-20-88) (APPELLANTS: MELANIE GRANFORS AND JOHN NEWLAND) 5. HEARING ON HEARING EXAMINER RECOMMENDATION NOT TO AMEND OFFICIAL (45 MINUTES) STREET MAP TO REDUCE THE PROPOSED RIGHT-OF-WAY FOR NORTH MEADOWDALE RD., FROM 75TH PL. W. TO 162ND ST. S.W., FROM 60' TO 40' (ST-2-88/ JEANINE CASPER, ET. AL.) 6. PRE -DESIGN REPORT BY KCM ON SHELL CREEK IMPROVEMENTS, AND REQUEST (45 MINUTES) FOR AUTHORIZATION TO PROCEED ON PHASE 2 -- DESIGN ($73,186) N 7. DISCUSSION ON FUTURE EXTENSION OF 8TH AVE: N., BETWEEN HINDLEY LANE (10 MINUTES) AND BROOKMERE DR. 8. CONTINUED DISCUSSION ON WEST CORRIDOR STUDY (TO PROMOTE BETTER ( 5 MINUTES) INTEGRATION OF CROSS -SOUND FERRY SERVICE WITH OTHER PUBLIC TRANSIT SERVICES) (FROM OCTOBER 18) 9. MAYOR 10. COUNCIL THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE,HANDICAPPED ACCESSIBLE