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05/26/2009 City CouncilMay 26, 2009 The Edmonds City Council meeting was called to order at 7:02 p.m. by Council President Wilson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor (arrived 7:06 p.m.) D. J. Wilson, Council President Michael Plunkett, Councilmember Peggy Pritchard Olson, Councilmember Steve Bernheim, Councilmember Dave Orvis, Councilmember Ron Wambolt, Councilmember Strom Peterson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT Gerry Gannon, Assistant Police Chief Stephen Clifton, Community Services /Economic Development Director Brian McIntosh, Parks & Recreation Director Noel Miller, Public Works Director Rob Chave, Planning Manager Frances Chapin, Cultural Services Manager Rich Lindsay, Parks Maintenance Manager Rob English, City Engineer Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF MAY 19, 2009. 3. PRESENTATION OF THE TRANSPORTATION 2040 PLAN BY PUGET SOUND REGIONAL COUNCIL (PSRQ. Robin McClelland, Program Manager, PSRC, advised a Draft Environmental Impact Statement (DEIS) will be released May 29, 2009 and mailed to cities. She advised cities would receive the Executive Summary as well as a CD containing the entire DEIS and appendixes. The DEIS is also available online at psrc.org. The public comment period on the DEIS begins May 29 and extends through July 13, 2009. The Transportation Board will review the DEIS and other evaluation criteria as well as public comment in selecting a preferred alternative for Transportation 2040. She displayed a list of ways the city and the public could be involved in the process. She noted Edmonds had a considerable stake in Edmonds City Council Approved Minutes May 26, 2009 Page 1 Transportation 2040 due to the regional transportation facilities in the City: Sounder, the ferry and Community Transit's bus rapid transit Swift. She encouraged the City to submit a comment letter on the DEIS and their preference regarding the transportation alternatives. Ms. McClelland displayed the schedule for Transportation 2040, explaining once the public review and comment period was concluded, work will begin on a recommendation for a preferred alternative with the intent of adopting the Transportation 2040 Plan in 2010. She listed the objectives of Transportation 2040 that were derived from the scope process conducted in 2007: • Make progress on major transportation system issues and inform near -term project decisions • Create a sustainable financial strategy • Align with Vision 2040 and the Regional Economic Strategy • Respond to the 2040 growth forecasts for person and freight travel demand She identified major factors used in shaping Transportation 2040: • Sustainable funding —new sources of revenue, reliable, predicable and sufficient • Environment — climate change and Puget Sound water quality • Congestion and mobility — regional economic vitality and mobility for people and goods movement Ms. McClelland reviewed a graph that illustrated declines in State Gas Tax, commenting even with recent increases in the gas tax, the purchasing power of the State Gas Tax has been declining since 1991 due to inflation and fuel efficiency. She displayed another graph that illustrated approximately 2% of revenue the State, cities and counties collect from residents is spent on transportation investments. She displayed a chart of Puget Sound greenhouse gas emissions, pointing out more than half of all Puget Sound greenhouse gas emissions since 2002 come from transportation sources. She highlighted the three key factors to reducing transportation emissions — vehicles, fuels, and vehicle miles traveled. Ms. McClelland reviewed a graph regarding seconds of delay on freeways and espressways and on arterials, explaining if the Regional Growth Strategy goals are not achieved, delays and congestion will increase dramatically. She provided a brief summary of the alternatives: • Baseline (no action) — includes all planned and funded projects and programs • Alternative 1 — attempts to makes the existing transportation system more efficient with traditional funding sources • Alternative 2 — closest to current long range plan, funded from traditional funding sources, adds substantial roadway and transit capacity • Alternative 3 — uses tolls to pay for most critical roadway improvements • Alternative 4 — uses tolls to manage system for system efficiency • Alternative 5 — largest expansion of high capacity transit, bus service, bicycle and pedestrian facilities, and alternatives loans. Funded by freeway and arterial tolls and uses traditional strategies plus tolling to reduce carbon emissions. A summary was given of what each alternative provides with regard to freeway lane miles, arterial lane miles, daily bus service hours, daily commuter and light rail service hours, light rail miles, commuter miles, daily vanpools, auto ferry routes, passenger ferry routes, and off -road /non - motorized miles. It was noted that Transportation 2040 relies on an integrated evaluation framework to measure the performance of the alternatives that includes environment, policy analysis and technical analysis. A cost breakdown and level of investment of each of the alternatives was provided, noting Alternative 2 has the highest cost and the baseline has the lowest cost. Ms. McClelland identified the current funding rate (current law revenue) compared to funding needed for the investments in each alternative. Another chart illustrated Edmonds City Council Approved Minutes May 26, 2009 Page 2 current law revenue, revenue from other funding sources and estimated toll revenue compared to the total cost of each alternative. She displayed a comparison of how Alternatives 3, 4, and 5 decreased some emissions and alternatives that could result in decreased vehicle miles traveled and vehicle hours traveled. She displayed a chart that illustrated how all alternatives provide mobility benefits in varying amounts. Ms. McClelland provided the following contact information, reiterating the DEIS comment period was May 29 -July 13: • www.PSRC.= • Charlie Howard, 206 - 464 -7122 or chowardgXsrc.or • Mike Cummings, 206 - 464 -6172 or muummings@psrc.org Councilmember Bernheim asked why the revenue enhancements were based on tolling rather than fuel taxes, gross vehicle weight or emissions and whether any consideration was given to a fee based on emissions as a funding alternative. Ms. McClelland responded a matrix in the evaluation framework showed all possible sources of revenue including taxes, fares, fees, etc. Tolling was recommended because it would fund improvements now as well as possibly provide sufficient funds in the future via tolling arterials for other projects such as non - motorized. Councilmember Bernheim suggested rather than a toll, imposing a tax for citizens who purchase a heavier vehicle or high emissions vehicle or provide a lower tax for a lighter vehicle. Councilmember Wambolt commented one of the key foundations of the Transportation 2040 was the economic projections made 2 -3 years ago which did not take into account an economic downturn. He asked whether PSRC had considered revising the job growth numbers due to the current economy, commenting he felt the projections were too optimistic. Ms. McClelland responded there will be peaks and valleys along the way that would result in basically the same forecasts in 2040. She noted PSRC had the ability to adjust projections over time if it became necessary. Ms. McClelland remarked beginning in July citizens will be able to take Sounder to downtown and then light rail to the airport. 4. PRESENTATION ON DAYTON STREET PLAZA PARK RENOVATION PROJECT AND REQUEST FOR AUTHORIZATION TO CALL FOR BIDS FOR THE PROJECT. Cultural Services Manager Frances Chapin explained the Dayton Street Plaza is located at the north end of the former Public Works Building on 2nd and Dayton, along one of the most popular and well used walking routes between downtown and the waterfront. The site is across the street from Edmonds' Landing and adjacent to the Edmonds Arts Festival Foundation Art Works facility and the Driftwood Players Rehearsal Annex. At present, access from the street sidewalk is narrow and uninviting and landscape materials and the concrete including an inoperable fountain are in poor condition. She displayed a photograph of the current conditions on the site. Ms. Chapin provided a conceptual view of the site, explaining the primary goals were to create an outdoor space that would be inviting to the public and accessible from the street, create a seating wall, improve the landscaping, and provide sites for outdoor sculptures. To provide visual interest, an artist -made element will be installed in the hardscape of the plaza. The project meets many of the goals in the Community Cultural Plan and the recently completed Parks Comprehensive Plan updates. Both plans recognize that economic development and community building are promoted by the physical spaces and places provided for citizens and visitors. Edmonds is seen by residents and visitors as a pedestrian friendly and culture - oriented community. The site provides an opportunity to meet the priorities expressed by citizens during the current planning process with regard to place - making in the downtown. She described the public process for the project including an open house in July 2008 where the plans were received favorably. Edmonds City Council Approved Minutes May 26, 2009 Page 3 One of the goals in the Community Cultural Plan is to encourage effective partnerships that support opportunities for cultural development and awareness of cultural assets. She identified financial support provided by partners in the project including a $25,000 contribution from the Edmonds Arts Festival Foundation; $5,000 from the Hubbard Family Foundation and $2,500 from Edmonds in Bloom. The completed design for the renovation was presented to the Planning Board in January 2009. The 2008 - 2014 Capital Improvement Program and the 2009 - 2010 City Budget contain funding for this project in the 132 Fund in the amount of $135,000 which includes the donations. Ms. Chapin briefly described the landscaping, commenting much of the existing vegetation was retained on the site. Councilmember Plunkett asked about the 132 Fund. Ms. Chapin explained Fund 132 was created for projects using funds from Fund 125 (Real Estate Excise Tax) that also have grant funding. Councilmember Plunkett emphasized this project was funded via REET and not General Funds. Councilmember Orvis asked about the former Public Works site. Ms. Chapin explained it was currently used by the City as well as leased to other entities. Councilmember Orvis asked for assurance that the proposed project would not eliminate any options for that building in the future. Ms. Chapin answered it would not. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO AUTHORIZE STAFF TO ADVERTISE FOR BIDS FOR THE DAYTON STREET PLAZA PARK RENOVATION PROJECT. MOTION CARRIED UNANIMOUSLY. 5. AUDIENCE COMMENTS Judy Stead, Edmonds, referred to the June 2 public hearing on the City's plans to again increase taxes on utility and water usage by citizens. The City also planned to again increase property taxes through a "so- called family levy" in November. She described her perplexity with the Council's logic in proposing these tax increases by quoting a comment made by Whoopi Goldberg on "The View" on March 6, 2009, "You remember that movie Network? If you are just fed up, at some point just lean out your window and scream I'm mad as hell cause that's what's happening to me. I'm losing my mind because I don't understand why. They have this whole thing about taxing the wealthy. Now I don't mind that, I don't mind paying a little more tax because I make a good living. But I don't want to get it coming and going. I don't want to get the federal tax raised and the state tax raised and the phone tax raised and the television tax raised and then the city tax raised. Back off me." Ms. Stead hoped the Council shared Whoopi's sentiments and urged them to back off the citizens of Edmonds. George Murray, Edmonds, referred to the amendments to Chapter 20, suggesting Council separate out the policy change that keeps the Council involved. The Council could then approve Chapter 20 and retain the provisions that keep the Council in the process which would allow them to see how it worked with the new, clearer standards. The citizens want the Council to remain involved and when this issue arose in July 2006, the Council also wanted to remain involved. He enumerated the benefits of the Council staying involved: it gives visibility to the process, gives the Council feedback on the policies they develop, acts as a break between arbitrary Planning Board or Hearing Examiner decisions and promotes a solution between appellants, the Planning Board and the Hearing Examiner. With a more clear code, the Council could make better decisions and avoid the emotional aspects that concern Mr. Snyder. Diane Buckshnis, Edmonds, explained before the City began picking up garbage a couple years ago, a number of volunteers picked up garbage at the dog park. She and her husband had dog park duty this weekend and on Sunday evening they found overflowing garbage cans at the dog park and garbage strewn throughout Marina Park. She emailed Park Manager Rich Lindsay and was told the garbage had been Edmonds City Council Approved Minutes May 26, 2009 Page 4 picked up Sunday morning. She applauded the City's Parks & Recreation Department employees for their hard work. She reiterated the suggestion she made at the Citizen Levy Review Committee meetings to install a parking fee kiosk at Marina Beach Park as a pilot project. She reported on the popularity of the dog park; they use 12,000 bags a month in the winter /spring months and 24,000 bags in the summer. She relayed dog park and Marina Park users' willingness to pay for parking, remarking the fees collected could fund 1 -2 City employees. She noted 27% of the State's park budget was from user fees. Rich Senderoff, Edmonds, described his visit to the new ACE Hardware and his inability to find the entrance or a sign directing him to the entrance. He was told by the store manager who he encountered on the street that the City would not allow him to put up better entrance signage. He assumed for a business to be successful, customers must be able to find the entrance and recommended the City proactively work with a new business before they opened particularly in an unfinished building. He summarized the Council talked about economic development but did not seem to recognize how to help ensure new businesses get off to a good start let alone create a vision that finds synergy between residents, businesses, property management companies and developers. Al Rutledge, Edmonds, referred to Councilmember Wambolt's report regarding meetings with Fire District I and relayed residents' concern with the source of the money and the cost to the Edmonds taxpayer. Next, he advised the Sno -Isle Library was considering asking voters for an increase and suggested the Council state their position with regard to a Sno -Isle Library levy. He also informed that the Edmonds School District planned to place a capital levy on the 2010 ballot. Roger Hertrich, Edmonds, encouraged the public to speak at the June 2 public hearing regarding the utility tax increase on water. Next, he encouraged the Council to discontinue their discussion regarding a plastic bag ban, finding that effort a waste of time. He noted citizens were more concerned about the economy, the budget, etc. and the Council should be discussing how to reduce salaries and realign staff. Susan Paine, Edmonds, encouraged the Council not to cut the street trees downtown. She understood they disrupted the sidewalk but encouraged the Council to consider other ways to address that issue such as grates. She explained the trees downtown offer a human scale in an urban environment. She preferred the larger trees that contributed to ambiance of the City's quaint older style to the recently planted small trees that do not contribute to the visual environment. In response to Mr. Rutledge's comment regarding Fire District 1, Councilmember Wambolt clarified the City did not need to come up with any money; Fire District 1 needed to identify the funds to purchase the Fire Department's capital equipment. The $l million per year he referred to at the last meeting was the savings to the City's General Fund if the proposal with Fire District I were finalized. 6. CONSIDERATION OF AND POTENTIAL ACTION ON THE ORDINANCE AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE CHAPTER 20 RELATING TO ESTABLISHING PERMIT TYPES, PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA, OPEN RECORD HEARING PROCEDURES, CLOSED RECORD APPEALS, AND DEVELOPMENT AGREEMENT. After listening to public comment at several hearings and during public comment, City Attorney Scott Snyder indicated there were three issues that needed to be addressed, 1) the perception that the changes in Title 20 would limit communications between the public and the Council, 2) a belief that having matters come to the Council will give citizens "home field advantage," and 3) a confusion of the issue of legal cause with legal liability. Regardless of whether the Council stays in the quasi judicial role or not, citizens' expectations of how the Council would act in a quasi judicial capacity must be reasonable. He recalled a comment at the last Council meeting praising the way the hearing regarding short term rentals Edmonds City Council Approved Minutes May 26, 2009 Page 5 was conducted. He pointed out when the Council sat as a legislative body, people could say anything, the Council could consider any facts and talk to anyone; there were few limits on what the Council could consider. Conversely, when the Council sat in a quasi judicial capacity, there were strict rules regarding communications with the public and what the Council could consider. The Appearance of Fairness Doctrine requires the Council not have contact with any of the parties or their constituents regarding pending matters. The Council cannot engage in comment with the public on matters going through the design process if they come to the Council and all the Council can consider is the record created at the initial proceeding which the Council does not conduct. Mr. Snyder commented there was a perception at the public hearing that if the Council remained involved in appeals, citizens have a home field advantage. He agreed there were close cases and if the Council was the decision - maker, they could decide those close cases. One of the difficulties and the reason WCIA was concerned was as elected politicians, the Council was used to trying to satisfy the public's will. He quoted from Washington cases that community displeasure cannot be the basis for permit denial. He noted one of the reasons City Council decisions were "tagged" more often than Hearing Examiner decisions with liability claims and large awards was the process was not as controlled and things tend to be said to Councilmembers that create a record that gives rise to liability. He provided another quote, while community sentiment can be instrumental in the development of zoning requirements in the planning process, it cannot alone form the basis of the zoning decision. He pointed out if the Council retains the role of a quasi judicial body, it must apply the criteria in the code in the same manner the Hearing Examiner does. He acknowledged WCIA was concerned with liability for Councilmember decisions versus Hearing Examiner decisions. It was not necessarily that Hearing Examiner decisions were overturned more or less than City Councils, but City Council decisions more often gave rise to large liability awards than Hearing Examiners do because of the surrounding circumstances. He referred to Councilmember Orvis' reference to the Mission Springs case where the Spokane City Council got involved in a permit they should not have. He noted a more relevant case was the West Mark City of Burien case that resulted in a $10.7 million award for delays in the issuance of the SEPA permit. In that instance, the 216 -unit apartment building on the waterfront in Burien was extremely unpopular in the community. Councilmember Orvis asked whether the Edmonds Hearing Examiner did SEPA appeals now. Mr. Snyder responded SEPA appeals were one of the items proposed to be removed. Mr. Snyder explained one of the reasons liability was a concern to City Attorneys, City Councils and the WCIA was due to the way the rules have been established. Under the Land Use Petition Act (LUPA) each party bears its own costs in Superior Court. If the case is appealed, the loser pays which is the reason most LUPA cases are resolved at the Superior Court level. During the course of Regulatory Reform, the legislature created incentives /penalties for City Council to stay as neutral as possible. Chapter 64.40 of the WAC establishes damages, attorney fees and costs for any delay in the permit process beyond 120 days. If a decision is found to be arbitrary and capricious the City is subject under constitutional law and state statute for delay damages and takings claims. RCW 82.02.020 creates liability for the City monetarily, attorney fees and damages if excessive development fees are required. He summarized it was not that the City Council could not do it right, he assured they could. But citizens should understand regardless of whether they go to the Hearing Examiner or the City Council, what they say will be limited, how they say it will be limited, what the Council can consider is limited and community displeasure cannot play any role in the decision- making process. At the legislative level, public sentiment is an important factor. Edmonds City Council Approved Minutes May 26, 2009 Page 6 Councilmember Orvis agreed if a Hearing Examiner or a City Council decided to impose arbitrary and capricious standards on an applicant, they could be tagged for damages. And if the Council in order to avoid being arbitrary and capricious began to ignore law, they would encounter a problem with WCIA such as in Ridack v. Gunderson. Mr. Snyder commented Ridack v. Gunderson was an isolated situation and the remedy today would be a LUPA appeal. He emphasized the Council or the Hearing Examiner must enforce the code the way it is written and it did not matter if that was unpopular. Councilmember Orvis referred to a Seattle case where the mayor waived fire codes to allow the homeless to continue to occupy a building. The building subsequently burned and the city took liability. Seattle has also been tagged for being arbitrary and capricious. He commented the Council was protected in both those situations if they fairly and objectively argued code. Mr. Snyder explained the public appeared to have a perception that the rules would be more favorable by retaining the Council as the decision - maker. He emphasized the rules must be the same regardless of where the appeal takes place. With regard to the Council's role in shoreline decisions, Planning Manager Rob Chave explained shoreline regulations originated with the federal government via the Coastal Zone Management Act and the federal government allowed states to develop a method of regulating the shorelines. In turn, the state basically delegates to local governments the ability to regulate shorelines by adopting the Shoreline Master Program (SMP) which is approved by the state; essentially the city is acting as an agent of the state. Exempt activities under shorelines are identified in the WAC and the city has no control over whether they are exempt or not. Shoreline substantial development permits go to the Hearing Examiner and are potentially appealable to the City Council. Once the local decision is made, it is sent to the state where there is a waiting period during which the state assesses the decision to determine whether they want to challenge it. Shoreline Conditional Use Permits (CUP) and variances are approved by the state. Mr. Chave reviewed an example of the ability to appeal: In 2003 Washington State Ferries (WSF) asked for a CUP under shorelines for the overhead loading; they had allowed a previous CUP to lapse. The permit went to the Hearing Examiner and conditions were imposed setting a timeframe for the overhead loading to be in that location and at the expiration of that time period it needed to be moved or the state needed to apply for another CUP. The state did not appeal the Hearing Examiner's decision to the City Council. The local decision was finalized and sent to the State Department of Ecology (DOE) for approval, denial or imposition of different conditions on the CUP. DOE agreed with the Hearing Examiner and formalized the decision. WSF appealed DOE's decision to the Shoreline Hearings Board. The Hearings Board agreed with DOE and the Hearing Examiner and imposed the same conditions. WSF eventually appealed to Superior Court where the shoreline decision was nullified on the basis the overhead loading was an essential public facility which overrides the local decision - making authority. He summarized even with the Council's ability to act as an appellate in shoreline cases, the Council's decision could be completely ignored. Councilmember Wambolt recalled a citizen stated if this change were made, staff could allow developers to waive shoreline environmental regulations, reduce setbacks or allow taller buildings and these issues could not be appealed to elected officials. He asked whether building heights could be changed without the approval of the City Council. Mr. Chave answered no, advising those requirements were in the zoning code or the SMP. Councilmember Orvis recalled the Hearing Examiner had approved at least two height limit variances for PFDs. Mr. Chave responded height variances are occasionally heard by the Hearing Examiner and are very narrowly decided. Shoreline variances were different. Councilmember Orvis asked whether the Hearing Examiner had considered setback variances. Mr. Chave agreed there could be and have been decisions by the Hearing Examiner on setbacks. Edmonds City Council Approved Minutes May 26, 2009 Page 7 COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, FOR APPROVAL OF THE ORDINANCE AMENDING ECDC CHAPTER 20. Councilmember Wambolt commented he was sensitive to concerns that staff could do things that the Council was not aware of He recalled this occurred with several condominium projects that received ADB approval, yet what was constructed was not what was approved due to changes approved by staff. However, he questioned whether all of a developer's minor changes should be presented to the Council. He was satisfied with the amendments to Chapter 20 and appreciated the tutorial provided by Mr. Snyder. If these amendments created a great deal of problems, they could be changed. Councilmember Plunkett agreed the Council was capable of sitting as quasi judicial members because the City has one of the most experienced mayors in the state who has demonstrated the ability to fairly and judiciously mediate quasi judicial hearings. The City has the best municipal attorney in the state. The City Council had proven numerous times in quasi judicial hearings that they are judicious and thoughtful. He did not support moving more land use decisions to attorneys, judges, Hearing Examiner and staff and reducing public hearings at the Council level. He did not support the proposed motion. Councilmember Orvis was opposed to the motion because it limited the public's ability to communicate with the Council by not allowing oral argument. He recalled Betty Larman's presentation to the Council regarding Old Mill Town was legal, addressed the code, did not stray from the record and cited examples that showed how the application did not meet the code. That type of argument would no longer be allowed; only written argument would be allowed. Second, he did support an ordinance that would allow staff or the Hearing Examiner to change and waive codes via a variance. He stressed changing code was the Council's job and the Council should hear all variances with a recommendation to the Council by the Hearing Examiner. He noted variances could be made for height limits, setbacks and for the environment. With regard to liability protection, he noted the Planning Board did not cite any Council actions that had exposed the City to liability. This Council has a great quasi judicial record and have been overturned only twice recently, both times when the Council agreed with the Hearing Examiner. Councilmember Orvis commented the WCIA's statewide recommendation was due to other Councils' mistakes; the Edmonds Council has not been overturned for disagreeing with the Hearing Examiner. Recently a Hearing Examiner made a decision that was not appealable to the Council but the Council became involved when the City was sued. He referred to a Snohomish County case versus a Lutheran Church where the County agreed with the Hearing Examiner decision on a CUP and was tagged for being arbitrary and capricious. He summarized arbitrary and capricious decisions could be made by a Council or a Hearing Examiner and allowing the Hearing Examiner to make a final decision did not protect the City from liability. Councilmember Wambolt noted Councilmember Orvis' comments about the Council's record were likely correct; fortunately quasi judicial hearings were not common occurrences. He noted although the current City Council had a good record, that may not be the case for future Councils. Councilmember Bernheim spoke in favor of retaining City Council review because it kept the Council directly involved. For appeals of the Hearing Examiner's decision, the Council can defer to the Hearing Examiner's review. In cases when the right decision could be either way he wanted the City Council to make those decisions. He agreed these appeals did not occur very often and therefore it was not a burden on the Council. It would keep the Council involved and when there was room for discretion, it allowed the Council to exercise it. Council President Wilson recalled he made the original motion to direct staff to prepare the ordinance. Since then he has wavered in his decision. He recalled when the issue arose in regard to a PRD, he did Edmonds City Council Approved Minutes May 26, 2009 Page 8 not support sending PRDs to the Hearing Examiner. He referred to Councilmember Orvis' comment that the Hearing Examiner could approve variances for setback and heights, a situation he was not comfortable with. He was uncertain how the Council could separate the issue of appeal to the City Council and adopt the other amendments to Chapter 20. Councilmember Orvis suggested amending the table on page 3 of Exhibit A COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT TO INSTRUCT STAFF TO RESTORE THE TABLE TO THE COUNCIL'S EXISTING AUTHORITY AND TO RESTORE ORAL ARGUMENT. Council President Wilson preferred to require written argument to prevent any new information from entering the record. He suggested amending the motion to require written argument. Councilmember Orvis advised he would not support the motion without oral argument. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DIRECT STAFF TO RESTORE THE COUNCIL'S EXISTING AUTHORITY REGARDING DECISIONS. Mr. Snyder clarified staff would revise the table in 20.01.030.0 to reflect the Council's current decision - making authority. For Councilmember Bernheim, Mr. Snyder offered to return with an ordinance in a legislative format and to highlight the changes made to the table. Mr. Snyder suggested Councilmember Orvis reword the amendment to instruct staff to return with a revised ordinance. COUNCILMEMBER ORVIS WITHDREW THE AMENDMENT WITH THE AGREEMENT OF THE SECOND. UPON ROLL CALL, MAIN MOTION FAILED (3 -4); COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT IN FAVOR; AND COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS ORVIS, BERNHEIM AND PLUNKETT OPPOSED. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DIRECT STAFF TO BRING BACK A REVISED ORDINANCE IN WHICH TABLE C IS REVISED TO REFLECT THE COUNCIL'S CURRENT AUTHORITY. MOTION CARRIED (6- 1), COUNCILMEMBER WAMBOLT VOTING NO. Mayor Haakenson commented although he appreciated Councilmember Plunkett's comments about his ability to run a closed record review, he viewed them as the single worst thing the legislature had given City Councils. He noted the anguish on citizens' faces in the audience when they are unable to speak to the Council about the subject matter in a closed record review. Second, both sides have attempted to get new information into a closed record review which was not allowed. He summarized it was very difficult for staff and him to determine what was new information and as a result it may get into the record and the Council may make their decision on information that should not have been provided. He concluded closed record reviews were a bad deal for citizens and he urged the Council if nothing else to require written information to avoid new information being inserted into the record. Edmonds City Council Approved Minutes May 26, 2009 Page 9 For Council President Wilson, Mr. Snyder advised Sections 20.07.005.0 and D required written argument. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO ALLOW ORAL ARGUMENT. Councilmember Bernheim commented although information may be entered into the record by allowing oral argument, whether the new information became part of the findings of fact and became a basis for the Council's decision - making was more important than what was actually said. He did not object to continuing to allow oral argument, finding it helped clarify the issue for the decision - maker. Councilmember Plunkett commented in all past quasi judicial decisions, the oral argument was very important and his ability to adjudicate would be diminished without hearing oral argument. He pointed out Mayor Haakenson and Mr. Snyder did an excellent job monitoring the proceedings. UPON ROLL CALL, MOTION FAILED (3 -4), COUNCILMEMBERS ORVIS, PLUNKETT AND BERNHEIM IN FAVOR; AND COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT OPPOSED. 7. REPORT REGARDING THE STREET TREE PLAN AND REMOVAL AND REPLANTING OF STREET TREES AT 5TH & DAYTON. Parks & Recreation Director Brian McIntosh recalled on April 22 Council President Wilson scheduled a review of the Street Tree Plan in advance of the removal and replacement of trees at 5 1 & Dayton. He explained the Street Tree Plan was Appendix F of the revised 2006 Streetscape Plan adopted by Council, making it part of the Comprehensive Plan. He read the vision of the Street Tree Plan, stating it exists to benefit the local community and business climate through enhancement of the identity and character of the downtown, gateways, neighborhoods and primary roads of travel. Street trees provide seasonal interest, summer shade and a transition between the street and adjacent buildings and properties. The Plan recommends species which provide these benefits, be hardy, relatively easy to maintain and tolerant of urban conditions. The City may modify and amend these tree species selections in the future. He recalled concern were raised that the tree caliper of recently planted trees did not match the recommended size of 3" caliper. He explained it was important to understand why entire intersections or row of trees were planted at the same time. He identified areas in the Plan where the caliper discrepancy and the need to replant as parcels were addressed: • Species Selection — there are 14 criteria in this section with the final criteria being "Appropriate mature size and form for their location." • Terms of Maintenance — current mature trees have no root barriers to encourage downward roots. • Implementation — when possible plant entire blocks or series of blocks in the same time sidewalks are reconstructed which will provide uniformity in size and fonn. • Downtown Plan — specific street trees are identified for planting on particular stretches in the downtown. All trees shown on the map shall be a minimum 3" caliper unless otherwise approved. • Tree Planting Procedures — planting procedure recommendations address avoiding conflict of roots with underground utilities and pavement. Installation size and branching height should be chosen to maximize the tree's survival rate. In retail, commercial and mixed use areas, install minimum 3" caliper with minimum 7 -foot branching height unless otherwise approved by the City. Edmonds City Council Approved Minutes May 26, 2009 Page 10 Mr. McIntosh summarized the tree size was directly related to the size of the root ball that should be successfully planted in the available space as well as the availability and uniformity of the appropriate species. Unfortunately in much of the downtown area root ball size was limited due to congested below ground utilities. Large root balls could be pruned but survivability of the tree is jeopardized. In the past, qualified Public Works and Parks staffs have evaluated conditions to make these field determinations. Public Works Director Noel Miller explained this summer the City will be undertaking a street pavement overlay project on Dayton Street from Sunset to the 5th Avenue intersection. As part of this project, the northeast and northwest sidewalk corners are required to be modified to meet current ADA standards. In. addition the existing street trees are slated to be removed and replaced. The current trees have become unsuitable due to branches breaking off and the roots lifting the sidewalk. He displayed a photograph of the northwest corner, explaining the Sweet Gum trees were planted at least 25 years ago and are not recommended in the Street Tree Plan because branches break off and their roots lift the sidewalk. He identified a tree in the photograph where the tree canopy broke off in a storm, severely disfiguring the tree. The canopies of the other Sweet Gum trees on the corner were in jeopardy as the trees grew larger. Because the City is aware the trees are creating a hazardous situation by lifting the sidewalk and falling branches, the City's insurance carrier, WCIA, requires the hazard be eliminated. In accordance with the Street Tree Plan the replacement trees will be October Glory Maples. Two trees will be planted at each intersection corner; they will grow to approximately 40 feet in height and 35 feet in diameter when mature. The fall leaf color will be deep red to purple. To provide uniformity the caliper will match the October Glory recently planted in front of Old Milltown and the Bank of Washington on the opposite side of the intersection. He advised this work was part of an ongoing street tree replacement program for the downtown area that began in the 1990s and was formalized in 2001. Approximately half the street trees have been replaced. He assured the oak trees at 5th and Main were suitable and there were no plans to remove those trees in the foreseeable future. Mr. McIntosh acknowledged the Street Tree Plan requests and requires 3" caliper trees but allows discretion to make site decisions. He noted that discretion is often necessary because a 3" caliper tree cannot fit or because 3" caliper trees are not available. He reviewed the language proposed to be changed in the Downtown Plan and the Tree Planting Procedures to change the caliper from 3" to 2." Councilmember Bernheim asked whether WCIA required the trees to be removed. Mr. Miller answered as part of the audit of Public Works and Parks practices, WCIA periodically looks at operations. They are interested in reducing liability to pedestrians on the sidewalks due to claims for tripping on sidewalks. Staff has attempted minor repairs to the sidewalks including replacing panels or grinding the edges but Sweet Gum trees are notorious for lifting sidewalks. The WCIA representative said the City had no option but to replace the trees. He noted replacing the sidewalks and installing ADA ramps likely would result in cutting into the existing trees' roots, further impacting the survivability of the trees. Councilmember Bernheim emphasized the Plan stated 3" caliper trees yet none of the recently planted street trees were 3" caliper. Mr. Miller recalled the consultant who prepared the Plan thought it would be feasible to have 3" caliper trees; however, planting that size of a tree in the planter areas on City sidewalks has not been possible. He noted these limitations were not identified when the Street Tree Plan was developed and approved by the Council. Council President Wilson commented this was a tricky issue because no one wanted to cut down trees, have the sidewalk lifted or have a negative impact on the City's charm. His fundamental concern was not losing the trees at 5th and Main and although staff assured they would be retained, he recalled last year at a Community Services/Development Services meeting, those trees were identified for replacement. He Edmonds City Council Approved Minutes May 26, 2009 Page 11 was concerned with the City taking action based on the request of WCIA and feared tree removal /replacement would spread throughout the City. Council President Wilson asked how long it took a tree to reach a mature height of 40 feet tall and 35 feet tall. Parks Maintenance Manager Rich Lindsay referred to the tree whose canopy broke off, commenting the trees were susceptible to wind damage, were a poor choice for a street tree and should be replaced. He advised the trees would reach full growth in approximately 20 years. He noted for the species identified in the plan, little more than 3" caliper was available. He described the October Glory Maple selected for that intersection. He anticipated a big difference would be noticeable in the trees in five years. Irrigation installed at the street corners would assist with growth as compared to trees in tree grates that are not irrigated. Council President Wilson asked what intersection was next in the implementation of the Street Tree Plan. Mr. Lindsay responded it would likely be 4th and Main where the Ash trees were dying. Those Ash trees were not suitable for that location because they require a great deal of room for the roots to grow and spread. Council President Wilson expressed concern with the "slash and burn" appearance of the intersection for a period of time. Mr. Lindsay agreed it was disappointing when trees had to be replaced. Council President Wilson suggested staggering tree replacement on opposite corners every two years. Mr. Lindsay advised the Street Tree Plan established a vision that staff was attempting to carry out. Mayor Haakenson advised trees were being replaced incrementally and residents have been appreciative of the improvements to the sidewalks. At Mayor Haakenson's request, Mr. Miller displayed a photograph of the trees that were planted west of the intersection in 2006, noting they had filled out considerably from their original height of 15 -20 feet. Councilmember Wambolt noted the trees on the south corner of the intersection were also removed in the past couple years. He asked why the pavement overlay did not extend beyond Sunset and through Harbor Square. Mr. Miller answered there was more utility work to be done on that street due to double tracking. Temporary repairs would be made to the pavement in that area now and it would be repaved next year. Councilmember Peterson relayed gardeners have indicated planting a 2" tree particularly if the root ball is not disturbed results in a healthier tree. Mr. Lindsay agreed, noting the City typically planted 11/2 - 2" caliper street trees. He noted consideration had even been given to establish a nursery in one of the City's parks but there is no suitable space. Mayor Haakenson asked if a smaller caliper tree had a better chance of survival than a larger caliper tree. Mr. Lindsay agreed it did, noting the City's tree grates were 36" and 48 ". He preferred the 36" grate because there were less tripping hazards but it resulted in a smaller hole that could accommodate a smaller caliper tree. Councilmember Peterson commented the Council's action was not about what 5th & Dayton would look like next week but what it would look like in 25 years. The Council must plan for the future with regard to street trees, economic issues, and environmental issues. Councilmember Orvis asked the cost to replace a street tree. Mr. Lindsay answered the purchase price was approximately $120 — $250. Larger caliper trees were considerably more expensive. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO APPROVE THE RECOMMENDED ACTION. Edmonds City Council Approved Minutes May 26, 2009 Page 12 Councilmember Bernheim asked whether the Council could adopt the changes to the Street Tree Plan which was part of the Comprehensive Plan. He explained his intent in raising this issue was to enhance the City's charm. Mr. McIntosh answered the Street Tree Plan was part of the Streetscape Plan which was part of the City's Comprehensive Plan. The proposed amendment will be reviewed by the Planning Board who will hold a public hearing and forward a recommendation to the City Council where it would be considered along with other Comprehensive Plan amendments. Mayor Haakenson commented the Council could decide not to amend the Plan and allow staff to continue with their current practice. MOTION CARRIED UNANIMOUSLY. The recommended action is as follows: STREET TREE PLAN AMEND LANGUAGE IN STREET TREE PLAN AS FOLLOWS TO BETTER REFLECT CURRENT PRACTICES IN REGARD TO REMOVING AND REPLANTING STREET TREES. AS AN ELEMENT OF THE CITY COMPREHENSIVE PLAN, REQUIRED PUBLIC HEARINGS WILL BE SCHEDULED AT BOTH THE PLANNING BOARD AND CITY COUNCIL FOR CONSIDERATION TO BECOME PART OF 2009 COMPREHENSIVE PLAN AMENDMENTS. 1. DOWNTOWN PLAN, PG. 120. CURRENT LANGUAGE: ALL TREES SHOWN ON THE MAP SHALL BE MINIMUM 3 INCH CALIPER UNLESS OTHERWISE APPROVED. PROPOSED AMENDED LANGUAGE: ALL TREES ON THE MAP SHALL BE A MINIMUM OF 2 INCH CALIPER UNLESS OTHERWISE APPROVED BUY CITY STAFF FOLLOWING EVALUATION OF EXISTING SITE CONDITIONS AND AVAILABILITY OF APPROPRIATE SPECIES. 2. TREE PLANTING PROCEDURES, PG. 124. CURRENT LANGUAGE: IN RETAIL /COMMERCIAL AND MIXED USE AREAS, INSTALL MINIMUM 3 INCH CALIPER TREES WITH MINIMUM 7 FOOT BRANCHING HEIGHT UNLESS OTHERWISE APPROVED BY THE CITY. PROPOSED AMENDED LANGUAGE: IN THE RETAIL /COMMERCIAL AND MIXED USE AREAS, INSTALL MINIMUM 2 INCH CALIPER TREES WITH 7 FOOT BRANCHING HEIGHT UNLESS OTHERWISE APPROVED BY CITY STAFF FOLLOWING EVALUATION OF EXISTING SITE CONDITIONS AND A VAILABILITY OF APPROPRIATE SPECIES REMOVAL AND REPLANTING OF STREET TREES AT 5TH & DAYTON PROCEED WITH REPLACEMENT STREET TREES AT THIS INTERSECTION TO MATCH IN SIZE AND SPECIES OF THOSE RECENTLY REPLACED AT OLD MILLTOWN AND THE BANK OF WASHINGTON. 8. AUTHORIZATION FOR THE MAYOR TO SIGN A RIGHT OF ENTRY AND INDEMNITY AGREEMENT WITH HORIZON BANK FOR THE PURPOSE OF REMOVING AND REPLACING FRONTAGE TREES ALONG DAYTON STREET. Public Works Director Noel Miller explained this was reviewed at the City Council committee meeting and deferred until the Council had an opportunity to review the Street Tree Plan. He explained the trees on the north side of Dayton west of the 5t' & Dayton intersection were creating an uneven walking surface on the sidewalk and are proposed to be replaced. These trees were required to be planted at the time of development 30 years ago. There are ways to manage the roots when trees were initially planted to prevent them from lifting the sidewalk. Mr. Miller displayed a photograph and identified the existing trees. He advised three of the trees are on Horizon Bank property which requires a Right of Entry to remove and replace the trees. Edmonds City Council Approved Minutes May 26, 2009 Page 13 COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO AUTHORIZE THE MAYOR TO SIGN A RIGHT OF ENTRY AND INDEMNITY AGREEMENT WITH HORIZON BANK FOR THE PURPOSE OF REMOVING AND REPLACING FRONTAGE TREES ALONG DAYTON STREET. MOTION CARRIED (6 -1), COUNCILMEMBER BERNHEIM VOTING NO. ���Klllh[ ' �]:711[.Y�7►[�1111 Ky 11] 3[Ki u u � � : tl: _.. 1 u ► tY.� Council President Wilson reported the Lake Ballinger Forum received a draft Strategic Action Plan for the Lake Ballinger Watershed and will begin the process of finalizing it in preparation for presenting it to the Council for approval. The Forum meeting also included discussion regarding the formation of an independent taxing authority to manage the basin. Councilmember Orvis reported the Health Board will again be considering cuts next week. Much of it will be in environmental health; with less development applications, there is less need for staff. The Board will also consider cuts to First Steps Home Visiting, a program where a health worker visits low income, at -risk infants and their parents. The clinic element of the program will be retained. Consideration is also being given to closing the STD clinic in Everett because STDs can be treated outside the clinic. Councilmember Wambolt reported the May 11 Port Commission meeting included discussion regarding the redevelopment of Harbor Square. The Commission approved a scope of work and proposal for LMN Architects and Burke and Associates to update and refine the conceptual refined plan for the Harbor Square Business Complex and to provide a review and report with potential revenues, economic analysis of redevelopment potential, City of Edmonds tax revenue, in an amount not to exceed $50,000. They anticipate a report will be presented by the end of September. The new Executive Director started work on May 18. At the May 18 meeting the Port Commission authorized the Executive Director to sign a ground lease with the yacht club for their new building. The yacht club has obtained building permits from the City and construction is anticipated to begin in early June with completion expected no later than March 1, 2010. He noted the loan for the building was $3.2 million. The building will be located in the parking lot north of the Commission offices. Councilmember Plunkett reported the Downtown Parking Committee proposed signs at 5th & Main to direct visitors to the public parking at the Public Safety Complex. Cultural Services Manager Frances Chapin is considering artistic signs. 10. MAYOR'S COMMENTS Mayor Haakenson had no report. 11. COUNCIL COMMENTS Councilmember Bernheim reported he visited the Edmonds Food Bank at the United Methodist Church. He encouraged everyone to visit on a Tuesday to see the number of people they serve and how well they are served. He displayed a 100% recycled food container, an alternative to Styrofoam. Councilmember Orvis reported the Health Board is considering reducing the services they provide to daycares. Edmonds City Council Approved Minutes May 26, 2009 Page 14 Councilmember Wambolt referred to a letter to the editor expressing concern that the Council's top objectives were in regard to sustainability. He noted the Council page on the City's website contained information from the 2009 retreat, Working Toward Sustainability, and the Council's top six goals. He agreed these were the Council's goals with regard to sustainability, however, because there were no other goals, it appears to the public these were the Council's only goals. He suggested Council President Wilson write a letter to the press and have revisions made to the Council's web page. Council President Wilson responded he planned to address this in the Edmonds Beacon column this week. He suggested the Community Outreach Committee work with Chief Information. Officer Carl Nelson regarding enhancing the Council page on the website. Mayor Haakenson suggested Senior Executive Council Assistant Jana Spellman could revise the language on the website regarding the sustainability goals. Councilmember Peterson relayed he volunteered at the Edmonds Food Bank at the United Methodist Church in the past and was proud the community did such a great job providing a wonderful service. Further, he thanked Mayor Haakenson and the organizers of the Memorial Day service at the Edmonds Cemetery. He encouraged the public to attend this great community event. Mayor Haakenson relayed the Memorial Day crowd at the cemetery was the largest ever and recognized the Cemetery Board for their efforts in organizing the event. 12. ADJOURN With no further business, the Council meeting was adjourned at 9:55 p.m. Edmonds City Council Approved Minutes May 26, 2009 Page 15