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02/02/2010 City CouncilFebruary 2, 2010 At 6:30 p.m., Mayor Haakenson announced that the City Council would meet in executive session regarding pending litigation. He stated that the executive session was scheduled to last approximately 15 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. No action was anticipated to occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Haakenson, Councilmembers Orvis, Fraley - Monillas, Plunkett, Bernheim, Peterson and Buckshnis. Others present were City Attorney Scott Snyder, Community Services /Economic Development Director Stephen Clifton and City Clerk Sandy Chase. The executive session concluded at 6:45 p.m. At 6:47 p.m., Councilmembers Orvis, Fraley - Monillas, Plunkett, Bernheim, Peterson and Buckshnis interviewed Lois Jean Broadway, a candidate for appointment to the Architectural Design Board. The interview was held in the Jury Meeting Room. Mayor Haakenson was also present for the interview. The interview concluded at 6:58 p.m. The regular City Council meeting was called to order at 7:03 p.m. by Mayor Haakenson in the Council Chambers, 250 5t'' Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Steve Bernheim, Council President D. J. Wilson, Councilmember Michael Plunkett, Councilmember Dave Orvis, Councilmember Adrienne Fraley - Monillas, Councilmember Strom Peterson, Councilmember Diane Buckshnis, Councilmember ALSO PRESENT Graham Marmion, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Gerry Gannon, Assistant Police Chief Noel Miller, Public Works Director Rob Chave, Planning Manager Rob English, City Engineer Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Plunkett requested Item E be removed from the Consent Agenda and Council President Bernheim requested Item F be removed. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER WILSON, TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: Edmonds City Council Approved Minutes February 2, 2010 Page 1 A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF JANUARY 26, 2010. C. APPROVAL OF CLAIM CHECKS #116698 THROUGH #116865 DATED JANUARY 28, 2010 FOR $448,651.69. D. APPROVAL OF COUNCIL APPOINTMENT TO THE CITIZENS COMMISSION ON COMPENSATION FOR ELECTED OFFICIALS. G. ORDINANCE NO. 3782 — RENAMING KAIREZ DRIVE TO VISTA DEL MAR DRIVE, AND DIRECTING STAFF TO MAKE THE APPROPRIATE CHANGES IN CITY PLANNING DOCUMENTS, NOTIFICATION AND SIGNAGE. ITEM E: TRAFFIC IMPACT FEE ANNUAL REPORT. Councilmember Plunkett asked into what fund Traffic Impact Fees were deposited. City Engineer Rob English answered they were deposited into Fund 112. Councilmember Plunkett asked how the fees were generated. Mr. English answered the impact fees provided mitigation for traffic impacts related to development or a change in use. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE ITEM E. MOTION CARRIED UNANIMOUSLY. ITEM F. ORDINANCE NO. 3781 — AMENDING PROVISIONS OF ECDC 17.40.020(D)(3), NONCONFORMING BUILDINGS AND /OR STRUCTURES TO CORRECT A SCRIVENER'S ERROR. Council President Bernheim advised he pulled this item in order to vote no because he disagreed with the methodology used to address it. Mayor Haakenson explained the Council approved an ordinance a couple years ago when a condominium on 3`d Avenue was being renovated. The developer had the choice of demolishing the building or doing minor renovations such as adding bay windows. The Council supported making minor changes which would allow the building to be retained and reused. At the time, the Council approved an ordinance that they believed allowed bay windows on the north and east sides of the building. The ordinance as written actually did not allow the bay windows, however, neither Council, staff nor the City Attorney realized it. Subsequently staff sent a correction notice to the developer informing him the windows had to be removed. Mr. Chave displayed a photograph of the building as it existed prior to the work and following the addition of the bay windows. City Attorney Scott Snyder explained the ordinance was adopted for a specific purpose. During the Council's discussion, his concern was that the bay windows not intrude on neighboring properties and he suggested the intrusion be limited to half of the setback. The intrusions on the building in question were not in the sideyard setback, they were in the street setback and as a result, the limitation subverted the purpose. Mayor Haakenson clarified the Council felt it was a good idea, voted in favor of it but the language did not allow it. Once the correction notice was sent out, staff researched the matter, and the correction notice has been held in abeyance until the matter could be addressed by the Council. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF ITEM F. Councilmember Orvis recalled this was reviewed by Council Committee and they did not have any issue with it. Edmonds City Council Approved Minutes February 2, 2010 Page 2 Council President Bernheim objected to presenting this to the Council as a scrivener's error when it was a substantive change in the law. He preferred to refer the matter to the Planning Board so it could be deliberatively reviewed on its merits rather than simply changing the ordinance to what staff thought the Council had approved. Mayor Haakenson clarified it was not a change to what staff thought the Council wanted; it was a change to reflect what the Council actually approved. Mr. Snyder explained it was his error, the requirement he suggested was added at the Council meeting and the impacts were not thoroughly researched. Councilmember Fraley- Monillas asked the difference between the ordinance passed in 2008 and the proposed ordinance. Mayor Haakenson explained the ordinance passed in 2008 would not allow the bay windows on the north side although the Council wanted to allow them. The proposed ordinance before Council this evening would allow the bay windows on the north side of the building. Mr. Snyder explained the limitation would only apply to the rear yard setback not to rights -of -way. Councilmember Plunkett explained this action was manifesting the intent and will of the Council. Mr. Snyder agreed the intent was to make the ordinance fit the Council's decision. MOTION CARRIED (6 -1), COUNCIL PRESIDENT BERNHEIM VOTING NO. 3. PROCLAMATION IN HONOR OF ARTS DAY FEBRUARY 2 2010. Mayor Haakenson read a proclamation in honor of Arts Day, February 2, 2010 and encouraged all citizens to celebrate the arts. He presented the proclamation to Edmonds Arts Commissioner Mary Monfort. Ms. Monfort thanked the Council and Edmonds merchants for supporting the arts. She commented many people outside the community recognize Edmonds as an arts community. 4. PUBLIC HEARING ON INTERIM ORDINANCE NO. 3769 - DEFINING TEMPORARY HOMELESS SHELTER AND IDENTIFYING ZONING DISTRICTS WHERE TEMPORARY HOMELESS SHELTERS ARE PERMITTED. City Attorney Scott Snyder explained the GMA permits the adoption of interim ordinances and moratoria by the City Council without a public hearing but requires a hearing be held within 60 days. This is the required public hearing. He explained this is the original ordinance that clarified temporary homeless shelters were permitted uses in conjunction with approved community sponsors. Mayor Haakenson opened the public participation portion of the public hearing. Al Rutledge, Edmonds, referred to a list of locations where free heals were available (Maplewood Presbyterian Church on Sundays and Edmonds Lutheran Church on Wednesdays) and the location of the Edmonds Food Bank at Edmonds Westgate Chapel. He explained several churches provided cold weather emergency shelter and several service agencies also provided vouchers for motels. He reported the Edmonds Food Bank served 525 people today. Nancy Hopper, Edmonds, urged the Council not to pass ordinance Alternative B that would possibly bring tent cities to Edmonds, noting the Council owed citizens a clear and concise document in order to protect residents and property. Alternative B is quite vague and does not define the guidelines. For example, the statement in Section N that managing agencies shall take all reasonable and legal steps to obtain verifiable identification from prospective encampment residents to determine whether they are sex offenders as well as do warrant checks from appropriate agencies. She commented a person living in a Edmonds City Council Approved Minutes February 2, 2010 Page 3 tent city should be required to provide the necessary identification and have a background check performed, assuming anyone who did not provide identification was concealing something. She concluded Alternative B contained many other shortfalls to protect the safety and security of Edmonds residents and to preserve the property values of homes adjacent to church properties. Roger Hertrich, Edmonds, supported allowing churches to operate emergency cold weather shelters but did not support allowing tent cities in Edmonds. Rowena Miller, Edmonds, commented the ordinance appeared to have adequate regulations to address tent cities in the manner they were regulated by other nearby cities. She commented it was safer to have people residing in a tent city than to have them wandering around. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing. Mr. Snyder explained that due to the sensitivity of the tent city issue, he rewrote "Alternative B" as an ordinance to be reviewed by the Planning Board. The interim ordinance under discussion does not apply to tent cities. He suggested citizens interested in the topic of tent cities participate in the Planning Board process. The interim ordinance regarding homeless shelters will also be reviewed by the Planning Board. He emphasized the State Supreme Court has held, specifically in the Woodinville case, that a tent city is a part of religious practice and cannot be kept out of a city. The purpose of the ordinance is to provide reasonable protections. Councilmember Plunkett asked whether a person had a legal right to be unidentified. Mr. Snyder answered a person had the constitutional right to travel. The City's ability to regulate that is limited; the ordinance is structured such that it is the organizer's responsibility to keep track of who resides in the facility. Councilmember Plunkett asked what right the organizer had to require identification. Mr. Snyder compared it to the right of a hotel to require registration or a pawn shop to require registry. When the ordinance was returned to the Council, he assured the constitutional limitations could be discussed in more detail. He summarized the City would be required to show a compelling state interest in order to gather that information or prohibit a resident on that basis. Councilmember Wilson clarified the interim ordinance did not address tent cities. However, a church could operate a tent city on its property now without the City's ability to infringe on it based on the First Amendment of the Constitution. The City can establish a regulatory process that would permit that type of establishment and via that regulatory process request agencies such as a church to ensure the residents have identification and background checks. He summarized the City could not address Ms. Hopper's concerns unless and until such an ordinance were adopted. He encouraged her to participate in that discussion at the Planning Board level. He commented the City could be sued for disallowing a tent city but if tent cities are allowed with restrictive regulations, it was unlikely the City would be sued. Councilmember Buckshnis referred to the definition of temporary homeless shelters, recalling the Fire Marshal expressed concern with churches that did not have fire sprinklers. Mr. Snyder answered the City Council adopted an ordinance that amended the State Building Code to permit legal nonconforming churches to operate temporary emergency shelters. That action amended the Chapter 18 provisions and did not require the same formality as a change to the Zoning Code. Mayor Haakenson advised no further Council action was necessary at this time; the interim ordinance would be forwarded to the Planning Board for review and recommendation. Edmonds City Council Approved Minutes February 2, 2010 Page 4 5. PUBLIC HEARING ON INTERIM ORDINANCE NO. 3775 - AMENDING TITLE 20 ECDC REVIEW CRITERIA AND PROCEDURES TO EXPAND OPPORTUNITIES FOR CLOSED RECORD ADMINISTRATIVE APPEALS. Planning Manager Rob Chave explained the Council passed an interim zoning ordinance on January 5 that was intended to revert some of the Title 20 changes approved in mid 2009 to what the code allowed prior to the passage of that ordinance. Subsequent to the passage of the interim ordinance on January 5, staff reviewed the ordinance and identified additional corrections. The Council could re -pass the interim ordinance to correct those items tonight or the Council could forward the issue onto the Planning Board. The advantage of making the corrections tonight was to adopt a correct version of the interim ordinance. Mr. Chave reviewed the proposed changes: • Prior to and after the Title 20 changes were made, the short plat approval process was a staff approval with appeal to the Hearing Examiner. Final short plat approval was a staff approval as it was simply checking off that the conditions of the preliminary approval had been met and it had not been sent to the Council for approval. Under the interim ordinance, final short plat approvals go to the Council. This would delay the process as it has existed in the past. The first two items in his memo to the Council would return that process to what has been in effect for a number of years. • Temporary buildings are a staff approval that goes to the Hearing Examiner on appeal. The interim ordinance provides for an additional appeal process which he anticipated was counter to the intended process. • The code previously enabled appellants to recover appeal fees. That was advertently omitted in the Title 20 revisions. City Attorney Scott Snyder explained the first proposed change clarified the Council gave final plat approval on formal plats, subdivision with more than four lots. With regard to appeal fees, Chapter 20.105 previously provided for appeal fees but it referenced Council appeals. When Council appeals were removed, the chapter was revoked. If Council appeals are reinstated, it would be appropriate to reinsert that provision. He referred to the issue Mr. Reidy raised that a citizen was required to appeal a code enforcement action to obtain an administrative hearing. He agreed with his assertion that if the code were not violated, their appeal fee should be returned. He summarized the proposed change would allow the return of the appeal fee to apply to City Council proceedings as it has in the past and to clarify that the appeal fee is also returned in a civil enforcement process. With regard to temporary buildings, Mr. Snyder explained there was a limit of one appeal; currently it was to the Hearing Examiner. The Council could choose to have the appeal come to the Council but there could not be an additional appeal from the Hearing Examiner to the Council. Councilmember Orvis clarified temporary buildings or short plats were not appealable to the Council before the Council passed the Title 20 changes. Mr. Chave agreed. Mr. Snyder clarified final formal plats come to the Council with a recommendation. Councilmember Orvis observed the proposed changes would return Title 20 to the process utilized before the original revisions were made. Mr. Chave agreed, noting that was what staff understood the Council's intent to be on January 5. Mr. Snyder pointed out in addition he had included language regarding the City's civil enforcement process which was not addressed in the past but was related to the return of appeal fees. Mr. Chave summarized if the Council approved the revised interim ordinance, staff believed it would reestablish the process that existed prior to June 2009 when the changes to Title 20 were made. Council President Bernheim asked whether Council adoption of the revised interim ordinance would be subject to another public hearing. Mr. Snyder answered this was the public hearing on the interim Edmonds City Council Approved Minutes February 2, 2010 Page 5 ordinance. The interim ordinance will then be reviewed by the Planning Board for public hearing and returned to the Council with their recommendation. The interim ordinance will only be in effect for approximately five more months. Mayor Haakenson opened the public participation portion of the public hearing. Ron Wambolt, Edmonds, commented his position on the interim ordinance was well known. When the Council voted, he requested they state their reasons for or against. Roger Hertrich, Edmonds, questioned whether the proposed process would allow a final appeal to the City Council of a Hearing Examiner's decision on an appeal of a staff decision. He also questioned who would be allowed to appeal the Hearing Examiner's decision to the City Council, whether it would be staff or the appellant. With regard to returning the fee, he questioned whether the fee paid by an appellant who prevailed at the Hearing Examiner would be returned. Al Rutledge, Edmonds, reported he has attended numerous Hearing Examiner hearings in the past. He was in favor of a process that allowed an appellant to appeal to the City Council rather than the court. He anticipated this would save money for the City as well as the appellant. He remarked on the requirement to speak at the Hearing Examiner hearing in order to be a party of record. Betty Larman, Edmonds, spoke in favor of returning to the process where appeals were heard by the City Council. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing. Mr. Snyder summarized the interim ordinance would be reviewed by the Planning Board and be returned to the Council for adoption as a permanent ordinance. If the Council wanted to consider broadening the return of appeal fees, he suggested the Planning Board confer with the Planning Department and the Finance Department with regard to the cost. He explained the City incurs costs when decisions are appealed to the Hearing Examiner. If the appeal fee was returned, it was likely the application cost would need to be revised to cover those costs. COUNCIL PRESIDENT BERNHEIM MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO APPROVE THE UPDATED INTERIM ORDINANCE NO. 3783. Council President Bernheim acknowledged the intent was to return the process to the way it was. He was concerned with amending ordinances on the fly, such as adding the return of the Hearing Examiner appeal fees. Although he was in favor of it in principle, he was unsure whether it was appropriate to address it along with the return of appeal fees to the Council. He suggested it could be addressed via amendment to Chapter 20.110 where the Hearing Examiner procedures are addressed. Councilmember Peterson reiterated the concern he expressed on January 5 that the ordinance was hastily written. He agreed interim ordinances were appropriate in some instances but these additional changes were the result of not having a complete process. He planned to vote against the proposed interim ordinance, noting the Planning Board considered this issue in detail previously and recommended the changes via a 6 -1 vote. He was frustrated with comments the changes to Title 20 took away the power of the people, emphasizing the importance of a Hearing Examiner and the courts to do things that a part-time Council may not always do correctly. He summarized that was the Planning Board's advice to the Council, the advice of the Association of Washington Cities as well as countless other organizations. Edmonds City Council Approved Minutes February 2, 2010 Page 6 This issue has been thoroughly reviewed by not only Edmonds but other municipalities and changing the procedure was a disservice to the process. Councilmember Wilson agreed with Councilmember Peterson that the Council was in this position because the interim ordinance was developed on the fly on January 5; if the Council had taken more time, it would not be in this position. Although he supported keeping appeals at Council, he disagreed that the public was being taken out of the process by having appeals heard by the Hearing Examiner. He expressed support for having testimony on closed record appeals provided in writing. He planned to vote against the proposed ordinance. Councilmember Fraley- Monillas indicated she would support the ordinance because she favored having appeals heard by the City Council. A process where appeals are heard by the Hearing Examiner and then appealed to court created a separation between the haves /haves not; people who cannot afford to appeal to court will lose and those who can afford an appeal to court will win. Councilmember Plunkett commented when citizens are required to appeal to court, it took citizens out of important land use decisions. He disagreed with the suggestion that the Council should not hear appeals because they did not do it right; the Council has done it right in the past and will do it right in the future. He supported the motion, concluding citizens should have the right to appeal to the City Council. Councilmember Orvis echoed Councilmember Plunkett's comments and agreed the previous ordinance restricted the public's access to the Council. He commented on the importance of citizens having the friendly, low cost opportunity to appeal to the Council. Councilmember Wilson pointed out the Council had moved appeals to the Hearing Examiner for other decisions such as PRDs. He recalled Ms. Petso criticized the City in 2002 for moving PRD appeals from the Council to the Hearing Examiner. He recommended the Council address those instances in the future, expressing support for PRD appeals being reviewed by the Council rather than the Hearing Examiner. He expressed concern with a process where some appeals were to the Hearing Examiner and others to the Council, preferring they all be the same. Councilmember Buckshnis expressed support for the motion. She disagreed it was being amended on the fly as the ordinance had been discussed for quite some time. She supported allowing elected officials to hear citizens' appeals rather than having them heard by the Hearing Examiner and then Supreme Court. Councilmember Orvis reported the Community Services /Development Services Committee will be considering other areas where appeals could be to the City Council. MOTION CARRIED (5 -2), COUNCILMEMBERS WILSON AND PETERSON VOTING NO. The ordinance adopted reads as follows: INTERIM ORDINANCE NO. 3783 OF THE CITY OF EDMONDS, WASHINGTON, AMENDING INTERIM ORDINANCE 3775 AND TITLE 20 ECDC, REVIEW CRITERIA AND PROCEDURES, TO EXPAND OPPORTUNITIES FOR CLOSED RECORD ADMINISTRATIVE APPEALS, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. 6. PUBLIC HEARING TO ESTABLISH THE PROCESS TO SURPLUS A PUBLIC WORKS DEPARTMENT UTILITY VEHICLE, THREE (3) PUMP STATION EMERGENCY POWER GENERATORS AND VARIOUS WATER AND WASTEWATER UTILITY EQUIPMENT Public Works Director Noel Miller explained the Public Works Utilities Division currently owns equipment that is no longer useful to the utilities. He displayed a list of the assets. RCW 35.94.040 Edmonds City Council Approved Minutes February 2, 2010 Page 7 requires that the Council hold a public hearing and by resolution declare such assets surplus. Staff plans to contract with James G. Murphy to auction all equipment and to use a sealed bid process to sell the surplus vehicle for the minimum values as shown on Exhibit A. Staff recommends that following the public hearing, the Council adopt the resolution declaring the listed assets, originally acquired for utility purposes, to be surplussed to the needs of the City and authorizing the Public Works Director to sell such surplus assets. Mayor Haakenson opened the public participation portion of the public hearing. Al Rutledge, Edmonds, suggested an estimated value be established for the surplus property, a timeframe for submitting bids be established and advertised, and the item sold to the highest bidder. He also recommended the City state how the proceeds from the sale would be used. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO ADOPT RESOLUTION NO. 1221, DECLARING CERTAIN ASSETS ORIGINALLY ACQUIRED FOR UTILITY PURPOSES TO BE SURPLUS TO THE NEEDS OF THE CITY AND AUTHORIZING THE PUBLIC WORKS DIRECTOR TO SELL SUCH SURPLUS ASSETS. MOTION CARRIED UNANIMOUSLY. 7. AUDIENCE COMMENTS Ron Wambolt, Edmonds, referred to the comment that the haves would be treated more fairly than the haves not, noting during the past four years whenever the Council heard appeals, the citizen lost. With regard to the comment that citizens would have access to the Council under the revised process, he pointed out the citizens would not have access to the Council because the appeal to the Council is quasi judicial. In response to Councilmember Fraley - Monillas' rebuttal to the comments he made at the January 26 Council meeting, he clarified he did not claim she did not read Ms. Broadway's application for the Planning Board, he stated that she did not interview Ms. Broadway as all other Councilmembers did. Councilmember Fraley - Monillas found a reason in Ms. Broadway's application that she did not disclose to reject Mayor Haakenson's nomination of an applicant who he classified as the best qualified applicant in his ten years as Mayor. As a result it was perceived Councilmember Fraley - Monillas was influenced via an illegal rolling quorum. Next, he referred to Councilmember Fraley- Monillas's assertion that he opposed the interim ordinance the Council passed January 5 because he had consistently been on the other side of the issue. He agreed, noting the reasons for opposing the Council's January 5 decision had nothing do with the merits for or against it. His opposition was to the process by which it was accomplished which gave the perception of another illegal rolling quorum. The instant selection of Diane Buckshnis led to the perception of a third illegal rolling quorum, a process wherein Councilmember Fraley - Monillas did not even vote for the candidate she nominated. Rowena Miller, Edmonds, commented she had been watching the Council meetings on television but came tonight to share three things with the Council. First, she was glad the Council appeared to really care about citizens' concerns. Second, she was glad the Council had honest differences and took the time to voice their differences. Third, she was glad the Council was discussing the possibility of campaign finance reform. She urged the Council to also consider publicly funded campaigns, explaining the legislature passed an enabling bill that would allow the City Council to establish such a process subject to voter approval. She summarized publicly financed campaigns increased the public's trust. She advised further information was available by googling Washington Public Campaigns. Edmonds City Council Approved Minutes February 2, 2010 Page 8 Al Rutledge, Edmonds, recalled several months ago in response to the Council's request, he submitted information regarding citizens' right to speak to the Council. Next he announced the Council retreat on Friday and Saturday, February 5 and 6 beginning at 9:00 a.m. He suggested the Council provide an opportunity for citizens attending the retreat to provide written comment. He provided the City's telephone number, 425- 775 -2525, to obtain further information regarding the retreat. Roger Hertrich, Edmonds, disagreed with Councilmember Wilson's response that his comment about Councilmembers receiving a large campaign contribution was condescending. He expressed concern with Mr. Wambolt's perceptions, noting he did not appear to be providing factual information. 8. DISCUSSION ON PROPOSED AMENDMENTS TO EDMONDS COMMUNITY DEVELOPMENT CODE TITLE 18. City Attorney Scott Snyder explained last year the Council amended Title 20, which addresses land use appeals, to clarify the appeal procedures and to make it more citizen friendly including adding a matrix. Title 18 addressed engineering processes such as sewer connections, dangerous trees, use of the public right -of -way, and other ministerial functions for which there is little discretion and appeals are typically to the Hearing Examiner. As a result of the Hearing Examiner recommendation, staff presented the lack of a proper reference in the appeals section in Title 18.000.20 to the Community Services /Development Services Committee. When Title 20 was revised, staff did a word search and corrected all references to Title 20. However, many of the older provisions did not have any reference. When the corrections were being made, he considered Title 18 section by section, not to change things but add a reference to a hearing. The Council packet includes a matrix that identifies recommended amendments to provide a reference and a draft ordinance. He acknowledged this was a complex subject and the Council may want broader notice, a different appeal route, etc. He highlighted two sections where the Engineering Department can authorize a grade in excess of 12% up to 14 %. One is for driveways; no notice is required and staff suggests adding an appeal process. The second is for a street grade which staff felt property owners in which the adjacent area may have an interest. The proposed amendment would provide notice to property owners within 300 feet who may be inconvenienced by a steep grade. He summarized staff plans to schedule a public hearing after the Council provides direction. Councilmember Orvis commented it was his understanding many of these items were ministerial and there was little discretion. Mr. Snyder answered they were typically ministerial. For most of the permits, if attached to a PRD or subdivision, there was a process and an appeal. However, these often arise in single family development permits, an office remodel, home remodel, etc. and there is no generalized notice and appeals are typically filed by the applicant. The intent was to provide a process for appeal to the Hearing Examiner; the current appeal process is unclear. Councilmember Orvis referred to the indication of "correct reference" in the matrix. Mr. Snyder responded there were typically two changes be made, either a person had the right to an on the record appeal to the Hearing Examiner or for an enforcement action, they have the right to appeal the enforcement violation via the civil enforcement process. Councilmember Orvis referred to the column in the matrix "appeal proposed," and asked if that was a new appeal process. Mr. Snyder responded for some it was a new appeal process, for others it was the appeal process that was currently provided. He clarified his intent was not to make a change but to clarify where appeals were made. Edmonds City Council Approved Minutes February 2, 2010 Page 9 Councilmember Orvis inquired about traffic impact fees. Mr. Snyder answered there was already notice provided. The City has an expert report adopted by the Council and updated periodically that establishes traffic impact fees based on national categories and standards. A developer who thinks the fee has been miscalculated can appeal it to the Hearing Examiner. Establishing the impact fee is a Council legislative function which includes a public hearing with notice. If a developer wants to appeal their fee, no notice is provided. An example of an appeal would be a developer who disagreed with the category of use used to determine the fee. Councilmember Orvis observed some Hearing Examiner appeals had been added. Mr. Snyder agreed, the goal was to provide an appeal for every decision and because these were ministerial, they were via an open record appeal or civil enforcement matter to the Hearing Examiner. Councilmember Orvis asked whether state law regulates who makes decisions on ministerial issues. Mr. Snyder answered no. The Council could handle appeals differently, they were to the Hearing Examiner in most jurisdictions because "time is money" for a developer or homeowner with a building permit. Council President Bernheim asked if this had been reviewed by the Planning Board. Mr. Snyder answered no; changes to Title 18 were not Zoning Code changes and did not require Planning Board review. Council President Bernheim suggested staff provide a redline version illustrating the changes. Mr. Snyder agreed to provide a redline version to the Council. Councilmember Fraley- Monillas referred to Section 18.50.030, Street Map, and questioned the statement "City Council if standalone." Mr. Snyder stated a standalone amendment was something like the Kairez Drive name change. An amendment to the Official Street Map via a Comprehensive Plan amendment would be part of the yearlong Comprehensive Plan amendment process that included a public hearing. Council President Bernheim asked whether the Community Services /Development Services Committee (Councilmembers Orvis and Peterson) would be willing to review the proposed changes. Councilmember Orvis suggested scheduling a separate Community Services /Development Services Committee meeting. Councilmember Peterson agreed. Councilmember Orvis offered to work with staff on a date for the meeting. Councilmember Buckshnis volunteered to assist with the review. Mr. Snyder offered to provide the current language and changed language in a fonnat with one change per page which may be more user friendly for the public than a redline. 9. FIRDALE VILLAGE NATIVE GROWTH PROTECTION EASEMENT (NGPE) - STAFF DIRECTION ON PROPOSED REVISIONS. City Attorney Scott Snyder explained the Council approved a development agreement with an attached NGPE. The NGPE was consideration for vesting under the development agreement; the development agreement which preserved the large stand of trees helped to satisfy the rezone criteria. He explained the concerns expressed by Councilmember Orvis with regard to the NGPE have been addressed by Mr. Shapiro. Mr. Shapiro raised the issue of soil nails that would be used in the construction of retaining walls which would not have been allowed under the last draft. The proposed change would allow the temporary use of soil nails on the periphery of the NGPE. He asked whether that was within the scope of what the Council approved or if the Council wanted to schedule another public hearing regarding the development agreement and rezone. Mr. Snyder explained staff reviewed the tree inventory and found 18% of the trees in the NGPE are large Douglas Firs with a radius of greater than 20 inches; the remainder are fruit trees. If one of the small fruit trees dies, a 3:1 replanting ratio is appropriate. However if one of the large Douglas Firs dies, the impact Edmonds City Council Approved Minutes February 2, 2010 Page 10 would be significant. The proposed revisions would allow soil nails to be used only if a certified arborist said they would not harm the trees and if a tree was damaged or died within one year of the work, a tree less than 18 inches radius would be replaced on the 3:1 ratio and if one of the large trees died, the developer would pay a fine of $5,000. Councilmember Plunkett asked why the use of soil nails was not indicated in the original proposal. Tony Shapiro, Shapiro Architects, answered there was language in the original proposal that stated no construction underneath the NGPE would be permitted. Their attorney felt the language was sufficient and would allow soil nailing or underpinning tiebacks. He on the other hand was concerned and did not want any problems to arise in the future. The intent of the NGPE was not to have any structures below grade which resulted in the language stating no underground construction would be permitted. However, underpinning would be required to construct the adjacent building. Mr. Snyder explained his intent by the original language was to ensure a parking garage was not constructed under the NGPE that could undermine the large Douglas Firs. Mr. Shapiro described the process of soil nailing. An auger drills a 12 -16 inch diameter hole into the side of the hill 20+ feet; a cable is inserted into the hole, filled with concrete and tension is placed on the cable that supports the shoring on the perimeter. When the job is complete, the tension is relieved and the concrete stays intact. The soil nailing should not harm or impact the root structure of the trees. He added that the underpinnings can be engineered to occur away from the trees. Councilmember Plunkett commented the intent was to determine if this met the Council's original intent or whether it was such a dramatic change that required a new process. Mr. Snyder explained his intent with the language was to prevent a parking garage or other major structure. If the Council wished, the public hearing on the development agreement and rezone could be re- noticed and the 60 day time period for compliance reset. Councilmember Plunkett asked why Mr. Shapiro felt the revision conformed to the original proposal. Mr. Shapiro responded the NGPE would not be inhabited; it would be solely for temporary construction activity. He explained the borings would be infrequent and would not damage the trees. An arborist they consulted felt the borings would not damage the trees but recommended a specific layout be provided. The revision included language requiring review and approval by an arborist. Once the building floor was in place, it would support the wall. Councilmember Buckshnis asked whether any damage would be done to the tree roots during the soil nailing. Mr. Shapiro explained they would likely use back - pinning in which a hole is drilled adjacent to the 20 -foot zone and an I -beam dropped in. The soil is then excavated 6 -8 feet to expose the I -beams and a horizontal drill is made into the cut which is filled with concrete and cable and tensioned. The augers for the back - pinning are done 4 -8 feet below the surface. He acknowledged it may interrupt some roots but the frequency of the holes were such that any direct impacts could be avoided. Fir trees do not have major tap roots and their roots are primary at the surface. Mr. Snyder explained the two protections are, 1) to have an arborist review the plan, and 2) if a tree died within a year, there would be a $5,000 fine. Councilmember Wilson wanted to strengthen the requirement, recognizing that Mr. Shapiro may not be the person overseeing the development of the project if the property were sold. He commented the one year timeframe was too short and the $5,000 penalty was not an appropriate value for replacing the tree. He anticipated a tree could be damaged but would not die within a year. Subterranean erosion may undermine the stability of the tree causing it to blow down in a windstorm but that may not occur in one year. He suggested requiring a significant bond for a 5 -year period. Mr. Snyder responded the Council Edmonds City Council Approved Minutes February 2, 2010 Page 11 could direct staff to negotiate a longer time period and /or large amount and if that was not successful, schedule a public hearing and reconsider the development agreement. Councilmember Wilson agreed with Mr. Snyder's suggestion to renegotiate with the developer, noting he did not find it a substantive enough change that required a public hearing. Mr. Shapiro did not anticipate any subterranean voids would occur. The hole is drilled and within a couple hours a cable and concrete is inserted in the hole. Any opportunity for the ground to settle and fill the hole was unlikely. Mr. Snyder offered to confer with the City's Arborist to determine the value a 20 inch radius Douglas Fir would have on a trespass to trees action. His intent was to establish a large enough amount that would provide some mitigation to the neighborhood. Councilmember Wilson asked the cost to replace that large a tree. Mr. Snyder responded there was no way to transplant a 90 foot Douglas Fir. Councilmember Wilson concluded if the tree was priceless, a $5,000 penalty was not enough. Councilmember Peterson asked whether damage or the death of an 18 inch or larger Douglas Fir would also include 3:1 replacement or only the $5,000 fine. Mr. Snyder advised the 3:1 replacement as well as a $5,000 fine would be required. The tree survey identified the tree species and tree replacement would be in kind. Councilmember Peterson echoed Councilmember Wilson concerns regarding the timeframe and the penalty amount. He did not find the concrete pinning changed the scope of the Council's approval and was satisfied with proceeding without another public hearing. Councilmember Fraley- Monillas agreed with Councilmember Peterson and Wilson. She asked what value there would be to scheduling another public hearing, commenting she did not want to delay the progress of Firdale Village. She recalled during the previous public hearing there was not a great deal of discussion regarding the trees. Student Representative Marmion questioned the definition of "damaged," asking whether the damage would have to be obviously detrimental to the tree's health. Mr. Snyder answered he would defer to the arborist. He assumed damage below the surface would be evident in the foliage. He suggested establishing a process whereby a neutral third party certified arborist would determine whether the tree had been damaged. Councilmember Wilson suggested the agreement include a definition of damaged, noting there have been differences of opinion between arborists regarding what constitutes damage. Mr. Snyder suggested establishing a functionality standard based on providing a screen to the neighboring properties. Councilmember Wilson commented screening was not the only issue, if the trees were removed, the stormwater impacts would be significant. To Councilmember Fraley- Monillas' comment, Councilmember Wilson noted there may not have been much discussion regarding the trees during the public hearing process; however, the trees have been central to the rezone, not just screening but also stormwater runoff, etc. He would not have supported the rezone if the trees had not been a central part of the project. Mr. Snyder commented under the original development agreement, there were no intrusions into the NGPE and any damage or death of a tree would have been natural. By authorizing some intrusion via the soil nailing, there is some risk. Council President Bernheim commented until the original development agreement the trees in the NGPE were protected without any intrusion. Mr. Shapiro explained most of the roots of a fir tree are on the surface, within the upper 10 feet. The cut 20 -feet from the property line would be 40 -60 feet down. The soil nailing would be far below any roots that support the trees above. Any impact on the trees from incursion into the area would be minimal and extra effort would be taken to engineer the shorings as far away from adjacent trees as possible to minimize any impact in the upper 10 feet of the root structure. Edmonds City Council Approved Minutes February 2, 2010 Page 12 Council President Bernheim reiterated initially the NGPE was a protected area and if any trees fell, it was an act of God and not the result of building activity. He asked how long the temporary shoring would be in place before the area was returned to its natural state. Mr. Shapiro assured the natural state of the area would not be damaged; the activity would be below the surface. Council President Bernheim commented he wanted to be fair to the developer and not delay development. He feared this would be a license for an unscrupulous subsequent developer to remove the trees for $5,000 each if they wanted to get rid of them. He was concerned with construction exceptions that could threaten the trees. He asked whether the shoring would be removed after the construction was complete. Mr. Shapiro replied the underpinning would remain in place, the tension would be removed. He did not foresee any damage occurring to the trees nor could he foresee a developer wanting to remove the trees because the trees were an asset to the project. Councilmember Peterson thanked Mr. Shapiro for bringing this issue to the Council even though their attorney felt the language was sufficient. He asked if the NGPE was considered in the LEED designation . for the project. Mr. Shapiro assumed the trees in the NGPE would contribute to the LEED assessment, explaining LEED balances the deposal of debris from demolished buildings, removal of trees on site, etc. Councilmember Wilson suggested Mr. Shapiro, Mr. Chave, Mr. Snyder and he develop changes that would be acceptable to the Council. If the Council deemed those changes required reopening the public hearing process, it could be done at that time. Councilmember Buckshnis pointed out the soil nailing would be down 40 -60 feet and she did not anticipate it would damage the trees. She summarized all her questions had been answered and she supported moving forward. For Councilmember Plunkett, Mr. Shapiro advised the trees were on the north property line. Councilmember Plunkett asked whether there would be a territorial view from the third or fourth floor of the building if the trees were removed. Mr. Shapiro agreed there would. Council President Bernheim suggested the group Councilmember Wilson suggested bring back a proposal within 4 weeks. Mr. Snyder explained if the Council took that long, the public hearing may as well be re- noticed because the easement must be recorded within 60 days in order for the development agreement and rezone to be valid. Mr. Snyder suggested recording the easement in the form approved and negotiate in good faith for a better product. Council President Bernheim summarized the easement would be recorded in the form approved and the parties would negotiate a change based on the developer's desire to have construction flexibility and the Council's desire to accommodate the construction with suitable safeguards. Mr. Shapiro advised that would be acceptable. It was the consensus of the Council to proceed in this manner. 10. MAYOR'S COMMENTS Mayor Haakenson reported the memorial bench with a plaque honoring former Councilmember Peggy Olson had been installed outside the City Council office. He thanked everyone who contributed. 11. COUNCIL COMMENTS To the comment Student Representative Marmion made at the last meeting regarding campaign contributions, Council President Bernheim acknowledged even if campaign contributions were limited as he proposed, groups could spend their own money in favor of candidates. For example a person who had Edmonds City Council Approved Minutes February 2, 2010 Page 13 already provided the maximum contribution could buy their own yard sign, publish ads in the newspaper, etc. He acknowledged that was a potential problem with establishing limits on campaign contributions but there was no way to design a perfect system. Councilmember Fraley - Monillas commented it was nice to see Rowena Miller at tonight's meeting. She was glad to see the Council working together, commenting the Council was proceeding in a good direction. Councilmember Peterson reported the Mayor's Climate Change Committee was meeting on Thursday, February 4 and moving forward with great ideas, some of which would be discussed at the Council retreat. He thanked the members of the Climate Change Committee for their diligence. Councilmember Buckshnis reported Councilmember Fraley - Monillas and she plan to begin a monthly Town Hall meeting to solicit public input. She invited citizens to email questions /comments to the Council website. Their intent was to get more citizens involved and find out what they want. Student Representative Marmion thanked Council President Bernheim for addressing his question. He agreed there was no way to address his concern because it was a constitutional issue. ltv� [ IX#1 —1901 With no further business, the Council meeting was adjourned at 9:19 p.m. Edmonds City Council Approved Minutes February 2, 2010 Page 14