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07/01/1986 City CouncilTHESE MINUTES SUBJECT TO JULY 8, 1986 APPROVAL EDMONDS CITY COUNCIL MINUTES JULY 1, 1986 The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Larry Naughten in the Plaza Meeting Room of the Edmonds Library. All present joined in the flag sa- lute. PRESENT STAFF PRESENT Larry Naughten, Mayor Peter Hahn, Comm: Svcs. Dir. John Nordquist Bobby Mills, Pub. Wks. Supt. Steve Dwyer Pat LeMay, Personnel Manager Laura Hall Jack Weinz, Fire Chief Jo -Anne Jaech Chris Beckman, Engineering Coord. Bill Kasper Mary Lou Block, Planning Div. Mgr. Lloyd Ostrom Bob Alberts, City Engineer Jack Wilson Scott Snyder, City Attorney Nigel Euling, Student Rep. Jackie Parrett, City Clerk Margaret Richards, Recorder CONSENT AGENDA Items (B) and (C) were removed from the Consent Agenda. COUNCILMEMBER OSTROM MOVED, SECONDED BY COUNCILMEMBER HALL, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items on the Consent Agenda,inclu.de the following: (A) ROLL CALL (D) SET DATE OF AUGUST 5, 1986 FOR HEARING ON HEARING EXAMINER RECOMMENDATION FOR PROPOSED 10 LOT PRELIMINARY SUBDIVISION FOR THE UNDEVELOPED TRACT OF LAND LOCATED BETWEEN 172ND ST. S.W. AND.MEADOWDALE BEACH ROAD, WEST OF 68TH AVE. W. (P-2-86/PATRICK REAGAN) (E) ADOPTED ORDINANCE 2569 AMENDING EDMONDS CITY CODE SECTION 10.25.090 TO PROVIDE, ON ORIGINAL CIVIL SERVICE APPOINTMENTS, CERTIFICATION OF THE FIVE HIGHEST INDIVIDUALS (INSTEAD OF THREE) ON ELIGIBILITY LIST FOR CITY'S REVIEW AND APPOINTMENT (F) APPROVAL OF LEASE AGREEMENT WITH UNOCAL CORPORATION FOR LEASE OF SOUTH MARINA BEACH AREA ($1,500) (G) ACCEPTANCE OF QUIT CLAIM DEED FROM JANICE C. JAMES, LESLIE NIELSEN, CATHERINE ANDERSON, AND JAMES A. AND MYRTLE ANNE SMITH FOR STREET RIGHT-OF-WAY AT 21005 SHELL VALLEY RD. (H) ACCEPTANCE OF QUIT CLAIM DEED FROM JAMES A. AND MYRTLE ANNE SMITH FOR STREET RIGHT-OF-WAY AT APPROXIMATELY 20930 SHELL VALLEY RD. (I) ADOPTED ORDINANCE 2570 EXPANDING CEMETERY BOARD FROM FIVE TO SEVEN MEMBERS (J) ADOPTED RESOLUTION 647 SETTING DATE OF AUGUST 5, 1986 FOR HEARING ON ADOPTION OF FINAL ASSESSMENT ROLL OF LID 212 (SEA VISTA PL.) APPROVAL OF MINUTES OF JUNE 16, 1986 [ITEM (B) ON THE CONSENT AGENDA] Councilmember Kasper referred to the memo dated July 1, 1986 from City Clerk Jackie Parrett which indicates that the minutes of June 16 do not reflect that the June 10 minutes were approved. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER DWYER, TO APPROVE THE MINUTES OF JUNE 10, 1986. MOTION CARRIED, WITH COUNCILMEMBER HALL ABSTAINING BECAUSE OF THE ELDERLY PROJECT. Councilmember Kasper noted that he had requested that the comments made by Councilmember Wilson, Councilmember Nordquist, Mayor Naughten and himself be included in the minutes of June 16, 1986 regarding the Hearing on Appeal of the Hearing Examiner Decision regarding a Proposed 96 Unit 3 Elderly Housing Project.' City Clerk Jackie Parrett said that the minutes previously corrected did include the comments made by Councilmember Wilson, Councilmember Nordquist, and Mayor Naught - en but did not include several of his comments. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCIL - MEMBER HALL, TO APPROVE THE JUNE 16, 1986 MINUTES AS AMENDED. MOTION CARRIED. ACKNOWLEDGMENT OF RECEIPT OF CLAIM FOR DAMAGES FROM BRADLEY AND DEBRA FAGALA ($500,000) ITEM C N THE CONSENTAGENDA] Councilmember Hall referred to the memo from City Clerk Jackie Parrett which indicates that Ms. Parrett had not yet received information which she had requested regarding where the incident occurred from the office of Attorney Robert Duggan. Councilmember Hall inquired if the Council should accept the claim without this information. Ms. Parrett said that the information was received today. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER WILSON, TO APPROVE ITEM (C). MOTION CARRIED. AUDIENCE Mayor Naughten opened the audience portion of the meeting. No audience input was offered. Mayor Naughten closed the audience portion of the meeting.. Councilmember Hall announced that an Executive Session will be held subsequent to Item 9 on the Agenda to discuss a legal, personnel, and lease acquisition matter. HEARING ON'HEARING EXAMINER RECOMMENDATION TO VACATE UNOPENED ALLEY IN VICINITY OF 8112 - 82ND S . S.W. ST-1-86 HENDERSON Councilmember Hall stated that she had worked with the applicant in the past. She said she would remove herself from the room if anyone objected to her participation in these proceedings because of her past affiliation with the applicant. No objection was noted. Planning Division Manager Mary Lou Block reported that on May 1, 1986 the Hearing Examiner held a public hearing on a petition of Warren Henderson to vacate the unopened alley in the vicinity of 8112 - 182nd St. S.W. The alley is a 10' x 255' segment of public right-of-way that is totally isolated from any other public right-of-way. It was created by the original Plat of First Addi- tion to the City of Edmonds in June of 1890. This plat was eventually vacated with the exception of the subject alley. The Hearing Examiner issued his report on May 16, 1986 recommending approval of the requested alley vacation subject to the conditions listed in his report. Although Section 20.70.030 of the Edmonds Community Development Code sets the presumptions of value for compensation for vacated right-of-way, it should be noted that the Hearing Examiner recommends that no compensation be required in this case. Ms. Block said Staff is recommending to the Council to instruct the City Attorney to prepare the necessary ordinance to vacate the alley. Ms. Block then reviewed the Hearing Examiner's recommendations as follows: Based upon the preced- ing Findings of Fact and Conclusions, the testimony and evidence submitted at the public hearing, and upon the impressions of the Hearing Examiner at a site view, it is hereby recommended that the City Council approve the vacation of the unopened alley right-of-way. The specific right-of- way is located south of 182nd St. S.W. and east of 81st Ave. W. in the vicinity of 8112 - 182nd St. S.W., Edmonds, Washington, and should be vacated subject to the following conditions: 1) a 10' easement shall be reserved across the entire width of the alley right-of-way for the installa- tion and maintenance of public utilities; 2) the ownership of the vacated right-of-way shall be determined either by the laws of the City of Edmonds or agreement of the adjoining property own- ers; 3) no compensation for the vacated right-of-way should be required. Section 20.70.020(B) (5) of the ECDC grants the Hearing Examiner the authority to recommend wheth- er compensation should be required for right-of-way vacations. In this case, it is the impres- sion of the Hearing Examiner that compensation should not be required. As noted in the Findings, the right-of-way was dedicated in 1890 with the original platting of the City of Edmonds. The right-of-way has never been used or has never been maintained by the City of.Edmonds or its prede- cessors, Snohomish County. The right-of-way is landlocked and serves no useful purpose to the City. With the vacation of the right-of-way, it will be included as part of a short plat and will be placed on the tax rolls which will benefit Snohomish County and the City of Edmonds. EDMONDS CITY COUNCIL MINUTES Page 2 JULY 1, 1986 This right-of-way appears to be somewhat unique within the City of Edmonds. I-t is of absolutely no purpose to the City and has absolutely no potential of being developed. It is of more value to the City by being used by the Applicant as part of a plat. Accordingly, it is hereby recom- mended that no compensation be required. Ms. Block referred to a transparency of the site on.the overhead projector. Councilmember Jaech inquired how the back lots will be accessed if the alley is vacated. Ms. Block said the properties would become part of a future subdivision, and access would be provided for those lots. Councilmember Jaech inquired about access for lot 10.0.00 on the map. Ms. Block said that lot is owned by Mr. Henderson. Councilmember Jaech inquired if the existing lots are current Code size. Ms. Block replied affirmatively. Councilmember Dwyer inquired what 75% of the assessed value is. M.S. Block replied $1,243.12. Councilmember Dwyer inquired about the filin-g fee for this application. Ms. Block said it is $375. She submitted a drawing to the Council of a pending short plat. Mayor Naughten opened the public portion of the hearing. Jerry Lovell, Lovell -Sauerland & Associates, representing the applicant, said that no compensa- tion should be paid for the vacation of the alley because: 1). the alley was dedicated to the public at no cost in 1890, and no funds have been expended to open, utilize, or maintain it; 2) the alley is landlocked because it is not contiguous to any public alley or street ri.ght-of-way; 3) the vacation of the alley was an oversight because right-of-ways were vacated in the past which would have provided contiguous access to the subject right-of-way from other public streets; 4) Section 32, Chapter 19, page 603 of the laws of the State of Washington of 1889 - 1890 dictate that no compensation should be paid. Councilmember Kasper said he appreciated the recitation of the laws of the State of Washington because that information is not provided to the Council by the Hearing Examiner in his Decision. He said although the vacation is a title clearing matter, the proposed plat should be included. Councilmember Kasper inquired if the alley vacation has been subjected to Staff review. Ms. Block replied affirmatively. Councilmember Kasper inquired how the City should proceed with the vacation of the alley when considering final plat approval. Ms. Block said the vacation approval could be conditioned upon the final plat being recorded. City Attorney Scott Snyder noted that the Hearing Examiner worded his Findings of Fact & Conclusions of Law as such because the Council does not have jurisdiction to try title of land. He said the applicant could have proceeded with a quiet title action at considerable cost or followed the City route. Councilmember Jaech inquired if Mr. Henderson will retain ownership of the lower lots. Mr. Lovell replied affirmatively. Councilmember Jaech inquired about access. Mr. Lovell said access will be from 182nd. St. Mayor Naughten closed the public portion of the hearing. City Engineer Bob Alberts noted that there is a sewer line in the right-of-way and an easement will be required. He said the County does not impose taxes on easements. Mr. Snyder said that Council action will require confirmation by an ordinance which he will draft and submit to the Council at a future date. Councilmember Dwyer noted that the Hearing Examiner is typically compensated for his services through compensation for relinquishing ownership of land. He said although he did not object to the City relinquishing its ownership of the subject property, he did not feel the City should lose money. Councilmember Kasper inquired if there was a Hearing Examiner fee. Ms. Block said the applica- tion fee was the only expense. Councilmember Ostrom inquired if the subdivision could not be made without the alley vacation. Ms. Block said the subdivision would not be precluded without alley vacation. . Councilmember Ostrom referred to the Hearing Examiner Conclusion #7 which states: "Because of a lack of use of the right-of-way and lack of usefulness to the City of Edmonds and because of the length of time that the right-of-way has not been used or available for public use, no compensation to the City EDMONDS CITY COUNCIL MINUTES Page 3 JU.LY 1, 1986 should be required. This recommendation is made pursuant to Section 20.70.020 (B) (5) of the ECDC". He said the Hearing Examiner's finding confused him because the City customarily grants vacations because of nonusefulness to the City and usefulness to interested parties. Councilmember Kasper noted that the Council does not receive all of the testimony from hearings which the Hearing Examiner bases his conclusions from. He recommended that this information be provided to the Council. Mr. Snyder stated that because the City cannot determine title of land, the Hearing Examiner must make a finding based upon record title; he can make note of objecting claims but cannot make Conclusions of Law that it does or does not exist. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER WILSON, TO APPROVE: 1) THE HEARING EXAMIN- ER'S RECOMMENDATION TO VACATE THE UNOPENED ALLEY IN THE VICINITY OF 8112 - 182ND ST. S.W. (ST-1- 86/HENDERSON); 2) THE HEARING EXAMINER'S RECOMMENDATIONS; 3) DIRECT THE CITY ATTORNEY TO PREPARE THE NECESSARY ORDINANCE TO VACATE THE ALLEY. COUNCILMEMBER DWYER MOVED TO AMEND THE MOTION, SECONDED BY COUNCILMEMBER KASPER, TO INCLUDE THAT COMPENSATION IN THE SAME AMOUNT AS CHARGED TO THE CITY BY THE HEARING EXAMINER FOR HIS SERVICES OR 75% OF THE ASSESSED VALUE, WHICHEVER IS LESS, BE REQUIRED. MOTION TO AMEND CARRIED, WITH COUNCILMEMBER HALL OPPOSED. COUNCILMEMBER KASPER MOVED TO AMEND THE MOTION, SECONDED BY COUNCILMEMBER OSTROM, TO INCLUDE THE PROPOSED ENGINEERING DRAWING AS A BASIS FOR THE VACATION OF THE ALLEY. MOTION TO AMEND CARRIED. THE MAIN MOTION, AS AMENDED, CARRIED. HEARING ON HEARING EXAMINER RECOMMENDATION FOR PROPOSED 5 LOT SUBDIVISION AT 21505 - 92ND AVE. .W. McN MAR/P-1-86 Planning Division Manager Mary Lou Block reported that Sheridan McNamar has filed an application to subdivide his property at 21505 - 92nd Ave. W. into five lots. On May 15, 1986 the Hearing Examiner held a public hearing on the request. The Hearing Examiner issued his report on June 3, 1986 recommending approval of the subdivision. Ms. Block noted that a copy of the Hearing Examiner's report, the preliminary plat, and a vicini- ty map were attached to the Council packet. Ms. Block reviewed the Hearing Examiner's Conclusions as follows: 2) The request of the Appli- cant has been reviewed in light of Section 20.75.085 and the review criteria of Section 20.85.010. The applicant is consistent with these sections of the ECDC; 3) The proposed subdivi- sion is consistent with the purposes of the subdivision ordinance in that it will regulate the subdivision of land in the City of Edmonds. Utilities, storm drainage, and other public ameni- ties are available. Adequate ingress and egress are provided; 4) The proposed subdivision is consistent with the Comprehensive Plan of the City of Edmonds in that it allows for low density development and meets the standards and guidelines for the Low Density Residential designation of the Comprehensive Plan; 5) The proposed development is consistent with the requirements of the zoning ordinances of the City of Edmonds and, in particular, the RS-8 zone. The proposal meets the lot size requirements for the RS-8 zone and meets all the other zoning standards for this particular zone; 6) With adherence to conditions of the Engineering Department, environmental impacts will be controlled; 7) Adequate lot and street layout are available for the proposed subdivision; 8) Dedication of right-of-way along 92nd Ave. W.' is necessary for public use; 9) Utilities will be available on site; 10) The Planning Department'of the City of Edmonds has recom- mended approval of the proposed preliminary plat subject to the conditions listed in Finding #23. Ms. Block then reviewed the Hearing Examiner's Recommendation as follows: "Based upon the preced- ing Findings of Fact and Conclusions, the testimony and evidence submitted at the public hearing, and upon the impressions of the Hearing Examiner at a site view, it is hereby recommended to the City Council of the City of Edmonds that preliminary plat P-1-86 be approved subject to the fol- lowing conditions: 1) The Applicant is to comply with all engineering requirements that are listed in Exhibit 2 and which are attached to this document. However, the right-of-way require- ment for the private road should be reduced to a 23' wide right-of-way for the first 194 feet; 2) The Applicant is to dedicate 10' of right-of-way along 92nd Ave. W. per the Official Street Map of the City of Edmonds; 3) The Applicant is to provide one standard fire hydrant on the private road between the properties that are identified on the plat map as the Shannahan and Laurence properties; 4) Lot 3 is a Flag Lot and shall have the following setbacks: Street setback- North, Side setback-East/West, Rear setback -South; 5) All development within the proposed subdivision will require permits from the City of Edmonds. Prior to any construction, the Applicant is to EDMONDS CITY COUNCIL MINUTES Page 4 JULY 1, 1986 obtain these permits; 6) The access road to the subject property will be allowed a right-of-way of 23' for the stretch of private road extending 194 feet east of 92nd Ave. W. This reduced right-of-way is granted because the criteria, as set forth in Section 20.85.010 of the ECUC, are satisfied. However, should there be any change to the proposed preliminary plat, this modifica- tion to the preliminary plat must be reviewed upon submittal of the proposed changes". Ms. Block reviewed a site plan and vicinity map on the overhead projector. She said the Hearing Examiner has recommended that the portion of land which extends !from 92nd Ave. W. to Mr. McNamar's property be reduced to 23'. C.ouncilmember Ostrom inquired why the Hearing Examiner has made that recommendation. Ms. Block .said there is no means to obtain additional access. Councilmember Kasper inquired if Mr. McNamar's property has ever been short.platted. Ms.. Block replied affirmatively. Councilmember Ostrom inquired if a variance was granted. Ms. Block said modifications for re- quirements can be granted contingent upon variance requirements when someone is doing a plat on a short subdivision. She said the property that was divided previously was not owned by the appli- cant. Mayor Naughten opened the public portion of the hearing. Jerry Lovell, Lovell-Sauerland & Associates, representing the applicant, said that the lot to the north of lot 5 will access to the north from the northeast corner and will not utilize Bowdoin Way. He said the property was shortplatted approximately 10 to 15 years ago, but the homes were never built on the triangular lot on the southerly end of the private road or on the lot to the east of it. The most feasible way to subdivide Mr. McNamar's property is to extend the private road which was established in the shortplat through the triangular lot. Approval has been obtained by the owner to share and use the private road. Councilmember Kasper inquired what the engineering requirements were to expand the road. Communi- ty Services Director Peter Hahn said 18' of pavement is necessary, but 30' of right-of-way is required. Mayor Naughten closed the public portion of the hearing. COUNCILMEMBER OSTROM MOVED, SECONDED BY QOUNCILMEMBER JAECH, TO APPROVE THE PROPOSED 5 LOT SUBDI- VISION AT 21505 - 92ND. AVE. W. (McNAMAR/P-1-86). MOTION CARRIED. CITY ATTORNEY SCOTT SNYDER INQUIRED IF THE MOTION INCLUDED THE CONDITIONS IMPOSED BY THE HEARING EXAMINER IN HIS FINDINGS OF FACT. COUNCILMEMBER OSTROM STATED THAT THAT WOULD BE INCLUDED IN HIS MOTION. THE SECONDER AGREED. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING REVOCATION OF HOME OCCUPATION PERMIT FOR JOHN P MER Y APPELLANTS: UTTER, SARGENT, HARMER, FISHER, K MOURAS, DUV LL CU-9-8 Planning Division Manager Mary Lou Block reported that on November 4, 1985 the City Council grant- ed a Home Occupation Permit to John Pomeroy subject to a number of conditions. The Planning Division monitored the permit, and on February 11, 1986 notified Mr. Pomeroy that revocation procedures were being initiated due to his failure to comply with all terms and conditions of permit approval. The plantings had not been installed, and the bus and trailer were still being parked on the property. On March 20, 1986 the Hearing Examiner held a public hearing on the Planning Division's request to revoke the Pomeroy Home Occupation Permit. The Hearing Examiner, on May 12, 1986, issued a decision denying the revocation request. Subsequently, an appeal was filed by neighboring proper- ty owners seeking to overturn the Hearing Examiner's decision. Ms. Block noted that the appeal letter, the Hearing Examiner's. report, the original City Council decision on CU-9-85, and Chapter 20.100.040 of the Community Development Code were included in the Council packet. Ms. Block said that Staff recommends the following: The Hearing Examiner determined that the applicant had complied with the specific terms of the City Council decision. The applicant had simply relicensed the vehicles in his own name and not that of his corporation, in deference to the Council decision. By doing this, fie eliminated the requirement to move them. It is the position of the appellants and the Staff that the intent of the Council was to prohibit the con- tinual parking of the bus and trailer on the site. EDMONDS CITY COUNCIL MINUTES Page 5 JULY 1, 1986 If the City Council concurs with the appellants that the vehicles are, in fact, a nuisance, the Council should pass a motion, as allowed under Chapter 20.100.040 (2) of the Community Develop- ment Code, declaring the vehicles a nuisance. The matter would then be referred to the Hearing Examiner for review, and a recommendation to the City Council whether the permit should be re- voked or new conditions should be imposed. Ms. Block reviewed the Hearing Examiner's Decision as follows: "Based on the preceding Findings of Fact, Conclusions, testimony, and evidence submitted at the public hearing, it is hereby or- dered that the City of Edmonds motion to revoke the Home Occupation Permit #CU-9-85 is denied. The basis of this denial is that the Appellant has shown compliance, or substantial compliance, with the conditions 2.A. and 2.0 of the City Council's decision in this matter dated November 4, 1985. "It was submitted by the Appellant's attorney and the City Attorney that the Hearing Examiner's review of Home Occupation Permit #CU-9-85 and the conditions of said permit is limited. It is limited to a determination of whether the conditions, as set forth in the November 4, 1985 City Council decision, have been satisfied by the Appellant. .From the testimony and evidence submit- ted, it appears that the Appellant has complied, or has substantially complied, with the condi- tions of the Home Occupation Permit. "In the November 4, 1985 document, the City Council in Conclusions of Law.B addressed vehicles belonging to Gem Productions which were parked on the premises. In the City Council's decision condition 2.C., they prohibited any vehicle licensed by the State of Washington in the name of a business entity, corporation, partnership, or person "other than the applicant" from being parked on the subject property. This condition effectively prohibited vehicles of Gem from parking on site but did not limit any vehicles licensed by the Appellant from parking on site. The Appel- lant has shown that the vehicles parked on site are licensed by the State of Washington in his name. The intent of the condition has been met and no deficiency exists. "Without the finding of a deficiency existing to the condition of approval, the Hearing Examiner cannot impose or change conditions on the permit. "The review of this permit was limited to a review to determine if the conditions of the permit were being met. Because no allegations were made in the notice to the Appellant that the require- ments of the City Code of Edmonds were not being met or that the permitted activity was causing a nuisance or hazardous condition, these .items were not considered in the review. In order to initiate review of these items, the procedure, as set forth in Section 20.100.040 (B) of the ECDC, must be followed". Ms. Block said the Hearing Examiner based his Decision on Council action and its specific condi- tions. To repeal the Hearing Examiner's.Decision the Council must make a finding that a nuisance did exist. Councilmember Dwyer requested that a copy of the original Hearing Examiner's Findings & Conclu- sions which were incorporated in the City Council's findings be marked as Exhibit #1. Ms. Block complied. Councilmember Kasper noted that Staff had issued warnings to Mr. Pomeroy previous to the revoca- tion proceedings. Ms. Block concurred. Councilmember Jaech referred to Karen Utter's letter. She requested that Section 20.20.020 6., 1. of the ECDC be read into the record. . City Attorney Scott Snyder read Section 20.20.020 of the ECDC, Criteria for Issuance of Home Occupation, Subsection 6, Reasons for Denial, as follows: "A Home Occupation Permit is a special exception to the zoning ordinance, and the applicant has the burden of persuasion that he/she comes within the stated purposes and criteria of this chapter. The following are among the common reasons for denial but are not inclusive: 1) The on -street or on -site parking of trucks or other types of equipment associated with the home occupation; 2) The littered, unkempt and otherwise poorly maintained condition of the dwelling site; 3) Noncompli- ance with the above criteria or purposes of this chapter or the zoning ordinance; 4) The proposal cannot be conditioned to met the criteria and findings of this chapter". Mayor Naughten opened the public portion of the hearing. Derrill T. Bastian, Attorney representing Mr. Pomeroy, requested that he be allowed to make a motion before the hearing commenced. Mayor Naughten inquired if his request was in order. Mr. Snyder said it was in order if it is was a procedural matter. Mr. Bastian said it was a procedur- al matter. EDMONDS CITY. COUNCIL MINUTES Page 6 JULY 1, 1986 MR. BASTIAN MOVED THAT THE COUNCIL DISMISS THE APPEAL OF THE APPELLANTS ON THE GROUNDS THAT IT ASSERTS NOTHING WHICH IS APPEALABLE TO THE CITY COUNCIL PURSUANT TO ORDINANCE SECTION 20.100. MR. BASTIAN ASSERTED THAT THE ISSUE BEFORE THE COUNCIL AT THE PRESENT TIME WAS THE CORRECTNESS OF THE HEARING EXAMINER'S DECISION ONLY. HE SAID IT WOULD BE ERRONEOUS AND PREJUDICIAL FOR THE COUNCIL TO HOLD A DE NOVO HEARING. Councilmember Hall raised a point of order. She said there was a process before the Council which she would like to continue; the appellants should be allowed to present their case first. If Mr. Bastian still asserted that the case should be dismissed, she said the Council would con- sider his request at that time. Mr. Bastian said he objected to being interrupted in the middle of his motion. Mayor Naughten requested that he continue with his motion. Mr. Bastian said the questions of a nuisance or if the business is a permitted activity in .a residential zone or clarifying the CounciI's intent regarding the bus and trailer which are cit- ed in the appeal should not be considered by the Council. Mayor Naughten asked Mr. Snyder how the Council should proceed with Mr. Bastian's motion. Mr. Snyder recommended that the Council proceed, in order to satisfy due process, by a voice vote to overrule Mr. Bastian's motion based on paragraph 2 of Ms. Utter's letter which raises the issue of proper interpretation of the Council's prior decision and the application of the facts to it. Councilmember Dwyer inquired if the proceeding before the Council is a de novo hearing or if it is is based on record. Mr. Snyder said the Community Development Code refers to a de novo hear- ing but provides that among those items which the Council will consider is the testimony present- ed this evening as well as the recommendation and record before the Hearing Examiner. Councilmember Kasper inquired about the. intent of the Council's previous decision. Mr. Snyder said that he felt that the Council is free to interpret its prior decision. He said the Council has had a consistent policy of interpreting appeal letters broadly. Mr. Snyder said discussions should be limited to those items initially raised by the Planning Department and appealed by Mr. Bastian and his client and now appealed by the appellants, i.e., the violations of the Council's decision regarding the two vehicles and landscaping. Councilmember Dwyer inquired if there are any standing problems regarding who raised the appeal. Mr. Snyder replied negatively. Councilmember Jaech inquired if Section 20.20.020, G., 1. is part of the record as well as infor- mation presented to the Hearing Examiner. Mr. Snyder said it is a part of the record. However,. he said this appeal began with a notification of deficiency by the Planning Department regarding violations of the decision and was not a general notice of a nuisance problem. Mr. Pomeroy's due process rights would be violated if the Council considered other issues without starting the process through notification of Mr. Pomeroy. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER KASPER, TO DENY THE MOTION TO DISMISS THE APPEAL BASED ON: 1) THE FACT THAT THERE IS NO STANDING REQUIREMENT FOR AN APPELLANT TO BRING AN APPEAL IN THE ECDC, 2) THE CITY'S HISTORY OF INTERPRETING APPELLANTS' LETTERS BROADLY, 3) IT IS A DE NOVO HEARING LIMITED TO THE MATTERS INITIALLY BROUGHT ON BY THE COMMUNITY DEVELOPMENT DIREC- TOR. MOTION CARRIED. Karen Utter, 8600 - 19.4th Pl. S.W., said Mr. Pomeroy's property is a City lot which is bound- ed by six other properties. She referred to a map from the County Assessor's office noting that Mr. Pomeroy's property is not a large lot. The map was marked as Exhibit #2. Ms. Utter said the Home Occupation Permit was granted with the condition that a landscaping plan be submitted and the bus and van removed from the property. * Ms. Utter submitted the following pictures: 1) construction of a garage on Mr. Pomeroy's prop- erty in February of 1985. She said the van was relocated to that property the first week in February as well as the.bus. She and six other neighbors submitted written complaints to the Planning .Department shortly afterwards; 2) a Consolidated Freightways truck backing into the Pomeroy driveway to pick up a large item on March 28, 1986; 3) the bus and van on Mr. Pomeroy's property on February of 1985; 4) a large wood pile in Mr. Pomeroy's front yard which, she said, * See Council Minutes of July 15, 19j6 EDMONDS CITY COUNCIL MINUTES Page 7 JULY 1, 1986 appears to be growing; 5) removal of trees by the PUD"in Mr. Pomeroy's front yard which depicts the widening of the driveway where the trees stood. The photographs were marked as Exhibit #3, 4, 5, and 6. Mr. Utter said the neighborhood has appealed the Hearing Examiner's Decision because the condi- tions set forth regarding the Home Occupation Permit have -been violated by Mr. Pomeroy and create a nuisance for the neighborhood. *Grant Sargent, 8608 - 194th Pl. S.W., representing the neighborhood, said the neighbors have been subjected to the "continual nuisance" for over one and a half years. He said they are appealing the Hearing Examiner's Decision under Section 20.100.040 of the Edmonds Community Development Code and are specifically asking for review of approved permits. The business, he said, is not a permitted activity in a residential area. Mr. Sargent said it was firmly established in earlier hearings that the bus and van are part of Mr. Pomeroy's business, and relicensing.the vehicles in his name does not change the conditions of the Home Occupation Permit. Mr. Sargent said the neighbors have given Mr. Pomeroy ample oppor- tunity to relicense the vehicles in the name of Gem Productions. They are asking that the permit be denied. Derrill T. Bastian, 330 First Interstate Bank Building, 3405 - 188th S.W., Lynnwood, represent- ing Mr. Pomeroy, stated that the Council can only interpret and clarify its prior decisions if they are ambiguous. He asserted that the decision the Council rendered on November 4, 1985 is not ambiguous with the.exception of Paragraph 2(A) regarding the planting of additional evergreen trees. Mr. Bastian said the Council has "no right to tell a man to develop his own plan to inter- pret the Council's intent to tell him what he is supposed to do". He said Mr. Pomeroy has plant- ed the trees but three have died. The plants have been ordered from a nursery and will be re- planted. Mr. Bastian said Paragraph 2(C) regarding the prohibition of vehicles which are li- censed in the name of a business, corporation, partnership, or persons other than the applicant to be stored or parked on the premises is not ambiguous. When a municipality acts, he said it has to act by ordinance which must be applicable to everyone in the community. He said the Coun- cil would be imposing unconstitutional class legislation upon Mr. Pomeroy if it singled out his personal property and not others. Councilmember Dwyer said that Mr. Pomeroy accepted the Council's decision in November, and since there was no application for review of the decision in Superior Court, the hearing tonight is simply a discussion for interpretation of it. Mr. Bastian said he would accept that. Councilmem- ber Dwyer requested that Mr. Bastian explain whether or not Paragraph 2(C) has any application to a vehicle solely owned by the applicant or whether vehicles owned by the applicant are covered by the restrictions imposed by the Hearing Examiner which were incorporated in the Council's deci- sion. Mr. Bastian said it would have been simple to incorporate the Hearing Examiner's decision in the Council's decision. The decision which the Council rendered is binding and if not, is an unconstitutional ordinance. Councilmember Dwyer referred to the Council's Findings of Fact & Conclusions of Law N1 which state that the City Council of Edmonds adopted those Conclusions contained in the Hearing Examiner's Decision of August 6, 1985 unless specifically addressed. He requested that Mr. Bastian explain how that Conclusion is true if Paragraph 2(C) does not apply to the applicant. Mr. Bastian said the Council decision was not conflicting with the Hearing Examiner's Decision because it did not state that it was. He said Mr. Pomeroy has complied with the ordinance, and the Council can only change its decision if it finds that the Hearing Examin- er's Decision was wrong. Councilmember Hall inquired if all of the pyramidalis were planted. Mr. Bastian replied affir- matively. Councilmember Hall asked if the statement that Mr. Pomeroy has not planted all of them because he was waiting for the right time of year is correct. Mr. Bastian said three of the original pyramidalis which were planted died, and Mr. Pomeroy has ordered more plantings from the nursery. Councilmember Wilson asked which vehicles were relicensed in Mr. Pomeroy's name. Mr. Bastian said there are two passenger vehicles, a 1973 Chevrolet truck, the bus and van. The bus, he said, has always been registered in his name, and the van was registered in his name subsequent to the divorce decree. * See Minutes of July 15, 1986 EDMONDS CITY COUNCIL MINUTES Page 8. JULY 1, 1986 Councilmember Ostrom inquired if the vehicles have always been registered in Mr. Pomeroy's name. Mr. Bastian replied negatively. He said Mr. Pomeroy travels internationally and has, at times, changed the registration to meet the requirements of the Canadian government. Councilmember Wilson inquired what changes have been made. Mr. Pomeroy said the bus is used for personal reasons and is not related to his business and has always been registered in his name. He said the van was registered in the name of Gem Productions until after the divorce was final- ized, as well as the Trans Am. Mr. Pomeroy said fie has complied with the order. *City Attorney Scott Snyder asked Mr. Pomeroy if he has filed a plan for the planting of trees with the Planning Department. Mr. Pomeroy said he has requested, in writing, that Staff tell him why the trees should be planted but has never received a reply and has not filed a plan. Mr. Pomeroy inquired if the record reflects his requests. ,Mr. Snyder said Staff would be happy to remove those letters from the Planning Department file. Mr. Bastian said that it is unlawful and unreasonable for the Council to instruct Mr. Pomeroy to submit a plan for the planting of trees, and Mr. Pomeroy ties a right to inquire what the intent of the Council is. Mr. Bastian contended that this issue is moot because the trees have been planted and inspected by the City. Roger Hertrich, 1020 Puget Drive, said he was opposed to Mr. Bastian's request to not conduct the proceedings as a de novo hearing because he felt the citizens of Edmonds have the right to intro- duce new information.. Mr. Hertrich said the Code allows business activity in residential zones so long as it does not affect the character of the neighborhood. He said Mr. Pomeroy's neighborhood has expressly stat- ed that his activities are a nuisance. *Isabel Egdorf, 19213 - 86th Ave. W., said the main nuisance is the bus, and she felt this issue could be resolved. She inquired if it is the usual practice for the City to issue plans to appli- cants or if applicants customarily submit plans to the City. Mayor Naughten said the applicant usually submits a plan. Ms. Egdorf said she believed that Mr. Pomeroy accepted the decision of the Council and then changed the vehicle registration of the van to his name to avoid the ramifications of the deci- sion because he remarried in 1984 but did not register the vehicle until 1986. Mrs. Pomeroy, 19419 - 86th Ave. W., inquired if the neighborhood would be satisfied if the bus was relocated behind the trailer. Mrs. Pomeroy said the scrap pile earlier referred to is a wood pile, and she said she resented the neighbors' statements that their property is junky. She said that Edmonds is an awful town because it is allowed to expose people's private lives and harass them. Councilmember Hall said that the Council may be able to appeal to Mr. Pomeroy's "better nature" now that his divorce is final. She asked the Planning Department if it received a plan of the plantings. Mr. Snyder requested the Council's permission to question Staff. The Council con- curred. Mr. Snyder said he would like the record to reflect what correspondence Staff has re- ceived, from Mr. Pomeroy. Mr. Bastian inquired if that information was not already on the record. Mayor Naughten noted that Mr. Bastian was out of order. Mr. Snyder requested City Clerk Jackie Parrett to mark correspondence which was removed from the Planning Department files by Planning Division Manager Mary Lou Block as Exhibits #7, 8, 9, and 10. Ms. Parrett complied. Mr. Snyder asked Ms. Block if she has perused the Planning Department files regarding this mat- ter. Ms. Block replied affirmatively. Mr. Snyder inquired if she is the custodian of those files. Ms. Block replied affirmatively. Mr. Snyder inquired if Ms. Block could identify Exhib- its #7, 8, and 9. Ms. Block identified Exhibit #7 as a letter received from Mrs. Pomeroy on December 6, 1985; Exhibit #8 as a letter dated February 5, 1986 on Mr. Pomeroy's letterhead; Exhibit #9 as a letter from Mr. Pomeroy dated March 5, 1985. Ms. Block said the City had also received a letter which referred to the letter of February 5, 1986 which was marked as Exhibit #11. Mr. Snyder asked Ms. Block to describe Exhibit #10. Ms. Block said Exhibit #10 is the original Findings of Fact & Conclusions of Law of the City Council hearing of November 4, 1985. * See Minutes of July 15, 1986 EDMONDS CITY COUNCIL MINUTES Page 9 JULY 1, 1986 Mr. Snyder requested the City Council .to take official notice of Section 20.105.070 of the Edmonds Community Development Code that provides for decisions to be appealable for a period of ten days to the Snohomish County Superior Court. He requested that the Council allow any brief cross examination that Mr. Bastian may have on this matter alone since a new matter has been raised and made a part of the record. Mayor Naughten concurred. Mr. Snyder said he wanted to insure that all communications received by the applicant have been entered into the record. He noted that a plan or the communications .referred to by Mr. Pomeroy questioning the Planning De- partment were submitted following the close of the appeal period. Mr. Bastian said it was impos- sible for him to conduct cross examination on exhibits which he had just received. Mr. Snyder said the exhibits are communications from Mr. Pomeroy, his client, and the decision of the City Council. He said they are not being offered for the truth of the statement but merely to estab- lish the dates of communication. Councilmember Dwyer noted that the Council could consider a continuance if Mr. Bastian desired. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER KASPER, TO CONTINUE THE HEARING TO AUGUST 5, 1986 TO ENABLE MR. BASTIAN, MR. POMEROY, AND THE COUNCIL TO REVIEW THE PERTINENT INFORMATION. Councilmember Dwyer requested that the Council minutes of the previous hearing and the tapes of those meetings be marked as an Exhibit. Mr. Snyder requested that Ms. Parrett make duplicate tapes of those meetings and mark them as Exhibit #12 "A", "B", etc. and be available for review by the Council and Mr. Bastian. MOTION CARRIED. The meeting recessed at 9:28 p.m. and reconvened at 9:33 p.m. HEARING ON SIX -YEAR TRANSPORTATION IMPROVEMENT PROGRAM AND PROPOSED RESOLUTION 648 ADOPTING SAME City Engineer Bob Alberts reported that the State of Washington RCW 35.70.010 requires each munic- ipality in the State of Washington to submit to the Washington State Department of Transportation a Six -Year Transportation Improvement Program. This program is to be updated yearly and submit- ted to the State in July. It is required that a public hearing be held and a Council resolution be passed adopting the Six -Year Street Program each year. A part of the program is the Urban Arterial Board (UAB) supplemental section, which separately identifies the UAB projects in the Six -Year Program. He noted that copies of the proposed Six -Year Program for 1987 - 1993 were provided to the Coun- cil along with a map and a brief synopsis of the projects proposed for the 1987 Program. Mr. Alberts said that Staff has recommended that a public hearing be held and that 'the Council adopt the attached resolution including the Urban Arterial Board supplemental action. Mr. Alberts noted that the Program is a carryover from last year with some additions. He remind- ed the Council the priorities will be established during the budget process. However, the feder- ally funded projects are subject to review by the Puget Sound Council of Governments. Councilmember Dwyer inquired if the project on 80th from 206th to 220th is the same project as last year from 212th to 220th on 80th. Mr. Alberts replied negatively. Councilmember Nordquist inquired about the project on 224th St. S.W. and 76th Ave. W. Engineer- ing Coordinator Chris Beckman said that project is a bikeway project on the old interurban route.. Councilmember Nordquist noted that the PUD intersects that route, and much of it is closed off. He felt the project should be reviewed before Staff time and City money is utilized. Councilmember Kasper said he served on the Puget Sound Council of Governments in the past. Al- though many plans were submitted for review, he said none of them were from the City of Edmonds. He inquired if the City was not pursuing available monies. Community Services Director Peter Hahn said the Puget Sound Council of Governments is similar to the Regional Transportation Agen- cy. He said when the City has elements of the roadway from the Agency and revises it, the City is subject to review by the Agency as a regional clearing house. Mayor Naughten opened the public portion of the hearing. Roger Hertrich, 1020 Puget Drive, said there are times when improvements in major intersections force the City to install a traffic light sooner than was anticipated, and funding for the project has not yet been identified. He asked the Council to very carefully consider any applica- tion for development of an intersection and address the potential impacts of changing traffic patterns.. .He said he did not feel the City should bear the cost of a traffic study if the condi- tions are altered by a development; the developer should participate in the cost of determining whether or not a traffic light is necessary. EDMONDS CITY COUNCIL MINUTES Page 10 JULY 1, 1986 Councilmember Nordquist noted that situations have arisen when developers have volunteered to participate in the cost but monies were never collected by the City. He recommended that a meth- od of collection be devised. City Attorney Scott Snyder noted that an ordinance is still under review by the Community Services Committee regarding off -site impacts and the levying of a manda- tory off -site cost on development. Mayor Naughten closed the public portion of the hearing. COUNCILMEMBER NORDQUIST MOVED, SECONDED. BY COUNCILMEMBER WILSON, TO ADOPT THE SIX -YEAR TRANSPORTA- TION PROGRAM. Councilmember Kasper said he would vote against the motion because he is opposed to Item 17 on 7th .and Birch and wasting general City funding. City Clerk Jackie Parrett request- ed that the motion include passage of the resolution which is on the agenda. Mr. Alberts request- ed that the motion include the project on 80th from 212th to .220th. Councilmember Nordquist and the seconder agreed. MOTION CARRIED, WITH COUNCILMEMBER KASPER OPPOSED. PROPOSED ORDINANCE 2571 AMENDING CHAPTER 2.35 OF CITY CODE RELATED TO PAY FOR HOLIDAYS AND VACATION IN ORDERBRING CODE INTO CONFORMANCE WITH -PERSONNEL RULES Personnel Manager Pat LeMay reported that the proposed ordinance defines the practice on pay for working a holiday the same as in the personnel rules. The choice under the ordinance and the rules for working a holiday would be overtime or comp time at time and a half for nonexempt. Exempt are not entitled to overtime and do riot work a set number of hours for their salary so straight time pay should not be an option. The only option for them as defined in the proposed ordinance is comp time at straight time rate of pay. Also, the proposed ordinance permits payoff of unused vacation accumulation upon honorable termination of employment after completion of six months of continuous service. The Code now requires completion of one year of continuous ser- vice, while the personnel rules only require six months of continuous service for payoff of un- used accumulated vacation to occur. The proposed ordinance also provides that vacation accumula- tion of up to one year may be carried over from one year to the next, and this would be the same as in the personnel rules. Mr. LeMay said Staff is recommending that the proposed ordinance be approved to bring the Code into alignment with Personnel Rules. Councilmember Dwyer inquired when the personnel rules were adopted. Mr. LeMay said they were adopted in February 1986. Councilmember Dwyer asked how old the ordinance is. City Attorney Scott Snyder said the vacation provisions .have been in effect for approximately five years, and the holiday provision perhaps longer. Councilmember Dwyer inquired if an ordinance is necessary because personnel rules are already in effect. Mr. Snyder said the personnel rules specifically state that in the event of a conflict between personnel rules and the ordinance or contract, that ordinance or contract would always prevail. Councilmember Kasper noted that the rules are administrative, and the Council may either leave the rules as they presently are written or modify the ordinance to comply with personnel rules. Mr. Snyder said the ordinance would only apply to nonrepresented employees because represented employees are governed by contract rules. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO APPROVE THE PROPOSED ORDINANCE AMENDING CHAPTER 2.35 OF CITY CODE RELATED TO PAY FOR HOLIDAYS AND VACATION IN ORDER TO BRING THE CODE INTO ALIGNMENT WITH PERSONNEL RULES. MOTION CARRIED. MAYOR Mayor Naughten said he and Councilmember Hall attended an AWC session last week regarding semi- nars on surveys on hour to conduct efficient council meetings. Mayor Naughten noted that he will be on vacation from July 7 to July 11. The Mayor said there will be a countdown by President Reagan on July 3 at 7:53 p.m. on television network stations for the lighting of the Statue of Liberty. Mayor Naughten inquired if the utility questionnaire is in its final form. The Council concurred. EDMONDS CITY COUNCIL MINUTES Page 11 JULY 1, 1986. Mayor Naughten noted that. the approval of the lease with Union Oil is a significant contract because it provides the City with three acres of waterfront property for public use. Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER HALLMOVED, SECONDED BY COUNCILMEM- BER WILSON, To REOPEN THE MEETING. MOTION CARRIED. COUNCIL Council President Hall noted that the Cemetery Board minutes reflected an interest in having an ex officio Councilmember on the Board. Council President Hall noted that the art piece which was purchased from the Arts Festival is now hanging in the Council office. *Council President Hall said the AWC Resolution Committee felt that the packet which she submitted to them was inappropriate. However, anotherpacket will be resubmitted. Councilmember Dwyer inquired why the City did not delegate a legislator to introduce the bill to Olympia. President Hall said that avenue was pursued but did not succeed. Council President. Hall said she and Mary Lou LaPierre conducted an AWC workshop on improving the productivity of meetings and public hearings, and the City of Edmonds was rated highly in its protocol. Carol Channing will make an appearance at the Arts. Centennial Center at the Fisher Business Cen- ter in Alderwood Manor on July 7th from 4 to 6 p.m. Admission is $20 per person. Council President Hall requested that a meeting between the Staff and CH2M Hill organization be scheduled to inform the City on privatization for secondary sewers. City Clerk Jackie Parrett asked for clarification regarding the July 29th agenda. Council Presi- dent Hall asked the Council if they would prefer that the budget hearing be scheduled from 7 to 8 p.m. followed by a dinner work meeting at Anthony's and the agenda be closed. The Council con- curred. Councilmember Wilson expressed his appreciation to the City for its participation in the Run for the Arts event. Councilmember Wilson said the Edmonds Princess,, Paula Venzuela, is a credit to the City. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HALL, TO EXCUSE COUNCILMEMBER NORDQUIST'S AND COUNCILMEMBER OSTROM'S ABSENCE FROM LAST.WEEK'S COUNCIL COMMITTEE MEETINGS. MOTION CARRIED. Councilmember Dwyer said the Municipal Court Judge attended the Public Safety meeting last week. He recommended that a telephone be installed in the Plaza Room. Mayor Naughten noted that a telephone is available. Councilmember Jaech noted that the Architectural Design Board recently discussed vending carts. She inquired if Staff has reviewed the ordinance to ascertain whether it addresses adequate regu- lations governing the number and placement of these carts.. Planning Division Manager Mary Lou Block said that issue is left to the discretion of the Community Services Director. He is charged with making a decision as'to the appropriate number and locations proposed. Councilmem- ber Jaech inquired if his decision is appealable. City Attorney Scott Snyder replied affirmative- ly. Councilmember Kasper inquired if the Architectural Design Board was the only process in- volved. Ms. Block replied negatively. She said there are other regulations which must be met. Mr. Snyder added that the abutting property owner's permission is required. Mr. Snyder said the Planning Department, as a matter of departmental policy, has required insurance for certificate of Street Use Permits. He noted that this proviso is not in the ordinance. He said he would draft an ordinance to. that effect at the Council's direction. COUNCILMEMBER JAECH MOVED, SECOND- ED BY COUNCILMEMBER KASPER, 10 DIRECT THE CITY ATTORNEY TO AMEND THE ORDINANCE TO INCLUDE INSUR- ANCE FOR ALL STREET USE PERMITS. MOTION CARRIED. Student Representative Nigel Euling said he was relieved that the City Council conducts its meet- ings in a civilized fashion unlike those depicted in movies. 'The meeting recessed at 10:15 to an Executive Session to discuss a. personnel, real estate, and legal matter for approximately fifteen minutes and then adjourned. *See Council Minutes of July 15, 1986 EDMONDS CITY COUNCIL MINUTES Page 12 JULY 1, 1986