08/28/2007 City CouncilAugust 28, 2007
Following a Special Meeting at 6:15 p.m. for an Executive Session regarding pending litigation, the
Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council
Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute.
ELECTED OFFICIALS PRESENT
Gary Haakenson, Mayor
Peggy Pritchard Olson, Council President
Michael Plunkett, Councilmember
Richard Marin, Councilmember
Mauri Moore, Councilmember
Deanna Dawson, Councilmember
Dave Orvis, Councilmember
Ron Wambolt, Councilmember
1. APPROVAL OF AGENDA
STAFF PRESENT
Al Compaan, Acting Police Chief
Duane Bowman, Development Services Director
Brian McIntosh, Parks & Recreation Director
Rob Chave, Planning Manager
Scott Snyder, City Attorney
Bio Park, Ogden Murphy Wallace
Sandy Chase, City Clerk
Jana Spellman, Senior Executive Council Asst.
Jeannie Dines, Recorder
change to Mayor Haakenson advised Agenda Item 3 (Presentation regarding the Military Family Friendly Employer
Agcnaa Program, and Proposed Resolution Declaring Edmonds to be Military Family Friendly and Encouraging
Area Businesses to Become a Military Family Friendly Employment Partner) and Consent Agenda Item E
(Authorization for the Mayor to Sign a Second Amendment to the Interlocal Agreement for Vehicle
Maintenance Services between the City of Edmonds and the Town of Woodway, Decreasing the Vehicle
Shop Rate) would be removed from tonight's agenda and rescheduled for a future meeting.
COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO
APPROVE THE AGENDA IN CONTENT AND ORDER AS AMENDED. MOTION CARRIED
UNANIMOUSLY.
2. CONSENT AGENDA ITEMS
COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, TO
APPROVE THE CONSENT AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY.
The agenda items approved are as follows:
Roll Call
A. ROLL CALL
Approve
si2W07 B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 20, 2007.
Minutes
Approve Claim C. APPROVAL OF CLAIM CHECKS #98471 THROUGH #98629 FOR AUGUST 23, 2007 IN
Checks THE AMOUNT OF $500,868.04. APPROVAL OF PAYROLL DIRECT DEPOSITS AND
CHECKS #45390 THROUGH #45489 FOR THE PERIOD OF AUGUST 1 THROUGH
AUGUST 15, 2007 IN THE AMOUNT OF $828,834.25.
Edmonds City Council Approved Minutes
August28, 2007
Page 1
Claims for
Damages
Military Family 3
Friendly
Employer
Program
D. ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM PATRICIA TULLER
(AMOUNT UNDETERMINED) AND PATRICIA DZEIMA (AMOUNT
UNDETERMINED).
PRESENTATION REGARDING THE MILITARY FAMILY FRIENDLY EMPLOYER
PROGRAM, AND PROPOSED RESOLUTION DECLARING EDMONDS TO BE MILITARY
FAMILY FRIENDLY AND ENCOURAGING AREA BUSINESSES TO BECOME A MILITARY
FAMILY FRIENDLY EMPLOYMENT PARTNER
This item was removed from the agenda and will be rescheduled for a later date.
Puget Sound
Regional 4. PRESENTATION BY PUGET SOUND REGIONAL COUNCIL (PSRC) ON THE UPDATED
Council Update GROWTH STRATEGY AND POLICIES.
Norman Abbott, PSRC Director of Growth Management Planning, recalled approximately one year
ago four growth alternatives were presented; a preferred alternative has been selected and the Draft
Vision 2040 document prepared. He enumerated the documents provided to the Council including the
draft Vision 2040, EIS and Supplemental EIS, and the Regional View that serves as an Executive
Summary.
He provided a video narrated by Mike Lonergan, Chair of the PSRC Growth Management Policy Board
(GMPB), describing Vision 2040 which updates the long range vision for the Central Puget Sound area.
Mr. Lonergan described the membership of PSRC including King, Pierce, Snohomish, and Kitsap
Counties, 71 cities and towns, and four port districts, transit agencies and tribes. He explained the PSRC
worked on issues related to transportation, land use and economic development. PSRC distributes
approximately $160 million per year in federal funds throughout the region for transportation
improvements.
He explained Vision 2040 was the over -arching, long range growth management, economic and
transportation strategy for the region. Vision 2040 is supported by PSRC's functional plans including
Destination 2030 for transportation and the Regional Economic Strategy. The primary purpose of Vision
2040 is to help local jurisdictions identify and accomplish regional objectives by providing broad
direction for the future. Vision 2040 consists of four parts, an environmental framework, a regional
growth strategy, multi -county planning policies, and actions and measures to implement the vision.
He explained the primary reason for updating the vision was anticipated population and employment
growth, estimated to be 1.7 million more people and 1.2 million more jobs in the region by 2040, bringing
the population in the region to nearly 5 million by 2020. He reviewed the update process including the
development of several possible growth scenarios which were reduced to four alternative growth patterns
that were analyzed in a draft EIS. Following an extensive public comment period, the GMPB selected a
preferred growth alternative which was analyzed in a supplement to the draft EIS. Both the supplement
and Vision 2040 will now undergo another widespread review process and written public comment
period.
He described elements of the current vision carried forward in Vision 2040 including urban growth.
boundaries, rural areas remain and natural resource lands. Vision 2040 focuses growth in urban areas,
particularly compact centers, where services exist and calls for designated industrial and manufacturing
centers where intensive land uses accommodate present and future employment growth. The current
vision also includes an efficient transportation system that connects the centers. He described the
environmental framework of Vision 2040 and displayed a chart illustrating how the regional growth
strategy distributed each county's share of the population growth by regional geography, noting the goal
Edmonds City Council Approved Minutes
August28, 2007
Page 2
was to concentrate much of the growth into metropolitan and core cities. He summarized on analysis, the
regional growth strategy performed better than current local plans.
He explained the multi -county planning policies provided direction for implementing the regional growth
strategy, embody the policy framework for Destination 2030 and Regional. Economic Strategy and
establish a common framework for all levels of government. The policies cover five topics -
environment, development patterns, economy, transportation and public services. He commented on the
new environmental section that addresses the possible impacts of climate change and calls for coordinated
regional environmental planning. He explained Vision 2040 benefited local government by providing
decision -makers with a regional context for making local decisions, helps local government work together
to bend growth trends, addresses issues that are difficult to resolve at the individual jurisdiction level.
He described the outreach effort regarding Vision 2040 to solicit public comment. He provided PSRC's
website, psrc.org that contained links to the document. He reviewed the timeline for review of Vision
2040: PSRC Boards review public comments and make final edits and PSRC prepare final draft Vision
2040 and final EIS this fall, GMPB conducts a public hearing and recommend the final Vision 2040 to the
Executive Board this winter, and in April 2008 the Executive Board will take the recommended Vision
2040 to the general assembly for action. He encouraged jurisdictions and the public to provide comment
through September 7, 2007 via letter, a comment form is available on the PSRC website or via email.
Councilmember Moore asked what PSRC was seeking from local jurisdictions to add to Vision 2040.
Mr. Abbott answered they were seeking in a comment letter about the vision in the draft Vision 2040 and
how it fits with the city's vision.
Proposed 5. PUBLIC HEARING REGARDING A PROPOSED ORDINANCE ADDING A NEW CHAPTER
Ordinance re: 5.60 GRAFFITI• DECLARING GRAFFITI A PUBLIC NUISANCE• PROHIBITING
Graffiti DEFACEMENT OF PROPERTY WITH GRAFFITI AND POSSESSION OF GRAFFITI
IMPLEMENTS; IMPOSING CRIMINAL PENALTIES; REQUIRING THE REMOVAL OF
GRAFFITI; AND ESTABLISHING AN APPEALS PROCESS.
Bio Park, Ogden Murphy Wallace, was present to advise the Council during this item.
Councilmember Dawson explained the Public Safety Committee has discussed graffiti numerous times
and agreed to present a very broad ordinance to provide the public a range of what other jurisdictions
have done to combat graffiti. She noted studies have shown the most effective way to combat graffiti in a
community is prompt removal and if it was removed within 24 hours three times, the chances of it
reoccurring were virtually nil. Therefore, one of the objectives of the ordinance was to assist with the
prompt removal of graffiti. She acknowledged it could be difficult and expensive to remove graffiti. She
pointed out the Committee did not support the requirement in the ordinance for businesses to keep graffiti
implements behind the counter, check identification and not sell graffiti implements to minors. She noted
the current code contained a provision declaring graffiti a nuisance; however, an improved definition of
graffiti was necessary to assist with abatement.
Councilmember Plunkett explained another goal of the ordinance was to prevent graffiti. The code
currently required that an officer observe a person in the act of graffiti; the proposed ordinance would
allow an officer to stop a person possessing graffiti implements with the intent to commit graffiti.
Councilmember Dawson pointed out the ordinance was only part of the battle against graffiti but would
not be enough to combat graffiti; community involvement and vigilance was also required.
Edmonds City Council Approved Minutes
August28, 2007
Page 3
Acting Police Chief Al Compaan explained Seattle was one of the first cities in the Puget Sound area to
adopt a graffiti ordinance in 1996. He recalled a high level of tagging/graffiti was experienced in the
Puget Sound area during that era; graffiti had waned for awhile and was now reoccurring. He noted the
ordinance was intended to provide options for a multi -pronged approach - education to inform the public
regarding the importance of removing graffiti on their property, criminal enforcement, and civil sanctions
imposed via an abatement process for property owners unwilling to remove graffiti. He referred to the
provision in the ordinance regarding possession of graffiti implements with intent to commit a crime,
citing possession of burglary tools or drug paraphernalia as similar possession with intent to commit a
crime offense. He acknowledged vandalism was difficult for the Police Department to address; the
proposed multi -prong approach would provide some assistance.
Councilmember Plunkett inquired about statistics regarding increase in graffiti. Chief Compaan answered
to date this year there had been 120 reported incidents of graffiti, although he noted many other incidents
were unreported. As graffiti was reported under vandalism and malicious mischief, it was difficult to
extract statistics for prior years. Anecdotally he acknowledged there was an increase in graffiti on
buildings, parks and signs.
Councilmember Marin asked how the trust fund in the ordinance would be funded. Chief Compaan
responded it would be funded via civil penalties assessed through the abatement process. He clarified the
Police Department would address criminal enforcement; Development Services would address abatement
and any civil penalties.
Councilmember Marin observed each department's budget was currently used to address the cost of
graffiti removal; the trust fund proposed in the ordinance would provide a mechanism for funding
removal. Chief Compaan advised the ordinance allowed Council discretion regarding the use of those
funds.
Councilmember Dawson acknowledged it was very expensive to remove graffiti. She asked Chief
Compaan to comment on graffiti related to gang activity. Chief Compaan answered the majority of
graffiti/tagging in the City was non -gang related. He acknowledged some may view graffiti as art, others
view it as defacement. Councilmember Dawson commented the difference between art and graffiti was
permission.
Councilmember Dawson asked whether the Police Department had seen an increase in gang activity in
Edmonds in the past year. Chief Compaan acknowledged there had been some gang activity; the Police
Department worked closely with the schools and other Police Departments. Councilmember Dawson
noted her discussions with Edmonds School District indicated they are also concerned with graffiti on
district property.
Development Services Director Duane Bowman explained Development Services currently reacted to
graffiti by complaint or Police report and Code Enforcement Officer Mike Thies began an enforcement
action. He explained this typically begins with a letter to the property owner informing them of the
situation and requesting a schedule for removing graffiti. If the property owner ignores the letter, an
Order to Correct is issued. If the Order to Correct is ignored, a Notice of Violation is issued which
includes fines of $100/day, each day a separate offense. He could not recall an incident that reached that
level. The ordinance as currently structured followed that same process although the timeframes were
much shorter - five business days. He suggested that timeframe may be too short.
Mr. Bowman suggested language from the Seattle ordinance be incorporated that allowed for no
monetary penalties to be assessed and listed factors that could be considered such as whether the
responsible party cooperated with efforts to abate the graffiti nuisance, whether the responsible party
Edmonds City Council Approved Minutes
August 28, 2007
Page 4
failed to appear at the hearing, whether the responsible party made substantial progress in abating the
graffiti nuisance and any other relative factors. Councilmember Dawson agreed with Mr. Bowman's
suggestion. She suggested including language to address the time period such as unless waived by the
Director for good cause. Mr. Bowman agreed language that allowed staff to work with the property
owner would be appropriate.
Councilmember Dawson noted Snohomish County had a Voluntary Correction Agreement that allowed
property owners to enter into an agreement to avoid delays in removing graffiti. She asked whether the
code currently contained language regarding a Voluntary Correction. Agreement language. Mr. Bowman
advised it did not, explaining once staff sent a letter and the property owner responded with a proposal for
removal, staff considered whether it was reasonable and if so, that became an informal agreement. If the
property owner failed to act, staff proceeded with an Order to Correct and Notice of Violation.
Councilmember Dawson noted there currently were two levels of civil violation for nuisances in the code,
$100/day and $250/day; the ordinance proposes $250/day. She asked whether the $100/day fine would be
more appropriate. Mr. Bowman acknowledged the $100/day fine was sufficient to get people's attention.
Councilmember Moore asked for a copy of the Seattle code. She sympathized with businesses that were
victimized by graffiti and then must undergo a process of being fined. She asked whether there had been
businesses/property owners who did not react promptly. Mr. Bowman answered no, there had been
relatively good response to graffiti removal. He noted the most common issue was the timeframe for
removal. He agreed with Councilmember Dawson's statement that prompt removal was key.
Councilmember Moore asked whether five days for removal was too restrictive. Mr. Bowman answered
that timeline could be reflected in the ordinance along with language allowing development of a schedule
as approved by the Director.
Councilmember Marin commented on graffiti experienced by the church he attends and the difficulty they
had removing it. He noted one of the messages the second time the church was hit with graffiti was more
graffiti if it was removed. He supported Mr. Bowman's suggestion to provide staff some leeway to work
with the property owner on the timeline for removal rather than further victimizing the property owner via
the timetable for removal.
Mayor Haakenson opened the public participation portion of the public hearing.
Swan Seaburg, Edmonds, expressed concern with placing the responsibility for graffiti removal on the
property owner victimized by graffiti. He suggested working with the schools to change youths' attitude
regarding graffiti. Remarking Edmonds was a retirement community, he questioned how seniors could be
expected to remove graffiti. He was offended by the approach proposed in the ordinance that penalized
the property owner, preferring the focus be on prevention and/or apprehending the offenders.
Mike Mestres, Edmonds, posed several questions including who did the graffiti/tagging, what they were
hoping to accomplish, why did they did it, when they did it, and where they did it. He recalled living in a
higher crime neighborhood in St. Louis where generally the offenders lived in the neighborhood. He
anticipated the youth doing graffiti lived in Edmonds.
Steve Waite, Edmonds, suggested providing information to graffiti victims regarding methods for
removal such as via a handout at Development Services. He explained repairs generally were made via
covering the graffiti or removing it, although covering the graffiti was often unsightly such as on the
SR104 overpass. He noted it was possible to remove graffiti particularly if done within three days. He
Edmonds City Council Approved Minutes
August28, 2007
Page 5
commented on the importance of analysis prior to removal on historic structures or buildings with delicate
surfaces. He asked whether a citizen could apprehend a person in the act of graffiti.
Hearing no further comment, Mayor Haakenson closed the public participation portion of the public
hearing.
Councilmember Plunkett read a letter from Karen Wiggins, the owner of a commercial building in
downtown Edmonds, expressing her objection to punishing the victim with fines for failure to removing
graffiti in a timely manner. Although she had been able to remove graffiti on her building quickly, she
noted circumstances could prevent a property owner from prompt removal.
Chief Compaan emphasized the ordinance contained a range of options and was intended as a plan of
action and to provide tools to address graffiti the most important of which were public education and the
ability for an officer to apprehend someone in possession of graffiti implements with the intent to commit
a crime. With regard to who was doing graffiti, he anticipated the majority were juveniles from the age of
13- 16 years of age. With regard to when, he anticipated most of it occurred in the evening hours when
businesses were closed and parks were empty. He agreed most of the offenders lived in the area. With
regard to why, he envisioned it was "just because," noting graffiti was gaining popularity again. He
agreed neither an ordinance or police enforcement would solve the problem, it required parental and
school involvement.
With regard to Mr. Waite's question about apprehending some in the act of graffiti, Chief Compaan
cautioned against apprehending someone committing a misdemeanor/gross misdemeanor crime. He
noted there were specific statutes that allowed a retailer to retain a shoplifter and citizens could make a
citizen's arrest of a person committing a felony. He preferred a citizen to be a witness and allow the
Police Department to make the arrest.
Councilmember Moore asked whether anyone painting graffiti had been apprehended. Chief Compaan
answered a few had been apprehended. If it was a first offense, it would be referred to Juvenile Court and
the offender would be entitled to diversion, probationary type adjudication versus jail time.
Councilmember Moore asked whether he had the opportunity to talk to an offender or their parents. Chief
Compaan answered in nuisance and problematic juvenile crime in general, the youth was usually unable
to give a logical reason why they committed the offense, not understanding the impact of their crime to
the community. The parental reaction differed, sometimes very supportive of the Police Department and
other times not supportive.
Councilmember Moore expressed concern with a property owner who was victimized by graffiti
receiving a notice that they would be required to pay fines if it was not removed, essentially victimizing
them again. She used an analogy of a property owner cleaning up after a fire. Mr. Bowman answered in
that instance, staff worked with the property owner who was typically also working with their insurance
company. The situation was usually resolved quickly; however, if it was not and became an unsafe
situation, an abatement process would begin. He could not recall an instance that reached the level where
fines were imposed.
Councilmember Moore asked whether there was vandalism insurance. Mr. Bowman was uncertain,
noting the City repaired the vandalism they experienced themselves. He explained under the current
process, fines were not immediately imposed. Staff requested a schedule of when the graffiti would be
addressed; it was only if the property owner ignored staffs contact that the process proceeded. He noted
the Notice to Correct did not assess fines; it notified the property owner of the situation. If the Notice to
Correct was ignored, the Notice of Violation imposed a $100/day fine.
Edmonds City Council Approved Minutes
August28, 2007
Page 6
Councilmember Moore asked whether there was a specific timetable now. Mr. Bowman answered staff
worked with the property owner who provided an estimate of when they planned to remove the graffiti.
Staff typically agreed if their proposed timeline was reasonable. He summarized that process was
currently workable.
With regard to the timetable, Bio Park, Ogden Murphy Wallace, advised the Public Safety Committee
asked for a timeline that would be acceptable to the court for abating the nuisance; the minimum time was
five days, the Council had the option to extend that time period. He referred to the provision in the
ordinance for parental liability for fines, noting parents could not be held liable for criminal activity, but
could be held liable for fines.
COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MARIN, TO
EXTEND THIS ITEM FOR 20 MINUTES. MOTION CARRIED UNANIMOUSLY.
Mayor Haakenson reiterated the ordinance was very broad and the Council could narrow the focus.
Council President Olson inquired about the incidents on public versus public property. Mr. Bowman
answered graffiti on public property was addressed by the appropriate City department; Development
Services only responded to private property complaints. Council President Olson asked whether most
incidents were on residential property or commercial property. Mr. Bowman answered both although the
majority occurred on businesses. Mayor Haakenson advised most occurred on City park property, then
commercial and residential property such as fences, mailboxes, etc. Mr. Bowman offered to provide the
Council a copy of the graffiti handout Mr. Thies developed that he provides to victims of graffiti.
Councilmember Dawson commented the initial contact proposed by the ordinance was not a letter
imposing fines, but a letter describing why it was important to remove graffiti promptly and provided
information and resources regarding removal. Mr. Bowman answered it was similar to what staff did now
although staff currently asked for a schedule for removal. Councilmember Dawson referred to an effort at
the Snohomish County level to coordinate a team of experts to develop best practices for graffiti removal
as well as a brochure and graffiti removal kits. She advised there was a countywide planning meeting on
graffiti removal tomorrow. Councilmember Dawson asked on what other issues the City pursued code
enforcement. Mr. Bowman answered junk vehicles, trash/debris in a yard, etc.
Councilmember Wambolt referred to citizens expressing concern with penalizing property owners who
had been victimized, questioning who else could be accountable for cleanup. Mr. Bowman
acknowledged unfortunately the property owner was responsible for removal. He pointed out the
suggestions to allow a property owner to work with staff on a schedule for removal and giving
consideration to the property owner's effort in the assessment of fines. Councilmember Wambolt noted
the five days began after the property owner received a letter, not five days after the graffiti occurred.
Councilmember Moore referred to the process staff currently followed and asked if the only difference in
the proposed ordinance was the imposition of a fine. Councilmember Dawson answered the code
currently identified graffiti as a nuisance and assessed a $100/day fine; the difference was the ordinance
defined graffiti and suggested a minimum timeline for removal due to the importance of prompt removal.
She agreed with the suggestion to allow the Director the ability to work with a property owner on the
timeline for removal. She noted the proposed ordinance also contained criminal penalties for the
possession of graffiti implements with intent to commit graffiti as well as a provision for parental.
responsibility for restitution. She noted a homeowner's policy would typically cover graffiti removal
depending on the cost of removal.
Edmonds City Council Approved Minutes
August28, 2007
Page 7
Councilmember Dawson suggested seeking feedback from local businesses and the Chamber of
Commerce and returning the ordinance with the suggestions that have been made for further discussion
by the Council. Although he was not opposed to seeking further input, Councilmember Plunkett assured
the merchants had been notified repeatedly of tonight's presentation.
Councilmember Marin expressed support for the concept of removing graffiti. He suggested the trust
fund identified in the ordinance be allowed to be used to provide money to a property owner that was
financially unable to remove the graffiti. He also agreed with allowing the Director the ability to work
with a property owner on a schedule for removal.
Councilmember Moore agreed with the suggestion to provide the property owner recommendations on
graffiti removal and allowing the flexibility to negotiate a reasonable schedule for removal.
Councilmember Plunkett asked whether Councilmember Marin's suggestion regarding providing funds to
assist with removal would be a gift of public funds. Mr. Park answered the only method would be to loan.
the funds with a recovery of the funds.
Councilmember Plunkett suggested removing Section 5.60.040, Display and Storage of Graffiti
Implements, that required a merchant not display graffiti implements, prohibited the sale of graffiti
implements to minors, and required the display of signage regarding these prohibitions.
COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO
REMOVE PARAGRAPHS A, B AND C FROM SECTION 5.60.040.
Councilmember Dawson advised the Public Safety Committee and staff recommended eliminating
Section 5.60.040 and 5.60.030(C), Furnishing to Minors, recognizing those provisions were not necessary
in Edmonds at this time.
MOTION CARRIED UNANIMOUSLY.
Councilmember Plunkett recommended a property owner who was tagged receive a strong letter from the
City that provided information and encouraged them to remove the graffiti within 5-10 days. He
recommended removing the fines from the ordinance, recognizing the current process Mr. Bowman
described had been sufficient and fines had not been required. He agreed the fines appeared to victimize
the victim.
COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MOORE, TO
REMOVE THE FINES AND REPLACE THEM WITH A STRONG LETTER OF
ENCOURAGEMENT
Councilmember Dawson commented the reason no one had been fined was staff worked with property
owners but there was the threat of a fine if they did not comply. She pointed out the City's code currently
provided for a fine for all nuisances if not abated after action was sought including graffiti. She did not
support the motion, finding it important for staff to retain the existing tools to ensure abatement including
the existing fine. She envisioned the removal of fines would weaken the effort against graffiti.
Recognizing the trust fund identified in the ordinance would contain revenue from the payment of fines,
Councilmember Marin asked whether the funds could be used to assist with removal. He also asked
whether the trust fund could include contributions from community or service organizations. He noted
without fines, there would be no revenue for the fund to assist with removal. Mr. Park answered fines
were a revenue source for the City which constituted public funds and by constitutional prohibition could
Edmonds City Council Approved Minutes
August 28, 2007
Page 8
not be used to improve private property without something in return. A separate fund could be
established for contributions managed by another organization. Councilmember Dawson commented if
graffiti was a public nuisance, abatement of the public nuisance was in the public's interest and using the
funds for cleanup of a public nuisance was a public interest and may not be a gift of public funds. She
suggested further analysis be done on that issue, explaining the intent of declaring graffiti a public
nuisance was to allow the trust fund to be used to assist in cleanup efforts. She noted Snohomish County
allowed leftover paint to be used by the public for cleanup.
Mayor Haakenson noted the trust fund language allowed the Council to direct the expenditure of the
funds for removal of graffiti as well as payment of rewards for information leading to the conviction of
violation, cost of administering the ordinance, etc.
Councilmember Plunkett pointed out even if the fines were removed the ordinance allowed criminal
enforcement based on intent which provided the Police Department the ability to prevent graffiti.
MOTION FAILED (3-4), COUNCILMEMBERS PLUNKETT, MOORE AND ORVIS IN FAVOR;
AND COUNCIL PRESIDENT OLSON AND COUNCILMEMBERS WAMBOLT, MARIN AND
DAWSON OPPOSED.
Councilmember Dawson advised tomorrow there would be a continuation of the Snohomish County
graffiti summit that would include discussion regarding the graffiti paint -out event planned for October 6
as well as efforts to combat graffiti countywide.
COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO
INCLUDE IN SECTION 5.60.060, NOTICE OF GRAFFITI, THAT WHEN THE CITY NOTIFIES
THE PARTIES RESPONSIBLE FOR THE PROPERTY AND SENDS THE PARTIES AN
INFORMATIONAL LETTER DESCRIBING THE NATURE AND LOCATION OF GRAFFITI
AND REQUESTING THE GRAFFITI BE REMOVED PROMPTLY, INFORMATION BE
INCLUDED REGARDING THE PROPER WAYS TO REMOVE GRAFFITI FROM SURFACES.
Councilmember Dawson explained the intent was to include a brochure regarding methods for proper
removal, referring to language in the section that the letter would describe resources available to aid in
graffiti removal, identify any graffiti removal assistance programs available through the City or any
private graffiti removal contractors.
MOTION CARRIED UNANIMOUSLY.
Mayor Haakenson advised the ordinance would be returned to the Council in a revised draft form. He
declared a brief recess.
Closed Record 6. CLOSED RECORD REVIEW ON AN APPEAL OF THE HEARING EXAMINER'S APPROVAL
Review re: OF A 27-LOT PRELIMINARY PLAT (WOODWAY PLAT) LOCATED AT 23700 104TH
Woodway Plat
(Petro Appeal) AVENUE WEST. (APPELLANT: LORA PETSO / APPLICANT: BURNSTEAD CONSTRUCTION
/ FILE NO. P-07-17 AND PRD-07-18)
Mayor Haakenson relayed staff and his recommendation to take oral argument from the appellant and the
applicant and continue the matter to a date certain to allow the City Council to fully review the extensive
record. Council President Olson advised the matter would be continued to September 18. City Attorney
Scott Snyder asked whether the date was within the statutory period. Mr. Bowman answered it was
outside the statutory period but the applicant was agreeable to continuing the matter to September 18.
Mayor Haakenson confirmed with the applicant and the appellant that September 18 was acceptable.
Edmonds City Council Approved Minutes
August28, 2007
Page 9
Mayor Haakenson explained on June 21, 2007, the Hearing Examiner conducted an open record hearing
on the application of Burnstead Construction for a 27 lot Planned Residential Development
(PRD)/Preliminary Subdivision, along with hearings on the State Environmental Policy Act (SEPA)
appeals of Lora Petso and Heather Marks/Cliff Sanderlin. The Hearing Examiner issued a decision on the
PRD/Preliminary Plat and SEPA appeals on July 20, 2007. Requests for reconsideration were filed by
Lora Petso and Heather Marks on August 2, 2007 and August 3, 2007. The Hearing Examiner issued
decisions on August 8, 2007 reaffirming the July 20, 2007 decision and denying the reconsideration
request.
The Mayor explained the record on this matter was extensive. The City Council was only able to
consider the Hearing Examiner's decision on the preliminary plat and had no authority to review the
matters relating to the SEPA appeals or the PRD decision. Those matters were subject to appeal to
superior court.
As this was a quasi judicial matter, under the Appearance of Fairness Doctrine, Mayor Haakenson asked
whether any Councilmember had any conflicts of ex parte communications to disclose.
Councilmember Plunkett advised he had worked closely with Mr. Sanderlin and Ms. Marks on political
matters in the past and had also worked with Ms. Petso in the past. Mayor Haakenson asked whether he
could make a fair decision in this matter. Councilmember Plunkett advised he could.
Councilmember Orvis reported Mr. Sanderlin and Ms. Marks have contributed to his current campaign
and assisted with a recent fundraiser and he had worked with Ms. Petso in the past. Mayor Haakenson
asked whether he could make a fair decision in this matter. Councilmember Orvis answered he could.
Councilmember Moore advised she had spoke with Mr. Sanderlin and Ms. Marks in regard to political
matters and the Burnstead property development. Mayor Haakenson asked whether she could make a fair
decision in this matter. Councilmember Moore answered she could.
Councilmember Dawson advised one of the parties of record, Finis Tupper, had contributed to her
political campaign as had Ms. Petso. She advised their contributions would not affect her ability to make
a fair decision in this matter.
Mayor Haakenson asked if there were any objections to any Councilmembers' participation. There were
no objections voiced and he advised all Councilmembers were approved for participation.
Mayor Haakenson advised the applicant raised the issue of who may participate in the closed record
review. The City Attorney recommends the Council consider his objection, the response of the appellant
and at least one party of record and enter a ruling prior to arguments. City Attorney Scott Snyder
explained the applicant's representative, Mr. Lutz, provided a brief that cites the City's appeal procedures
which refer to participation at this review proceeding of parties to the appeal, a term that is not defined.
He referred to the memo he provided to the parties and the Council which indicates there are logical
arguments for that position in the RCW 36.70.B and 36.70C.
The memo also explains that while not defined, that provision has been uniformly applied by the City to
permit parties of record to participate. Parties of record under RCW 36.70B.130, is a person who may
participate is someone who presents at the open record hearing in oral or written testimony or requests in
writing notice of further proceedings. He advised the sign -in sheet at the Hearing Examiner indicates the
person wishes to speak or request further notice. As a result anyone who presented testimony or
requested notice of the proceeding was a party of record under the definition the City has uniformly
applied in these proceedings. He noted a logical conundrum was if only the appellant can speak and the
Edmonds City Council Approved Minutes
August 28, 2007
Page 10
applicant was the appellant, only the applicant could speak at a review proceeding before the Council. He
suggested the Council address this procedural issue before proceeding.
Councilmember Orvis advised Mr. Hertrich, a parry of record, had also contributed to his current
campaign. Councilmember Dawson advised Mr. Hertrich had also contributed to her campaign.
Councilmember Wambolt advised Mr. Hertrich also contributed to his campaign. Mayor Haakenson
asked whether there were any objections to Councilmembers Orvis, Wambolt, or Dawson's participation.
There were no objections voiced.
Jerry Lutz, representing applicant Burnstead Construction, advised the procedural issue they raised
was an attempt to bring as much structure as possible to this process. The City's appeal process for the
Burnstead application which includes a preliminary plat applicant and a preliminary PRD and SEPA
review with different appeal procedures that applied to each process was complex enough that it would be
helpful to the process if the code language were fairly construed that the parties to the appeal meant Ms.
Petso, the applicant and the City and limit discussion to those parties. He was sympathetic to the
arguments against this position articulated by Mr. Snyder, primarily past precedent, as well as the concept
of allowing parties an opportunity to speak, however, the parties who spoke at the hearing primarily
addressed PRD and SEPA issues. The preliminary plat issues were very minor and although there was
extensive discussion before the Hearing Examiner hearing regarding preexisting neighborhood drainage
issues, that was a SEPA and PRD issue, not a subdivision issue. He summarized for the protection of this
process and from a practical perspective because most of the issues parties of record would address were
irrelevant, it was preferable to limit discussion before the Council to Ms. Petso, the applicant and the City.
Appellant Lora Petso, Edmonds, recommended the City continue with its past practice of allowing all
parties to speak which allows for better decision -making. She noted the ordinance language was
permissive, not exclusive, and did not state only parties to the appeal were allowed to participate. The
language states the parties to the appeal may submit timely written statements or arguments. She noted
when she submitted her original appeal on a quick deadline, she was grateful for that language as it
allowed her to submit additional written information later. She agreed with Mr. Snyder's logical
conundrum if the language were construed too strictly, she would not be allowed to speak.
With regard to the statement that this proceeding was limited to issues that were SEPA or otherwise
unrelated, she pointed out the subdivision law required compliance with the Comprehensive Plan, the
Zoning Ordinance, public interest, etc. She expressed concern with the potential for interruptions when
those issues were raised in her presentation. Mayor Haakenson assured there would be a process for
parties to voice objections. Ms. Petso concluded the Council had a great deal of discretion in balancing
the goals and policies of the Comprehensive Plan and other issues.
Roger Hertrich, Edmonds, advised he was a party of record and a number of the comments made by
Ms. Petso reflected his comments/ideas. Thus eliminating him as a party of record would eliminate a
portion of the record. He recommended the Council continue to follow its tradition of allowing parties of
record to participate. He agreed many of the plat issues were intertwined with the PRD.
Heather Marks, Edmonds, recommended parties of record be allowed to participate. She pointed out
the notice the City issued stated the public was invited to attend although it was not a public hearing. The
notice stated it was a closed record review and State law required that no public testimony be permitted
except from parties of record. She had postponed her vacation to be able to attend tonight. She suggested
if parties of record were not allowed to participate, the closed record review be postponed and a new
notice provided. She noted both the SEPA and preliminary plat were considered by the Hearing
Examiner.
Edmonds City Council Approved Minutes
August28, 2007
Page 11
COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MARIN,
THAT ALL PARTIES OF RECORD BE ALLOWED TO PARTICIPATE. MOTION CARRIED
UNANIMOUSLY.
Mr. Snyder explained information provided to the Council tonight was argument based on the record and
no new testimony was allowed. Mayor Haakenson would describe a process whereby parties could voice
objections to information at the conclusion of presentations and provide an opportunity to provide
citations of the record. With regard to the evidentiary issue Ms. Petso raised, he concurred that to the
extent that evidence in the record applied to subdivision criteria, it could be provided.
Mr. Snyder explained Regulatory Reform was intended to eliminate multiple appeals of the same issue.
RCW 36.7013.160 requires cities to utilize consolidated permit application processes. He noted due to
procedural reasons contained in the record, a remand and a re -notice, issues related to the PRD were out
of sync with these issues. He recommended to the Council that to the extent evidence in the record
related to subdivision criteria it was appropriate and relevant. To the extent argument was made that the
Council lacked authority to rule on a subdivision plat because an issue related to another decision -making
process remained, that should be rejected and considered not relevant to tonight's decision. Otherwise the
Council risked being seen in a review process as having held multiple hearings on the same subject. For
example, the Council did not have jurisdiction over the PRD or SEPA issues and denying a plat based on
concerns over which the Council did not have jurisdiction would be problematic.
Mayor Haakenson established a 15 minute time limit for the appellant and applicant, advising the
applicant, Ms. Petso, may wish to reserve time for rebuttal. A 3-minute time limit was established for
comments by parties of record.
Due to the extensive record, Mayor Haakenson explained it was impossible for the Council to determine
whether argument provided was contained in the record. Therefore if either party had objections to the
argument of the other based on the argument being outside the record or any other reason, objections
would be voiced at the close of the other party's presentation. The party whose argument was objected to
would be given an opportunity to cite where that information appeared in the record and the Council
would determine whether the information should be excluded from consideration as outside the record.
Mr. Lutz questioned the order of presentation, requesting he be allowed to speak after the parties of
record. Mayor Haakenson advised typically the order of presentation was the appellant, applicant and
parties of record but the order could be modified if the Council wished. Mr. Lutz asked if that order was
retained he be allowed to briefly address issues raised by parties of record. Mr. Snyder explained the
rationale for the order of presentation was issues were limited to the record and issues raised by Ms. Petso
in her appeal; no other issues were relevant. Therefore, he should not be surprised by any comments and
because the appellant had the burden of persuasion, she was given an opportunity for rebuttal. He noted
the applicant and/or appellant could also object to argument outside the record provided by parties of
record.
Appellant
Ms. Petso reserved two minutes for rebuttal. Ms. Petso advised she purchased a copy of the tapes of the
Hearing Examiner hearing and would submit corrections to the transcript. She displayed an aerial map
identifying the existing ballfields where the subdivision would be located, an existing drainage ditch, and
a fish and wildlife conservation habitat conservation area. She advised only two of the lots were close to
the size of the existing lots; the small lot size combined with the reduced side setbacks produced a gutter -
to -gutter or continuous wall effect that she asserted would be more appropriate in the BC zone than this
south Edmonds neighborhood. She pointed out the large backyards of the existing subdivision to the west
Edmonds City Council Approved Minutes
August28, 2007
Page 12
which contrast sharply with the proposal. She noted all citizens would be direct neighbors to this project
as it was adjacent to City park land.
Ms. Petso explained under subdivision laws, the proposal must be consistent with purposes of the
subdivision chapter, all subdivision requirements, the Comprehensive Plan, be in the public interest and
meet all requirements of the zoning ordinance. Under the court cases where the plat contains clear zoning
violations, the subdivision could not be approved. In this instance the plat did not comply with the 35%
lot coverage requirement; therefore, it could not be approved. The drainage report shows the roof area
alone equates to 35% of the lot area; after subtracting required driveways and walkways, the subdivision.
would not comply with the 35% requirement.
Ms. Petso pointed out the plat was based on four home designs and the project narrative states an intent to
avoid rows of identical homes; however, there was only one lot that could accommodate the largest home
under the 35% requirement and only if buffers, walkways and driveways were ignored. The Hearing
Examiner has indicated the applicant would not be permitted to ignore walkways, buffers and driveways.
Nineteen of the lots could only accommodate the smallest of the four home designs, assuming required
buffers, walkways and driveways are ignored. She summarized 19 of the 27 homes would be identical
under this proposal.
Ms. Petso reiterated the subdivision law states if there were clear zoning violations, the subdivision could
not be approved. In this instance, the plat is required to have 8,000 square foot lots, but did not. She
assumed there would be argument made that the 8,000 square foot requirement was waived due to the
PRD. Because the Hearing Examiner found the plat did not comply with the PRD ordinance, Ms. Petso
argued the subdivision could not be approved because the lots were not 8,000 square feet and did have an
approved PRD. She displayed a plat map, pointing out the Hearing Examiner found no perimeter buffer
had been provided. The Hearing Examiner is requesting a buffer along the west and south sides of the
proposal; if such buffer is provided, it would not buffer the park property. The city's ordinance requires a
greater buffer along a public way and the Comprehensive Plan identifies a park as a public way. She
acknowledged the Council could not decide the buffer issue; however, it was important information
because if the plat as conditioned could not meet the requirements of the zoning ordinance, the
subdivision could not be approved.
Ms. Petso explained adequate storm drainage was required under subdivision law. She identified the
wetland/drainage ditch that presently holds, infiltrates and naturally disposes of a portion of the
stormwater on the site and from an offsite tributary north of the site. The applicant proposes to fill this
facility although there is already flooding of the homes to the west at whose request the ditch was
installed approximately 25 years ago and to the south as drainage runs in that direction.
Ms. Petso referred to comments by ADB Member Schaefer who identified other drainage issues related to
the subdivision and urged the Councilmembers to read the ADB minutes. She noted Mr. Schaefer
appeared to have personal knowledge of the drainage system, observed that infiltration capacity would be
reduced over time, suggested heightened maintenance to prevent the reduction, and expressed concern
when informed the homeowners association would be charged with maintenance. He was also concerned
that Tract C in the plat was too small for the necessary drainage facility and wanted to avoid a situation
where it was later determined a larger facility was needed.
Ms. Petso concluded the burden was on the applicant to illustrate that the drainage would work which he
had not done. Of the six drainage test pits dug, none were on Tract C where the drainage facility was
proposed to be located; vault testing occurred offsite and produced a recommended infiltration rate of
only 3 inches per hour. It was subsequently stated that rate could be increased with point drains but there
Edmonds City Council Approved Minutes
August28, 2007
Page 13
was no onsite testing done. She pointed out nothing in the record identified the infiltration testing results
from test site EP2, the site closest to Tract C.
Ms. Petso referred to the subdivision law that states where environmental resources exist, the proposal
must minimize impacts. She noted this proposal fills the drainage ditch and cuts 46% of the trees in the
wooded portion of the site which did not represent minimizing the impacts.
She referred to the aerial view, pointing out the fish and wildlife habitat conservation area extended
beyond the wildlife corridor and provided an ideal perch for birds of prey adjacent to the park. She noted
bald eagles had recently been observed perched in the trees. She explained habitat in the trees including
downed logs and a varied understory made it an exceptionally valuable habitat. She displayed a
photograph of the area where the applicant planned to cut trees and construct the retaining wall to
accommodate Lot 17. She displayed a photograph from the vantage of the City's park property,
commenting even if only the four trees on the end were cut to accommodate Lot 18, the backdrop to the
City's park was reduced considerably.
Ms. Petso pointed out the subdivision ordinance also required minimizing grading. The site is already
95% level and the only grading that would be required would be to fill the drainage ditch or grade the
wooded area. She concluded neither filling the drainage ditch nor cutting the trees and building a
retaining wall minimized grading.
Ms. Petso explained the Comprehensive Plan provides that subdivision layouts, buildings and roads
should be designed so that the existing trees were preserved as well as contains other stronger language.
She urged the Council to refer to the Comprehensive Plan references in the written materials. She
explained Comprehensive Plans were generally policy documents; however, the courts have held that
where development regulations require compliance with the Comprehensive Plan as the City's does, then
both the regulations and the Comprehensive Plan must be complied with. She pointed out the City's
Comprehensive Plan covered drainage; critical area; parks, open space, and playfields; natural vegetation
and topography and compatibility of subdivisions; this proposal fails to meet any of the established levels
of service for drainage or playfields and makes no effort to protect critical areas, eliminating one and
seriously damaging another.
The Hearing Examiner noted Edmonds had chosen a policy of infill in preference to rezone, but Ms. Petso
found this proposal was more rezone than infill. She commented isolated problems in a subdivision could
generally be addressed via conditions, such as eliminating Lot 17 or 18 to protecting the trees and
requiring the undergrounding of utilities. She requested the Council reject the subdivision as there were
massive compliance failures that could not be conditioned - houses would not fit on lots, existing
neighborhoods would be flooded, and the lots must be 8,000 square feet or comply with the PRD
ordinance and this proposal does neither.
Mr. Lutz raised no objection to Ms. Petso's presentation.
Applicant
Mr. Lutz explained there was a proceeding for the SEPA review for the preliminary plat application and
PRD. The purpose of the PRD was to modify for public benefit development terms that might otherwise
apply because of a strict application of the subdivision code in a manner that would make the
development more attractive. He explained there were aspects of Burnstead's proposal that differed in
modest ways from the strict application of the code with the intent and Burnstead believes has met the
intent, of providing a better overall product. He acknowledged it was difficult in that context to have a
discussion of the closed record subdivision appeal when the majority of issues pertained to the PRD.
Edmonds City Council Approved Minutes
August28, 2007
Page 14
With regard to drainage, he explained drainage engineering for the plat was not complete as preliminary
engineering that supports the concept of the plat was done as part of preliminary plat approval. If the
preliminary plat and PRD were approved, final engineering would be done and staff would impose
conditions and approve the final engineering. He concluded what Ms. Petso was contesting was a failure
to have a final drainage design for the plat and PRD when it was not expected by the code.
Mr. Lutz explained the PRD would address drainage, open space and recreation, and the incorrectly
identified fish and wildlife habitat on a corner of the property. He noted the record reflected that issue
was considered and rejected by staff. He recalled the City had a map indicating there was a fish and
wildlife habitat area on the property that was later determined to be incorrect. He noted that was an issue
on remand from the Hearing Examiner as she wanted to ensure that issue was properly documented in the
file. He noted there was a hearing on Friday where there would be limited testimony on two remand
issues before the final PRD decision was issued. He summarized these were PRD, not subdivision issues.
He noted the Council could only consider subdivision issues and could not make a ruling based on issues
that were to be determined by the Hearing Examiner and appealed to Superior Court. He urged the
Council to respect the distinction between the processes.
Mr. Lutz referred to assertions made by Ms. Petso that were not supported by facts such as that there was
a wetland on the site. The report and testimony in the record states there was a drainage ditch on the site
and that there was no wetland that would be disturbed or destroyed by this development. There was also
testimony in the record that there was no fish and wildlife habitat corridor on the property although that
was an issue on remand. With regard to drainage, it has been addressed professionally at a preliminary
stage and further engineering would occur before the plat was built. He assured the drainage had been
professionally designed and the record reflected that the drainage designed for the site specific conditions
would be adequate to protect the surrounding area from any impacts from this development. He
acknowledged Burnstead was not designing a system that would fix preexisting offsite drainage issues.
As the engineers testified in the record, the proposed system would provide better drainage control than
currently exists. The proposed system would fully control and meet City requirements to prevent offsite
drainage impacts from the development. Mr. Lutz advised traffic impacts would not be a problem.
Mr. Lutz provided supplemental information which was distributed to the Council. Mr. Snyder advised
Ms. Petso could review the materials and raise any objections to material that was outside the record. Mr.
Lutz indicated he had tried to explain in the materials and the Hearing Examiner had also made a point of
it in her response to the request for reconsideration, that Ms. Petso's argument regarding lot coverage was
a misunderstanding of how lot coverage was calculated. He explained lot coverage was determined via
the amount of roof area on a lot; the buffer area and setbacks were not subtracted. He referred to page 7
of 9 of the Hearing Examiner's order on reconsideration, advising the Hearing Examiner conditioned lot
coverage to be met at building permit approval as lot coverage was determined in the building permit
application process. Burnstead would know the size of each lot after final plat approval as it was
conceivable that the lot sizes could be altered between now and final approval. He noted Ms. Petso's
argument was based on subdivision requirements of an 8,000 square foot lot rather than the proposed
PRD. He concluded compliance with lot coverage was determined at the time of building permit
application and approval; therefore, arguing about lot coverage at this point was premature.
Mr. Lutz explained they presented the housing types to the ADB; however, those were schematic street
view representations of the houses Burnstead typically builds, not proposed buildings for each lot.
Specific designs would be proposed during the building permit process and approved as part of the
building permit application. He encouraged the Council to read the Hearing Examiner's decision, finding
it incredibly thorough and addressing the issues Ms. Petso raised. Mr. Lutz pointed out Ms. Petso had
arguments in her conclusions but were not arguments based on the facts, but a characterization of facts in
Edmonds City Council Approved Minutes
August28, 2007
Page 15
a manner that she believed supported an argument but the Hearing Examiner's response indicated her
arguments mischaracterized facts and reached to suggest there was a legal problem that did not exist.
With regard to a procedural issue Ms. Petso raised, her assertion that the Hearing Examiner not viewing
the property before she held the hearing and viewing the property after the hearing was a fatal flaw that
justified the Council rejecting the plat. He explained the Hearing Examiner made the point that she
believed she better understood the arguments and issues having heard the testimony first and then viewing
the property before writing her report. He acknowledged it could be argued that was not what City code
required - City code requires the Hearing Examiner view the property prior to the hearing. He noted City
code also states any issue that was a procedural defect that did not prejudice anyone should not penalize
the parties. He asserted the Hearing Examiner looked at the property, listened to testimony and any error
in the order was harmless error that did not justify rejection of the plat. He encouraged the Council to
study the record, particularly the Hearing Examiner's report which outlined why the plat should be
approved.
Mayor Haakenson asked for objections to Mr. Lutz's presentation. Ms. Petso commented that while she
felt she was prohibited to arguing PRD issues such as whether the monument sign area was usable open
space, Mr. Lutz identified several issues that were addressed in the PRD; if she was unable to address
PRD issues that did not meet the requirements, Mr. Lutz also should not be able to address PRD issues he
felt met the requirements. Mr. Snyder suggested this could be addressed by the Council in its decision -
making process. Ms. Petso argues that the PRD plat does not comply due to several factors; Mr. Lutz
correctly notes those factors were development regulation alterations made via the PRD process.
With regard to Mr. Lutz's argument, Mr. Snyder noted there was nothing in the record about a hearing on
Friday. Although the remand was referenced in the Hearing Examiner's decision, the date was not
relevant to the Council's decision.
Parties of Record
Roger Hertrich, Edmonds, identified the factors to be considered, character, compliance and
compatibility, which address how the project and the neighborhood relate. With regard to compatibility,
he pointed out the lots were close together and the ADB had reduced the front yard setback from 25 feet
to 15 feet which he asserted was not compatible with the neighborhood. He concluded the goals and
objectives of the Comprehensive Plan were not satisfied. With regard to whether there was a fish and
wildlife habitat area on the site, he noted if there was, it was a critical area and was not allowed to be used
as open space. This would require additional open space areas, changing the configuration of the project
and reducing the buildable area. He referred to testimony by a biologist Mr. Enenhisa (page 60 and 61 of
the transcript) who associated fish and wildlife habitat with streams and disputed there was a habitat area
on the site. The applicant later had a biologist visit the site who found some habitat and some wildlife
and there was testimony by local citizens regarding wildlife in the wildlife habitat area. He noted the
biologist only spent 40 minutes looking at the area and Mr. Enenhisa did not take any soil samples. He
also asserted the City's critical area reconnaissance report was deficient.
Heather Marks, Edmonds, urged the Council to read her earlier testimony regarding traffic, drainage
and that the plat that indicates there would be an offsite pond/vault, yet at the hearing the applicant denied
that was planned, acknowledging it could happen if worked out with the City. She pointed out there were
no credentials listed for any of the consultants. With regard to the fish and wildlife habitat she advised it
met the fish and wildlife definition in the Edmonds Municipal Code Section 23.90.010.A.1.10. She
recalled two years ago mentioning at a Council meeting the presence of pileated woodpeckers on the site,
commenting there were a pair of pileated woodpeckers on the site now. She commented the Hearing
Examiner was wrong about Tract E where the trees and open space were located. She noted under
Section 21.75.090, the City could require the applicant during the plat process to provide park land or pay
Edmonds City Council Approved Minutes
August 28, 2007
Page 16
a fee. She questioned why that had not been required and whether it could be required as part of this
hearing. She pointed out open space on Tract E would only be available to residents of the plat.
Finis Tupper, Edmonds, found it appropriate for the Council to hold this hearing as plats and
subdivisions were a legislative rather than an administrative decision. He envisioned when the plat was
built, the average person would find it more appropriate in the RS-6 zone than the RS-8 zone. He referred
to turnover in the Planning Department, commenting the proposed plat was an example of a ministerial
mistake. He objected to the applicant's representative's reference to the Friday meeting and the revised
plat which was not a part of this record. He displayed the plat map, pointing out the absence of a 15-foot
perimeter buffer. He referred to the variance granted at the ADB, questioning whether the ADB had that
legislative power and whether the Council was willing to give up that power. He urged the Council to
consider the development on the adjacent lots constructed in the 1980s, pointing out the importance of
considering the character and compatibility of neighborhoods. He pointed out the fish and wildlife habitat
area exists on the City's critical area map; however, the applicant indicated it was in error. He questioned
how and when that was determined to be in error. He recommended the Council review the map and
consider why that critical area was included as usable open space when the code prohibited it.
Colin Southcote-Want, Edmonds, recommended the Council deny the proposed subdivision, requesting
the Council apply the City's rules and regulations. He displayed the plat map, advising a 15-foot buffer
was required around the development. A bigger issue was the 25-foot buffer adjacent to the park land
which was not reflected on the plat map. He concluded there were only two ways the Council could
approve the subdivision, 1) if all the lots sizes were 8,000 square feet or greater, or 2) it met the PRD
requirements. Because the plat did not include the 15-foot perimeter buffer, nor the 25-foot buffer
adjacent to the park, it failed the PRD test.
Mayor Haakenson asked for objections to the comments by parties of record. Ms. Petso had no
objections. Tiffany Brown, Burnstead Construction, acknowledged it was difficult to keep the issues
separate. With regard to Mr. Hertrich's comments about wildlife, drainage, wetland and lot coverage, she
noted this was a preliminary plat for which preliminary engineering was done; full engineering was not
required nor was a code citation made where it was required for the preliminary plat. Mr. Snyder advised
the applicant was not permitted rebuttal, only objection to information provided that was outside the
record.
Ms. Brown objected to Mr. Hertrich's comment about the 40 minutes their wildlife biologist was on site.
She advised that occurred at the Hearing Examiner's request for the PRD hearing that was not part of this
proceeding. If the PRD hearing could not be mentioned, she did not believe the extensive wildlife study
done after the Hearing Examiner's decision should be cited as it was not part of the record. She also did
not find in the record Ms. Marks' comments regarding pileated woodpeckers on the site. She also
objected to issues raised that were not part of Ms. Petso's appeal such as the argument regarding payment
of park fees in lieu of park land dedicated in the plat. She did not find any reference in the record to the
25-foot buffer adjacent to park land.
With regard to the reference regarding the Friday meeting, Mr. Snyder suggested the Council not consider
that comment in their deliberations. Mayor Haakenson asked how Ms. Brown's objections would be
addressed. Mr. Snyder suggested establishing a period of time the parties could provide written citation
to the portion of the record where these items appear.
Rebuttal
Ms. Petso advised lot coverage was not an issue to be addressed later; the subdivision ordinance stated
lots should contain a usable building area, if the building area would be difficult to develop, the lot should
be redesigned or eliminated. She urged the Council not to approve a subdivision that could not be built or
Edmonds City Council Approved Minutes
August 28, 2007
Page 17
the result would be tiny lots rather than ADB approved glorious houses. She pointed out drainage was
also not an issue to be addressed later. As Mr. Schaefer pointed out at the ADB meeting, if Tract C were
available for a drainage facility and it was not large enough and the overflow was channeled into the
Woodway Meadows system that floods Mr. Park's house regularly and likely others with the overflow,
that was not an issue to be decided later. She argued there would be no room if it was determined later
the drainage was not engineered well enough now.
Ms. Petso explained the site visit was prejudicial because, 1) the demolition fencing was installed the day
of the hearing so the Hearing Examiner could not access the property after she missed the pre -hearing site
visit, and 2) the Hearing Examiner stated the reason for missing the pre -hearing site visit was she had
decided, based on information she told Ms. Petso she would not use to prejudice the proceeding, not to do
the visit before the hearing. She had knowledge from the Growth. Management Hearings Board that
convinced her not to do the site visit when she was supposed to. Ms. Petso argued she was prejudiced by
this in two ways, 1) the Hearing Examiner was unable to access the site and 2) the reason she did not
attend the pre -hearing site visit was she was improperly using infonnation she was not supposed to have
and that she told Ms. Petso would not bias her decision.
With regard to the fish and wildlife habitat conservation area, Ms. Petso pointed out the critical areas map
was Exhibit 2 and the area was defined in the Critical Areas Ordinance as urban open space. With regard
to wetlands, she noted because the biologist did not find a stream did not mean it was not a wetland. The
Critical Areas Ordinance defined a wetland as an area with wetland vegetation and was frequently
saturated which the drainage ditch was. She referred to photographs she and others provided of wetland
vegetation. Ms. Petso pointed out the Hearing Examiner found the PRD did not have a buffer and
therefore she did not approve it. Ms. Petso concluded without a PRD approval, there could not be a
subdivision approval.
Mayor Haakenson asked for objections to Ms. Petso's rebuttal. Mr. Lutz objected to Ms. Petso alleging
the Hearing Examiner spoke to her outside the record and did something inappropriate due to work she
had done with the Growth Management Hearings Board. He observed there was discussion on the record
where the Hearing Examiner acknowledged she had worked for the Growth Management Hearings Board
and heard an appeal brought by Ms. Petso but felt she could be objective. He concluded there was
nothing in the record to suggest the Hearing Examiner acted improperly.
COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO
EXTEND THE MEETING FOR 40 MINUTES. MOTION CARRIED UNANIMOUSLY.
Mr. Snyder suggested parties be allowed until the close of business on September 13 to provide written.
citations for items that were objected to. He identified the objections to be 1) the 40 minute remark, 2)
pileated woodpeckers, 3) appeals items outside the record, 4) paying park fees or dedicating park land, 5)
25-foot buffer, and 6) Ms. Petso's allegations regarding the Hearing Examiner's comments. Ms. Petso
requested the list be provided in writing. Mr. Snyder suggested the Council include that requirement in
the motion to continue the proceeding.
COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO
CONTINUE THE CLOSED RECORD PROCEEDING TO SEPTEMBER 18, 2007, AND ALLOW
PARTIES UNTIL 5:00 P.M. ON SEPTEMBER 13 TO PROVIDE WRITTEN CITATIONS FOR
ITEMS THAT WERE OBJECTED TO.
COUNCILMEMBER MARIN WITHDREW HIS MOTION WITH THE AGREEMENT OF THE
SECOND.
Edmonds City Council Approved Minutes
August28, 2007
Page 18
Councilmember Plunkett asked how the Council would consider whether or not the Hearing Examiner
was prejudice as that issue was not one of the tests under the review of subdivisions. Mr. Snyder
suggested consulting Ms. Petso's appeal to determine whether that was an issue raised on appeal. He
recalled it was not, therefore, an issue outside the appeal was not relevant to this proceeding. Assuming
that it was not outside the appeal, Councilmember Plunkett pointed out a prejudice Hearing Examiner was
not one of the tests of the subdivision code. Mr. Snyder requested an opportunity to research that issue
and respond to the Council and parties by September 13.
For Councilmember Plunkett, Mr. Snyder explained the appellant had the burden of persuasion and must
persuade the Council by a preponderance of the evidence in the record. Councilmember Plunkett
commented the Council could take into account a layperson's testimony regarding what they observed
and determine whether it was persuasive. Mr. Snyder agreed, noting the testimony would also need to be
balanced against other evidence in the record.
Mr. Snyder encouraged Councilmembers to ask any questions now; once the Council entered its
deliberative phase, there would not be opportunity to ask questions. He cautioned the Council not to ask
for new testimony and only to ask for clarification of a point in the argument.
Councilmember Plunkett commented the record contains questions Ms. Petso asked of the Hearing
Examiner and reference was made to an additional conversation Ms. Petso had with the Hearing
Examiner. He asked Ms. Petso whether that was contained in the record. Ms. Petso advised the second
comment was in the Hearing Examiner's decision. She read in the Hearing Examiner's decision.
information that caused her to believe it was offered as an explanation for not making the site visit.
Councilmember Plunkett asked if a point was addressed in the record but not addressed by the parties was
he free to consider it in his decision. Mr. Snyder answered yes as far as evidence. He cautioned the
statements of decision -makers were not evidence. Councilmember Plunkett asked whether comments by
the Hearing Examiner that did not pertain to either party was something he could rely upon and draw a
conclusion. Mr. Snyder answered typically not unless the Hearing Examiner was taking official notice of
a City document. A hearing body could take official notice of documents but could not add or inject
evidence into a proceeding.
Councilmember Plunkett asked what would happen if Mr. Snyder concluded the Hearing Examiner being
prejudice could be considered and if the Council questioned whether comments of the Hearing Examiner
were prejudice. Mr. Snyder reiterated that was not an issue he had encountered before and requested an
opportunity to research it and provide the parties an opinion. Councilmember Plunkett clarified he
wanted to know whether he could rely on the Hearing Examiner's comments with regard to whether she
was prejudice.
Clarifying that she was asking for details of why the project did/did not comply with the PRD ordinance
or how that would ultimately be resolved, Councilmember Dawson stated her understanding was Mr.
Lutz's argument was it need not strictly comply with the subdivision ordinance because it was either PRD
or subdivision. She asked Mr. Lutz's opinion regarding the ramifications of the Council upholding the
approval of the subdivision of the plat if the PRD were not approved. Mr. Lutz clarified the question was
if the applicant had an approved plat supported by a PRD application and the PRD application was
denied. He answered if the PRD application was denied they would be unable to develop the subdivision
without the PRD approval because without the PRD approval some of the things they asked for would not
be consistent with the code.
Councilmember Moore asked for a copy of Ms. Petso's PowerPoint. Councilmember Dawson pointed
out all the information was contained in the record.
Edmonds City Council Approved Minutes
August28, 2007
Page 19
COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO
CONTINUE THE CLOSED RECORD PROCEEDING TO SEPTEMBER 18, 2007, AND MR.
SNYDER TO PROVIDE FROM THE MINUTES A COPY OF THE OBJECTIONS NOTED AND
THE PARTIES WOULD BE ALLOWED UNTIL 5:00 P.M. ON SEPTEMBER 13 TO PROVIDE
WRITTEN CITATIONS FOR ITEMS THAT WERE OBJECTED TO.
Ms. Petso pointed out the record provided to the Council was not the entire record. Mayor Haakenson
advised the remainder of the records were available for review in the City Council office. The volume of
records was the reason two additional weeks were provided for the Council to conduct their review.
A requirement for parties to provide the materials they presented tonight including Ms. Petso's
PowerPoint was added to the motion.
MOTION CARRIED UNANIMOUSLY.
Mr. Snyder advised the Council could not discuss this matter nor could it be discussed at the podium
pending the Council's decision. When the Council again considered this matter, they would be asked to
disclose any ex parte comments.
7. AUDIENCE COMMENTS
National Stephen Andrews, LaRouche Political Campaign, referred to the current collapse of the financial system
Financial
System nationally as well as on a worldwide level. He explained this took the form of foreclosure rates doubling
from 2006 to 2007 and the collapse of the sub -prime mortgage market. This led to inflation and was a
systemic problem; the real estate market was a symptom of the functioning policies. He noted this began
with the deregulation in the 1970s and Greenspan's decision and policies. He provided legislation based
on a solution President Franklin Roosevelt passed when he was in office.
waterfront Roger Hertrich, Edmonds, asked whether Mayor Haakenson was still bound by the non -disclosure
Redevelopment I agreement with regard to the Waterfront Redevelopment. Mayor Haakenson answered there was no
Department longer a non -disclosure agreement. Mr. Hertrich questioned how the City tracked staffs comp time and
xead comp learned no list was maintained, each Department Head was on the honor system including the Mayor. He
Time
recommended the City establish a system for tracking comp time.
Shirley Wambolt, Edmonds, commented her husband, Councilmember Wambolt, spent every day
except Sunday as a Councilmember, reading, and reading. She announced she would become a U.S.
Citizen on September 6, 2007.
8. DISCUSSION REGARDING THE SEASHORE TRANSPORTATION FORUM AGREEMENT
Seashore
Transportation
Forum Council President Olson advised Councilmember Marin and she were members of the Seashore Forum.
Over the past year they had been working on a new agreement. Cities in King County wanted Snohomish
County cities to participate in the Forum but because they voted on projects in Snohomish County, they
did not feel they should not vote on projects at the SeaShore forum. She read language Councilmember
Marin developed that states no jurisdiction shall cast a vote for funding recommendations of federal
funding allocated by the Puget Sound Regional Council in more than one forum or recommending body.
Snohomish County cities shall not have voting rights at SeaShore for voting rights for allocations in King
County.
Edmonds City Council Approved Minutes
August28, 2007
Page 20
Councilmember Marin agreed funding recommendations had been a thorny issue for some time; there was
a great opportunity for many cities to participate in the SeaShore Forum and provide input on
transportation issues. The proposed language would address the conflict regarding funding
recommendations.
Councilmember Dawson advised she was in Washington DC last week with a team from Snohomish
SNOTRAC County on coordinated transportation planning, SNOTRAC, Snohomish County Special Needs
Transportation Coalition, who serves a purpose similar to SeaShore by voting on projects that receive
federal funding. One of the things they worked on in Washington DC was how to make SNOTRAC more
relevant as well as updating the statement of executive sponsorship that had not been updated since 2003.
She noted Edmonds as well as other Snohomish County cities could benefit from participating in
SNOTRAC as the group has been underutilized and under -recognized in. Snohomish County. She offered
to provide further information on coordinated transportation planning in Snohomish County. She noted
one of the focuses of the Washington DC trip was umnet transportation needs for veterans.
Council President Olson commented she was excited to learn about SNOTRAC as it had appeared
Snohomish County did not have an organization comparable to SeaShore that provided education to
cities.
Councilmember Moore was also excited about SNOTRAC as a way to increase Snohomish County's
advocacy with regard to transportation.
The proposed agreement was acceptable to the Council.
9. COUNCIL REPORTS ON OUTSIDE COMMITTEEIBOARD MEETINGS
Iisnocom Mayor Haakenson reported he attended the SnoCom Board meeting in Councilmember Dawson's absence
and voted in favor of the annual budget which included a 4% increase.
CTAC Council President Olson reported she attended two Community Technology Advisory Committee
meetings; they were making a lot of great progress and were working with Edmonds and Everett
Community Colleges. She emphasized this was a potential revenue source for the City.
Port Councilmember Wambolt advised most of the items discussed at the August 13 Port meeting had been
Commission I reported in the press. At the August 27 Port meeting, Commissioners received a report by Bob Drewel
from PSRC regarding accomplishment of 16 of the 18 objectives for 2006. Another interesting statistic
Mr. Drewel provided was the four -county area used the most engineers per capita of any place in the
United States but was 34th in producing engineers, revealing the need for more educational institutions in
this area. The Port also reviewed their second quarter performance and gross profits which were up 19%
from 2006.
sound Transit Councilmember Marin reported he MC'd the groundbreaking of the Mukilteo Sounder station today.
Edmonds has been fortunate to have a stop in Edmonds since 2003 and it was unfortunate it had taken this
long for Mukilteo to have a stop. He noted once the interim Mukilteo station was completed next spring,
the Edmonds project could proceed.
Edmonds Councilmember Moore reported the Edmonds Community College annual Board retreat included
community discussion regarding the importance of recruitment and retention of students, issues they would be
college focusing on over the coming year.
Edmonds City Council Approved Minutes
August28, 2007
Page 21
Councilmember Dawson commented SnoCom had been seeking funding for an interconnect between
snocom and SnoCom and SnoPak. Although it was originallybelieved funding the applied for would not be realized,
snoPak g g Y PP
they had received $300,000 for the interconnect.
snocom Mayor Haakenson advised the concept of forming a Public Safety Technology Committee was also
discussed at the SnoCom meeting. Councilmember Dawson explained the intent of the committee was to
form a group of technical people throughout the cities and agencies in Snohomish County. Discussion
has been ongoing regarding the role of the committee such as who they would answer to, who the
members would be and whether they would be appointed by the cities or communication centers, what the
technology needs of public safety personnel are, etc. and ensuring decision -makers are able to participate
in decisions regarding technology before projects are underway. Mayor Haakenson commented although
the idea of that committee was good, he suggested consideration be given to consolidating some of the
committees rather than creating more committees. Councilmember Dawson summarized the cities could
not work in isolation with regard to public safety issues and a great deal of work was occurring at SERS,
SnoPac, SnoCom, etc.
10. MAYOR'S COMMENTS
Mayor Haakenson had no report.
it. COUNCIL COMMENTS
City,s Financial Councilmember Wambolt read a guest column that would appear in this week's Edmonds Beacon
sit ac'°" regarding misleading and incomplete campaign rhetoric during the past several weeks about the City's
financial situation. Councilmember Moore objected; Mr. Snyder advised the column did not name names
and addressed the City's financial situation. Councilmember Wambolt continued that as a member of the
City Council's Finance Committee, he felt obligated to communicate the real financial outlook for the
City. He highlighted initiatives that have eliminated significant amounts of the City's revenue, pointing
out that because the City did not have a mall or gambling, it was critical to identify new sources of
revenue. He described several revenue sources being pursued including, 1) the Hwy. 99 Task Force's
report that in 1-2 years a $90 million Walgreens development will begin at 220d' and Hwy. 99, 2) the
Harbor Square and Antique Mall redevelopment effort, 3) the Community Technology Advisory
Committee was optimistic about the revenue broadband would provide, 4) progress will soon resume on
neighborhood commercial centers, and 5) as a result of sales tax sourcing sales tax would be paid at the
point of destination versus the current point of sale which will benefit Edmonds. He summarized it was
too soon to estimate how much revenue would be realized from these sources. His point was that
Councilmembers, the Mayor, City staff and volunteer citizens continued to work on these initiatives to
increase revenue so that City services could be retained.
xarbor square Councilmember Marin advised last week each Councilmember received a 3-ring binder containing
redevelopment information about the work being done on the Harbor Square/Antique Mall redevelopment. He
commented it was exciting that the group had not given up and was still pursuing redevelopment that
would be an amenity for the community. He expressed his appreciation for the deliberative process that
was occurring.
164th St. Councilmember Marin recognized the wonderful job that was done on the 164d' Street walkway project.
Walkway Mayor Haakenson explained the contractor did a great job and was very conscientious even sleeping in
Project Y P g j rY h g
his truck on site to ensure his work was not disturbed. Neighbors brought the contractor food and a
birthday cake on his birthday.
Edmonds City Council Approved Minutes
August28, 2007
Page 22
sno-King Councilmember Moore announced the Running of the Balls on Saturday, September 8, a non-profit event
YouthEvent club that supported the Sno-Kin Youth Club. She encouraged the public to attend the event that would move
Event pP g g
5,000 balls down Main Street and include activities, celebrities, and entertainment.
xarbor square As it appeared a contract rezone would be requested for Harbor Square, Councilmember Plunkett asked
when the Council should discontinue talking about it. Mr. Snyder answered when the application was
submitted. He cited the difference between the Appearance of Fairness Doctrine regarding things outside
the record and pre judgmental bias. He cautioned a Councilmembers could lose their right to vote by
statements indicating their mind was so firmly made up it could not be changed.
12. ADJOURN
With no further business, the Council meeting was adjourned at 10:47 p.m.
Edmonds City Council Approved Minutes
August28, 2007
Page 23