Loading...
12/01/2009 City CouncilDecember 1, 2009 At 6:15 p.m., Mayor Haakenson announced that the City Council would be meeting in executive session to receive legal advice regarding pending or threatened litigation. He stated that the executive session was scheduled to last approximately 30 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. No action was anticipated to occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Haakenson, Councilmembers Orvis, Wambolt, Plunkett, Bernheim, Peterson and Wilson. Others present were City Attorney Scott Snyder, Attorney Mark Bucklin, Attorney Jaime Allen, Public Works Director Noel Miller and City Clerk Sandy Chase. At 6:45 p.m., Mayor Haakenson announced to the public that an additional 15 minutes would be needed in executive session. The executive session concluded at 6:58 p.m. The regular Edmonds City Council meeting was called to order at 7:02 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 Steve Bernheim, Councilmember Dave Orvis, Councilmember Ron Wambolt, Councilmember Strom Peterson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT Al. Compaan, Police Chief Stephen Clifton, Community Services /Economic Development Director Brian McIntosh, Parks & Recreation Director Noel Miller, Public Works Director Rob Chave, Planning Manager Ann Bullis, Building Official Jerry Shuster, Stormwater Eng. Program Mgr. Rob English, City Engineer Bertrand Hauss, Transportation Engineer Gina Coccia, Planner Jeanie McConnell, Engineering Program Mgr. I Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder Mayor Haakenson advised Agenda Item 3 (Presentation by WSDOT Ferries Division Assistant Secretary David Mosley - Update on Vehicle Reservations Pre - Design Study) would be rescheduled in January because Mr. Mosley was not available tonight. Mayor Haakenson also relayed Council President Wilson's request to pull Item G from the Consent Agenda, place it on the agenda as Item 3 and to accept public comment on that item. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO APPROVE THE AGENDA IN CONTENT AND ORDER AS AMENDED. MOTION CARRIED UNANIMOUSLY. Edmonds City Council Approved Minutes December 1, 2009 Page 1 2. CONSENT AGENDA ITEMS (Item G was removed from the Consent Agenda and placed on the agenda as Item 3.) COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, TO APPROVE THE CONSENT AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF NOVEMBER 17, 2009. C. APPROVAL OF CLAIM CHECKS #115435 THROUGH #115583 DATED NOVEMBER 19, 2009 FOR $1,428,904.30. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #48754 THROUGH #48789 FOR THE PAY PERIOD NOVEMBER 1, THROUGH NOVEMBER 15, 2009 FOR $844,394.67. D. ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM DOUGLAS HALL (AMOUNT UNDETERMINED), RICKY ARNTSEN (CLAIM NO. 2, AMOUNT UNDETERMINED), AND TIMOTHY J. GLASS (AMOUNT UNDETERMINED). E. APPROVAL OF LIST OF BUSINESSES APPLYING FOR RENEWAL OF THEIR LIQUOR LICENSES WITH THE WASHINGTON STATE LIQUOR CONTROL BOARD, NOVEMBER 2009. F. AUTHORIZATION FOR THE MAYOR TO SIGN THE 2010 EMPLOYMENT CONTRACT WITH JANA SPELLMAN, SENIOR EXECUTIVE COUNCIL ASSISTANT. H. AUTHORIZATION FOR MAYOR TO SIGN A CONTRACT FOR SERVICES WITH SUSTAINABLE EDMONDS. 3. AUTHORIZATION FOR MAYOR TO SIGN A CONTRACT FOR SERVICES WITH THE CASCADE LAND CONSERVANCY TO BECOME A "CASCADE AGENDA LEADERSHIP CITY." Council President Wilson explained one of the items on the Council's six point Sustainability Agenda, adopted following the February retreat, was to become a Cascade Agenda Leadership City. The City will enter into a contract with Cascade Land Conservancy for services to assist the City in becoming more livable. Jeff Aken, Cities Program Manager, Cascade Land Conservancy (CLC), explained the Cascade Agenda was a vision of the CLC. Two main goals were developed during a stakeholder outreach process that begin in 2004, 1) protecting 1.3 million acres of forest and farm land, city parks, and shorelines, and 2) creating great cities. The Cascade Agenda Leadership City Program focuses on working with cities to make them more livable as they grow such as providing park space, stormwater benefits, innovative planning policies to protect rural and city lands, and improving walkability and livability. The Cascade Agenda includes 16 cities in the region; Edmonds became a member city in April 2008. Becoming a leadership city will allow CLC to partner with Edmonds as well as conduct a livability assessment that considers the City's policies and programs and compares them to other leadership cities to identify things Edmonds is doing that could work in other cities and to share things other cities are doing with Edmonds. Mr. Aken explained becoming a Cascade Agenda Leadership City provided for 25 hours of staff time to work with the Council and staff to identify projects. In addition it will provide a Community Stewards Edmonds City Council Approved Minutes December 1, 2009 Page 2 Program, citizen engagement in the planning process. Cascade received a grant from the Washington Women's Foundation for an annual Livability Conference; membership and leadership cities receive passes to the conference. Cascade will also work with the City on policy memos or other support. He described assistance they have provided to other cities such as in Tukwila they jointly applied for an EPA grant for funding around the transit station; in Tacoma they partnered on open space, transfer of development rights and neighborhood outreach; in Issaquah they developed tours for the Council of mixed use development and brought in Mark Hinshaw, LMN Architects, to review codes that made that possible; and in Kent they assisted with identifying King County grant funds for a green cities program. Responding to Council President Wilson's questions, Mr. Aken stated there were 16 cities in the program, 12 were member cities and 4 were leader cities and there are no leadership cities in Snohomish County. Council President Wilson asked Planning Manager Rob Chave about the assistance CLC could provide to the City. Mr. Chave responded there was enough flexibility in the agreement to determine where their assistance would be the most helpful. Councilmember Plunkett asked whether the grant partnerships Mr. Aken referenced would only be available as a membership city. Mr. Chave answered CLC may have information about grants and partnerships that the City is not aware of. Councilmember Plunkett asked whether the cities received the grants because they were leadership cities. Mr. Aken answered no, explaining their goal is to partner with cities to determine how CLC can add value such as engaging other partners and funding agencies. Councilmember Plunkett observed for the $5,000 cost, CLC would provide 25 hours of staff time. Mr. Aken explained the 25 hours of staff time would be directed toward a project identified by the City and CLC. CLC will also conduct a livability assessment which is a policy analysis that reviews parking, open space, and other policies. Councilmember Plunkett asked Robert Freeman, President, Sustainable Edmonds, whether Sustainable Edmonds was conducting a sustainability analysis. Mr. Freeman answered they were not doing a specific study /report; their mission was sustainability through public outreach. He commented Sustainable Edmonds would be happy to work with CLC. Councilmember Plunkett inquired about the tours Mr. Aken referenced. Mr. Aken stated CLC arranged Smart Growth tours with Issaquah to Old Bellevue and Mercer Island Town Center. The goal of the tours was to show Councilmembers, Planning Commissioners, and interested citizens examples of mixed use development, codes and civic investments that would be needed, etc. Councilmember Plunkett asked if the cities could have arranged the tours themselves. Mr. Aken agreed they could but often did not due to staffing limitations. Also having CLC facilitate discussions may allow a more free- flowing conversation. Councilmember Bernheim asked whether the contract proposed for Edmonds was the same as the other leadership cities. Mr. Aken answered it was the same as Kirkland, Issaquah and Tukwila; Tacoma has an expanded contract that includes a Green Tacoma Partnership that focuses on restoration and stewardship of open space and policy assistance on transfer development rights. Councilmember Bernheim asked whether the livability assessments from those cities were available. Mr. Aken advised they were available as well as a database that compare each city's efforts. Public Comment Bob Stephenson, Edmonds, a citizen volunteer with CLC since 2004, commented they do great projects in wilderness areas, working farms, working forests, preserving sensitive areas, etc. He was concerned with CLC being involved in Edmonds as the City did not have a great deal of land to preserve. He was Edmonds City Council Approved Minutes December 1, 2009 Page 3 uncomfortable with an outside agency determining whether Edmonds was livable or not livable and preferred the planning staff and Planning Board make those determinations. He referred to the four topics on which CLC would focus, urban design, transit oriented development, street policy development and long term visibility around the Comprehensive Plan process, commenting the assistance of an outside agency was not necessary for those issues. He concluded the agreement did not place an upper limit on the amount of City staff time to work with CLC and there were greater needs in the City for this $5,000 expenditure. Lora Petso, Edmonds, commented although she appreciated the Council removing this item from the Consent Agenda and allowing public comment, she would have liked the same opportunity on Item H. She urged the Council to utilize the Consent Agenda for routine items and items previously reviewed by the Council, pointing out the proposed $5,000 expenditure from the Council Contingency Fund to become a Cascade Agenda Leadership City was not routine nor had it been previously reviewed by Council. She pointed out that because Mayor Haakenson and Councilmember Bernheim and possibly others are members of CLC, it would have been better to ask Mr. Freeman to provide a presentation and for staff to describe how the $5,000 could be used. Roger Hertrich, Edmonds, commented the City had a budget problem and both small and large expenditures come from the taxpayers. He acknowledged CLC has done great things but Edmonds did not need their assistance when there were citizens already involved with sustainability who could assist the City without a $5,000 expenditure. He suggested there were greater issues in the State such as radioactive materials leaking from tanks in Hanford and the possible contamination of the Columbia River. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO AUTHORIZE THE MAYOR TO SIGN A CONTRACT FOR SERVICES WITH THE CASCADE LAND CONSERVANCY TO BECOME A "CASCADE AGENDA LEADERSHIP CITY" AND ALLOCATE $5,000 FROM THE COUNCIL CONTINGENCY FUNDS TO PAY THE ANNUAL MEMBERSHIP FEE FOR THE FIRST YEAR'S MEMBERSHIP. Council President Wilson recalled on April 28 Sustainable Edmonds described their efforts and CLC made a presentation to the Council at least once during the past year. He anticipated the return on investment of the funds to become a Cascade Agenda Leadership City would be significant. CLC staff has extensive regional and national expertise to bring in outside funds and assist in areas where City staff does not have time. CLC's assistance would also allow the City to manage its existing assets. He recalled in December 2007 when large amounts of water that entered the City's sewer system following snow and rain which nearly exceeded the capacity of the City's treatment plant. He explained the way to avoid that was stormwater planning, increasing permeable surfaces, etc. He anticipated CLC could assist the City in obtaining grants, noting Edmonds had the duty to be a regional leader in smart growth, stormwater planning, transit oriented development, etc. Councilmember Plunkett expressed concern with the process, explaining this item was scheduled on the Consent Agenda although it had not been reviewed by a Council Committee. It was then removed from the Consent Agenda and placed on the agenda for a public hearing without public notice. He summarized although he had strong opinions with regard to becoming a Leadership City, the scheduling of an ad hoc public hearing prevented him from supporting it. Councilmember Bembeim commented although he was sympathetic to Councilmember Plunkett's concerns with the public hearing, he would support the motion. He did not consider $5,000 a "bank breaking" appropriation, noting if the expenditure was larger, he would be willing to delay approval to allow for additional public input. He viewed this a wise expenditure because the objectives supported the Edmonds City Council Approved Minutes December 1, 2009 Page 4 Council's goals; however, not enough has been done to achieve them. He concluded neither staff nor the Council had done as much as they should to promote sustainability concepts. This was a one -year contract and if CLC's assistance did not prove to be beneficial, the City could simply not renew the contract. He recognized Sustainable Edmonds for their efforts. Councilmember Peterson pointed out this was not a new item; the Council discussed becoming a Leadership City during the February retreat as well as at subsequent Council meetings. Edmonds' physical location on Puget Sound gives the City the opportunity and the obligation to take a leadership role with other Snohomish County cities in the area of environmentalism. He agreed with Mr. Hertrich's comment regarding Hanford, noting the City needed to be concerned with environmental issues throughout the State as well as upstream to ensure all waters entering Puget Sound are clean. This was a great opportunity to utilize CLC's expertise as well as the expertise of other cities for a minimal expenditure. Councilmember Plunkett expressed concern that Councilmembers Bernheim and Peterson appeared to support an ad hoc public hearing because of the limited expenditure, the importance of the subject, because they liked the issue and because it had been discussed in the past. Council President Wilson commented there had not been a public hearing which was a legal process; there had been opportunity for public comment. He recalled there had been opportunity for public comment when the Council's Sustainability Agenda was presented in February and when Sustainable Edmonds made their presentation in May and again when CLC made a presentation to the Council. He explained removing this item from the Consent Agenda and allowing public comment was in response to Mr. Stephenson's request, there was never an intent to circumvent the process or exclude the public. Councilmember Wambolt explained that Mr. Stephenson called him to express concern with this item and suggested Mr. Stephenson contact Council President Wilson which he did. He acknowledged Councilmember Plunkett's concern with the process, noting the Council was unlikely to have scheduled a public hearing on this issue. Mr. Stephenson's request to provide input had been accomplished, the Council has discussed the matter and he supported the motion. MOTION CARRIED (4 -2), COUNCILMEMBERS ORVIS AND PLUNKETT VOTING NO. 4. ANNUAL REPORT - HEARING EXAMINER Sharon Rice, Toweill Rice Taylor LLC, commented this had been a slower year for them due to decreased development. They held 11 hearings; the names and dispositions are provided in Attachment A. The majority were Conditional Use Permits, a few variances, one shoreline permit, one request for exception from stormwater provisions and an administrative appeal of an encroachment permit. A hearing was held recently regarding the termination of an Interlocal Agreement for which a decision has not yet been issued. She commended City staff for their professionalism and thoroughness, commenting they provide citizens an excellent level of service. LeAnna Toweill, Toweill Rice Taylor LLC, thanked the Council for amending the Code by adopting new procedural sections including changes to the reconsideration ordinances. The changes have been clear and easy to apply; the reconsideration ordinance has criteria regarding when a reconsideration should be granted, what evidence should be considered and the effect on parties' appeal rights. However, in cases involving Public Works permits which are covered by Title 18 (procedural changes were made to Title 20), they found the Title 18 sections referenced repealed Hearing Examiner ordinances. In one case a jurisdictional question arose because Title 20 suggested the Hearing Examiner no longer had Edmonds City Council Approved Minutes December 1, 2009 Page 5 jurisdiction but the Code section said the matter was heard by the Hearing Examiner. She suggested staff identify areas of the code that need to be updated to reflect the new procedures. Councilmember Orvis commented when reviewing the Hearing Examiner's decisions, he found a variance had been approved to allow a generator and a propane tank in the setback of a 4 acre flat lot. He asked them to ensure the variance criteria were met, noting the special exception criteria did not allow granting a special exception based on expense. He questioned why there was no adequate space on a 4- acre flat lot to have those uses outside the setback. He was concerned with the safety of locating a propane tank in a side setback in a residential area. Ms. Rice responded she was disappointed her findings did not convey that the variance criteria had been met, recalling she was convinced the criteria had been met. She assured variances were required to meet the criteria and it was her professional goal to be very strict with regard to variance criteria. She would ensure in the future that her findings reflected that the evidence supported granting a variance. Council President Wilson recognized Mukilteo Councilmember Kevin. Stoltz in the audience. He relayed an interest from Mukilteo, Mountlake Terrace and Edmonds Councils to attend each other's Council meetings to observe how meetings are conducted. SWearinL In Councilmember Peterson City Attorney Scott Snyder explained the Continuity of Office Provisions in RCW 42.12 provides that when the election results are certified, an individual serving a short term should be sworn in to fulfill the remainder of the term and the following term. If someone else had been elected, that person would be required to be sworn in; it was not clear whether someone serving in the position and sworn in to fulfill the term through the end of the year needed to be sworn in. However, Snohomish County sent the City Clerk the forms and was expecting Councilmember Peterson to be sworn in. Mayor Haakenson swore in Strom Peterson to Council position 2. City Attorney Scott Snyder advised the previous votes were valid as Councilmember Peterson had been sworn in at the beginning of his term. 5. ANNUAL REPORT - PROSECUTOR Jim Zachor, Zachor & Thomas, commented they have been providing prosecutor services to Edmonds since 2005, prosecuting misdemeanors, gross misdemeanors, certain contested infractions, appeals to Superior Court, and special drug and felony forfeitures as well as representing the South Snohomish. County Narcotic's Task Force. He commented there were no situations like the unique motions being filed last year by creative attorneys; therefore, their DUI conviction rate has increased substantially. There has been an increase in domestic violence cases and they have been successful in prosecuting those cases, due in part to the Domestic Violence Coordinator who acts as a liaison between the Police Department and the Prosecutor's office. They continue to provide 24 hours service to assist the Police Department as well as keep the Police Department updated on changes in the law. Their firm, located in Edmonds, has a total of six attorneys after hiring three attorneys over the past year. He introduced the three new attorneys, Elena Stock, Peter Halabicky and James Zachor and briefly described their backgrounds. Mr. Zachor explained the number of cases increased substantially between 2007 and 2008. This year they are down slightly but the intensity of the DUI cases has increased as defense attorneys learn how to defend DUI cases. Edmonds City Council Approved Minutes December 1, 2009 Page 6 Melanie Thomas Dane, Zachor & Thomas, advised their firm also hired Rachel Hunter who will take the bar exam in February. She explained in 2010 the courts will implement the video -in- custody calendar. This is a cost savings to the City to prosecute cases while the defendant is in jail and avoids transport costs. It will also allow processing of other cases more efficiently without the disruption of an in- custody calendar. She explained for the video -in- custody hearings, the prosecutor will be in the Edmonds courtroom with the Judge and Court Clerk and the defendant will be at the jail with their counsel present. Ms. Dane commented on the County's decision, for budget reasons, not to process some felony filings as felonies and to send them to the cities for review. That increased their property crime statistics tremendously and required them to deal with a different caliber of defendant; for example a person involved in identity theft versus shoplifting. She commented this also increased the jail budget when a person that should be charged as a felony was prosecuted in misdemeanor court. Ms. Dane commented on the number of jury trials this year, the last a pair of no- contact order violations. Although the number of jury trials are increasing but she did not anticipate a third monthly jury trial day. Although filings are down slightly from 2008, their criminal cases such as theft, weapon charges, etc. have increased which she anticipated was due to issues previously charged as felonies. Councilmember Bernheim asked whether there was any data to support their statements. Ms. Dane offered to provide the filings from the Court Clerk. Councilmember Bernheim recalled during his investigation of the municipal court filings last year, 50% of the non - criminal traffic cases were Driving with License Suspended in the third degree (DLS3). Ms. Dane responded there was a large influx of Driving with License Suspended charges last year because the State reinstated DLS3 as a crime. Councilmember Bernheim recalled 20% of the criminal non - traffic cases were misdemeanor charges for marijuana or paraphernalia. His interest in obtaining the data was to determine if the increase in filings and the need for more attorneys was to assist with the prosecution of adults for misdemeanor possession of marijuana or paraphernalia or DLS3. He recognized the importance of DUI and domestic violence prosecution but did not feel prosecution of misdemeanor amounts of marijuana or paraphernalia was as important. He asked about the number of DUI cases prosecuted over the last year. Ms. Dane answered thee were 139 DUI filings in Edmonds in 2008. Councilmember Bernheim asked about the number of misdemeanor marijuana and paraphernalia filings. Ms. Dane answered they were categorized under criminal non - traffic. She pointed out there were a number of DLS charges filed in Edmonds; it is a crime for which the officers cite defendants and for which they are required to prosecute. The same is true for drug paraphernalia, possession of marijuana, minor in possession, trespass, etc. charges. The Prosecutor is not allowed to select what to prosecute; they must prosecute what the Legislature has determined is a crime and what is presented to their office. For Councilmember Bernheim, Ms. Dane explained prosecutorial discretion means they have the ability to charge or dismiss cases as they see fit; however, if the facts prove a defendant committed a possession of marijuana charge, they are required to prosecute the crime because the legislature determined it was a crime. Councilmember Bernheim asked when they would decide not to prosecute. Ms. Dane answered she would not prosecute a charge that she could not prove. Councilmember Bernheim requested in the future the prosecutor's presentation include data regarding the caseload. If the increase in cases was due to non - violent, victimless crimes, he may be interested in urging the State Legislature not to burden cities with the obligation of spending money to jail people for non - violent, victimless crimes. Ms. Dane suggested the court may be able to provide that data. Edmonds City Council Approved Minutes December 1, 2009 Page 7 Mr. Zachor commented they also represent the South Snohomish County Narcotics Task Force. He recalled a few years ago the federal government significantly reduced marijuana transports from Canada. The result was an increase in the number of grow operations, particularly in Lynnwood. He recalled three houses were seized and two murders occurred due to disputes between the growers and the owners. Councilmember Bernheim relayed the comment by John McKay, Federal Prosecutor for Western District of Washington, that when so many people violate the law and no one is murdering anyone under the influence of marijuana, the only reason murders are being committed in marijuana growing operations is that marijuana growing is a high dollar operation because it is illegal. 6. REPORT FROM THE CITY ATTORNEY REGARDING THE THUESEN SUBDIVISION ALLEY WAY VACATION AND REIDY ENFORCEMENT ACTION. City Attorney Scott Snyder explained on November 2, 2009, a series of allegations were made by Mr. and Mrs. Reidy, Ms. Bloom, Ms. Mallory and others in the neighborhood. There are a number of Superior Court actions, pending civil claims by Mr. Thuesen, Mr. Reidy's attorney has raised civil rights violation claims in briefing, a criminal allegation is pending against a City employee and there is a pending enforcement action against the Reidys. Because of those claims, he explained this would not be a legal report and he would not discuss the claims raised by Mr. Reidy or Mr. Thuesen; those could be addressed in court or before the City's Hearing Examiner. The purpose of this report was to review the historical basis for staff actions and provide the public a response via public documents and information the Council has been provided in the past. Mr. Snyder explained an independent review of Mr. Reidy's civil claims and allegations has been made by independent counsel. He requested that review several months ago when an issue of whether he had a conflict of interest arose. That report was provided to the Council. The staff members involved in this matter since 2006, former Development Services Director Duane Bowman, Building Official Ann Bullis, Engineering Program Manager Jeanie McConnell, City Engineer Rob English, Public Works Director Noel Miller, and Planning Manager Rob Chave, are all present in the audience. Mr. Snyder summarized the statements made by Ms. Reidy on November 2 that he had directed staff to speak only through their attorney or to respond to public records requests, that he had been curt to her husband and why staff had not responded to countless emails her husband provided. Mr. Snyder summarized the statements made by Mr. Reidy on November 2, that he had failed his duty to the Council, had intervened in the vacation process, provided bad advice and that his role was not to become involved. Mr. Reidy also stated Mr. Snyder's advice led to the granting of a private benefit on public property and was illegal under the City's ordinances. Mr. Snyder summarized the statements made by Ms. Bloom on November 2, that his and his firm's incompetence have cost the city hundreds of thousands of dollars. Ms. Moore asked on November 2 whether he was ashamed of himself. Mr. Snyder explained he was not ashamed and viewed Ms. Moore's statements as a desire to influence the next day's election. Mr. Snyder explained he did not respond to the audience's concerns that evening because 1) it was not appropriate, 2) because the Council decided not to review their decision regarding the vacation and 3) these were serious allegations that deserved a serious response from the public record. He agreed with the assertion by Ms. Reidy and one other speaker that he forwarded all responses from Mr. Reidy to Mr. Thuesen's attorney. He also forwarded Mr. Thuesen's attorney's response to Mr. Reidy's attorney. He also instructed staff to limit their response to written responses through the attorney Edmonds City Council Approved Minutes December 1, 2009 Page 8 or to respond to written public records requests. In the past the City was involved in a Land Use Petition Act (LUPA) appeal of the Thuesen subdivision. The City is currently engaged with Mr. Thuesen on an appeal of a vacation action. Mr. Thuesen has filed a damage claim with the City and Mr. Reidy's attorney in briefing to the Hearing Examiner has alleged civil rights violations. Mr. Reidy has also alleged criminal behavior and the City is pursuing a code enforcement action against Mr. Reidy. For those reasons, he instructed staff and the Council to limit their discussions and he copied both attorneys on communications with the other. When claims are filed, the City is required by its insurance to limit communication or attempts to resolve claims. Mr. Snyder explained when the original town of Edmonds was created in 1890, streets and 15 -foot alleyways were platted. Mr. Reidy's and his neighbors' properties were located on the boundary of Edmonds at that time and only a 7.5 -foot alley was dedicated, assuming the adjacent properties would dedicate the other 7.5 feet. He displayed an aerial map, identifying Mr. Reidy's and Mr. Thuesen's properties. In 2006 Mr. Thuesen filed an application to subdivide his property; there was a wetland on that property. Although it has been stated over the years that the wetland was drained, in reality there was a drain on that property that was damaged and ceased to function. When Mr. Thuesen tried to repair the drain in the process of subdivision, a stop work order was issued until the viability of the wetland could be assessed. A third party contract was entered into and experts retained to assess the size of the wetland. The wetland report indicated the wetland was 1,997 square feet or 3 feet less than the regulated wetland size. The neighbors raised concerns with the size calculation and the placement of the survey stakes and appealed to the Hearing Examiner. The Hearing Examiner attempted to respond to their concerns by giving conditional approval to a 2 -lot subdivision and ordering further assessment of the property. Mr. Thuesen appealed to Superior Court. In response to Ms. Bloom's allegation that his incompetence in the process resulted in the loss of the case and that the City spent hundreds of thousands of dollars, Mr. Snyder explained the City spent approximately $70,000 over a 4 -year period on the Thuesen subdivision and the Reidy enforcement action. The majority was spent during the Thuesen subdivision process in an attempt to defend the Hearing Examiner's decision in Superior Court. He was one of three legal counsels representing the Hearing Examiner's decision; he represented the City along with an appointed insurance counsel and the Mallory's were represented by an attorney. He explained appeals to Superior Court of Hearing Examiner decisions are determined on the basis of the record. The record in this case consisted of expert opinions and neighbor's questions. The appointed insurance counsel and he discussed the matter and took the unusual step of meeting with Ms. Bloom and Mr. Reidy at the Mallory's home on several occasions to discuss the case and gather the neighborhood's input. The problems with the case were highlighted and it was suggested consideration be given to a settlement. He also discussed the matter with Mr. Thuesen's attorney and proposed a settlement that would have preserved the wetland but acknowledged Mr. Thuesen's right to vest to three lots with use of the alleyway as access for the subdivision. The neighbors rejected that settlement and the matter proceeded to court. Superior Court Judge Lucas found the record contained substantial and competent evidence to support Mr. Thuesen's position and that the neighbor's questions were not evidence. The end result was a 3 -lot subdivision that vested in Mr. Thuesen the right to use the alleyway to access the subdivision. Ironically, the only reason the alley is in that configuration was the existence of a wetland that no longer exists. Mr. Thuesen's vested right to use this configuration has been the source of many of the problems that have occurred for Mr. Reidy. Edmonds City Council Approved Minutes December 1, 2009 Page 9 In 1962 Mr. Reidy's predecessor in title obtained a building permit to build a tool shed and provide a 5- foot setback from the right -of -way. After the Judge's ruling, both Mr. Thuesen and the City appealed to the Court of Appeals. At that time, when Mauri Moore was a Councilmember, the insurance counsel and he met with the Council and with Council input decided to settle the case, pay a portion of Mr. Thuesen's costs and accept the configuration. At that point, the configuration became a legal fact that staff has been forced to enforce. He displayed a photograph identifying the property line and the tool shed, noting over the years the tool shed became a garage and later converted to a home office, all without permits. There was also an extension built on the tool shed that extends over the right -of -way and onto Mr. Thuesen's property. After the Council settled the case, two things occurred nearly simultaneously, first Mr. Thuesen filed a complaint asking that the tool shed blocking the public right -of -way be removed. Mr. Bowman wrote to Mr. Reidy requesting he move the shed. During this same time, Mr. Bowman began meeting with the neighbors including Mr. Reidy regarding a vacation of the right-of-way. He pointed out the 7.5 -foot right -of -way served no public purpose other than to fulfill the City's obligation to Mr. Thuesen for a short period of time. Over the years Mr. Thuesen altered his subdivision application so that the access road was not in the right -of -way but immediately adjacent to the right -of -way. Mr. Thuesen needs to use the right - of -way only to construct a retaining wall. According to Mr. Thuesen, the tool shed interferes with his ability to do so. Mr. Snyder clarified the Reidys had done nothing wrong and were not criminals; they were involved in a very emotional situation, a boundary line dispute with a neighbor, and both parties think they are right. The City's position was clear as soon as Mr. Thuesen's rights were vested. The vacation was initiated by the City Council, not by the neighbors or Mr. Reidy as they did not own sufficient property. The Council passed a resolution and held a public hearing. With regard to the allegation by Mr. Reidy that there was no basis to reserve a utility easement, he referred to RCW 35.79.030 that states the ordinance may provide that the city retain an easement or the right to exercise and grant easements in respect to the vacated land for the construction, repair and maintenance of public utilities and services. The City's ordinance has similar language. He explained one of the services was encroachment permits and right -of -way use permits, temporary ability to use the right -of -way for a variety of purposes. The City regularly grants right -of. -way use permits for construction purposes, food vendor carts, outdoor dining, art, mailboxes, fences, etc. The City has the ability to reserve easements to fulfill its obligation to Mr. Thuesen. In response to Mr. Reidy's statement that the City Attorney's role was to answer questions, Mr. Snyder explained he viewed his role differently. The Council was faced with a difficult situation; an easement that the City has virtually no use for and an obligation to Mr. Thuesen that needs to be fulfilled. Rather than deny the vacation, he pointed out the Council had the ability to reserve a construction easement to allow Mr. Thuesen to construct the retaining wall and when that was completed, the easement would expire. He explained the Council had to provide Mr. Thuesen the access granted by Superior Court and by offering an alternative he was fulfilling his obligation to provide legal advice regarding a legal alternative. During his comments on November 2, Mr. Reidy stated he felt this alternative was made out of the blue with no ability for him to respond. However, the record indicates Mr. Reidy did comment. He pointed out at the July 22, 2008 Council public hearing, a number of property owners at the other end of the alley requested the Council delay passage of the ordinance to give them an opportunity to meet and trade easements. The ordinance was not returned to the Council until March 17, 2009. During that eight month period Mr. Bowman and he met with Mr. Reidy, with Mr. Reidy's attorney, with Mr. Thuesen, with Mr. Thuesen's attorney and other neighbors in an attempt to resolve their dispute. During that time Mr. Reidy Edmonds City Council Approved Minutes December 1, 2009 Page 10 did not approach the Council to request a reconsideration. Once the ordinance was passed and became effective, Mr. Reidy did not appeal the ordinance. Mr. Thuesen appealed the ordinance to ensure the public right -of -way was retained in the event there was a problem with the easement. Under Washington State law it is a public nuisance to obstruct a public right -of -way and a municipality has the obligation to remove obstructions in the public right -of -way. Mr. Snyder displayed a map of the area provided by Mr. Reidy, identifying the 7.5 foot right -of -way and the tool shed structure that extends across the public right -of -way and onto Mr. Thuesen's property. He pointed out a person cannot adversely possess against the City, Mr. Thuesen has the right to use the right - of -way, and Mr. Reidy is obstructing the right -of -way with a building that does not conform to permit. Mr. Reidy has an adverse possession claim pending against Mr. Thuesen which is the jurisdiction of Snohomish County Superior Court. After two years, the City issued a Notice to Correct. During those two years Mr. Bowman and he warned Mr. Reidy that this would happen and urged him to request a stay in his quiet title action from Superior Court. Ultimately this issue would be decided by the court. At this time the Reidys have: • Failed to assert adverse possession claim in first subdivision action • Failed to request Council reconsideration during the eight months this matter was pending before the Council passed a vacation ordinance • Failed to appeal the vacation ordinance • Failed to appeal the first Order to Correct • Withdrew appeal of second Order to Correct • Instituted quiet title action but did not request a Stay of Enforcement proceeding. Mr. Snyder reviewed the Reidy's remedies: • Pursue their quiet title action • Request a stay of the pending enforcement action; the City has indicated its willingness not to oppose such an order • Remove the shed extension Mr. Snyder summarized: • Mr. Thuesen has a vested right to construct his subdivision in its current configuration using the alley for access. Any attempt by a political body to interfere with a vested period opens the Council to significant legal liability (Mission Springs v. City of Spokane). • The Reidy's tool shed was not constructed in accordance with the 1962 permit and is within the public right -of -way. • The City must honor Thuesen's vested rights; municipalities have a duty to remove obstructions in the public right -of -way and are exposed to liability if they fail to do so. He concluded staff was walking a narrow line; attempting to honor Mr. Thuesen's vested rights to the least extent necessary with the least impact on the Reidys as possible. Staff has not requested the structure be removed and have not asked why /when it was converted to a habitable use from a tool shed. Staff was only asking that the portion of the structure in the public right -of -way be removed. He welcomed Mr. Reidy's pursuit of a quiet title action and has indicated the City will not oppose a stay of the enforcement proceedings. Mr. Bowman and he have repeatedly offered solutions to resolve the matter and he has offered to bring to the Council a request to pay the cost of mediation. Although staff ceased their discussions when the lawsuits were filed, Mayor Haakenson has continued to pursue discussions between the parties. Mr. Snyder assured all the information provided were exhibits from the code enforcement action. Edmonds City Council Approved Minutes December 1, 2009 Page 11 Council President Wilson referred to the photograph of the Thuesen subdivision wetland; Mr. Snyder advised the wetland was determined to be 1,997 square feet and 2,000 was the regulated size. Council President Wilson asked how the size of the wetland was determined. Mr. Snyder answered it was determined by a wetland biologist and survey. The developer paid for the study via a third party agreement, the obligations were outlined in a contract prepared by the City and the developer paid for the report. He noted although the neighbors had legitimate questions, in the analysis by the Judge, they were only questions versus the experts' opinions. Council President Wilson referred to the Thuesen subdivision drawings, recalling some surveys did not identify the drain pipe, others did identify the drain pipe but none of them indicated it connected to the wetland. Mr. Bowman identified the location of the drain with a crushed pipe, explaining the neighbors contacted him when the developer began digging in that area. He explained the drain was connected into the property. Council President Wilson clarified if the wetland had no drainage, the wetland should still exist. Mr. Snyder responded that was not at issue as the Snohomish County Superior Court decided Mr. Thuesen's wetland analysis was accurate. Council President Wilson was surprised the Reidys would not have asked for a reconsideration of the ordinance when it was passed with the easement. He anticipated Mr. Reidy would say he did request reconsideration. He asked whether the City informed Mr. Reidy of the steps he could have taken during that eight month period such as requesting reconsideration. Mr. Snyder did not recall whether Mr. Bowman or he suggested Mr. Reidy request reconsideration. Council President Wilson agreed the court would ultimately make the decision. He expressed his confidence in Mr. Snyder's skills and advice. Mr. Snyder commented one of the difficulties was there were multiple legal proceedings. He cautioned if the Council asked a question regarding those matters, he would recommend the Council convene in Executive Session. To Mr. Reidy's statement that he has not received an administrative hearing in response to the Notice of Violation and Order to Correct, Council President Wilson asked about an administrative hearing. Mr. Snyder advised Mr. Reidy had a right to an administrative hearing before the Hearing Examiner after he filed an appeal. He advised Bio Park of his office had responded to Councilmember Bernheiim's question regarding that matter. Councilmember Plunkett asked the process for asking the Council for reconsideration. Mr. Snyder responded it could have been done via email or letter to any Councilmember. Councilmember Plunkett asked what obligation the Councilmember had to make a motion for reconsideration. Mr. Snyder answered any Councilmember on the prevailing side could bring it forward but was not obligated to do so. Councilmember Plunkett clarified if Mr. Reidy sent an email or letter to a Councilmember, it is his obligation to find a Councilmember willing to pursue reconsideration. Mr. Snyder agreed the person would need to identify a Councilmember willing to make a motion for reconsideration and for a majority of the Council to support reconsideration. Councilmember Plunkett concluded an email or letter asking for reconsideration did not guarantee reconsideration, only an effort for reconsideration. Mr. Snyder agreed. Councilmember Orvis asked for clarification regarding the 1962 permit. Mr. Snyder explained a permit was issued in 1962 to construct a tool shed of unspecified dimensions and to maintain a 5 -foot setback. Staff has not asked the Reidys to remove the tool shed; staff has only asked that the portion in the public right -of -way be removed. Staff has also not asked that the 5 -foot setback be maintained because it will be via the vacation. Edmonds City Council Approved Minutes December 1, 2009 Page 12 Councilmember Bernheim inquired about the independent counsel who reviewed the matter. Mr. Snyder explained he asked WCIA to do pre - litigation review of Mr. Reidy's claims. Councilmember Bernheim asked if that was the same person who participated in the Thuesen lawsuit settlement. Mr. Snyder answered Ms. Kroll was the co- counsel appointed by WCIA. Councilmember Bernheim commented he was not aware that the independent counsel had previous involvement and advocacy in this case. He was surprised to learn that the attorney selected to conduct the independent review had been an active participant in the Thuesen settlement agreement. Mr. Snyder explained he applied to WCIA for pre - litigation review and WCIA assigned the attorney. He did not feel . it appropriate to designate an attorney or challenge the person they appointed. Councilmember Bernheim expressed concern that her previous role had not been disclosed and with the appearance of non- objectivity. Councilmember Bernheim recalled when he made the motion to vacate the right -of -way without a construction easement, Mr. Bowman stated vacation without a construction easement would not impair Mr. Thuesen's access to the property. He asked how that statement comported with Mr. Thuesen's vested right. Mr. Snyder responded that statement was made in the context of his general right of access would not be impaired as he has access from both north and south as well as street frontage. However, his specific vested right of access would have been impaired. Mr. Bowman was addressing one aspect of access; he was addressing the other. Councilmember Bernheim recalled the issue before the Council at that meeting was the vacation of the right -of -way and one of the criteria was whether the property owner's access would be rendered impossible. That was the reason he proposed vacating the right -of -way without a construction easement. Mr. Snyder responded there were two separate issues at that meeting. Washington law recognizes a general right of access as well as specific vested rights of access. For example a store with two driveway entrances; closing one entrance still allows them access but reduces their access which was a compensable injury under Washington law. Councilmember Bernheim referred to the administrative hearing in ECDC 20.110.040 which also states there is a $1.00 day penalty while the violation continues. The section states the Order to Correct shall include a statement that the monetary penalty shall be assessed for each day the violation continues following the administrative hearing. He clarified the code did not require the Order to Correct violation to inform the recipient there would be an administrative hearing. Mr. Snyder responded an administrative hearing was provided by appeal. Upon filing an appeal, the fines cease until the hearing is concluded. Mr. Snyder referred to the written explanation that Mr. Park provided Councilmember Bernheim and offered to discuss this matter before the Hearing Examiner. Councilmember Bernheim asked whether in future Orders to Correct the City would not mention that an administrative hearing would follow. Mr. Snyder answered staff planned to continue using that form. He noted that language needed to be revised as a result of the Post v. Tacoma decision. He summarized the Order complies with the ordinance. Councilmember Bernheim asked whether construction of the retaining wall was in the vicinity of the shed. Mr. Snyder answered it was. Councilmember Bernheim observed the shed needed to be moved to allow construction that is authorized by the construction easement. Mr. Snyder responded the City does not regulate the design of the wall nor the setback area. In 2007, Mr. Thuesen's first complaint was based on the shed extension blocking the City's right -of -way. Access has since been moved adjacent to the right -of -way and the sole need to use the right -of -way is for construction purposes. Mr. Thuesen contends he needs the area clear to meet OSHA requirements based on the burden on the soil above the work area. Councilmember Bernheim concluded the wall would not be constructed where the shed extension was located. Mr. Snyder agreed it would not. Edmonds City Council Approved Minutes December 1, 2009 Page 13 Councilmember Bernheim referred to ECDC 20.70.030, City Easement Rights for Public Utilities and Services, which states in vacating a street, alley or easement, the city council may reserve for the city any easement or the right to exercise and grant any easement for public utilities and services. He asked whether Mr. Thuesen's easement was an easement for public utilities and services. Mr. Snyder answered it was a public service. ECC 18.70.000, Permits Required, is the basis for the City granting right -of -way use permits for construction and a variety of other services. He summarized the City had the right under both ordinance and statute to grant easements or reserve easements for public utilities or public services. An example of a public service is a right to use the right -of -way for construction purposes. Councilmember Bernheim asked whether Mr. Snyder would object to allowing Mr. Reidy and Mr. Thuesen an opportunity to present their point of view. Mr. Snyder noted that was permitted at any time during audience comment. The intent of this item was to provide a historical explanation. Councilmember Bernheim reiterated his concern with the WCIA attorney selected to do an independent review of the case. Mr. Snyder responded that person would logically do pre - litigation review of a claim against the City. Councilmember Bernheim agreed this was an emotional boundary line issue with a great deal of history and some neighbor animosity. His intent with this review was to avoid this situation in the future. Mr. Snyder explained with every month that passed, the City's options were reduced. Had this issue been raised in the first subdivision, staff could have forced the road design in a different location or had Mr. Reidy's ownership rights been asserted before the Council settled the case. He recalled if the Council did not want to reserve the easement, his advice was to deny the vacation to allow staff to address Mr. Thuesen's rights. He concluded opportunities for appeal have been frequent but they have not been exercised. Mayor Haakenson declared a brief recess. 7. PUBLIC HEARING ON CAPITAL FACILITIES PLAN ELEMENT UPDATE FOR 2010 — 2015 TO CITY'S COMPREHENSIVE PLAN. THE PROPOSAL UPDATES THE CITY'S CAPITAL FACILITIES PLAN TO INCLUDE IMPROVEMENTS, ADDITIONS, UPGRADES OR EXTENSIONS OF CITY INFRASTRUCTURE SUCH AS TRANSPORTATION, PARKS, STORM WATER, SEWER, AND WATER SYSTEMS ALONG WITH OTHER PUBLIC FACILITIES NECESSARY TO IMPLEMENT THE CITY'S COMPREHENSIVE PLAN; INCORPORATES PROJECTS FROM THE RECENTLY UPDATED TRANSPORTATION AND PARKS PLAN ELEMENTS; AND SEPARATES THE MAINTENANCE REPLACEMENT AND PRESERVATION PROJECTS FROM THE CAPITAL FACILITIES PLAN ELEMENT AND INTO A SEPARATE CAPITAL IMPROVEMENTS PLAN. Mayor Haakenson referred to updated documents provided to the Council regarding Parks and the Capital Improvement Plan (CIP). Public Works Director Noel Miller explained the CFP was part of an annual Plan update that integrates the capital facilities into other annual plans that the City Council reviews and approves. He provided a drawing of the coordination schedule and how the CFP is integrated. He reviewed changes to the CFP: • Focuses on Capital Improvement Projects that support the City's Comprehensive Plan; • Focuses on projects that have a longer planning and implementation horizons of more than 6 years; Edmonds City Council Approved Minutes December 1, 2009 Page 14 Capital preservation and maintenance projects remain in the 6 year CIP but are not part of the CFP; Schedule corresponds to the City budget process He explained the CFP is organized into three categories, Transportation Projects, Stormwater and other Utility Projects and Parks, General and Regional Projects. He reviewed the status of other Comprehensive Plan elements related the CFP: • Transportation - final adoption by City Council on October 20, 2009 • Stormwater - currently being revised to comply with NPDES Phase II Clean Water Act Regulations • Drinking - currently being revised to comply with the most current Department of Health regulations • Sanitary Sewer - study underway to address excessive inflow and infiltration concerns • Park & Recreation - updated and adopted in December 2008. He highlighted projects of significance in the CFP including the WSDOT Ferry /Multimodal Facility. According to Page 93 of the WSDOT Ferries Division Final Long Range Plan (June 30, 2009), the Plan "assumes that the Edmonds terminal will remain in its current location ", at least through 2030. Also according to Page 93 of the Plan, "one improvement project is scheduled to be completed at Edmonds in the 2029 -2031 biennium and will total $26.OM ($08)." Other significant capital facilities projects include the following: • 4th Avenue Cultural Corridor • Aquatic Center • Art Center /Art Museum • Boys & Girls Club Building • Civic Playfield Acquisition • Downtown Street Lighting Improvements • Edmonds Library Addition • Former Woodway High School Playfields • Parks & Facilities Maintenance Building Replacement • Senior Center Building Replacement The Planning Board held a public hearing on November 4. The Planning Board's discussion identified the following: • A significant need for additional funding for transportation projects • Importance of identifying transportation projects that connect the downtown to the waterfront • An interest in moving forward on projects that protect and enhance the Edmonds Marsh and Daylight Willow Creek to the Sound The Planning Board recommends approval of the Plan with particular attention given to elements in the Plan that fit into the broad public transportation facilities and sustainability issues in the City. The Council packet includes updated exhibits for the Multimodal Transportation Fund 113 that includes the projected annual expenditures from the State and Federal government. He noted Parks & Recreation Director Brian McIntosh also provided descriptions of the park projects in the 2009 -2015 CIP. Community Services /Economic Development Director Stephen Clifton, Parks & Recreation Director Brian McIntosh, City Engineer Rob English, and Stormwater Program Manager Jerry Shuster as well as members of the Citizens Advisory Committee on Transportation are present to answer questions. Edmonds City Council Approved Minutes December 1, 2009 Page 15 Councilmember Plunkett read from email sent by Lora Petso that the new CIP format would seem to prevent any city expenditure of REET money for any property acquisition other than the civic fields. She referenced RCW 82.46.010 that states jurisdictions must spend the first 1/4 of their REST receipts solely on capital projects that are listed in the Capital Facilities Plan and the only acquisition in the CFP is the civic playfields. City Attorney Scott Snyder responded the Plan could be amended should an opportunity arise. Councilmember Plunkett asked whether the only potential acquisition in the CFP was the civic fields and did not include the Skipper's property, additional Sherwood Park property, Safeway site, etc. Mr. Miller agreed the civic playfields were identified in the CFP and the projects Councilmember Plunkett identified were not. If the Council wanted the ability to fund those projects, they needed to be in the CFP at some point. He advised the CFP was updated annually. Mr. Snyder noted the Council could also adopt a finding of an emergency and amend the CFP at any time. He acknowledged the process to amend the CFP may take up to six weeks. Planning Manager Rob Chave pointed out the CFP could also be amended at the time a budget amendment was adopted. Councilmember Plunkett asked if the CFP needed to identify a specific site such as Skipper's or if it could include a broad acquisition category. Mr. Snyder answered a need must be identified which could include multiple sites. The projects must also be consistent with the available funds. Councilmember Wambolt commended Neil Tibbots for his Guest View in the Edmonds Beacon publicizing tonight's meeting and the need for more funds for transportation improvements. He recalled the Planning Board has admonished the Council for the past few years for not adequately funding CIP projects. He commented it was clear when the economy improved there would be a need for a transportation levy, noting there were sidewalk projects in the Plan costing $62,000 that would not be done for over six years. He pointed out Fund 125 shows $430,000 and Fund 126 shows $430,000 however, it was really only half of that amount as the entire REST collection was projected to be $430,000. Mr. McIntosh answered there were two REST collections, the first' /4 and the second 1/4, each was projected to be $430,000. Councilmember Wambolt responded that was not consistent with the information provided to the Finance Committee Council President Wilson commented a recent Washington Budget Policy Center presentation showed REST funds for the past 20 years were essentially flat; they spike obscenely in the last 2 -3 years. The decline in BEET actually brings collections to approximately the level they were at before the spike. He pointed out projects planned in the first three years must have identified funds; projects in the later years do not have to have identified funds. Mr. Snyder read from the Growth Management Act, a capital facilities plan consisting of an inventory of existing facilities, forecast of future needs, proposed location and capacities of the new or extended capital facilities and at least a six year plan to finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes. Mr. Snyder agreed the numbers become less specific in future years. Council President Wilson explained the CFP would be formally adopted along with the other Comprehensive Plan amendments at the end of the year. Mr. Snyder explained the Council could docket emergency amendments for this Plan as opportunities arose or amend the Plan at the time of a budget amendment. Council President Wilson asked when the CFP assumed there would be Transportation Benefit District (TBD) vehicle license fee of $100 versus the currently adopted $20 per vehicle. Mr. Miller advised the first three years did not assume any funds from the TBD. City Engineer Rob English answered the fourth year and beyond assumed a $40 voter approved TBD vehicle license fee in addition to the current $20. Councilmember Bernheim inquired about the deadline to adopt the CFP. Mr. Snyder answered it needed to be adopted this year. At this point in the process there was not enough time to make a significant Edmonds City Council Approved Minutes December 1, 2009 Page 16 amendment because notice and another public hearing would be required. Councilmember Bernheim asked how a substantive amendment could be made in the future. Mr. Snyder answered there was ample time next year for notice and another public hearing for an emergency amendment or in conjunction with a budget amendment. He advised the Council could delete a project but adding a substantive project would be nearly impossible unless the Council held a special meeting during the holidays. Councilmember Bernheim commented the Plan included $25 million for professional services for the Edmonds Crossing project and $11 million for right -of -way acquisition and mitigation. He asked if any of these funds were from Edmonds' budget. Community Services /Economic Development Director Stephen Clifton clarified Fund 113 was a pass through account. Although $3.1 million in revenue expenditures was budgeted in 2009 and $3 million in 2010, they were for budgetary purposes and the funds may or may not be spent. The federal government via federal appropriations pays 80% of expenditures and the State pays approximately 20% as a local match. Other than his time, Edmonds has had no expenditures on that project this year. He pointed out there were no funds in this budget for construction in the period 2000 - 2015, . versus last year's Plan that anticipated construction would begin in 2012. Those construction funds have been removed from the Plan. Councilmember Bernheim suggested deleting the $25 million for professional services for Edmonds Crossing. Mr. Clifton explained the professional services budget was approximately $12.3 and right -of- way acquisition of $12 million. The right -of -way acquisition is related to the lower Unocal yard. The City, along with WSF negotiated a purchase and sale agreement with Unocal and Washington State budgeted approximately $10 million in 2003 for right -of -way acquisition. When the Department of Ecology certifies the lower yard as clean at the end of 2010, the title will transfer from Unocal to Washington State Ferries. Councilmember Bernheim referred to page 169 of the Council packet which contained a project entitled professional services /design and an estimated project cost of $24,377,000. Mr. Clifton advised the Council had been provided updated information. Councilmember Bernheim questioned the $200,000 budget for a skate park. Mr. McIntosh answered that project was projected to be funded from REET Fund 125. The location of the park had not yet been determined but it would fulfill a need. Councilmember Bernheim inquired about the $5 million cost of the Boys & Girls Club building and asked if the building would be located on the civic playfield property. Mr. McIntosh answered the Boys & Girls Club has wanted a new building for several years somewhere in Edmonds. Their present location is owned by the Edmonds School District and subleased by the Boys & Girls Club. Councilmember Bernheim inquired about the $1.6 - $1.9 million projected for a fire training facility, now that the City planned to contract for fire service with Fire District 1. Mr. Miller answered there was an asterisk on that line stating it was not needed if the City contracted with Fire District 1. Councilmember Bernheim anticipated the School Board would have a huge incentive to sell the civic playfield property to a private developer and asked what the City's plan was to avoid that. Mr. McIntosh answered there was no specific plan at this time; when staff attempted to talk with the School District about the property a few years ago, they were not interested in discussing the sale of the property. The current lease extends to 2021. Mr. Snyder explained the City has tried to negotiate an option on the property several times and been rejected. Council President Wilson expressed frustration with receiving the CFP tonight and being told the Council could not make any substantive changes because the Plan needs to be adopted by the end of the year to be in compliance with GMA. He recalled on three occasions during this year he asked staff when the CFP would be presented to the Council. He was also frustrated that Councilmember Wambolt had to raise the Edmonds City Council Approved Minutes December 1, 2009 Page 17 question about REST funding. In addition, the Plan changes policy; the Council's policy has been to devote REET funds over $750,000 to overlays. However, the proposed plan divides $863,000 in REET between park acquisition and park improvement. He was also concerned the Council had been provided additional information tonight. He anticipated the public would be frustrated with commenting on a Plan they had not had adequate time to review. He suggested continuing the public hearing to answer the questions the Council raised. With regard to the allocation of REST funds over $750,000 to overlays, Mr. McIntosh explained that was only for Fund 125. Council President Wilson agreed. Mr. McIntosh explained the City had been receiving 30 -40% of historical high REST collections. When REST collections reached historical highs in 2004 -2006, the amount in each BEET was over $1 million and collectively $2 - $2.5 million. He was confident the $430,000 was collected in each REST fund. Councilmember Wambolt recalled the information presented to the Finance Committee was total REET in 2007 was $1.4 million. Mr. McIntosh reiterated that was the amount collected by each REST. Mr. Miller commented staff was also frustrated by the inability to complete the CFP due to limited staff. He had hoped to present the CFP to the Council on November 15 but other factors intervened. Council President Wilson recognized the City was staffed very lean. Mayor Haakenson opened the public participation portion of the public hearing. Lora Petso, Edmonds, commented she did not receive the updated packet and expressed concern with a process where the Council was unable to make substantive changes. She asserted that was a violation of the GMA, more so than being late adopting the Plan. She explained the concern she relayed in her email was that there was apparently a difference between a CFP and a CIP and urged the City to proceed cautiously when making that distinction. With regard to the ability to amend the Plan on an emergency basis, she asserted that was only the CIP, not the CFP and the CFP was what allowed the City to spend REST 1 funds. She questioned whether tonight's public hearing was for the CFP, CIP or both. With regard to specific projects, she recommended eliminating the fire training facility and removing the 100 year flood study for the Edmonds Marsh intended to assist property owners with strategies for new development or redevelopment. She also questioned the $300,000 park acquisition expenditure in 2009, the vehicle wash station that had been in the Plan since 2002, why all the funding for the vehicle wash station was from the Stormwater Utility, and the previous plan to locate parks maintenance in the old Public Works facility. She urged the Council not to take action tonight to allow her additional time to review the Plan. Neil Tibbot, Edmonds, a member of the Citizens Advisory Transportation Committee, relayed the Committee's interest in finding solutions to making Edmonds a great place to walk and to connect parks and other sites. He identified several areas in need of sidewalks including near Madrona Elementary; the street that connects City Park, Seaview Elementary and Olympic View Drive; and the street that connects Olympic View Drive and 76th. He also identified streets in need of repair and improvements listed in the Transportation. Plan including Five Corners and 228th. He noted the Plan had identified funding of $40 million and a shortfall of approximately $60 million. He relayed the Committee's request not to fund all 53 projects in the Plan but to focus on the top 13, many of which are walkways in front of schools, connections between parks, the waterfront and businesses. The Committee compared Edmonds to Mountlake Terrace who has $663,000 or $11,000 per mile to fund transportation compared to $316,000 or $2000 per mile in Edmonds. He pointed out the discrepancy in the way the two cities funded transportation and suggested Edmonds reconsider their priorities. He displayed funding scenarios if the TBD vehicle license fee were increased. Edmonds City Council Approved Minutes December 1, 2009 Page 18 Adrienne Fraley - Monillas, Edmonds, a member of the Citizens Advisory Transportation Committee, reiterated the Committee's support for the new Transportation Comprehensive Plan. However, the 2010- 2015 CFP falls short of the Plan's recommendations and there is a huge funding gap that needs priority attention. The current funding program equates to an 80 year overlay cycle which does not provide minimum service levels for emergency services or citizens. Optimum sustainability in Edmonds cannot be achieved if citizens are forced to drive to leave their neighborhoods because collector roads do not have sidewalks. Promoting safe walkways to schools also assists with combating obesity. She summarized a poorly funded program results in deferred maintenance and delays construction improvements which results in emergency projects at a much higher cost, accidents, litigation and liability, a less attractive city, inability to accomplish projects on short notice, inability to obtain grants due to lack of local match, and inability to construct projects when construction costs are low. The Committee urged the City to prioritize the development of a solid funding plan for the transportation . system that met the objectives outlined in the Transportation Comprehensive Plan. The Committee urged the City to proceed with a transparent process and to examine all available revenue sources to fund transportation capital improvements. The Committee will work with staff to develop such a plan. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO EXTEND THE MEETING UNTIL 11:00 P.M. MOTION CARRIED UNANIMOUSLY. Brian Harding, Director of Facilities, Edmonds School District, relayed the School District's interest in the safety of students traveling to and from school and the District's support for any pedestrian . improvements the City can afford. Angela Michael, Edmonds, a parent whose two children attend Maplewood K -8, described a situation . where her child was almost hit while crossing the street. She relayed vehicles routinely drive too fast on 200th. She explained there was a sidewalk in front of Maplewood but there was no sidewalk on the other side of the street and therefore there was no crosswalk. The City installed additional school zone signs recently. She suggested installing a flashing school zone light. Roy Chappel, Edmonds, representing the Edmonds Bicycle Group, explained they were an advocacy group promoting safe bicycling in Edmonds. Their advocacy efforts include working with the City planners to consider the needs of bicyclists and pedestrians, planning and assisting with bicycle rodeos and donating bicycle helmets to youth receiving bicycles from charitable organizations. The Transportation Plan identifies over 50 projects between 2010 and 2025, many of which include bicycle improvements for example the 220th & 84th project. He recommended Council explore additional funding sources such as voter approval of additional TBD vehicle fees and change the distribution of REST funds. Rich Senderoff, Edmonds, commented he was glad to see the Plan included funding for the 4th Avenue Cultural Corridor which he viewed as a critical downtown project for economic development, enhances quality of life and helps brand the downtown area to potentially attract high end art galleries and the sales tax they generate. He was surprised to see only $5,000 allotted in 2009 -2012 for Edmonds Marsh Hatchery improvements, an inadequate amount due to the importance of the marsh to storm drainage and its role in attracting tourists. He pointed out the Marsh was the site of the annual Bird Festival. He expressed concern that the Edmonds Marsh Master Plan was not funded until 2011 and suggested that occur in conjunction with the Port's Master Plan for the Harbor Square site. Roger Hertrich, Edmonds, preferred the Council extend the public hearing and adoption if necessary to ensure the document was complete. He suggested the City maintain the civic playfields as a public use classification and direct the Planning Board to reclassify all public school playgrounds as public use to ensure they remained public use in the future. He expressed concern that the revenue sources were not adequately identified in the document such as specific grants. He was concerned the Council was Edmonds City Council Approved Minutes December 1, 2009 Page 19 continually asked to accept unreasonable plans, recalling a previous Plan that included $850,000 for three signals on 91h Avenue and $2 million for a roundabout. He urged the Council to give direction to staff to remove those projects from the Plan. He urged the City to make it clear to Edmonds School District that the City and School District needed to work together on a combined pool at the Woodway High School site. He also suggested the City identify a cost for the civic playfield. He was pleased the Plan included $4 -10 million for the Senior Center building replacement, but suggested a plan for that project need to be identified. He recommended no further funds be spent on a ferry terminal at Unocal. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. Mr. Snyder pointed out one of Ms. Petso's questions highlighted the change in this year's plan between the CFP and the CIP. In the past the City has combined capital facilities and capital improvements. The GMA requires a Capital Facilities Plan, a 6 -year plan to finance capital facilities. That is particularly important with regard to the RCW Ms. Petso referenced with regard to REET because REST funds can only be used to acquire or build new capital facilities; they cannot be used for improvements. Dividing the plan into a CFP for the acquisition or construction of new improvements and separating out maintenance projects was staff's intent. In response to Ms. Petso's inquiry whether the Plan was already late, Mr. Snyder clarified the 6 -year Transportation Improvement Plan was late; the CFP and CIP were not late. The Transportation Improvement Plan and the CFP need to be consistent and will be passed simultaneously at the end of the year. He commented a substantive amendment would be an addition to the Plan that the public had not had an opportunity to comment on. The Council was free to make adjustments within the range of alternatives considered. If the public had not had an opportunity to see or review information that was provided to the Council, he suggested continuing the public hearing. Council President Wilson noted the City had a 6 -year plan in place; if this Plan was not adopted, would that Plan still be in effect? Mr. Snyder stated the risk was the plans need to be consistent. If there is a project in the Parks or Transportation Plan, it needs to also be in the CFP. At a minimum, he recommended the CFP be updated to reflect changes in other plans to avoid invalidating one of the other plans. Mr. Miller clarified the information distributed by Mr. McIntosh were the CIP descriptions, capital improvements for existing facilities that are not included in the CFP. Council President Wilson observed the CFP included the CIP. Mr. Snyder reiterated the City has mixed capital facilities and capital improvements in the past. The CIP is an optional element; the CFP is a mandatory element. He summarized it was an amendment to the CFP to delete the CIP projects. Mr. Miller stated the CIP was included for information only. The narrative in the agenda memo explains the CIP projects are being separated from the CFP; in the past the CIP was included as part of the CFP. Mayor Haakenson suggested continuing the public hearing until December 15 to allow staff to clarify the information provided. He offered to have staff email the Council regarding the REET funds tomorrow. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO CONTINUE THE PUBLIC HEARING UNTIL DECEMBER 15, 2009. MOTION CARRIED (5- 0). Councilmember Plunkett was not present for the vote. Edmonds City Council Approved Minutes December 1, 2009 Page 20 8. PUBLIC HEARING ON A PROPOSED REZONE (FILE #PLN20090019) TO CHANGE THE ZONING DESIGNATION FROM MULTIPLE RESIDENTIAL (RM -2.4) TO SINGLE - FAMILY RESIDENTIAL (RS -8) ALONG A PORTION OF 215TH STREET SW. ALL PROPERTIES WERE SUBJECT TO A COMPREHENSIVE PLAN AMENDMENT THAT WAS APPROVED LAST YEAR (FILE #AMD20070014). Mayor Haakenson asked if Councilmembers had any disclosures. Councilmember Plunkett reported Jim Underhill, who is associated with this rezone, wrote several letters to the editor in support of his campaign and he used one of his quotes in his campaign materials. Councilmember Orvis reported Mr. Underhill also supported his campaign. Mayor Haakenson asked if there were any challenges to Councilmember Orvis or Plunkett's participation. There were no challenges voiced and Mayor Haakenson advised all Councilmembers would participate in this item. Planner Gina Coccia clarified Mr. Underhill was not the applicant; the City Council initiated the rezone. She explained the rezone referred to properties along 215th Street SW east of 76th Avenue West. The same 19 parcels were the subject of a Comprehensive Plan map amendment in 2008 that changed the Comprehensive Plan map from "Mixed Use Commercial" to "Single Family — Urban 1." Each parcel is approximately 1/4 acre in size, approximately equivalent to the R8 zoning designation and developed with single - family homes built in the 1950s and 1960s. Two owners along 76th have objected to the Comprehensive Plan and the proposed rezone. The site is located within the Multiple Residential (RM- 2.4) zone. The neighborhood is situated near Highway 99 to the east, Stevens Hospital to the south, Edmonds Woodway High School to the west, and multi- family to the north. The Planning Board made a recommendation to deny the proposed rezone of this neighborhood. She referred to Exhibit 2, minutes of the Planning Board meeting that contain their findings. She explained the City Council needed to review the record and determine if a rezone of the area was appropriate. Pursuant to ECDC 20.40 (rezones), 6 factors shall be considered: Comprehensive Plan . consistency, zoning consistency, relationship to nearby property, changes in the surrounding area or in policy to justify the rezone, economic and physical suitability, and the relative gain to the public health, safety and welfare compared to the potential increase /decrease in value to the property owners. Councilmember Wambolt clarified the criteria needs to be considered but do not have to be met. Ms. Coccia agreed. She explained the Council initiated the amendment and staff recommends approval; however, the Planning Board recommended the Council not approve the rezone and consider the area during next year's Comprehensive Plan amendment process. The Planning Board also discussed omitting the two properties on 76th from the rezone. Mayor Haakenson opened the public participation portion of the public hearing. Susana Martinez, Edmonds, property owner on the corner of 76th Avenue West & 215th Street, explained she did not support the proposed rezone. When she purchased her house in 1986 she was aware it was in a multi -use zone. She pointed out her house was not in a single family residential zone and there is a great deal of traffic on 76th Avenue. She anticipated her home's value would be reduced and would Edmonds City Council Approved Minutes December 1, 2009 Page 21 be difficult to sell if it were rezoned to single family residential. She referred to the proximity of Stevens Hospital and a condominium complex as well as the deteriorating condition of many of the houses. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO EXTEND THE MEETING UNTIL 11:30 P.M. MOTION CARRIED UNANIMOUSLY. Jim Underhill, Edmonds, recalled the Council voted 5 -2 to amend the Comprehensive Plan to a single family residential designation and 7 -0 to have the current zoning changed to support the Comprehensive Plan. He explained all the criteria have been met. On October 14, the Planning Board reviewed the rezone request. The record of their meeting indicates they understood the task, agreed with staff's findings and agreed the rezone satisfied the criteria. He referred to inaccurate statements made at the Planning Board meeting by the residents on 76th, Alden Peppel and Ms. Martinez. Ms. Martinez gave the impression the neighborhood was deteriorating. He pointed out two homes on 215th had recently sold for the asking price, indicative of a solid neighborhood on the rise. Ms. Martinez indicated the homes were old and of poor quality; he pointed out several homes had been upgraded in recent years. They are a neighborhood of affordable, quality homes. The concerns cited by Mr. Peppel and Ms. Martinez regarding traffic noise and noise from Stevens Hospital are shared by all the residents on 215th; the homes on the south side of 215th are adjacent to the Stevens Hospital parking lot and several are in close proximity to the Stevens Hospital power plant. He concluded the homeowners on 215th support the proposed rezone and the rezone protected the stock of affordable, quality housing. Councilmember Bernheim asked whether he would support retaining the existing zoning for the two lots on 76th . Mr. Underhill commented it may be more appropriate to ask the residents adjacent to those homes. The goal was to protect the entire street and all the homes share the issues Mr. Peppel and Ms. Martinez cite as reasons to be excluded. Rich Senderoff, Edmonds, recalled when the Council first discussed changing the Comprehensive Plan designation and during the deliberation there was discussion about this providing affordable housing. After that meeting he visited the neighborhood and his perception was that it was an oasis. He noted for some people the ability to live in a family residence close to Stevens Hospital was a positive feature and may be the reason houses in that neighborhood have sold quickly in this market. Another feature of this neighborhood was it was a walkable community; residents can walk to schools, restaurants, stores, etc. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. Councilmember Bembeim asked Ms. Coccia to review why this was consistent with the Comprehensive Plan and the Zoning Code. Ms. Coccia responded the Comprehensive Plan designation was changed from commercial to single family last year and a rezone from multi family to single family was consistent with that change. With regard to consistency with the Zoning Code, she explained the lots were developed as single family and the lot sizes were consistent with R -8 zoning. Another issue to consider was the relationship to nearby property; she explained there was a mix of uses in this area although it was primarily commercial and multi family. With regard to whether the property is economically and physically suitable for the uses allowed under the existing zoning and under the proposed zoning, Ms. Coccia referred to the Planning Board's discussion that the neighborhood was not indicative of the City as a whole and should be considered during next year's Comprehensive Plan amendments. With regard to the relative gain to the public health, safety and welfare compared to the potential increase or decrease in value, Ms. Coccia commented the current RM -2.4 zoning would allow up to four dwelling units and the proposed RS -8 zoning would only allow one single - family dwelling unit per lot. Edmonds City Council Approved Minutes December 1, 2009 Page 22 With regard to the relative gain to the public health, safety and welfare compared to the potential increase or decrease in value, Mr. Snyder explained in Washington there was no vested right to zoning. Changes could be made without incurring liability. The purpose of the criteria was to ensure the greatest good for the greatest number; whether the rezone achieves something positive for the overall community that would offset damage to the property owner. Mayor Haakenson clarified the Planning Board recommended denial so that it could be considered as part of the 2010 Comprehensive Plan amendments rather than rezoning one small area. Planning Manager Rob Chave explained the Council initiated the rezone. In preparing the staff report, staff relied on the 2008 Comprehensive Plan amendment. The Planning Board recommended denial of the Comprehensive Plan amendment last year and requested the Council refer this back for reconsideration of the Comprehensive Plan designation. The Council's options were to approve the rezone, remand to the Planning Board for review during the Comprehensive Plan amendment process or approve the rezone for the houses on 215th and refer the zoning of the properties on 76th to the Planning Board. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE ZONING CHANGE WITH THE EXCEPTION OF THE TWO PROPERTIES ON 76 re Councilmember Bernheim recalled he supported the change to the Comprehensive Plan designation. He viewed this neighborhood as an oasis. He found value in preserving affordable, single family areas but was persuaded that excluding the two properties on 76th would not harm the character of the other properties and it would be beneficial to allow multi family residential on 761h Councilmember Wambolt recalled Councilmember Olson and he opposed changing the Comprehensive Plan designation. He pointed out the existing zoning allowed for more affordable housing than the rezone as multi family dwellings were typically more affordable than single family homes. He disagreed that the rezone was compatible with the surrounding area, pointing out there was no single family development nearby. He agreed with the Planning Board's recommendation to consider this as part of next year's Comprehensive Plan amendments. He did not support the motion. Councilmember Plunkett pointed out staff believed all six criteria were met and the Council at one time believed the criteria were met. He pointed out the Planning Board Chair who voted against the change for other reasons believed all the criteria were met. He summarized the Planning Board wanted to change the legislative process for amending the Comprehensive Plan designation and the zoning. He expressed his support for the rezone under certain conditions. Council President Wilson asked about the status of the properties on 76th if the proposed motion passed. Mr. Chave responded the two properties on 76th would be reviewed by the Planning Board due to inconsistency between the Comprehensive Plan and the Zoning Code. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO AMEND THE MOTION TO INCLUDE THE TWO PROPERTIES ON 76 "H. Councilmember Plunkett expressed concern with the impact on the adjacent property owners of excluding the properties on 76th Council President Wilson pointed out the rights of the adjacent property owners should not be more important than the rights of the property owners on 76th Edmonds City Council Approved Minutes December 1, 2009 Page 23 THE VOTE ON THE AMENDMENT FAILED (2 -4), COUNCILMEMBER PLUNKETT AND COUNCILMEMBER ORVIS VOTING YES. THE VOTE ON THE MAIN MOTION CARRIED (5 -1), COUNCILMEMBER WAMBOLT VOTING NO. ►�tiJ l7 i ii�[y i[Ki � � ; �Y lf: Lora Petso, Edmonds, thanked the Council for their efforts to respond to public comment. She requested the Council revise the PRD ordinance so that the building setback did not overlay the perimeter buffer. There was legislative history indicating that was the intent when the PRD ordnance was adopted. Recent information indicated the City will allow the setback to overlay the buffer. The result is the homeowner believes they have a 15 -foot backyard and later discovered they cannot place a shed, patio or play structure in that space because it is also the buffer area. She emphasized the need to address this to prevent the creation of useless backyards. Vivian Olsen, Edmonds, thanked Mr. Snyder for the historical account of the Reidy's situation. In response to Mr. Snyder's question why there was no appeal of the original subdivision by Mr. Reidy, she clarified there was no notice to Mr. Reidy. Although a survey was conducted and all infringements of the property line were to be disclosed in the survey, they were not and as a result there was no follow -on requirement that it be resolved prior to approval of the subdivision. To the point that there was no appeal by Mr. Reidy of the alley vacation and the construction easement, Mr. Reidy requested a meeting which she attended along with Mr. Snyder and several staff members. If an appeal was a possibility, staff could have suggested that to Mr. Reidy at that meeting. Roger Hertrich, Edmonds, expressed concern with the Cascade Land Conservancy's Agenda, which refers to complete, compact and connected development, basically transit oriented development. It was his understanding the City was interested in commercial redevelopment on Hwy. 99 rather than residential. He recalled the Council's discussion at the November 17 meeting that it was the Council. President's responsibility to review claim checks before approval on the Consent Agenda. He referred to the narrative on tonight's claims that in accordance with the State statutes, City payments must be approved by the City Council. Ordinance #2896 delegates this approval to the Council President who reviews and recommends either approval or non - approval of expenditures. He expressed concern that Council President Wilson was not aware this was his responsibility. Ken Reidy, Edmonds, thanked the Council for their service to the City. He recalled Councilmember Plunkett's comments about the importance of public notice and public hearings, wishing he had felt the same about the public hearing he requested to discuss the temporary construction easement reserved over his property on September 16, 2008. He explained the people who attended the November 2, 2009 Council meeting did not intend to make an emotional presentation, they were here because the item was finally on the agenda and they hoped there would be an opportunity for a public hearing where oral and written comments about the temporary construction easement could be provided. He asserted there were several inaccurate statements in Mr. Snyder's presentation and he planned to prepare a public rebuttal to some of the information he presented. He explained he was never aware that his existing structure extended through the alley. That information was required to be on Mr. Thuesen's development surveys but it was not. Had he known, he would have pursued his rights long ago. Joan Bloom, Edmonds, disagreed with Mr. Snyder's comments that she had called him and his firm incompetent, assuring the word incompetent was not used. She agreed she had said the entire short plat application has probably cost the City hundreds of thousands of dollars and that she requested an accounting of the cost and the amount paid to Ogden Murphy Wallace. She cited inaccuracies in Mr. Edmonds City Council Approved Minutes December 1, 2009 Page 24 Snyder's presentation, explaining the regulated wetland at the time Mr. Thuesen vested was 2,500 square feet not 2,000 square feet and the delineation of the wetland was 2,291 square feet by LSA, the same firm that did not show the Reidy's shed on the survey. The omission of the shed on the survey should have made the application incomplete. The third party who originally assessed the wetland was Pentac; their original delineation determined it was a Class 2 wetland over 2,500 square feet but less than an acre and subject to City of Edmonds, State Department of Ecology and Army Corp of Engineer for verification. Mr. Thuesen had LSA do their own delineation which reduced the size to under 2,500 square feet. The Hearing Examiner ruled in favor of the citizens surrounding the property who questioned the wetland delineation and recommended the property owner have the wetland re- delineated which Mr. Thuesen did not do. The State Department of Ecology has never been allowed on the property even though the wetland is subject to DOE delineation. She planned to continue to provide further explanation regarding this issue during public comment, noting the wetland was filled improperly. Finis Tupper, Edmonds, commented Mr. Snyder's presentation was an obvious, blatant misrepresentation. The first misrepresentation was that the August Notice of Violation was the second Notice of Violation. He urged the Council to read the code, specifically Chapter 20.110, enforcement of civil violations. He pointed out the only person with the authority to issue a code enforcement violation was Community Services Director Stephen Clifton, who Mr. Snyder did not identify as one of the staff members involved in this matter. He asserted Mr. Snyder was in the background ordering staff to issue five different Orders to Correct. Anyone receiving a Notice of Violation was entitled to an administrative hearing and did have to pay $350 which Mr. Reidy did for the first Notice of Violation or $750 to appeal a civil violation. He suggested the Council consider interviewing other law firms because although Ogden Murphy Wallace is one of the lowest billing law firms in the downtown Seattle area, they cost their clients a great deal of money. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO EXTEND THE MEETING UNTIL 12:00 P.M. MOTION CARRIED UNANIMOUSLY. Council President Wilson asked for Council direction regarding scheduling this on a future Council agenda to allow Mr. Reidy and Mr. Thuesen to make a presentation to the Council. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO SCHEDULE FURTHER DISCUSSION ON DECEMBER 15, JANUARY 5 OR JANUARY 19 AND TO INVITE MR. REIDY AND MR. THUESEN TO MAKE A PRESENTATION. Councilmember Plunkett asked Mr. Snyder's opinion regarding Council President Wilson's motion. Mr. Snyder responded it was always appropriate for the Council to hear from citizens. He remarked Ms. Bloom may be correct regarding the square footage of the wetland. He commented the difficulty with having a presentation by Mr. Reidy and Mr. Thuesen was where the Council expected to go with that information. The administrative remedy was to provide the information to the Hearing Examiner. Mr. Reidy can also request a stay from Superior Court. He reiterated the vacation was final although the Council could initiate a vacation of the temporary construction easement. However, there was still a pending action with Mr. Thuesen on the vacation ordinance. Councilmember Plunkett commented what some people may consider a remedy could have serious downsides to the city. Mr. Snyder referred to the Mission Springs v. City of Spokane case that resulted in millions in liability when the Council pulled a vested permit. His concern was this looked like a backdoor way to attack the Thuesen permit which has been to court and regardless of what was missed, the record was closed. If Council wished to hire a third attorney to review the matter, he encouraged them to do so. Edmonds City Council Approved Minutes December 1, 2009 Page 25 Councilmember Orvis commented he had no problem with listening to Mr. Reidy or Mr. Thuesen's side but he was uncertain what the Council would do with the information. Councilmember Bernheim suggested Mr. Reidy and /or Mr. Thuesen describe their proposed course of action. He commented there was a great deal to be learned including continued sensitivity to the concerns of large numbers of people who believe they have been wronged and if the Council investigated and determined that mistakes had been made, the City could learn from those mistakes. He was eager to give Mr. Reidy and Mr. Thuesen a limited amount of time to present their argument, discussion and exhibits. Mayor Haakenson advised Mr. Thuesen was out of the country for the entire month of December. Mr. Snyder pointed out there was a claim pending with Mr. Thuesen. If the Council wanted pre - litigation review from WCIA and wanted it conducted by someone other than Ms. Kroll, he suggested the Council request that review. Councilmember Bernheim commented he was not interested in another legal opinion. COUNCIL PRESIDENT WILSON RESTATED HIS MOTION AS FOLLOWS: TO SCHEDULE A PRESENTATION BY MR. REIDY AND MR. THUESEN AT A MEETING IN JANUARY FOR A PERIOD NOT TO EXCEED AN HOUR TOTAL, 30 MINUTES FOR EACH. MOTION CARRIED UNANIMOUSLY. 10. ANNUAL REPORT - CITY ATTORNEY Due to the late hour, it was the consensus of the Council to reschedule this item. 11. MAYOR'S COMMENTS Mayor Haakenson had no report. 12. COUNCIL COMMENTS Councilmembers made no comments. 13. ADJOURN With no further business, the Council meeting was adjourned at H: 53 p.m. Edmonds City Council Approved Minutes December 1, 2009 Page 26