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06/02/2009 City CouncilJune 2, 2009 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor D. J. Wilson, Council President (arrived 7:55 p.m.) Michael Plunkett, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Ron Wambolt, Councilmember Stroh Peterson, Councilmember ELECTED OFFICIALS ABSENT Steve Bernheim, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT Al Compaan, Police Chief Jim Lawless, Assistant Police Chief Stephen Clifton, Community Services /Economic Development Director Noel Miller, Public Works Director Kathleen Junglov, Finance Director Rob Chave, Planning Manager Deb Sharp, Accountant Bob Barker, Police Sergeant 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. (Council President Wilson was not present for the vote.) 2. CONSENT AGENDA ITEMS Councilmember Wambolt requested Item G be removed from the Consent Agenda. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. (Council President Wilson was not present for the vote.) The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF MAY 26, 2008. C. APPROVAL OF CLAIM CHECKS #111791 THROUGH #111955 FOR $742,449.26 DATED MAY 21, 2009, AND CLAIM CHECKS #111956 THROUGH #112045 FOR $519,546.57 DATED MAY 28, 2009. APPROVAL OF PAYROLL DIRECT DEPOSIT AND CHECKS #48084 THROUGH #48120 FOR THE PAY PERIOD MAY 1, 2009 THROUGH MAY 15, 2009 IN THE AMOUNT OF $834,166.40. Edmonds City Council Approved Minutes June 2, 2009 Page 1 D. ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM SHAWN MITCHELL (AMOUNT UNDETERMINED). E. APPROVAL OF LIST OF BUSINESSES APPLYING FOR RENEWAL OF THEIR LIQUOR LICENSES WITH THE WASHINGTON STATE LIQUOR CONTROL BOARD, MAY 2009, F. ORDINANCE NO. 3735 OF THE CITY OF EDMONDS, WASHINGTON, AMENDING THE EDMONDS CITY CODE, TITLE 10, TO ADD A NEW CHAPTER 10.75, CITIZENS ECONOMIC DEVELOPMENT COMMISSION. ITEM G: ORDINANCE ADOPTING NEW CHAPTERS AND REPEALING CERTAIN CHAPTERS IN TITLE 20 ECDC RELATING TO PROCEDURES FOR APPROVING LAND USE DEVELOPMENT PERMITS• AMENDING VARIOUS ECDC SECTIONS THAT REFERENCE SECTIONS IN REPEALED CHAPTERS IN TITLE 20 ECDC, Councilmember Wambolt advised he pulled this item because he voted against it when it was discussed by the Council. Councilmember Plunkett asked if this ordinance retained the Council in quasi judicial decisions. City Attorney Scott Snyder answered the ordinance kept the Council involved in all the quasi judicial decisions it was currently involved in with the exception of one process that was removed entirely. A former code section provided for the review of approved permits which was no longer possible following the Nycrum decision. Councilmember Plunkett inquired whether the ordinance allowed oral or written argument. Mr. Snyder responded it allowed written argument only. Councilmember Orvis advised he would be unable to support the ordinance in its current form. As only five members of the Council were present, he suggested delaying the discussion and decision. Mayor Haakenson suggested rescheduling this as Item 6A when Council President Wilson would likely have arrived. This was agreeable to the Council. 3. POLICE DEPARTMENT SWEARING -IN CEREMONY FOR SERGEANT BOB BARKER. Police Chief Al Compaan described Sergeant Barker's background that included 7 years in the military as a Navy Seabee and a decision to move to this area after serving at Sandpoint. He served with the Snohomish County Sheriff's Department as a Reserve Officer and was hired by the Edmonds Police Department in March 1986. He began as a patrol officer, served as a K -9 officer from 1990 -1995, promoted to Corporal in 1995, served in detectives 1996 -1999, assigned to Youth Services /DARE in 1999 -2003, returned to patrol 2003 -2008 and Youth Services /DARE from 2008 -2009. He is now assigned to patrol as a shift supervisor. Chief Compaan described Sergeant Barker's community services activities that include the American Cancer Society Relay for Life, Camp Good Times Youth Camp, and Special Olympics. In 2002 he was named Edmonds Police Officer of the Year and Employee of the Year. In 2003 he was named DARE officer of the year for Washington State. He has received six letters of commendation since joining the Edmonds Police Department as well as numerous letters from citizens thanking him for his assistance. Chief Compaan introduced Sergeant Barker's wife Sherri, sons Chris and Austin and mother -in -law Jean Stott. Chief Compaan swore in Sergeant Barker and presented him a framed certificate of promotion. He commented it had been a pleasure to work with him and he was very proud of him. Edmonds City Council Approved Minutes June 2, 2009 Page 2 Sergeant Baker thanked the City Council for their support, commenting he would do his best to make the City proud of their choice to promote him to Sergeant. His wife pinned on his Sergeant badge. 4. PUBLIC HEARING ON UTILITY RATE AND WATER TAX INCREASE. Public Works Director Noel Miller explained since the late 1990s, the City has contracted with Financial Consulting Solutions (FCS) Group to periodically analyze and provide recommendations for the City's utility rates. These rates finance the necessary stormwater, water and sewer services and must be sufficient to finance each utility to meet operational and capital expenses. Based on an updated analysis performed last year, FCS and City staff determined utility rate increases are necessary and need to be implemented in 2009 for stormwater and water based on expenditures exceeding projected revenues. The Utility Rate Study was reviewed by the City Council Finance Committee earlier this year and they recommended the proposed rate increase be reviewed by the full Council at a public hearing. The analysis also determined there is no need at this time to increase sanitary sewer rates. Mr. Miller displayed a graph of the Water Utility operating forecast at existing rates. FCS' analysis of the Water Utility determined the surplus working capital will be depleted in 2009 with existing rates, necessitating additional revenues. He displayed operating forecasts at existing rates for the Stormwater Utility which also indicates surplus capital is being depleted. He described factors affecting the water rate increase: • Wholesale rates for the City's source of water, Alderwood Water, continue to increase as a result of improvements to the regional water treatment facility as well as replacement of regional water transmission lines. He displayed a graph illustrating Alderwood Water's rate history 1980 -2009. • Ongoing need to replace the City's water system infrastructure; many of the pipes are at the end of their useful life. • A recent mandate by the State Department of Health requires the City reduce water system loss to 10% or less based on total water consumption. • The gradual decrease in water consumption due to conservation mandates has reduced water revenues. • Lack of low interest loans and grant programs through the Public Works Trust Fund and State Revolving Fund. He displayed a graph of annual water consumption as provided by Alderwood Water, Seattle and combined. He cited a recent Washington State Supreme Court Ruling that requires the cost for fire hydrants be paid by general taxes (General Fund) rather than the Water Utility. Therefore the proposal includes a utility tax increase on water service to pay for fire hydrants. Based on cost of service studies, expenditures for fire hydrants including capital, operations and maintenance comprise approximately 8% of the Water Utility expenditures. Mr. Miller reviewed the proposed water rate and tax increase summary: Existing Water charge (based on 7500 gallons per month): $25.49 2009 Increase: 16.8% New Rate: $29.77 He displayed a graph of water rates from 1992 — 2009 compared to inflation, noting the trend has stayed below the average rate of inflation of 3.2 %. Edmonds City Council Approved Minutes June 2, 2009 Page 3 Mr. Miller reviewed the primary factors for the stormwater rate increase: • The need for additional capital projects to replace aging or inadequate infrastructure and to address flooding damage from recent severe storm events. • Ongoing compliance with the Federal Clean Water Act as regulated by the State Stormwater NPDES permit. • Lack of funding for Federal and State low interest loan and grant programs. He displayed a comparison of 2009 single family stormwater utility rates, pointing out Edmonds' rate is significantly lower than most water utilities in the area. He noted further rate increases were anticipated in 2010 once the update of the City's Stormwater Comprehensive Plan is completed later this year. He advised the City is also in the process of updating the Water Comprehensive Plan which will include further review of water rates in 2010. He displayed a comparison of overall utility rates (water, sewer and stormwater) for Edmonds existing ($58.50) and proposed ($63.40) as compared to the AWC State average ($76.62). He summarized even with the proposed rate increase, Edmonds' rates were within the average in the Puget Sound area. Mr. Miller relayed staff's recommendation to increase the overall rate revenue by 16.8 %. A portion of the water rate increase will be offset by an 8.7% utility tax rate increase to pay for fire protection costs by the General Fund. The average utility rate will increase 16.8% including the cost of fire hydrants that would be funded via the General Fund. In addition, stormwater fees are recommended to be increased 6.82 %. Based on the outcome of the public hearing, staff will prepare specific utility and tax rate schedules for adoption by the City Council at a future meeting. Councilmember Orvis asked when the last water rate increase occurred. Mr. Miller answered the last water rate increase was in 2008; there was no rate increase at that time for sewer. Councilmember Plunkett asked if a water loss study should have been conducted prior to the public hearing. Mr. Miller answered that would be done as part of the Water Comprehensive Plan update. Councilmember Plunkett asked if a Pipe Replacement Plan should have been presented for the public hearing. Mr. Miller answered that would also be part of the Water Comprehensive Plan update. He noted the capital improvements proposed in the six -year Capital. Improvement Plan were factored in as reasons for the 2009 rate increase. Councilmember Plunkett asked whether a Pipe Replacement Plan was a factor in these costs. Mr. Miller answered it was, explaining replacement of pipes throughout the City has been ongoing. He noted that Plan was identified in the current Water Comprehensive Plan. Councilmember Plunkett asked how a citizen could understand the proposed increase if the Pipe Replacement Plan was a factor in the increase but the Plan was not included in the public hearing materials. Mr. Miller answered the intent of the public hearing was to gather public and Council input regarding additional information. He advised this was the first public presentation regarding the proposed increase. Councilmember Plunkett asked how long the rate study had been available to the public. Mr. Miller answered the rate study was made available to the public when a request for further information was received yesterday. He assured if a citizen had requested the study earlier, it would have been made available. Councilmember Plunkett commented this public hearing could be the first step; the rate study and the Pipe Replacement Plan could be made available and a second public hearing could be held, and the Council could approve the rates in the near future. Mr. Miller answered that timeline would be acceptable. Edmonds City Council Approved Minutes June 2, 2009 Page 4 Councilmember Wambolt commented the cost of water was approximately $30 /month or $1 /day. He inquired about the amount of Alderwood Water wholesale rate increases. Mr. Miller answered in the past year their rate increased over 15% but the rate has decreased in earlier years; the average over 15 -20 years has been approximately the rate of inflation, 3.5% /year. Councilmember Peterson observed funding for fire hydrants must now be paid from the General Fund rather than utility taxes. He asked whether those funds would be specifically allocated for fire hydrants. Finance Manager Kathleen Junglov answered the utility tax will be placed in the General Fund as a general revenue and will not be specifically allocated to fire hydrants. The Utility Fund will bill the General Fund for hydrant maintenance and capital. Councilmember Peterson referred to upcoming federal programs related to stormwater and asked whether the proposed rate increase would be adequate. Mr. Miller responded during the recent legislative session, the State Legislature considered revenue sources that could be shared with local government such as $1.50 /barrel tax on oil. The legislature is aware local governments are faced with responsibility of meeting federal mandates and he recommended the City continue to encourage State legislators to consider funding sources. Mr. Snyder advised the City would be faced with changes to the stormwater sewer ordinances mandated by the recently adopted Phase II NPDES permit which will place additional enforcement requirements on the City with respect to discharge into the City's system. He advised that ordinance would be presented to the Council later this summer. Councilmember Peterson asked if the cost associated with that enforcement was considered in this rate increase. Mr. Miller answered additional staff hours devoted to enforcement of the ordinance would be necessary. He pointed out the need to complete the Stormwater Comprehensive Plan update in order to identify all additional costs. He advised as part of their study, FCS will analyze expenditure needs and develop proposed revenue increases. Mayor Haakenson opened the public participation portion of the public hearing. Diane Buckshnis, Edmonds, emphasized the need for public transparency and providing sufficient information to the public to facilitate an effective public hearing. She recalled voicing a similar issue with the public hearing on amendments to Chapter 20. While the increases may be merited, she was unable to locate any information from FCS, an updated Water Comprehensive Plan or a Pipe Replacement Plan. She concluded citizens needed the tools to make a good decision. She requested the Council schedule a second public hearing and that the public be provided additional information. Roger Hertrich, Edmonds, agreed with Ms. Buckshnis that adequate information was not made available to the public. He pointed out FCS had not made a formal presentation to the Council and there was no written information available regarding their analysis. Next, he expressed concern about leaks in Edmonds' system; Seattle has a 3% loss, Olympic View Water District has a 7% loss and Edmonds' loss is 17 %. He recommended the City identify the leaks and develop a plan to replace the pipes that are leaking. He concluded the lack of supporting information put the credibility of the request in question. Al Rutledge, Edmonds, commented the City previously received 1% of its water from Seattle. He pointed out past reports indicated there would be increases in the future. Hearing no further comment, Mayor Haakenson closed the public participation portion of the hearing. Councilmember Plunkett asked staff to comment on leaks in Edmonds' system. Mr. Miller responded the City's water loss three years ago was approximately 16 -17 %. It is currently about 10 %; the State's benchmark is 10 %. He noted the water loss in bigger systems was often a lower percentage due to the Edmonds City Council Approved Minutes June 2, 2009 Page 5 number of pipes. Edmonds is an older city with older pipes and many of the pipes installed with development in Snohomish County would not be installed today. The City has been in the process of placing pipes for the past 15 years. He acknowledged pipe replacement took time and cost a great deal. Pipes are identified by age and condition and a leak survey is conducted of approximately 1/3 of the city each year. He noted it is often difficult to detect slowly seeping leaks. Councilmember Plunkett observed it appeared the City had a proactive process for identifying deterioration and leaks and for replacement. Councilmember Plunkett asked when the Pipe Replacement Plan would be available. Mr. Miller answered less than a week. He also offered to make the current Water Comprehensive Plan available which identifies pipes that are in need of replacement in accordance with the current Plan. Councilmember Plunkett observed in approximately one week the Pipe Replacement Plan and the rate study would be available to the public and another public hearing could be scheduled. Mr. Snyder advised ordinances would need to be drafted for the utility tax and the rate increases. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO MAKE THE PIPE REPLACEMENT PLAN AVAILABLE TO THE PUBLIC AND CONTINUE THE PUBLIC HEARING TO JUNE 16. MOTION CARRIED UNANIMOUSLY. (Council President Wilson was not present for the vote.) 5. PUBLIC HEARING ON ORDINANCE REDUCING USE OF SINGLE USE PLASTIC CHECKOUT BAGS IN EDMONDS. Councilmember Peterson recalled the Council discussed this at the retreat and at previous public meetings and it has created a great deal of excitement on both sides. He was encouraged that people had gotten involved in the process of government. He has had conversations with the Northwest Grocers Association, UFCW21 one of the unions representing local food service workers, and with the local food banks. One of the positive unintended consequences of this legislation was an appreciation and realization of how hard the food banks at the United Methodist Church and Westgate Chapel work. He was shocked by the incredible increase in the number of people they served. He was encouraged the community was interested in taking local action to address this issue and with the thoughtful discussion regarding implementation. He applauded the Council for their willingness to address difficult environmental issues. For Councilmember Wambolt, Councilmember Peterson explained the food bank uses plastic bags to package loose items as well as groceries and they are concerned with the possible financial impact the ban would have on their efforts. He advised the NW Grocers Association worked with NW Harvest in Seattle on a reusable bag giveaway and he has discussed with them the possibility of a similar effort in Edmonds. (Council President Wilson arrived at 7;55 p.m.) City Attorney Scott Snyder advised the three draft ordinances apply only to retail establishments; therefore, the food bank's operations would not be impacted. Mayor Haakenson opened the public participation portion of the public hearing. George Murray, Edmonds, provided a receipt from Petosa's that included a 5 cent credit for using your own bag, a receipt from PCC that states 5 cents will be donated to PCC Farms and Trust and the PCC Food Bank Program for each bag, carton or container a customer reused. Edmonds City Council Approved Minutes June 2, 2009 Page 6 Mark Johnson, Vice President, Government Affairs, Washington Retail Association, a trade association representing 2800 retailers in Washington, relayed their support for a reduction in one -time single use paper and plastic bags, indicating they did not support an outright ban or tax on bags. He preferred a cooperative effort between retailers and government and other stakeholders to achieve the goal of fewer bags in the waste stream. The Retail Association offered to partner with Edmonds on an aggressive reusable bag program coupled with increased recycling of paper and plastic bags. He noted the Retail Association and other groups along with the City of Seattle and the Seattle Chamber of Commerce held a reusable bag giveaway at NW Harvest Food Bank where over 50,000 reusable bags were donated. Retailers in Spokane have partnered with groups to launch a Choose to Reuse Reusable Bag Campaign. The Retail Association feared an outright ban on plastic bags or a tax would have a detrimental impact on retailers as well as their customers. He encouraged the Council not to approve a ban or tax and instead work with them and other stakeholders. Laura Spehar, Edmonds, referred to comments expressed at Council meetings regarding fear the next step would be a ban on leather shoes, fear people will shop outside Edmonds, how the ban would affect those who cannot afford reusable bags and being seduced by the green movement in an election year. She urged the Council to consider that Edmonds was becoming a champion city in sustainable efforts via the new platinum certified PCC, the Mayor's well attended Climate Change meetings, and the efforts of Sustainable Edmonds. Residents of many communities view Edmonds as a great place to work, live and play. Via its sustainable efforts, Edmonds demonstrates it is an intelligent, thoughtful and conscious community where people, flora, fauna and marine life can flourish. She thanked the Mayor and Council for opening this important dialogue. Sarah Cherin, Seattle, Director of Government Relations, United Food & Grocery Workers Local 21, expressed the union's support for the idea in concept. She explained they were heavily involved in the Seattle effort and were supportive of reducing the amount of plastic bags. Their union represents PCC workers who also do not provide plastic bags and she encouraged the Council to speak with them. She urged the Council to include further customers education in the ordinance, noting Councilmember Peterson planned to propose an amendment to incorporate that language. Holly Chisa, Northwest Grocers Association, thanked Councihnember Peterson and others for their willingness to meet with them to discuss this issue. They represent QFC, Safeway and Haggen Top Foods, the three grocery stores in Edmonds who offer paper and plastic bags. Although they have concerns with the three draft ordinances, they are willing to work with the Council on middle ground. Their primary concern is charging customers for bags. She urged the Council if they approved an ordinance, to adopt the version that impacted all retailers. If the ban was limited to grocery stores, only three sources of bags would be addressed. She expressed support for the language that would add an educational component for employees. She offered to present a Choose to Reuse Campaign to begin the education process and to help people remember their reusable totes. Dave Page, Edmonds, commented Edmonds was the best place to live. He remarked on the amount of plastic and debris in Puget Sound. He explained the use of reusable bags needed to become a habit. He was supportive of the ban on plastic bags and suggested people donate reusable bags. Al Rutledge, Edmonds, referred to his letter and letters he obtained from the Edmonds Food Bank and the Edmonds Lutheran Church expressing concern with the impact the proposed ban on plastic bags would have on the food bank. Rich Senderoff, Edmonds, appreciated the discussion regarding sustainability in Edmonds. He recognized the impact plastic had on the ecosystem, but felt there were other sustainable practices that impacted the local environment more significantly than legislating a single form of plastic. For example, Edmonds City Council Approved Minutes June 2, 2009 Page 7 the City has no tree preservation or invasive weed policy for public parks and common areas or private residences. He agreed with Councilmember Wambolt regarding the issue of plastic bags, that it was financially wasteful at a time the Council and administration needed to exercise prudent government regarding expenditures prior to the levy vote when perception mattered. He questioned the amount that had been spent and would be spent on legal fees regarding the plastic bag ban. He preferred the City working with local environmental organizations and the business community to establish an Edmonds businesses and residents sustainability checklist. The City could provide an Edmonds -kind of Sustainable Practices Certification for businesses and residents that voluntarily meet the requirements, similar to the Backyard Wildlife Habitat Certification Program, an approach that would provide a quantitative means of evaluating the effectiveness of the program in raising awareness of sustainable practices before mandates were created. John Carlin, Edmonds, commented he had enjoyed listening to the pros and cons of the plastic bag ordinance, noting most were based on economic issues. He described his practice of avoiding the use of plastic bags and walking to the local grocery store, but emphasized the importance of consumer choice, pointing out some people may feel entitled to choose their method of bringing home their groceries and may even choose to shop outside Edmonds in order to get plastic bags. He urged the Council to respect the choices of their constituents and not drag them along in the direction the Council felt was right. Michael Young, Edmonds, expressed support for the plastic bag ban, emphasizing the science was in: plastic was not good for the environment. With regard to taking away consumers' choices, he compared it to regulations regarding the disposal of paints, use of pesticides, etc. To the comment that a plastic bag ban is not enough, Edmonds can be seen as a progressive, hip, green place to live which attracts both residents and businesses. He urged the Council to do the right thing. Rebecca Wolfe, Edmonds, commented on the importance of this debate, agreeing there were many important issues but not taking action to ban plastic bags would be a mistake. She referred to the environmental crisis and the role the production of plastics play in greenhouse gases. She referred to reminders to reduce, recycle, reuse, commenting an ideal scenario would be if everyone begins using reusable bags or even reuses plastic bags. She encouraged merchants not to provide any plastic bags to their customers and instead sell reusable bags. She also supported rewarding residents and businesses such as was suggested by Dr. Senderoff. She also suggested citizens donate reusable bags to those unable to afford them. Roger Hertrich, Edmonds, admonished the Council for wasting time with this discussion. He objected to the ordinance that would force residents not to use plastic bags rather than asking for voluntary compliance. He referred to Diane Buckshnis' comments at last week's meeting regarding garbage strewn around Marina Beach and suggested the City penalize titterers instead of citizens who use plastic bags. Ruth Arista, Edmonds, commented they have offered only paper bags at their business for the past 11 years, although plastic bags were less expensive. She recalled the concerns expressed by citizens using walkers or scooters, noting the Helping Hands Closet has bags with handles that will fit inside a purse. She did not support a 20 cent fee on plastic bags, noting that would be very uncomfortable for businesses. They donate 25 cents toward the Fourth of July fireworks for anyone reusing a bag or box. She expressed support for Dr. Senderoffs suggestion to recognize sustainable businesses and residents. She urged the Council to adopt the ban on plastic bags. Clyde Demmick, Edmonds, expressed concern that reusable bags were often unsanitary, relaying a very dirty bag he saw being used recently. He and several of his friends planned to shop outside Edmonds if the Council adopted a ban on plastic bags. Edmonds City Council Approved Minutes June 2, 2009 Page 8 Robin [no last name given], Edmonds, displayed a globe that she used to demonstrate to children the amount of plastic debris in the North Pacific Gyre. She expressed her thanks to the Council for their support of a plastic bag ban, emphasizing the effort had to start somewhere. With regard to unsanitary bags, she noted there were washable bags available. She anticipated in the future there would be a market for designer reusable bags. Hearing no further comment, Mayor Haakenson closed the public participation portion of the hearing. Councilmember Plunkett commented he had heard and read about the possibility of draconian consequences such as the City being sued if the Council adopted one of the ordinances. He asked about the potential for a lawsuit. City Attorney Scott Snyder answered recent discussions have been in regard to land use where state statutes create monetary liability for communities; that is not applicable in this situation. The risk with ordnance such as this would be the cost of defense. He explained there were a number of similar ordinances in effect and he believed they were defensible. Councilmember Plunkett asked if there was a question in law whether the Council had the police power to regulate plastic. Mr. Snyder answered not in his opinion. If the Council chose one of the alternatives, Mr. Snyder recommended a SEPA checklist process prior to final consideration. Councilmember Plunkett asked about the estimated cost if the City were required to defend the ordinance. Mr. Snyder answered $30,000 at the Superior Court level and $50,000 with an appeal. Councilmember Plunkett asked whether there were other jurisdictions that would be interested in joining the City. Mr. Snyder answered it was unlikely any would want to join the City. He had been involved in the defense of a returnable bottle and can deposit legislation at the municipal level in the past; assuming the Council made a proper legislative foundation and did SEPA, the ordinances were not fact - intensive to defend. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO ADOPT THE DRAFT RETAIL ORDINANCE (ATTACHMENT 6). Councilmember Peterson commented this ordinance would treat all businesses the same, was the best for the City, the best for business and the most equitable solution. He expressed appreciation to Mr. Snyder and Bio Park for researching and drafting the ordinances. Under the draft retail ordinance no retail establishments within the City of Edmonds would be allowed to offer plastic bags at the checkout stand. Consumers would have two options, a recyclable paper bag or a reusable bag. This will not eliminate plastic bags used within the store such as in the produce, meat or bulk food departments. The ordinance also includes financial consequences for stores that do not comply, $150 for the first offense. Councilmember Wambolt did not support the motion. He recognized Councilmember Peterson for bringing this issue forward, commenting it could be better addressed via a method such as suggested by Dr. Senderoff and Mr. Johnson. He preferred to have as little government as possible involved in citizens' lives particularly in this issue. He pointed out thousands of people already recycle without a government mandate. Mr. Snyder reiterated before the Council acted on the ordinance, he recommended staff do a SEPA checklist process which would take approximately two weeks. He suggested the Council forward an option to staff for SEPA review. Councilmember Peterson amended the motion, with the agreement of the second, to forward the draft retail ordinance to staff for SEPA review. Edmonds City Council Approved Minutes June 2, 2009 Page 9 COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, TO AMEND SECTION 6.80.020 TO ADD, "THE CITY OF EDMONDS SHALL WORK WITH RETAILERS, RETAIL ASSOCIATIONS, UNIONS AND OTHER ORGANIZATIONS TO CREATE EDUCATIONAL ELEMENTS ABOUT THE BENEFITS OF REUSABLE BAGS. THIS MAY INCLUDE SIGNAGE AT STORE LOCATIONS AND INFORMATION LITERATURE AND EMPLOYEE TRAINING AND WILL TAKE PLACE BEFORE AND AFTER THE OPERATIVE DATE. Councilmember Peterson commented as a result of conversations with retailers, retail associations, unions and other organizations, he wanted to ensure the implementation of the ordinance was as smooth as possible. He acknowledged the ordinance was asking consumers to change their behavior and an education process would assist with that effort. It would allow smaller retailers who may have stocks of single -use plastic bags an opportunity to use those bags, give larger retailers time to train their employees and remind consumers to bring their bags into the store. THE VOTE ON THE AMENDMENT CARRIED UNANIMOUSLY. Council President Wilson commented he considered himself to be fairly green, a former trustee of Washington Conservation Voters and a current trustee of the Cascade Land Conservancy. He recognized Councilmember Peterson for moving the conversation forward in a very progressive manner. He referred to the six tasks on the Council's Sustainability Agenda that all Councilmembers were assisting with. He was proud that Edmonds was having this conversation. To those who suggest the Council should be focusing on the economy, he assured the Council was focused on the economy, doing whatever possible to ensure the City remained on stable footing. Council President Wilson recalled one of the reasons the Council chose sustainability as its focus was it had little to no financial impact and could also be an economic driver. He was supportive of a ban on plastic in concept and was open to exploring it. He pointed out the Council's sustainability agenda stated the Council would consider a plastic bag ban. The Council was considering three ordinances to ban plastic bags and Councilmember Bernheim proposed an ordinance that would institute a per bag fee. Seattle chose not to ban plastic bags because it would significantly increase CO2 emissions. He commented in economics there were situations where the price did not adequately reflect the cost. A free bag did not reflect the cost to the grocery store and to the environment. He preferred to have a fee on plastic bags but the City did not have adequate code enforcement staff and he agreed it may be uncomfortable for retailers. Council President Wilson agreed with Councilmember Wambolt that this had been a useful exercise but it had run its course. He preferred to wait to see the outcome of Seattle's vote. He commented although. San Francisco voted to ban plastic bags, one representative indicated if he were to vote today, he would not vote to approve a ban. UPON ROLL CALL, MOTION CARRIED (4 -2), COUNCILMEMBERS ORVIS, PLUNKETT, PETERSON AND OLSON IN FAVOR; AND COUNCIL PRESIDENT WILSON AND COUNCILMEMBER WAMBOLT OPPOSED. 6A. CONSENT AGENDA ITEM G: ORDINANCE ADOPTING NEW CHAPTERS AND REPEALING CERTAIN CHAPTERS IN TITLE 20 ECDC RELATING TO PROCEDURES FOR APPROVING LAND USE DEVELOPMENT PERMITS; AMENDING VARIOUS ECDC SECTIONS THAT REFERENCE SECTIONS IN REPEALED CHAPTERS IN TITLE 20 ECDC. COUNCIL PRESIDENT WILSON MOVED FOR APPROVAL OF THE PROPOSED ORDINANCE. MOTION DIED FOR LACK OF A SECOND. Council President Wilson inquired about the votes regarding the ordinance at last week's meeting. Planning Manager Rob Chave recalled there were two 4 -3 votes, the first to return the Council to quasi Edmonds City Council Approved Minutes June 2, 2009 Page 10 judicial matters as is done today, and the second to allow written comment only for quasi judicial closed record reviews. This ordinance incorporates both of those items. Councilmember Orvis commented there appeared to be a 3 -way split among Councilmembers with regard to, 1) closed record review with oral comments, 2) closed record review with written comment, and 3) not having the Council involved in quasi judicial reviews. Council President Wilson commented this version of the ordinance reflects the direction the Council gave to staff to retain the Council in closed record reviews. Councilmember Plunkett commented some Councilmembers did not support requiring written argument at the close record review and he recalled an amendment made to last week to allow oral argument failed. Mayor Haakenson asked the outcome if the Council did not approve the ordinance. Mr. Chave answered the current code would continue to be followed. Council President Wilson asked how long staff had been working on the changes to Title 20. Mr. Snyder answered staff began the revision the process in October 2008. Councilmember Plunkett observed there were other aspects of the rewrite in addition to quasi judicial review and oral versus written comment. Mr. Snyder agreed there was a great deal more than that; it was an attempt to synthesize four chapters in the code. Council President Wilson read from last week's minutes: 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. Councilmember Orvis pointed out last week's minutes also reflect his statement that he would not support the ordinance unless it allowed oral public comment. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO AMEND TO REQUIRE ALL ARGUMENT IN A CLOSED RECORD REVIEW BEFORE COUNCIL BE WRITTEN. Council President Wilson commented the vote on this motion last week was 4 -3, with Councilmembers Wambolt, Olson, Peterson and himself in the majority and Councilmembers Orvis, Plunkett and Bernheim in the minority. UPON ROLL CALL, THE AMENDMENT CARRIED (4 -2), COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT IN FAVOR; AND COUNCILMEMBERS ORVIS AND PLUNKETT OPPOSED. UPON ROLL CALL, THE MAIN MOTION TIED (3 -3), COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON AND PETERSON IN FAVOR; AND COUNCILMEMBERS WAMBOLT, ORVIS AND PLUNKETT OPPOSED. Council President Wilson asked Councilmember Wambolt what he would like changed. Councilmember Wambolt advised he preferred to have the quasi judicial hearing before the Hearing Examiner. If quasi Edmonds City Council Approved Minutes June 2, 2009 Page 11 judicial closed record reviews were before the Council, he wanted the argument in writing rather than oral. Council President Wilson asked Councilmember Orvis and Councilmember Plunkett what they wanted changed. Councilmember Orvis answered he wanted the Council involved in closed record appeals and to allow oral comment. Mr. Snyder clarified only parties of record were allowed to speak during a closed record review. He explained neither Mayor Haakenson nor he liked to interrupt speakers during a closed record review to object to testimony. He suggested including language that would allow parities of record to make brief oral presentations to the Council and place the burden of objecting to matters outside the record on the parties. Council President Wilson commented he did not find oral testimony appropriate because it placed the Council as well as the petitioners in jeopardy because no new information could be introduced at the closed record review. He suggested the only way to achieve four votes may be to return to the original motion that required hearings be held before the Hearing Examiner. He summarized that would not be the best policy in his opinion but may be the only policy that the Council could agree to. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO ADOPT THE ORDINANCE PRESENTED LAST WEEK THAT MOVED THESE ISSUES TO THE HEARING EXAMINER AND EXCLUDED THE COUNCIL ENTIRELY. Council President Wilson clarified he only made this motion because he did not believe it was possible to get four votes any other way. Councilmember Orvis commented although he read the written records, the oral comments provided a different perspective. He accused Councilmember Wambolt of taking a stand that required the Council to do what he wanted or he would not approve the ordinance. He emphasized the public wanted the Council to be involved in the closed record review. Councilmember Wambolt commented he simply agreed with the Planning Board's recommendation. Councilmember Orvis responded the Planning Board did not cite any Council cases; they simply followed WCIA's recommendation. He concluded the best way to get four votes was to allow oral comment and for the Council to hear quasi judicial reviews. For the audience, Council President Wilson explained land use decisions were quasi judicial and it was the recommendation of the professionals that they be decided by a Hearing Examiner. There was a perception that the Council's opinion could be swayed by campaign contributions, thus the threat the Council could jeopardize the decision - making process. He emphasized there was no public hearing when closed record reviews were before the Council; in that process the two litigants present their case to the Council and there is no opportunity for comment from anyone other than parties of record. The question before the Council was whether argument to the Council should be in writing or oral. He summarized the role of the parties of record did not change; the only change was their comments would be in writing. Councilmember Orvis asserted passage of this ordinance would allow a developer who did not want to obey the rules to apply for a variance. The appellant could then make their case to the Hearing Examiner and under the existing regulations; the Hearing Examiner's decision could be appealed to the Council. The proposed ordinance did not allow appeals to the Council; they would be to Superior Court which could cost the appellant $20,000. Without oral argument the public was shut out and their public officials were inaccessible. He commented the reason appeal courts hear oral argument was because oral argument provided a different perspective. He summarized when oral argument was lost, the Council lost the ability to make a good decision. Edmonds City Council Approved Minutes June 2, 2009 Page 12 Councilmember Plunkett commented land use decisions were the most difficult but most important decisions in a community. Placing more land use decisions in the hands of judges, hearing examiners, staff and attorneys was not what the citizens of Edmonds want. The citizens of Edmonds want land use decisions heard by the City Council. He agreed oral testimony added flavor and context that was not provided via written comments which is the reason judges hear oral argument. He commended the Planning Board for doing a thorough job examining information provided by AWC, pointing out they did not examine any Council decisions. The Planning Board also made several inflammatory comments about quasi judicial decisions by Council but none related to cases heard by this Council. He concluded the Council had been judicious and effective in their quasi judicial hearings, oral arguments were exceedingly important, and the public preferred to have the Council hear land use decisions. Council President Wilson commented everyone needed compromise; he was willing to be the fourth vote to have the Council hear quasi judicial appeals or to take the Council out of that process. Unless the Council was willing to compromise, this ordinance would at least be a step forward. UPON ROLL CALL, MOTION CARRIED 4 -2, COUNCIL PRESIDENT WILSON, AND COUNCILMEMBERS PETERSON, WAMBOLT AND OLSON IN FAVOR; AND COUNCILMEMBERS ORVIS AND PLUNKETT OPPOSED. 613. AUDIENCE COMMENTS George Murray, Edmonds, commented by their action the Council had cut the public out of the hearing before the City Council. He agreed with Mr. Snyder's recommendation to take this issue out of Title 20 and continue discussing it. He urged Councilmember Peterson to state his position before votes were taken. Next, he referred to the presentation of the Transportation Plan to the Planning Board. The Plan has funding requirements of $106 million and potential revenue of $36 million. The Planning Board asked staff to prioritize projects within available funds. Also at that Planning Board meeting, a consultant reported on improvements that could be made to Yost Park. He expressed his disappointment in the Council's action, concluding it was the wrong decision on an important issue. Adrienne Fraley- Monillas, Edmonds, commented on the passion many citizens have for issues. As a Board Member of the South County Senior Center, she announced two fundraising events on June 13, a Red Hot Patio Sale where the public could purchase gently used items between 9:00 and 2:00 and an Italian dinner with a view and silent auction. She invited the public to attend and/or volunteer at both events. Donations can also be mailed to the South Sound Senior Center or online at SCSCEdm.org. Dave Page, Edmonds, assured he did not favor additional government, he preferred limited government, noting the City's government was enough. He suggested forming a Sunset /Scrub Committee to purge the code of laws that no longer served their purpose. As an example of how complex government has become, he explained 30 years ago he could provide the Planning Department with a legal description and have a survey done and have a dividable lot created within three weeks. This is now a five -step process that takes an average of a year and costs thousands. He recalled a project that required a second ADB review due to a change in the plant materials. Al Rutledge, Edmonds, provided the Council a 10 -page development package given to the Parks & Recreation Department in 2002 and suggested $440,000 be added to the proposed levy. He referred to Seattle's "Parks for All," a 10 -year $198 million levy. With regard to land use decisions, he preferred the Council remain in the process. Edmonds City Council Approved Minutes June 2, 2009 Page 13 Diane Buckshnis, Edmonds, commented once the public became aware of what was happening with regard to Chapter 20, they would demand changes. She expressed concern with the comment that campaign contributions could be used to sway a Councilmember. She recalled on March 17 she testified regarding Chapter 20 and the matrix she received from staff that indicated the Council would be removed from shoreline substantial development and shoreline variances. She referred to the March 5, 2009 Port Commission minutes regarding analysis of a joint development opportunity with the Washington State ferry terminals and the potential development of the Skippers and Antique Mall properties that would include height limits to a six story mixed use project. She pointed out with the passage of Chapter 20, that process could occur and the Council would have no opportunity for input because those matters would be considered by the Hearing Examiner. She concluded the public was not aware of the importance of this Chapter and she preferred the Council had not taken action on Chapter 20 tonight. Rich Senderoff, Edmonds, recalled Council President Wilson stating last year that he was embarrassed by the Council because they were unable to reach a decision. Dr. Senderoff was embarrassed by the Council voting against oversight, Council discretion and public transparency. He emphasized the importance of land use decisions in shaping the future of the City and questioned how the Council could pass that responsibility on to the Hearing Examiner. He understood the public could not speak to the Council during a closed record review and that the Council must follow the law. However, as the Council made decisions on quasi judicial matters, they had the ability to pass legislation to close a loophole or clarify something that was unanticipated. He concluded the issue was public oversight and transparency. He expressed concern with the Council flip- flopping on such an important issue. He agreed with Mr. Murray that Mr. Peterson should state his position. Michael Young, Edmonds, recognized that he lived in a representative democracy and could not control all aspects of his life. Councilmembers were elected to control some aspects and he respected that they were not experts in all things. He suggested audience members may need to defer to those with more expertise than simply passion. Whether he agreed or disagreed with the Council's decisions, he respected that a great deal of thought went into their decisions. 7. MAYOR'S COMMENTS Mayor Haakenson wished Councilmember Plunkett a Happy Birthday yesterday. He next announced the UW Washington women won the national softball championship this evening. 8. COUNCIL COMMENTS Council President Wilson highlighted on the Consent Agenda the Council passed an ordinance creating a Citizens Economic Development Commission. This Commission was the result of efforts to get the City on stable financial footing and particularly comments and recommendations by the Citizens Levy Review Committee. Each Councilmember will appoint two members and the Mayor will appoint three. A general application is available in the Council office for any citizen interested in applying or citizens may contact Councilmembers directly. The Council will appoint the members of the Commission at the July 7 meeting. He requested Councilmembers have their appointments ready by July 7. Councilmember Peterson reported he accepted Councilmember Bemheim's challenge to visit the Edmonds Food Bank. He remarked on their incredible operation and the staggering increase in the number of people served this year compared to last year. He urged the public to get involved in helping people in Edmonds who were homeless and hungry. Edmonds City Council Approved Minutes June 2, 2009 Page 14 Councilmember Plunkett complimented the audience for their passionate and well informed comments regarding plastic bags as well as quasi judicial matters. He thanked the audience for participating and for their dedication to the community. Councilmember Wambolt referred to a comment made by Ms. Buckshnis regarding 6 -story buildings on the Antique Mall property, recalling a 6 -story parking garage was contemplated by Washington State Ferries but that idea was killed some time ago. He commented although the Council voted on Title 20, it could be reconsidered if the change in the process became problematic. Councilmember Orvis clarified the Council could not go back and make changes to decisions that had already been made by the Hearing Examiner. Councilmember Wambolt agreed changes would not affect a project that had already been approved. Mayor Haakenson requested Mr. Chave provide the Council the number of closed record review matters held during the past four years compared to the number of building permit applications. 9. ADJOURN With no further business, the Council meeting was adjourned at 9:40 p.m. Edmonds City Council Approved Minutes June 2, 2009 Page 15