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05/19/2009 City CouncilMay 19, 2009 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Pro Tern Wilson in the Council Chambers, 250 5t' Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT D. J. Wilson, Mayor Pro Tern Ron Wambolt, Council President Pro Tern Michael Plunkett, Councilmember Peggy Pritchard Olson, Councilmember Steve Bernheim, Councilmember Dave Orvis, Councilmember Stroh Peterson, Councilmember ELECTED OFFICIALS ABSENT Gary Haakenson, Mayor 1. APPROVAL OF AGENDA STAFF PRESENT Jim Lawless, Assistant Police Chief Stephen Clifton, Community Services /Economic Development Director Noel Miller, Public Works Director Rob Chave, Planning Manager Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder Mayor Pro Tern Wilson advised Agenda Item 4 (Edmonds Business Story: Edmonds Bakery) and Consent Agenda Item 2G (Authorization for the Mayor to sign a Professional Services Agreement for Rick Jenness) had been postponed to a future meeting. With regard to Consent Agenda Item 2G, Councilmember Plunkett advised Mr. Jenness provided the Community Technology Advisory Committee a detailed report that was available to the Council and citizens. COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER AS AMENDED. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE CONSENT AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF MAY 5, 2009. C. APPROVAL OF CLAIM CHECKS #111459 THROUGH #111658 FOR $537,103.72 DATED 05/07/09, AND CLAIM CHECKS #111660 THROUGH #111790 FOR $342,386.23 DATED 05/14/09. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #48039 THROUGH #48083 FOR THE PAY PERIOD APRIL 16, 2009 THROUGH APRIL 30, 2009 IN THE AMOUNT OF $827,169.21. Edmonds City Council Approved Minutes May 19, 2009 Page 1 D. ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM SAFECO INSURANCE AS SUBROGEE FOR RODNEY AND KARLA BURGIN ($5,222.24). E. LIST OF EDMONDS BUSINESSES APPLYING FOR RENEWAL OF THEIR LIQUOR LICENSES WITH THE WSLCB. F. INTERFUND LOAN ACTIVITY. H. PROCLAMATION IN HONOR OF NATIONAL PUBLIC WORKS WEEK, MAY 17 - 23, 2009. 3. PRESENTATION BY WSDOT FERRIES DIVISION ASSISTANT SECRETARY DAVID MOSLEY. Mr. Mosley explained although it was a difficult legislative session for transportation as well as General Fund issues, progress was made to move the ferry system forward. Sufficient funding was provided in the operations budget to maintain the current level of service throughout the system. As a result, the reductions that were feared when a presentation was made to the Council last year regarding the Long Range Plan, would not occur during the next biennium. There was also funding provided in the 2009- 2011 biennium to build two new ferries which is in addition to the ferry currently under construction. The budget also included plans for two additional ferries in a future biennium budget. He noted recognition by the legislature and their providing funds to replace the aging vessel fleet was a very positive step. WSF also received support for a number of operational improvements outlined in the draft Long Range Plan including transit enhancements and a pre - design study for a vehicle reservation system. He noted the budget did not identify a solution to one of WSF's major problems, obtaining a sustainable capital revenue source. While the emphasis in this legislative session was on vessels rather than terminals, support was continued for the Edmonds terminal project and a desire for co- development including WSF, Edmonds, Sound Transit, Community Transit and potentially private developers in the terminal area. Funds were specifically allocated to allow WSF to provide engineering, design and support toward that effort. Mr. Mosley commented the previously developed minimum build alternatives will continue to be refined with the resources the legislature provided particularly as they may relate to potential co- development. Mr. Mosley introduced Doug Slyth, Senior Shoreside Manager, who will be the project lead on the vehicle reservation system. The legislature provided funds for WSF to conduct a pre- design study for a vehicle reservation system for the ferry system, to develop a pilot program regarding how a vehicle reservation system would work on a specific route, and to bring the information to the legislature in the 2010 legislative session for their review, consideration and if approved, funding for implementation. He explained the purpose of the reservation system was to reduce congestion, backups and wait times at terminals where communities are negatively affected; to reduce the need for expensive terminal holding area expansions, and to provide customer certainty on space and sailing availability. He relayed ferry customers' concerns regarding how a vehicle reservation system would work and how it would change their interaction /accessibility to the ferry system. He acknowledged there was also concern . with WSF's ability to effectively implement a vehicle reservation system given some of the difficulties experienced with the electronic fare system. The pre- design study will address the technology and needed capacity for a vehicle reservation system and how that system would work on a specific pilot route. For a number of reasons including interest expressed on both sides of the Edmonds - Kingston route, he anticipated the Edmonds - Kingston route would be selected as the pilot project. Edmonds City Council Approved Minutes May 19, 2009 Page 2 Mr. Moseey highlighted challenges WSF continues to face in the years ahead including slight declines in ridership and the lack of a sustainable capital revenue source. He commented WSF was uncertain why ridership was down and analysis was needed to determine why the public was riding ferries less and what was needed to draw them back as well as how to attract new riders. To this end, the legislature allocated funds in the budget for WSF to conduct a marketing effort. He acknowledged both issues would require extensive work over the next few years and they looked forward to working with the Edmonds community on these and other issues. Mayor Pro Tem Wilson expressed his appreciation to Mr. Mosley for keeping the Council informed. He recalled citing Mr. Mosley to Governor Gregoire as an example of people in her administration who keep cities involved and informed. Council President Pro Tem Wambolt questioned whether ridership was down in Edmonds, recalling previous presentations indicated Edmonds' ridership was not declining. Mr. Mosley answered ridership in Edmonds was down very, very slightly; Edmonds and Bainbridge were the WSF's strongest routes. Council President Pro Tem Wambolt asked the status of the proposal for WSF to construct a parking garage on the old Safeway property. Mr. Mosley answered that was the co- development issue under discussion that the legislature recognized needed to continue. There is not adequate funding in this biennium to fund such a project but there are resources to continue refining the minimum build alternatives and to work with any co- development project. Council President Pro Tem Wambolt thanked Mr. Mosley for his weekly newsletters. Councilmember Bernheim referred to the Innovative Partnership Program Study that analyzes joint development opportunities at ferry terminals by partnering with shore -based entities to maximize economic opportunity for WSF. The project in Edmonds addressed two possible partnerships, one to build 80 residential units on the DOT and Skippers sites and the second to build 92 residential units. He noted the report states the DOT should engage in a planning process with the city and neighboring properties. He inquired about the future of a partnership with the City and the Skipper's property owner in regard to economic development in that area. Mr. Mosley advised he had been a party to at least three meetings that included the Skipper's property owner and City staff to discuss ideas for co- development. Such potential projects were the reason the legislature allocated funds for engineering and design study. Councilmember Bernheim asked whether the intent of the cooperative effort was to maximize revenue for WSF. Mr. Mosley responded the intent was to work together on a project that mitigated some of WSF's issues in the area such as access to the ferry terminal. Councilmember Bernheim asked if any consideration was being given to a green pricing approach that would charge a higher fare for large, heavy vehicles and/or a reduced rate for smaller, lighter vehicles. Further, he noted a walk -on rider with a bicycle paid a huge premium relative to the space it occupied and fuel consumption of the ferry. Mr. Mosley advised one of the fare structure improvements in the long range plan was to provide a small car discount. He explained currently a higher fare was charged for vehicles over 20 feet. A discount for smaller cars could be for cars 12 -14 feet long. He was uncertain that would be included in the fares this fall but he anticipated it would be implemented in the near future. 4. EDMONDS BUSINESS STORY: EDMONDS BAKERY This item was delayed until a future meeting. Edmonds City Council Approved Minutes May 19, 2009 Page 3 5. PUBLIC HEARING ON THE PLANNING BOARD RECOMMENDATION TO DECLINE TO AMEND THE EDMONDS COMMUNITY DEVELOPMENT CODE TO FURTHER REGULATE THE RENTAL OF SINGLE FAMILY DWELLINGS. Planning Manager Rob Chave recalled the Council referred this issue to the Planning Board who held a public hearing after adopting an interim ordinance placing a 7 day restriction on short term rentals in single family neighborhoods which expired on May 14, 2009. The decision for the Council was whether to adopt a permanent change to the code. The Planning Board considered regulating short term rentals with a 30 day limitation because the building code differentiates between hotels as typically renting less than 30 days and because some may view short term rental as a commercial operation. The Planning Board recognized this did not appear to be a citywide issue and that the only enforcement action had been related to the property on Cyrus Place. Letters and affidavits were submitted at the Planning Board's public hearing stating the property on Sunset had been doing short term rental for quite some time without any impact on the neighborhood. The 30 day option considered that record and suggested clarifying the code regarding short term rental versus a long term use. Finding this was not a citywide problem, that it was isolated to one instance and that most of the problems had been resolved using existing enforcement mechanisms related to noise, parking, etc., the Planning Board concluded there was no reason to amend the code and forwarded that recommendation to the Council. Mr. Chave recognized the difficulty for the Council to balance the interest of the broad community versus a specific instance that may be resolvable using existing mechanisms in the code. He noted when presented with a problem, the response may be to amend the code to address the problem; the difficulty with that was the risk of unintended consequences over time. The Planning Board decided if the existing rules generally seemed to work and could effectively address situations that arose, there was no reason to change the code. He noted there was a great deal of testimony at the Planning Board public hearing both for and against amending the code. Mayor Pro Tern Wilson clarified the one instance Mr. Chave referred to was on Cyrus Place. Mr. Chave agreed. Councilmember Plunkett inquired about the process if the Council determined they wanted to adopt an ordinance after public testimony and deliberation, and whether the ordinance would need to be referred to the Planning Board again. City Attorney Scott Snyder responded that assuming the Council direction was within the range of alternatives considered by the Planning Board, staff would prepare a final ordinance for public hearing before the Council. The minimum requirement would be another public hearing if there were substantive changes. Mr. Chave advised the Planning Board considered both 7 and 30 day alternatives. Mr. Snyder requested an opportunity to discuss a decision -tree with the Council following the conclusion of the public hearing. He suggested if the Council decided to regulate short term rental and set a time limit, there were several other important decisions to be made regarding how to treat nonconforming uses and whether they should be abated. Councilmember Bernheim recalled Development Services Director Duane Bowman's assurance when the Council discussed this on December 16 that the Planning Board would consider whether short term rentals should be allowed as an economic development driver. He requested Mr. Chave summarize the issues of taxation of short term rentals, licensing, standards, etc. Mr. Chave responded the Planning Board did not have detailed discussions regarding economic development. Their approach was from the standpoint of regulation, nuisance, etc. Edmonds City Council Approved Minutes May 19, 2009 Page 4 Councilmember Bernheim asked if long term leases in residential areas or short term rentals had any licensing requirements and paid taxes based on income and if there were signage requirements for short term rentals. Mr. Chave answered signage was addressed under home occupation review. He explained the rental of rooms was an outright permitted use in residential zones. One line of logic would be if rental of rooms was an allowed use, a home occupation permit was not necessarily required. Residents renting rooms have traditionally been advised to obtain a business license but he was uncertain whether most did. A resident who was renting rooms and registered as a business would be required to report income, pay taxes, etc. Mr. Snyder advised there was no specific signage permitted in residential neighborhoods. Mr. Chave advised a home occupation was allowed to identify the home but not advertise the business. Mr. Snyder advised longer term rentals were subject to state leasehold excise tax; short term daily rentals that collect sales tax were subject to hotel /motel tax. Councilmember Plunkett referred to a letter the Council received from Richard Gifford, an attorney representing Mr. Wilkinson that questioned citizens' motivations, cited possible discrimination and implied that if the City regulated short term rental, it would be in danger of civil rights violations. He asked if Mr. Snyder anticipated civil rights issues would arise if the Council adopted a permanent ordinance. Mr. Snyder suggested he address that issue following the public hearing, noting there were potentially 4 -5 legal challenges. The Council must make clear legislative findings regarding the problem, how to address it, whether nonconforming uses should be allowed to continue or be abated and if abated, how to abate them. Councilmember Bernheim asked whether any of the potential legal challenges needed to be addressed if the Council took no action. Mr. Snyder answered if the Council made a decision not to regulate short term rentals, there did not need to be any further discussion regarding those potential egal challenges. Mayor Pro Tem Wilson opened the public participation portion of the public hearing, noting the Council had received additional correspondence from Bob & Vera McGee, Scottsdale, Arizona, who stay in the Edmonds area each year; Don & Carol Ricker, Edmonds, who support a 30 day minimum; Jim Wilkinson, Edmonds, regarding unintended consequences; Wendy Chaffee, Edmonds, who was opposed to short term rentals; and Jolaine Murrell who said there should be more places like the Sunset Avenue property available for short term rental. Sally Wassall, Edmonds, anticipated the Planning Board failed to recommend changes to the code because they had not had first hand experience with noise, traffic and crime in their neighborhoods. She urged the Council to pass a 30 -day minimum rental period in single family R6 residential areas. She relayed conversations with neighbors of the property on Cyrus Place regarding problems they experienced with the daily and weekly rentals. She relayed problems they encountered in Surry, BC where there were no ordinances to enforce situations that arose and the only solution was to call the police. Jim Wassall, Edmonds, recommended rentals in single family neighborhoods be a minimum of 30 days. He asserted if the Council accepted the Planning Board's recommendation, they would be ignoring the wishes of the majority of Edmonds residents as everyone he has talked to felt 30 days was a reasonable restriction on rentals in single family neighborhoods. He recalled in November 2008 the Council passed interim zoning Ordinance 3702 that established a 7 day minimum time limit; that ordinance has since expired and there is now no minimum time limit in rentals in single family residents. He expressed concern that the house on Sunset could legally rent their property on an hourly basis. He recalled Mr. Bowman's recommendation that the City establish a 30 day minimum rental requirement for single family residential rentals and authorize a one year amortization from the date of passage for all existing short term rentals. He urged the Council at a minimum to extend Ordinance 3702 for another 6 months. Edmonds City Council Approved Minutes May 19, 2009 Page 5 Marilyn Lindberg, Edmonds, commented she did not purchase her home in a single family neighborhood with the knowledge that zoning was not as it appeared or that the triplex next door would become a hotel/motel. She recommended distinguishing between single family residential and commercial zoning. She urged the Council to consider the type of city they wanted and not allow short term rentals to become a problem. Without guidelines, the only recourse for violations of noise, parking and drug problems would be to call the police. Bob Krump, Edmonds, commented his family made Edmonds their home due to the quality of life it offered including getting to know their neighborhoods and local businesses. He recalled problems he experienced living next door to a single family home used for two rental units. When a neighborhood became a rental situation, the residents lost the ability to know their neighbors and the neighborhood crime watch program suffered. He referred to a neighboring property that recently requested a permit for an accessory dwelling unit (ADU), pointing out the possibility of the property owner renting both his residence and the ADU. With the budget issues facing the City, he questioned whether the City had the staff to address issues arising from short term rentals. He recommended the Council adopt a 30 -day minimum for rentals in single family neighborhoods. Jan Conner, Edmonds, voiced her opposition to short term rentals of less than 30 days in residential neighborhoods. As the Manager of the Best Western Edmonds Harbor Inn, she was concerned individuals renting their residences were not paying taxes, not obtaining business licenses or transient accommodation licenses and not paying hotel /motel taxes. She was doubtful that short term rentals of residences would be an economic development driver. By allowing short term rentals in residential neighborhoods, the Council would put all single family residences in competition with the Harbor Inn. Although she welcomed fair competition, she pointed out the Inn must comply with building code regulations, taxes, licensing, etc. which a single family residence may not. She summarized the Harbor Inn generated most of the lodging tax collected by the City as well as made considerable expenditures to promote the City. Pam Hoelzle, Edmonds, recalled hearing in a local business about nuisances on Sunset Avenue and how dangerous it was to live there. She commented in the three years she has lived on Sunset she has never seen any nuisances. She questioned the Council's stand on personal private property rights, how regulating short term rental of the house on Sunset would affect residents' ability to rent individual rooms in their houses, and whether there had been any nuisances with short term rentals on Sunset. She concluded it appeared this was a neighborhood squabble that had gotten out of control. Peter Wilkenson, Edmonds, a resident living next door to Jim Wilkinson, commented during the 12 years he has lived there, he has not encountered any problems with the short term rental of the Wilkinson property. He did not support regulating a problem that did not exist and recommended the Council follow the Planning Board's recommendation. Michelle Hoverter, representing the Pinyerd Family Trust, commented this was not a neighborhood squabble and the emotional and threatening language that has occurred was unfortunate. The issue was what was allowed in a single family zone and the fact that vacation rentals in single family zones violated the tenor of the neighborhood as well as the zoning. She was disappointed the Planning Board did not recommend strengthening and clarifying the zoning code for single family residences and anticipated they may have been afraid to because of the threatening and emotional language they heard. She noted there were sufficient hotels in Edmonds to accommodate visitors without opening single family areas to short term vacation rentals. She pointed out the triplex on Sunset Avenue was grandfathered into the single family zone and its historic use before the recent short term rentals was as a month -to -month or longer single family residential rental, a use that should be preserved. Edmonds City Council Approved Minutes May 19, 2009 Page 6 Steve Thole, Edmonds, spoke in favor of a 30 -day minimum rental period, finding a 7 -day minimum to be a commercial use of a property. He pointed out the potential for all homes in a single family to rent their property for 7 -day periods, essentially establishing a hotel. He disagreed with the Planning Board's determination that the situation was not broken so it did not need to be fixed. He urged the Council to proactively address what constituted a commercial versus a residential use of a property. He applauded Mr. Wilkinson for his efforts to screen his tenants, noting he had only been renting for three years, a relatively short period of time. As a landlord himself, he also carefully screened renters but acknowledged there eventually were problems. He anticipated the probability of problems was greater with short term rentals than long term rentals. Al Rutledge, Edmonds, commented he has attended several Planning Board meetings. He pointed out many affected citizens were not present tonight for the public hearing on an issue that was important to the future of Edmonds. Rowena Miller, Edmonds, pointed out there were no guarantees regarding neighbors whether they owned, leased or rented. The only problem the City encountered with a short term rental had been addressed by the existing ordinances that control noise, traffic, parking, commerce, junk, etc. She recalled 42 years ago her family including 5 children stayed with a friend for 3 weekends which led to their purchasing a home in Edmonds. She pointed out the City's vision to attract visitors to support the local economy. She urged the Council to support the Planning Board's recommendations regarding short term rentals in residential zones, commenting the Planning Board conducted a thorough study including several public hearings and their reasons for not amending the code were valid. She urged the Council to keep Edmonds a welcoming place to live and visit. Hearing no further comment, Mayor Pro Tern Wilson closed the public participation portion of the public hearing. Mr. Snyder presented a decision tree explaining there were different tests at different stages of the Council's decision - making process. The decision to use police power to regulate via zoning was typically given a great deal of deference by the courts. Challenges were substantive due process and the courts tend to defer to legislative findings. The first question was what's the problem and does it need to be regulated. In the course of their discussions, the Council should cite the record for information for the legislative findings that identify the problem. And although there had been numerous concerns and issues raised by the public regarding potential impacts, he urged the Council to focus on actual impacts cited in the testimony. With regard to violation of the State's discrimination provisions, he commented gender preference, race, religion, creed or handicap of the owner of property had absolutely nothing to do with any decision the Council made. And to the extent that it had crept into the record was as much by the property owner and attorney as the neighbors. He anticipated it would play no role in the Council's discussions. The defense to a claim of discrimination in the application of a zoning ordinance or to substantive due process was similar — is there a real problem and does it need to be addressed. In discrimination law it was finding a business necessity for the action the Council was taking and in substantive due process it was whether there was a problem and has it been effectively addressed. He pointed out lawfully established nonconforming uses would remain. If the Council chose not to regulate, nothing further was required. If the Council chose to regulate, Mr. Wilkinson's property and potentially other properties were lawful nonconforming uses and the next step would be to determine whether nonconforming uses needed to be abated and if so, how. Edmonds City Council Approved Minutes May 19, 2009 Page 7 COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO ADOPT THE PLANNING BOARD'S RECOMMENDATION AND NOT REGULATE RENTALS IN RESIDENTIAL AREAS. Councilmember Bernheim commented the current practices did not merit adopting an amendment and the current regulations were adequate. Council President Pro Tem Wambolt referred to the comments by the Manager of the Best Western, that this perhaps could provide unfair competition. Mr. Snyder responded that was not a legal question; it was for the Council's discretion. A question for the Council was whether the playing field should be leveled by tightening up the City's hotel /motel tax provisions to reach other short term renters. Mr. Chave commented it would be worthwhile to review how business licenses and home occupations interact with regard to State taxation. Council President Pro Tem Wambolt advised he would support the motion and although he understood the residents concerns, it was not a big problem and if the Council chose not to amend the current regulations, they could be amended in the future if necessary. He pointed out prior to the interim ordinance, there had only been the one problem. Councilmember Plunkett indicated he would not support the motion, fording the legislative record replete with information from the Police Department and residents regarding issues with short term rentals, particularly the home near Talbot Road. Further, he pointed out no one purchased a home expecting there to be short term rentals in their neighborhood. He found a 30 -day limit a reasonable regulation and supported the residential nature of Edmonds' neighborhoods. Councilmember Orvis indicated he would not support the motion and preferred a 30 -day limitation on short term rentals. He viewed overnight rentals in a residential neighborhood as a commercial use, a use inappropriate for a residential neighborhood. He referred to the comment that the existing codes were adequate, pointing out if they were adequate, why had an interim ordinance been necessary. He pointed out code enforcement was a very slow process and it was virtually impossible to address overnight rentals. He concluded people living in a neighborhood for a longer period of time became accountable to their neighbors. That was the reason the accessory dwelling unit regulations required the property owner to occupy the primary residence so that the property owner would be aware of any disruptive activity. MOTION CARRIED (5 -2), COUNCILMEMBERS PLUNKETT AND ORVIS VOTING NO. 6. AUDIENCE COMMENTS Carla Elder, Edmonds, explained their home was annexed into Edmonds in October 1995. Three years prior to annexation, her husband and she obtained a building permit in Snohomish County to construct an addition to their home. Under that permit, the foundation was installed and the addition was framed, sided and roofed. Her husband, who did all the work himself, became ill and passed away in December 2006 before the project was finished. When she visited the Edmonds Planning Department to obtain permits to complete the 600 square foot addition, she was told she did not meet the Edmonds setback requirement of 7'/z feet; the rear setback in Snohomish County is 5 feet, a requirement she met at the time the permit was issued in Snohomish County and the foundation installed. She summarized the foundation was legally installed, inspected and approved. She now wanted to complete the interior of the addition which includes wiring, plumbing, insulation and drywall. The Planning Department stated she could apply for a variance at a cost of $1500, indicating there was no guarantee the variance would be granted. She questioned the need for a variance when her structure had been legally constructed. Mayor Pro Tem Wilson responded if Mayor Haakenson were present, he would invite her to call him tomorrow. In Mayor Haakenson's absence and to avoid the Council's prejudicing themselves in the decision - making process, Mayor Pro Tem Wilson suggested she speak with Community Services Director Stephen Clifton. Edmonds City Council Approved Minutes May 19, 2009 Page 8 Jim Wassall, Edmonds, referred to the next item on the agenda, a work session on an ordinance banning single use plastic checkout bags, pointing out these were not single use plastic bags but were multi -use plastic bags. He displayed his collection of multi -use plastic bags, commenting many people reused their plastic bags and even the Edmonds library used multi -use plastic bags. He recommended whatever ordinance the Council adopted allow residents to continue to use multi -use plastic bags. George Murray, Edmonds, referred to the amendments to Chapter 20 discussed previously, pointing out the importance of residents having the ability to speak to the Council. He referred to the Planning Board's discussion regarding changes to Chapter 20 to exclude the Council from the appeals process, noting many of their comments were valid but some did not apply such as the process is not orderly, it is not the best for the City, or the process is confusing. With regard to concern with litigation, he pointed out the process allowed the Council to listen to citizens and for legal counsel to respond. He recommended when the Council again considered the changes to Chapter 20, the Council's involvement in the appeal process be retained. Rowena Miller, Edmonds, referred to this fall's levy and encouraged the Council to inform residents of the value of an average house in Edmonds and the rate per $1000 of assessed value. Mayor Pro Tem Wilson recalled the average home price in Edmonds was $456,000. He advised the Council had not yet decided on the size of the levy. Hank Landau, Edmonds, co -chair of the Edmonds Bicycle group, explained they have worked with the City and surrounding communities for the past 15 years on bicycle and pedestrian improvements for safety and convenience. The group also participates in educating the community regarding their responsibilities toward bicyclists and bicyclists of their responsibility toward motorists. He extended his thanks to City staff for their support of Bike to Work Day May 15 that included a station near the ferry terminal and a ride around Edmonds led by Transportation Engineer Bertrand Hauss in which Councilmember Bernheim participated. He thanked the Parks Department for working with Senator Shin to secure State funds to complete the missing link of the Interurban Trail in Edmonds. He also thanked staff for their consideration of bicycle and pedestrian improvements in the Energy Department Block Grant application. Diane Buckshnis, Edmonds, recalled the Community Services /Development Services Committee considered a suggestion to open the Sunset overlook to leashed dogs and recommended removing the sign and allow people with dogs to walk on the Sunset overlook. She urged the Council to adopt the ordinance making that change. Next, she referred to the Finance Committee's recommendation to approve the contract with Rick Jenness, expressing concern that there was no competitive bid for this contract and that Mr. Jenness had already been paid for work performed prior to the Council's approval of the contract. She was also concerned with his fee of $135/hour measured in 1/4 hour increments. To ensure transparency, she recommended the City obtain competitive bids and schedule approval of the contract as an agenda item rather than the Consent Agenda. Mayor Pro Tem Wilson advised that item was pulled from tonight's Consent Agenda. Al Rutledge, Edmonds, recommended the Council hold another public hearing regarding the levy and identify items that would be cut if the levy were not approved. He relayed a rumor that a fire station would be closed if the levy did not pass. He further advised of his plans to present letters from several . organizations at the June 2 public hearing regarding the ordinance to ban plastic bags. Stephen Clifton, Community Services /Economic Development Director, reported the North Puget Sound Consortium of which the City is a member is currently renegotiating Comcast franchise agreements. The City's contract expires in April 2011. The City is seeking citizen input regarding cable- Edmonds City Council Approved Minutes May 19, 2009 Page 9 related needs and interest, interest in education and government channels and the availability and performance of Comcast as it negotiates a new franchise agreement. Citizens are encouraged to participate in an online survey available on the City's website at www.ci.edmonds.wa.us. Roger Hertrich, Edmonds, expressed concern with the financial arrangement with Rick Jenness and how long the City had been paying him without a contract. He was concerned there was no Request for Qualifications or a bidding process. He referred to language in Mr. Jenness' contract that he would be paid for ongoing customer service and other services not described in the statement of work as directed by the City representative. He recommended staff identify how much Mr. Jenness had been paid in the past 1' /z years and determine whether that and the current contract exceeded the amount requiring a bidding process. Next, he referred to the WSF study Councilmember Bernheim referenced, and the WSF representative's indication that he met with the Skipper's property owner and staff. He suggested staff provide a report to the Council regarding these discussions. Clyde Dimmick, Edmonds, objected to a letter to the editor that referred to people who used plastic bags as wasteful, stupid and harmful. He cited several inconsistencies in the presentation to the Council by Algalita Marine Research Foundation, such as indicating Edmonds would be the first city to ban plastic bags yet their presentation listed the United States as one of the countries that had banned plastic bags. Another inconsistency being the U.S. Congress' passage of the Ocean Dumping Act in 1972 and revised in 1988 to include plastic despite Dr. Eriksen's statement there had not been any federal legislation in the United States. He pointed out a 20 -cent per plastic bag charge would cost the public $1.6 million /year and provide $260,000 in State sales tax using Councilmember Peterson's estimate of 8 million plastics bags per year. Reusable bags cost at least $4.95 each; if the 30,000 households in Edmonds purchased 6 bags, the cost would be $1.2 million plus sales tax. He urged the Council to consider the economics of a plastic bag ban. 7. WORK SESSION ON ORDINANCE BANNING SINGLE USE PLASTIC CHECKOUT BAGS IN EDMONDS. With regard to Mr. Dimmick's comments, Councilmember Peterson advised none of the options under consideration included a 20 -cent per bag charge. That option will be considered by Seattle voters in August. He expressed a preference for the draft retail or hybrid ordinance and suggested eliminating the grocery ordinance. Councilmember Orvis also favored the retail ordinance but suggested all three be presented for the public hearing. Councilmember Plunkett preferred to have all three at the public hearing (grocery, retail and hybrid). He recalled discussion regarding a fourth option and suggested that it be included in the Council packet for the public hearing. Council President Pro Tem Wambolt recommended discussion of this issue be halted. He thanked Councilmember Peterson for his efforts to champion this issue and for the focus he brought to the issue that made the public more prudent regarding their use of plastic bags. He noted single use was an inaccurate description of the bags because they were useful for more than one purpose and were often used multiple times. He pointed out there was ample evidence showing proper behavior was not only the result of legislation as well as evidence that legislation did not always result in proper behavior. He cited several examples such as the public was not required to recycle, yet thousands have done so for many years; Michael Young's use of seven recycling containers behind his business because it was the right thing to do; and the ineffective legislation prohibiting the use of handheld cell phones while driving. Edmonds City Council Approved Minutes May 19, 2009 Page 10 Council President Pro Tern Wambolt envisioned businesses and citizens could produce a good result without legislation such as Petosa's and PCC have done. If the City banned plastic bags, he feared what would be next. He displayed a T -shirt with the slogan "Singapore is a fine city," and reference to the multiple fines in Singapore for chewing gum, urinating in lifts, not flushing toilets, feeding birds, littering, spitting, eating and drinking, flower picking, and smoking. He acknowledged this was an exaggeration of what was likely to happen in Edmonds but legislation opened the door to unnecessary regulation. To those who wanted Edmonds to be first to ban plastic bags, he preferred to be right than first due to the potential for unintended consequences. He recommended delaying to see what happened with the vote in Seattle. He preferred to educate the public rather than ban plastic bags. Councilmember Bemheim advised he proposed an ordinance that would institute a fee on plastic bags as an alternative to a ban. Mayor Pro Tern Wilson suggested that option be included in the Council packet for the public hearing. Councilmember Bernheim pointed out under the ban, stores were free to sell plastic bags, the ban was only on providing free plastic bags at the checkout counter. He displayed an example of a recyclable paper water bottle, commenting bottled water was a huge, unnecessary industry as people did not need to stay hydrated throughout the day. He referred to comments that the Council should adopt this ban because it was the first step, voicing his concern with what would then be the next steps. He supported next steps that were effective in reducing greenhouse gas emissions and the danger to the environment. Council President Pro Tern Wambolt agreed this was the tip of the iceberg. He noted many people recycled plastic bags via reuse as well as recycling them in receptacles at the grocery store. COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED TO TABLE THIS ISSUE. MOTION DIED FOR LACK OF A SECOND. City Attorney Scott Snyder referred to Chapter 4.32 and the City's extensive regulation of public amusement venues when Funtasia was proposed, the teen dance hall ordinance in Chapter 4.44 and horse taxi regulations in Chapter 4.85 as examples of regulations that were adopted to address citizens concerns but had not be used for 15 -20 years. Mr. Snyder stated whatever ordinance the Council decided to consider should go through SEPA review, specifically the environmental checklist. Staff did not recommend Seattle's approach (a fee on plastic bags) due to potential legal challenges. Under Washington law, the City's taxing powers were very limited. The difference between a tax and a fee is a tax raises revenues and a fee is used to offset the costs of regulation. Seattle's ordinance is based in large part on the fact that Seattle operates a Solid Waste Utility which Edmonds does not. If Council chose to pursue a fee ordinance, it would be important for Council to do an economic analysis that determined the amount of revenue that would be generated and an appropriate use for the revenue. If the fee simply raised revenue that was deposited into the General Fund and was not devoted to a solid waste or recycling function, it was an illegal tax. The other substantive due process argument was there was no way to distinguish where a bag originated, whether inside or outside the City. For these reasons, the alternatives staff proposed were based on ordinances from Oakland and other jurisdictions where the prohibition was on giving plastic bags away free. Councilmember Plunkett suggested the retailer be allowed to retain the fee collected for administrative purposes. Mr. Snyder answered the proposed ordinances did not completely ban plastic bags; they simply prohibited giving bags away free. If the retailer charged for the plastic bags, the City was not involved. Councilmember Peterson referred to discussion regarding a voluntary system, noting there was currently a voluntary system as any store could choose not to use plastic bags as Petosa's and PCC have done. He pointed out both PCC and Petosa's supported the proposed legislation because while they have Edmonds City Council Approved Minutes May 19, 2009 Page l I voluntarily stopped using plastic bags, it put them at a disadvantage with larger corporate stores unwilling to take that step. When large corporations were unwilling to do what was right, he felt that was when government needed to step in. He noted the Northwest Grocers Association were not completely opposed to the proposed legislation but wanted to ensure it was fair. He concluded this was an attempt to get people to change their habits for the right reasons; it was financially advantageous both for the consumer and the store for people to bring their own bags. Councilmember Peterson asked whether SEPA review was mandated by the State. Mr. Snyder answered that had been one of the bases for challenge in Oakland. Because the ordinance was styled as an environmental measure, it was important to do at least the environmental checklist procedure. He noted staff's determination regarding whether there were negative environmental impacts would be used by the Council in adopting a final ordinance. Councilmember Plunkett questioned the timing of the SEPA review, whether the Council could pass an ordinance subject to SEPA review. Mr. Snyder advised the environmental review must be completed before a final ordinance was adopted. Council President Pro Tem Wambolt expressed concern with the mounting legal fees related to this issue. Mayor Pro Tem Wilson advised the next steps were the June 2 public hearing on the options and the SEPA process. He suggested delaying Council consideration of the ordinance (originally scheduled for June 16). 8. RESOLUTION SUPPORTING CONTINUED REFINEMENT OF AND PUBLIC INPUT ON THE 2009 PROPOSED LEVY. Mayor Pro Tem Wilson explained the intent of the resolution was to generate discussion and for the Council to provide direction to staff. He explained the resolution offered two options, 1) a General Operations Levy, and 2) a Parks, Public Safety & Families Levy. He anticipated the likelihood of passage was greater if the levy was more specific. He pointed out all the necessary paperwork to place the levy on the ballot must be submitted to Snohomish County by August 11; therefore, the last date a public hearing could be held was July 28 and the ordinance must be passed by the August 4 meeting. Councilmember Bernheim suggested in the second option, funds for the Crime Prevention Services be included in the explanation regarding funding public safety. He also recommended adding to the second option funding dedicated to tourism and economic development such as funding an Economic Development Director or tourism research. Council President Pro Tem Wambolt pointed out the intent of the levy was to restore cuts made by Mayor Haakenson at the March 13 meeting, not add more expenses. He was hesitant to add other items, pointing out the funds from the levy would not last as many years if additional expenses were added. Mayor Pro Tem Wilson commented the levy amount of $4.3 million took the city to 2016 and $3.75 million, the average of the Citizen Levy Review Committees (CLRC), funded the City through 2013. At the end of those timeframes, the City would either need to ask voters for more money, have new revenues in place, or make cuts. Councilmember Plunkett preferred the General. Operations Levy because he was unwilling at this time to say if the levy did not pass he would cut funding for Yost Pool, the senior center, crime prevention nor was he willing to make fully compensating public safety employees subject to the vote. Council President Pro Tem Wambolt recalled the CLRC urged the Council identify the consequences if the levy did not pass. Councilmember Plunkett responded although the CLRC's input was helpful and that effort had been interesting, it was Council's responsibility to make the decision. Edmonds City Council Approved Minutes May 19, 2009 Page 12 Mayor Pro Tem Wilson agreed the Council committing themselves to an action in May predicated on an outcome in November may not be necessary yet but would need to be done at some point and at least by August. He explained that in approximately September ordinances would be presented and public hearings held on potential cuts so that action could be taken if necessary following the November election. He explained even with the cuts and givebacks, the City would get through 2009 but without funds from a levy, the City would be in a terrible place again in 2010. His intent with the resolution was to provide direction to staff regarding potential cuts and levy amounts so that preferred alternatives could be developed and open houses held. He was comfortable with the Council simply identifying the levy amount by August and discussing potential cuts in September /October. He summarized it was a disservice to the community not to be clear about the cuts that would be made should the levy fail. For Councilmember Orvis, Mayor Pro Tern Wilson explained the resolution directed staff to provide two alternatives for a levy and to make a presentation to the Council followed by open houses. Councilmember Orvis observed the resolution was only to start the process; it did not commit the Council to either option. Councilmember Peterson recalled during the retreat the Council recognized this was not a "feel good" levy and the Council needed to be up front with citizens that this was a bare bones, last ditch resort. He agreed with identifying cuts that would be made if the levy did not pass, pointing out it was important for citizens to understand that if the levy did not pass, the day -to -day operations of the city would be affected. Mayor Pro Tern Wilson proposed moving staff presentations from to June 2 to June 16 and to direct staff to make presentations on the two options outlined in the resolution. The Council agreed. Mayor Pro Tem. Wilson asked whether the Council wanted to include Councilmember Bernheim's suggestion to add economic development to the second option. Councilmember Bernheim agreed the intent of the levy was to generate funds necessary for general operations or restoring specific items that would be cut. He was willing to support the resolution as drafted as long as the Council had the ability to expand government services if a good idea arose. Mayor Pro Tern Wilson advised the Council always retained the ability to add or subtract from the budget. Mayor Pro Tern Wilson asked if Council supported a levy of $4.3 million or $3.75 million. Council President Pro Tern Wambolt preferred $3.75 million; anticipating voter approval of a $4.3 million levy would be more difficult. Councilmember Peterson agreed with Council President Pro Tern Wambolt. MAYOR PRO TEM WILSON MOVED, SECONDED BY COUNCILMEMBER OLSON, TO ADOPT RESOLUTION NO. 1200 (REGARDING THE 2009 PROPERTY TAX LEVY) WITH THE CHANGE MOVING THE STAFF PRESENTATIONS FROM JUNE 2 TO JUNE 16. Mayor Pro Tern Wilson noted most of the items in the General Operations Levy were also in the Parks, Public Safety and Families Levy; approximately 80% of the items were the same. MOTION CARRIED UNANIMOUSLY. 9. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF MAY 12 2009 Community Services /Development Services Committee Council President Pro Tern Wambolt reported the Committee was provided a briefing on the Comprehensive Transportation Plan. The total cost of the projects in the plan is approximately $102 million. A consultant was hired to consider funding scenarios including a $30, $60, and $80 Transportation Benefit District (vehicle license) fee. The Planning Board will review the plan, hold public hearings and forward a recommendation to the City Council. Next, the Committee discussed the proposal to ban single use plastic bags. The Committee then discussed the legalization of hens and voted Edmonds City Council Approved Minutes May 19, 2009 Page 13 to forward the proposal to the Planning Board for consideration and recommendation. The final item discussed was potential updates to the City's SEPA rules as part of the code rewrite project. The last update occurred 25 years ago. The update will focus on updating the City's regulations to be consistent with state law and changes elsewhere in the city's codes and policies that have been made over the years. The update will also address the state's authorization for flexible thresholds which enables the City to adjust its SEPA thresholds for different areas of the City. Finance Committee Council President Pro Tem Wambolt reported the Committee considered an authorization for the Mayor to sign a Professional Services Agreement for Rick Jenness. The contract was pulled from tonight's Consent Agenda. Due to the number of questions, he recommended scheduling it as an agenda item at a future Council meeting. The Committee was also provided a General Fund report for the month ending April 30, 2009 that indicated the financial situation had not improved or worsened. The year end sales tax projection was still down $1 million and REST projections for 2009 were $350,000, approximately '/4 of 2007 and collections were currently 54% below year -to -date 2008. 10. MAYOR'S COMMENTS Mayor Pro Tem Wilson had no report. 11. COUNCIL COMMENTS COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE MAYOR PRO TEM WILSON'S ABSENCE FOR THE PAST THREE COUNCIL MEETINGS. MOTION CARRIED UNANIMOUSLY. Council President Pro Tem Wambolt reported on the April 21 Consent Agenda, the Council acknowledged receipt of a Fire District 1 proposal and authorized Mayor Haakenson and staff to negotiate with the District. He reported two meetings were held with Fire District 1 last week. The proposal is for Fire District 1 to purchase the City's fire stations and capital equipment and absorb all the City's firefighters. Fire District 1 would not tax residents directly; they would charge Edmonds a fee each year for providing the service. Initial analysis indicates this would save the City approximately $1 million. Staff will update Council as discussions with Fire District 1 continue. He noted the City's capital equipment and fire stations are valued at approximately $9 million. The focus of the second meeting with Fire District 1 was whether they had the money to purchase the fire stations and equipment and it appears they do. He was impressed with the Fire District 1 representatives, finding them very professional. He advised representatives of the firefighters union are also participating in the meetings with Fire District 1. He advised there had been no discussions about eliminating a fire station if the levy failed. Councilmember Bernheim commented he was taking the public's comments regarding cooperation seriously, noting the last three meetings had been excellent examples of legislative cooperation. He further announced Sound Disposal now allows disposal of compostable food waste in the yardwaste container. He thanked Sound Disposal for taking that action. 12. ADJOURN With no further business, the Council meeting was adjourned at 9:55 p.m. Edmonds City Council Approved Minutes May 19, 2009 Page 14