08/17/2009 City CouncilAugust 17, 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
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
Jim Lawless, Assistant Police Chief
Lorenzo Hines, Interim Finance Director
Frances Chapin, Cultural Services Manager
Rob Chave, Planning Manager
Ann Bullis, Building Official
Rob English, City Engineer
Jerry Shuster, Stormwater Eng. Program Mgr.
Mike Clugston, Planner
Bio Park, City Attorney
Sandy Chase, City Clerk
Jana Spellman, Senior Executive Council Asst.
COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCIL PRESIDENT WILSON,
TO APPROVE THE AGENDA IN CONTENT AND ORDER WITH THE ADDITION ON OF AN
AGENDA ITEM TO DISCUSS AND REQUEST A LEGAL OPINION FROM THE CITY
ATTORNEY REGARDING THE ISSUANCE OF THE 523 ALDER STREET ROOF PERMIT.
MOTION CARRIED UNANIMOUSLY.
Mayor Haakenson advised it would be added to the agenda as Item 9B.
2. CONSENT AGENDA ITEMS
Councilmember Wambolt requested Item F be removed from the Consent Agenda.
COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PLUNKETT,
TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED
UNANIMOUSLY. The agenda items approved are as follows:
A. ROLL CALL
B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 4, 2009.
C. APPROVAL OF CLAIM CHECKS #113290 THROUGH #113460 DATED AUGUST 6,
2009 FOR $725,189.09, AND #113461 THROUGH #113614 DATED AUGUST 13, 2009 FOR
$250,261.37. APPROVAL OF PAYROLL DIRECT DEPOSIT AND CHECKS #48380
THROUGH #48454 FOR THE PAY PERIOD JULY 16, THROUGH JULY 31, 2009 FOR
$969,292.50.
D. ACKNOWLEDGE RECEIPT OF A CLAIM FOR DAMAGES FROM MARK BEARD
($844.02).
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E. AUTHORIZATION TO CALL FOR BIDS FOR CONSTRUCTION OF THE SR 99
INTERNATIONAL DISTRICT ENHANCEMENT PROJECT.
G. AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES CONTRACTS
FOR BUILDING CODE PLAN REVIEW WITH BECK & ASSOCIATES, AEGIS
ENGINEERING AND LANI O'CONNOR, CONSULTING ENGINEER.
H. RESOLUTION NO. 1204 ADOPTING THE STRATEGIC ACTION PLAN FROM THE
LAKE BALLINGER/MCALEER CREEK WATERSHED FORUM.
ITEM F: REPORT OF BIDS OPENED ON AUGUST 5 2009 FOR THE 2009 ASPHALT OVERLAY
PROJECT AND AWARD OF CONTRACT TO CEMEX CONSTRUCTION MATERIALS
PACIFIC LLC ($798,689.77).
Councilmember Wambolt referred to the 5th & Dayton Street crosswalk rehabilitation, recalling that it
was totally redone 3 -4 years ago at the same time as 5th & Main. He observed the 5th & Dayton crosswalk
had deteriorated due to the bus traffic that is not present at 5th & Main and asked whether this
rehabilitation would result in a longer lifespan. City Engineer Rob English responded in the original
replacement, a 4 -inch concrete section was placed over the existing underlying concrete slab. In this
project both the 4 -inch section as well as the existing slab would be removed and replaced to provide a
stronger base and more durability.
Councilmember Wambolt asked whether Cemex Construction Materials Pacific LLC was the original
contractor. Mr. English was uncertain; Mayor Haakenson did not believe they were the original
contractor.
Councilmember Wambolt observed the bids for that work were considerably higher than the engineer's
estimate. Mr. English agreed the engineer's estimate for all the concrete work were low which was more
pronounced in this project due to the amount of concrete. He noted the bids for the curb ramps were also
higher than the engineer's estimate for the same reason.
COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCIL PRESIDENT WILSON,
FOR APPROVAL OF ITEM F. MOTION CARRIED UNANIMOUSLY.
Mayor Haakenson introduced Interim Finance Director Lorenzo Hines.
3. PUBLIC HEARING ON INTERIM ZONING ORDINANCE NO. 3746 AMENDING THE
PROVISIONS OF ECDC 20.12.090(B), AMENDING THE PROVISIONS OF ECDC 20.11.050,
FORWARDING FOR REVIEW AND RECOMMENDATION TO THE CITY'S PLANNING
BOARD A NEW PARKING STANDARD FOR THE HIGHWAY 99 CORRIDOR, PROVIDING
FOR A SUNSET CLAUSE, AND FIXING A TIME WHEN THE SAME SHALL BECOME
EFFECTIVE.
Planning Manager Rob Chave explained the Council's previous adoption of this Interim Zoning
Ordinance required a public hearing. The Planning Board is reviewing the matter and will provide a
recommendation to the Council.
Mayor Haakenson opened the public participation portion of the public hearing. There were no members
of the public present who wished to provide testimony.
4. PUBLIC HEARING ON ECC 7.200 (ILLEGAL DISCHARGES TO STORMWATER SYSTEM
AND WATER COURSES).
Stormwater Engineer Program Manager Jerry Shuster provided several reasons for adopting Edmonds
City Code Chapter 7.2000: the Phase II Municipal Stormwater Permit requires an Illicit Discharge
Detection and Elimination (IDDE) ordinance for the City's municipal separate storm sewer system
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(MS4); the existing Code, adopted in 2003 needs to be updated to align with the Permit issued in 2007;
and the storm drainage system is directly connected to creeks, Puget Sound, and Lake Ballinger and no
treatment occurs prior to discharge to those surface water bodies. He provided an illustration of
stormwater runoff that discharges into the stormwater system versus sanitary sewers that enter the
treatment plant before entering Puget Sound.
He explained the Permit requires, 1) development and implementation of an IDDE ordinance, 2)
implementation of an on -going IDDE program to identify, investigate, terminate, clean -up illicit
discharges and spills, including mapping of our MS4, and 3) informing public employees, businesses, and
the general public of the hazards associated with illegal discharges and improper disposal.
The development of an ongoing IDDE program includes mapping all outfalls to the municipal storm
system, developing procedures for on- going, proactive IDDE program evaluation and assessment that
includes illicit connections, and providing appropriate training for municipal field staff on identification
and reporting of illicit discharges into MS4s. The IDDE ordinance will address prohibited discharges and
connections, allowable discharges and conditional discharges. The requirements in the ordinance will
also be integrated with the Plumbing Code and Health Code.
Mr. Schuster described an illicit discharge as any discharge to the municipal separate storm sewer that is
not composed entirely of stormwater with the exception of allowable discharges, conditional discharges
and discharges pursuant to another discharge permit approved by the State. He provided the Phase 11
Permit definition of an illicit connection: any man -made conveyance that is connected to a MS4 without
a permit, excluding roof drains and other similar type connections. Examples include sanitary sewer
connections, floor drains, channels, pipelines, conduits, inlets, or outlets connected directly to the MS4.
He provided the following examples:
Allowable Discharges
• Footing drains
• Crawl space pumps
• Air conditioning condensate
• Springs
• Flow from emergency fire fighting activities.
Conditional Discharges
• Public water supply (dechlorinated)
• Swimming pool (dechlorinated)
• Wash water (sweep first, no detergent)
He referred to a summary of the code changes, pointing out most of the changes were in terminology to
align the current code with terminology in the permit. The Department of Ecology also recommends
prohibiting illicit discharges to the storm system as well as groundwater.
He posed the following questions to illustrate activities that are /are not illicit discharges:
• Is water from a roof drain illicit discharge? Not illicit.
Is water from power - washing driveways an illicit discharge? Conditional, illicit if washing motor
oil, okay if washing natural materials.
Is water from a car wash an illicit discharge? Illicit, cannot allow soap and dirt to enter the storm
system.
Mr. Shuster advised a car wash kit was available free of charge from the City for charity car washes. He
provided examples of common sources of illicit discharge:
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• Illegal dumping practices (95 %)
• Broken sanitary sewer line (81 %)
• Cross - connections (71 %)
• Connection of floor drains to storm sewer (62 %)
• Sanitary sewer overflows (52 %)
• Failing septic systems (33 %)
• Improper RV waste disposal (33 %)
• Pump station failure (14 %)
Mayor Haakenson opened the public participation portion of the public hearing.
Rich Senderoff, Edmonds, expressed support for the Council's adoption of the ordinance to update the
City's Code regarding illegal discharges to the stormwater system and water courses. As a waterfront
community, he recommended the City not wait for federal and state mandates to take the necessary steps
to protect Puget Sound and the watershed from illicit discharges. In addition to clarifying definitions and
options regarding enforcement of illegal discharges into the stormwater system, he recommended the City
take an active role regarding education and raising awareness about urban runoff and impacts on the
watershed and Puget Sound. He commented many members of the community believe all water entering
the stormwater system is treated. He commended the Edmonds Backyard Wildlife Association for
organizing volunteers to do stormwater stenciling to foster awareness regarding runoff. He suggested
Council pass a resolution concurrent with this ordinance recommending residents and business owners
voluntarily take steps to minimize urban runoff. He provided a list of ways to reduce runoff such as
minimizing lawn watering, installing drip or soaker hose irrigation, replacing turf with drought- tolerant
shrubs or groundcover, creating a rain garden, using only organic based fertilizers and minimizing
commercial based herbicides, and planting native trees and shrubs.
Dave Page, Edmonds, commented that 2,000 drains enter Lake Ballinger. He applauded the efforts of
the Edmonds Backyard Wildlife Association and other organizations and cited the importance of
continued vigilance regarding stormwater runoff.
Roger Hertrich, Edmonds, referred to Section 7.20.120, Water Body Protection, that suggests property
through which water passes not pollute, contaminate, induce new vegetation or retard the water flow. He
questioned whether the ordinance provided the City the ability to address streams that had been
manicured /altered by property owners. If the ordinance did not, he recommends the City determine how
existing situations would be addressed. He questioned whether roof drains must enter the stormwater
system or could drain onto the ground. He also asked if it was illegal for a person to wash their car on the
grass due to the potential for oil to enter the groundwater.
Hearing no further public comment, Mayor Haakenson closed the public hearing.
With regard to Dr. Senderoff's comments about public education, Mr. Shuster advised Edmonds was a
member of a group of 45 communities in the Puget Sound region working with the DOE and EPA on a
very large public education program, Puget Sound Starts Here, that will begin this fall.
COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER WAMBOLT,
TO ADOPT ORDINANCE NO. 3751 UPDATING EDMONDS CITY CODE 7.200 (ILLEGAL
DISCHARGES TO STORMWATER SYSTEM AND WATERCOURSES).
Council President Wilson commended Mr. Shuster for his efforts to bring the City into compliance with
federal and state mandates.
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Councilmember Bernheim also commended Mr. Shuster. He referred to the environmental agenda and
the need to balance education and legislation.
MOTION CARRIED UNANIMOUSLY.
5. CLOSED RECORD REVIEW OF THE PLANNING BOARD'S RECOMMENDATION TO
APPROVE THE REZONE OF THE PROPERTY LOCATED AT 7631 212TH STREET SW FROM
RESIDENTIAL MULTIFAMILY (RM -2.4) TO NEIGHBORHOOD BUSINESS (BN). THE
APPLICANT IS OASIS INC.
Mayor Haakenson invited Councilmembers to make any disclosures under the Appearance of Fairness
Doctrine.
Councilmember Orvis advised six years ago he lived in Rustic Manor Condominiums which is
approximately one lot away from this site. He advised that would not affect his ability to make a fair and
impartial decision.
Councilmember Plunkett disclosed in 2005 he accepted a $100 contribution from one of the parties of
record, Clay Enterprises. As he did not feel he met the test of the appearance of fairness, he recused
himself from the closed record review. Councilmember Plunkett left the dais and the Council Chambers.
Mayor Haakenson asked whether any of the parties of record, Don Miller, Oasis, Inc., or Ken Clay, had
any challenges to Councilmember Orvis' participation. There were no objections voiced.
Mike Clugston, Planner displayed an aerial photograph of the subject parcels, 6731 212th Street
Southwest, just west of the intersection of 76th Avenue & 212th. He explained the record consists of
Exhibit 1, minutes of the July 22, 2009 Planning Board public hearing; Exhibit 2, the staff report, and
Exhibit 3, the list of parties of record. He explained there are currently four buildings, three rectangular
and one round building, on the site that have existed since the 1960s. There is an existing conditional use
permit (CUP) for the four buildings currently used as medical offices. The site is currently zoned RM-
2.4. The round building on the site is currently vacant.
The applicant has applied to rezone the subject parcel from RM -2.4 to Neighborhood Business (BN) in
order to use the round building as a retail pharmacy. Retail is not an allowed used in the RM zone.
Should the rezone be approved, the applicant would likely install a drive- through window which requires
a separate CUP. The Planning Board unanimously recommended the Council approve the rezone request,
citing its consistency with the Comprehensive Plan land use designation for the parcel and because it met
the six rezone criteria in the Zoning Code.
Applicant
Don Miller, GWC Land Development Consulting, Mukilteo, representing the applicant, Oasis, Inc.,
commented staff's analysis was very complete. He explained the proposed rezone met the Zoning Code,
implements the Comprehensive Plan and fulfills the applicant's intent to allow operation of a retail
pharmacy on the site. The applicant will submit a separate application for the drive - through window if
the rezone is approved.
Mayor Haakenson invited the parties of record to provide comment. None of the parties of record wished
to address the Council.
COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO
DIRECT THE CITY ATTORNEY TO PREPARE AN ORDINANCE APPROVING THE CHANGE
IN ZONING, AS RECOMMENDED BY THE PLANNING BOARD.
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Councilmember Orvis commented the rezone would allow commercial uses on what was essentially a
commercial site.
MOTION CARRIED UNANIMOUSLY. (Councilmember Plunkett did not participate in the vote.)
Councilmember Plunkett returned to the dais.
6. UPDATE ON THE SOUTH COUNTY SENIOR CENTER.
David McNayr, South County Senior Center Executive Director, explained the Senior Center was a
regional multi- purpose center providing programs and services for the senior population of South
Snohomish County. Programs and services are grouped in three major activity categories: 1) health and
wellness, 2) social services and community outreach, and 3) education, recreation and social activity
programs. The current membership at the center totals approximately 1300 individuals and over 3,000
members and guests take part in activities at the center.
The Center's mission statement is to advocate for the senior citizens in the community and provide a
variety of programs and services to help fulfill social service, recreational, educational, and health and
wellness needs of the senior community, with a view toward broadening and enhancing the quality of
their lives and stimulating creative imaginations. The Center is celebrating its 41st year of service to the
community. The Center is a member of the Washington State Association of Senior Centers. It served as
a national model for formulating the requirements for certification as a multi- purpose senior center.
The SCSC serves the needs of the elder population of the community by providing extensive support for a
very diverse target population that faces a multitude of issues including poor health, low and fixed
incomes, lack of employment training and opportunities, inadequate housing options and lack of personal
and family support. The SCSC functions as an access point for all community -aging services resources
while providing support and services in a warm, welcoming and accepting environment. The SCSC's
overriding goal is to maximize the independence of senior citizens, reduce or eliminate the need for
institutional care, while enhancing the quality of life.
He commented on losses people experience as they age, commenting the need for programs and services
increases each year because seniors are the fastest growing segment of the population. This trend will
continue as people are living longer and healthier lives and because the baby boomer population has
achieved senior status.
Mr. McNayr provided an overview of the three program areas:
• Health and Wellness Programs — includes fitness and exercise classes, health screening, surplus
food clinic as a member of Food Lifeline, serve over 15,000 hot lunches in their dining room
annually, loaned health assistance equipment, SHIBA advisers who provide free health insurance
information to seniors, and an annual health fair
• Social Services and Community Outreach — caregivers resource center, Alzheimer's,
Parkinson's, diabetes and sigh impaired support groups; senior employment service; information
and referral services, Sound Thrift Store that offers low priced goods to seniors and the
community and provides revenue for the Center's operations; Country Boutique consignment
store that provides extra income for senior crafters; AARP tax assistance, transportation
assistance for low income seniors, community breakfasts; themed dinners and summer barbeques.
• Education, Recreation and Social Programs — offer classes on a variety of subjects; locally
planned trips using the Center's bus or van or Community Transit, Sounder and Washington State
ferry; and guest lecturers
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Mr. McNayr explained future programs will be focused on health and well -being as the aging population
continues to increase and live longer. One of the strategies for growth includes seeking younger seniors
who have skills and abilities to share in classroom situations.
He provided several examples of seniors who have been assisted by services provided by the Center
including providing a meaningful place for seniors to meet new friends, health screening, nutritious
lunches, use of the Center's employment services to hire caregivers, volunteer opportunities that make
seniors feel useful and needed, activities to keep seniors active and engaged, and referral to the Food
Surplus Program. He provided a brief video illustrating seniors involved in activities at the Center. He
emphasized the importance of the sustainability of the human spirit, especially for seniors.
Mr. McNayr concluded the Center was once again thriving in a relaxed and fun atmosphere. They met
their goal of raising $25,000 through the Young at Heart Campaign and civic and corporate partners have
returned in record numbers. By November the Center will have a newly renovated front building
entrance. Also in November, members will have the opportunity to elect seven new individuals to the
Board of Directors.
He commented the $60,000 in funding provided by the Center to the Center this year and in 2010 is much
more than a grant. It is an investment in the lives of numerous seniors at the SCSC. He thanked the
Mayor and Council for partnering with the SCSC.
Councilmember Plunkett thanked Mr. McNayr, Board President Rose Cantwell and Board Members for
taking on a large challenge and for creating a great deal of enthusiasm.
Mr. McNayr invited the Council and the public to the Sound Singers' beachfront luau on August 20.
7. PRESENTATION ON STEVENS HOSPITAL STRATEGIC PLAN.
Sarah Zabel, Vice President/Chief Planning Officer, Stevens Hospital, introduced Hospital
Commissioners Bob Meador and Chuck Day, consultant Howard Thomas, and Rick Canning, Chief
Financial Officer /Chief Operating Officer. She provided an overview of Stevens Hospital:
• Public Hospital District, governed by a Board of Commissioners, and have the ability to levy
taxes to raise funds for the District
• Third largest public hospital district in Washington
• In 2009 Stevens Hospital will receive approximately $4.9 million in tax dollars from the
community
In 2005, the Board of Commissioners developed the first Strategic Plan which included a new mission
and vision statement for the District. The mission was to improve the health and well -being of the
community through local, high - quality and compassionate health care services. The vision was to be a
trusted and financially strong provider of high quality health care services who collaborates with others to
creatively respond to the health needs of a diverse community. The Commission also developed a series
of goals which Stevens Hospital has largely been successful in meeting.
Ms. Zabel identified several recent accomplishments:
• Increase in the employee satisfaction ranking from the 4th percentile in 2006 to the 73rd percentile
in 2008.
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• Increase in operating income and net income, with the first positive bottom line in operations in
2008 since 1997
• In 2009 received a five star rating for the quality of joint replacement, treatment of stroke and
treatment of pneumonia from HealthGrades
• In 2008 became the first hospital in Washington state to receive the American Heart
Association's Coronary Artery Disease Gold Performance Achievement Award
• The Mother /Baby Unit is in the top one percent in patient satisfaction of 1,000 hospitals across
the country as rated by 640,000 patients in a survey conducted late 2008 by Press Ganey
• CEP America awarded ED contract effective 7/1/09
• Rapid Medical Evaluation implemented in the Emergency Department
• Center for Wound Healing and Hyperbarics
• Digital Mammography
• Opened 16 new Progressive Care Unit Beds
A timeline was provided for the Strategic Planning process that began with a stakeholder input meeting
and SWOT analysis in May, stakeholder input meeting initial strategy discussion in June,
Board/Executive Team Draft Plan development in June, community review and input in July and August
with Plan finalization and adoption anticipated in September. She advised the community review
includes presentations to area City Councils as well as Town Hall meetings.
Findings of the SWOT analysis included:
• Strengths — recent accomplishments moving in the right direction, location, commitment to
community.
• Weaknesses — image issues and weak brand, financial challenges
• Opportunities — capture market share in community
• Threats — increasing competition from well capitalized competitors, unknown challenges of
healthcare reform, economy
Key strategy priorities include the following:
• Community
o Stimulate a sense of community partnership and ownership of Stevens Hospital
• Service
• Strengthen brand so that it is consistently recognized and respected in the community
• Build a culture where providing patients and their families /support groups an excellent
patient experience is an expectation at all levels of the organization
• Improve cultural competence
• People
• Recruit and retain high quality physicians
• Foster a culture of employee empowerment, involvement, and accountability
• Quality and Safety
• Provide excellence in quality and safety in all patient care environments and throughout the
continuum of care
• Meet Electronic Health Record mandates
• Finance
• Continue to improve financial performance
• Meet our ongoing need for capital for facilities and technology
• Monitor and adapt to reimbursement reforms
• Growth
o Perform a service line assessment to align community needs, quality needs, and growth
opportunities
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o Grow business volumes with targeted affiliations in numerous service areas
Ms. Zabel advised a full list of the priorities as well as additional information was available on the
StevensHospital.org website. She relayed a potential affiliation strategy or tactic appears in each of the
strategic pillars. The Board of Commissioners is working with a consultant on what an affiliation could
mean. Next steps include presentations and Town Hall meetings to gather input with Plan finalization
and adoption anticipated for September.
Councilmember Wambolt pointed out the Town Hall meeting held in Edmonds conflicted with the
candidate forum and suggested scheduling another Town Hall meeting in Edmonds. She agreed that
could be considered.
Council President Wilson thanked the Board for including Councilmember Wambolt and him in the
Strategic Planning process as well as engaging the public. Recalling that community partnership was a
low priority in the key strategic priorities, he emphasized the importance of community partnership.
Council President Wilson asked Ms. Zabel to address the potential for a levy. Ms. Zabel stated the
Commission had considered a levy or bond. Original considerations were for a large levy ($400 million)
to construct a new hospital; however, the shift in the economy required consideration of a lower amount
($50 million) that would allow Stevens Hospital to meet the community's need for facilities by building a
new Emergency Department and relocating other departments. She assured consideration of a bond /levy
was in the conceptual stages.
Council President Wilson suggested the Board consider Children's Hospital as another potential partner.
He relayed the Council's appreciation to Stevens Hospital for making this presentation, recognizing
Stevens Hospital is the City's largest employer and the most important healthcare entity in South
Snohomish County.
8. AUDIENCE COMMENTS
Rich Senderoff, Edmonds, referred to Agenda Item 9A, suspending the application of the Community
Development Code intended to protect critical area tracts. He was concerned with issuing a zoning
moratorium to any pending subdivision, short subdivision or PRD parcel prior to revising or replacing the
ordinance intended to protect critical areas. He questioned if development in critical area tracts
previously protected would be allowed while an alternate recommendation or workplan was considered
by the Planning Board. He questioned why the Council was considering an interim ordinance now when
the ruling resulting from a reversal of a Superior Court decision on appeal was made over a year ago; why
the Planning Board could not address the issues in the existing ordinance while maintaining the existing
protections; and how critical areas, including native vegetation and wetlands in RS -12 and larger zones
would be protected in the interim. He urged the Council to consider the importance of trees and wetlands
to easing the burden of stormwater drainage system and protecting Puget Sound.
Dave Page, Edmonds, referred to an inference made during a candidate forum that he was involved in a
real estate transaction with Councilmember Wambolt and Al Dykes, assuring he had no real estate
dealings with Councilmember Wambolt, Mr. Dykes or the former Safeway site.
George Murray, Edmonds, referred to Councilmember Wambolt's quote in the newspaper regarding
candidates accepting donations from the Alliance for Citizens of Edmonds supporters.
Mayor Haakenson cautioned the public not to speak regarding their support or opposition to a candidate.
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Roger Hertrich, Edmonds, referred to Agenda Item 3, a public hearing on an interim zoning ordinance
to extend design review, questioning why the interim zoning ordinance also included a review of parking
standards on Highway 99. He referred to federal funds provided to the City for overlays, expressing
concern that the engineer's estimate was low for all projects, a total of a $200,000 difference between the
engineer's estimate and the bids.
Mr. Page concluded his comments, recalling several speakers have voiced support for transparency and
citizen oversight. After reviewing the budget every year and always receiving satisfactory answers to his
questions from staff and the Mayor, he assured the City was very transparent.
9A. REVIEW AND POTENTIAL ACTION ON AN INTERIM ZONING ORDINANCE SUSPENDING
THE APPLICATION OF CHAPTER 23.90.040(C), RETENTION OF VEGETATION ON
SUBDIVIDABLE UNDEVELOPED PARCELS.
Planning Manager Rob Chave explained a recent court case in King County, Citizens Alliance for
Property Rights v. Sims, invalidated King County's set- asides in rural areas. The City has a similar
provision in the critical area regulations, a 30% native vegetation requirement for subdivisions in the RS-
12 and RS -20 zones. The purpose of the interim ordinance will be to suspend enforcement of that portion
of the critical area regulations while studying alternatives to achieve the goal of retaining vegetation on
larger lots. He summarized the 30% requirement in the City's code was not tied to an impact or a case -
by -case decision - making process and thus was not defensible based on the recent King County case. The
interim ordinance is narrowly tailored and does not impact streams, wetlands or any other critical area
provision; it is only the native vegetation provision in the RS -12 and RS -20 zones.
City Attorney Bio Park assured this was not a moratorium on enforcement of the critical area ordinance; it
was only on the specific provision related to a 30% native vegetation requirement for subdivisions in the
RS -12 and RS -20 zones. Because the language was not defensible based on the recent King County
decision, best practice would be to send the provision to the Planning Board to draft more appropriate
provisions. Mr. Chave advised the timing was important because subdivision applications are beginning
to surface for the RS -12 and RS -20 zones.
Councilmember Plunkett asked whether the interim ordinance could result in the problems Dr. Senderoff
suggested. Mr. Chave assured it did not include critical areas for streams or wetlands.
Councilmember Orvis pointed out Section 23.40.270 referenced in the proposed interim zoning ordinance
was the entire critical area ordinance. Mr. Park requested an opportunity to investigate the correct code
section proposed to be repealed.
9B. FURTHER DISCUSSION AND REQUEST FOR A LEGAL OPINION FROM THE CITY
ATTORNEY REGARDING THE ISSUANCE OF THE 523 ALDER STREET ROOF PERMIT.
City Attorney Bio Park pointed out this was a Special Council meeting versus a regular Council meeting.
Case law recommends City Councils refrain from taking any final action on items not advertised on the
agenda of a Special Meeting, therefore, he recommended the Council not take any final action on this
matter at tonight's Special Meeting.
Councilmember Bernheim displayed the plans for the building at 523 Alder that were originally
submitted by the applicant and approved by the Building Department. He observed the original plans
include 4:12 pitches on the roof. He displayed the revised plans submitted recently that include a roof
description of 1:12. He provided an excerpt of the code provision that requires all portions of the roof
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Page 10
above 25 feet shall have a slope of no less than 4:12. He observed the roof slope on the revised plans
appeared to actually be %4:12.
COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCIL PRESIDENT WILSON,
TO ASK THE CITY ATTORNEY TO DELIVER AN OPINION AS TO WHETHER OR NOT THE
APPROVAL OF THE PERMIT IN THIS CASE IS ACCORDING TO THE CODE. AND IF IT IS
DEEMED ACCORDING TO THE CODE, HAVE A BRIEF EXPLANATION OF THE APPEAL
PROCESS FOR PERMITS ISSUED BY THE BUILDING DEPARTMENT FOR THINGS THAT
DO NOT HAVE A PUBLIC HEARING.
Councilmember Bernheim provided ten reasons for approving this motion:
1. Because it is a flat roof and the code requires that all portions of the roof above 25 feet shall have
a slope of 4:1.2 or greater.
2. This was not built according to plan. The plan that was submitted was in accordance with the
regulations but the builder decided not to construct the building in that manner.
3. It is a very large home, a substantial project with a substantial impact on adjacent neighbors.
Adjacent residents claim they have lost thousands in the value of their homes. It is a potential
theft of public space because the City's regulations limit the height of buildings.
4. The project was inspected by a City Inspector who did not notice that the flat roof exceeded the
25 feet.
5. Plans were submitted and reviewed by the department, not acted upon and discarded.
6. On June 23, two Councilmembers assured the builder knew the City Code well and would not
construct a building that would violate the code. He found that a dangerous attitude for
government to have.
7. The flat roof that has been approved has been termed as a drainage collection device and
approved as an exception to the flat roof. He questioned the installation of a drainage collection
device on a roof, noting a roof is intended to shed water rather than collect it.
8. Allowing flat portions of roofs above 25 feet as drainage collection devices has been interpreted
in many other projects in the City. However, there is no written documentation of that
interpretation.
9. In his own case, a neighbor attempted this in his backyard a couple years ago and was questioned
by staff in interpreting a similar provision, a contrary interpretation to the building at 523 Alder.
10. Everybody makes mistakes. It's better to recognize that a mistake has been made and correct it as
soon as possible.
Councilmember Bernheim explained he would like to have a legal opinion regarding whether approval of
this flat roof over 25 feet was consistent with the Code based on any reasonable legal interpretation that is
not arbitrary and capricious. If it is decided it is legal in spite of all these circumstances, in light of the
Title 20 discussion regarding appeal periods and how citizens participate, he was interested in the appeal
period for permits that have no public review and issued by the Building Department. He referred to the
Nycrum case, noting the basic principle of that case is if the City approves something, after a certain
period of time, nothing can be done.
Council President Wilson commented all the issues that have been raised through this process were
important in the Council's capacity as oversight. He appreciated the staff and Mayor's diligence in
answering questions and supported having as full a conversation as possible. He commented the $30
Councilmember Bernheim paid to obtain records from the City should be reimbursed. Councilmember
Bernheim responded he may ask for reimbursement of future expenses but he was comfortable at this
time paying it.
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August 17, 2009
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Councilmember Plunkett commented on the numerous forthright and civil emails between
Councilmember Bernheim and administration over the past 4 -5 days. He commented even with
differences of opinion and interpretation, staff, the Mayor and Councilmember Bernheim have
communicated very productively and positively.
MOTION CARRIED UNANIMOUSLY.
9A. REVIEW AND POTENTIAL ACTION ON AN INTERIM ZONING ORDINANCE SUSPENDING
THE APPLICATION OF CHAPTER 23.90.040(C), RETENTION OF VEGETATION ON
SUBDIVIDABLE, UNDEVELOPED PARCELS (CONTINUED).
City Attorney Bio Park commented after reviewing the materials, he determined the City Attorney's
office had forwarded Planning Manager Rob Chave an incorrect ordinance. He suggested they provide a
correct ordinance to staff this week.
Mayor Haakenson advised this item would be rescheduled on next week's agenda.
Assuming the ordinance was intended to repeal the 30% vegetation provision rather than the entire critical
area ordinance, Councilmember Bernheim asked whether the 10% open space requirement in the BD
zone was also subject to a similar challenge. Mr. Park responded the reasonable interpretation was no,
but the decision in the recent court case in King County, Citizens Alliance.for Property Rights v. Sims,
even setbacks could be vulnerable to challenge. He was doubtful the District 1 Court of Appeals intended
to include setbacks and set asides that were part of regulating development.
Mr. Chave commented in discussions with City Attorney Scott Snyder, things that were more traditional .
such as zoning setbacks or bulk restrictions were likely to be defensible and not covered by the decision.
However, the decision was written broadly and language in the City's Code that was similar to the King
County set asides were vulnerable and should be reviewed.
Councilmember Bernheim suggested rather than declaring a moratorium on the enforcement of the entire
30% vegetative set aside, simply retain Section C and remove the 30% set aside. This would retain the
language that as a provision of this title, the Director may require retention of a certain minimum of
native vegetation. He noted in the decision on the King County case, an individual examination of the
situation validated the set asides and a blanket requirement that a certain percent be retained without
consideration to how it was applied invalidated the set asides. He summarized a moratorium on the entire
Section C would impose a broader moratorium than was required by the King County case.
Councilmember Peterson asked how King County was responding to the decision. Mr. Park offered to
research King County's response and provide that information at next week's Council meeting.
10. MAYOR'S COMMENTS
Mayor Haakenson recognized City Clerk Sandy Chase for the successful shredding event last Saturday.
He also thanked Edmonds - Woodway High School for the use of their site and the City of Lynnwood for
their Citizen Patrol.
11. COUNCIL COMMENTS
Council President Wilson reported he has been unable to fulfill his duties on the Community Transit
Board and has stepped down from that position. He invited another Councilmember to take his place on
that Board and briefly described the process for being appointed to the Board.
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August 17, 2009
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Council President Wilson expressed his thanks to Chief Information Officer Carl Nelson and Senior
Executive Council Assistant Jana Spellman for updating the City Council web pages. He advised there is
now a City Council home page with a great deal more information and each Councilmember will have
his /her own webpage. Because there is not a comprehensive policy regarding the content of the
individual webpages, he cautioned against including any campaign material, links to personal blogs, etc.
Council President Wilson expressed his appreciation to Councilmember Bernheim for the motion to
request a legal opinion regarding approval of the permit for the building at 523 Alder. He urged Council
to bring any large questions to the Council for review to ensure the Council was in agreement that
research by staff, consultants and the City Attorney was an appropriate expenditure of resources.
Councilmember Wambolt recalled a citizen's question whether the City could regulate the size of
overhead cable installed by cable companies. He relayed City Attorney Scott Snyder's response that the
size of cable was not within the City's regulatory authority; it was controlled by the FCC and the State
Electrical Code.
Councilmember Wambolt recalled there had been a number of citizen inquiries regarding when the
sidewalk at 3rd & Dayton would be repaired. He reported new curbs and sidewalks would be installed
around the building at 3rd & Dayton when Dayton was repaved from Sunset to 5t'' Avenue at the end of
next month. The paving will be paid for via a grant the City received and the curb and sidewalks will be
paid for by the developer.
Councilmember Bernheim reported he has proposed an ordinance that would regulate the maximum
campaign contribution for Mayor and City Council races to $750. He invited the public to provide
comment in support or opposition to that amount or another amount. He noted his intent was not to have
Council discussion regarding this prior to the election but he was hopeful it could be considered in the
next 3 -4 months.
With regard to green branding and developing a reputation as a green City, Councilmember Bernheim
commented it was the attitude of citizens that resulted in a green city, not the ordinances the City Council
passed. He referred to Planet Power News, which he receives because he pays a higher price for
solar /renewable energy, where it was reported Edmonds had 519 homes that participate in the program,
nearly as many as Everett. He applauded the citizens of Edmonds for disproportionately supporting
planet power. He hoped to increase participation in that program in the future.
Councilmember Peterson expressed his thanks to the Edmonds Chamber of Commerce for another
successful Taste of Edmonds and the tremendous amount of work done by the numerous volunteers.
12. ADJOURN
With no further business, the Council meeting was adjourned at 9:00 p.m.
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August 17, 2009
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