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10/07/1986 City CouncilTHESE MINUTES SUBJECT TO OCTOBER 14, 1986 APPROVAL EDMONDS CITY COUNCIL MINUTES OCTOBER 7, 1986 A special meeting of the Edmonds City Council was called to order at 8 p.m. by Mayor Larry Naught - en in the Plaza Meeting Room of the Edmonds Library. All present joined in the flag salute. Councilmember Nordquist left the meeting at 10:10 p.m. and did not vote on any items subsequent to that time. PRESENT STAFF PRESENT Larry Naughten, Mayor Art Housler, Admin. Svc. Director John Nordquist Bob Alberts, City Engineer Steve Dwyer Peter Hahn, Comm. Svc. Director Laura Hall Bobby Mills, Pub. Wks. Supt. Jo -Anne Jaech Mary Lou Block, Planning Div. Mgr. Bill Kasper Scott Snyder, City Attorney Lloyd Ostrom Margaret Richards, Recorder Jack Wilson Tom Peterson, Student Rep. CONSENT AGENDA Items (B) and (E) were removed from the Consent Agenda. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The ap- proved items on the Consent Agenda include the following: (A) ROLL CALL (C) ADOPTED ORDINANCE 2.583 PROHIBITING CERTAIN HOME OCCUPATIONS WHICH GENERATE EXCESSIVE TRAFFIC TO THE I40ME BUSINESS SITE (0) ADOPTED ORDINANCE 2584 AMENDING COMMUNITY DEVELOPMENT CODE TO EXTEND THE PERIOD IN WHICH A HEARING MUST BE SET FOR APPEAL OF A STAFF DECISION CHANGING IT FROM 15 TO 30 DAYS (F) ADOPTED ORDINANCE 2585 AMENDING COMMUNITY DEVELOPMENT CODE TO PROVIDE THAT ACCESSORY POOL STRUCTURES COMPLY WITH APPROPRIATE SETBACKS FOR THE ZONE IN WHICH LOCATED (G) REPORT ON BIDS OPENED SEPTEMBER 2.3, 1986 FOR SALE OF SURPLUS VEHICLES AND AWARD OF BID TO F.G.I. COMPANY FOR POLICE VAN ($2,025) AND AUTHORIZATION TO DISPOSE OF SURPLUS POLICE MOTORCYCLE THROUGH STATE REDISTRIBUTION OFFICE (H) FINAL ACCEPTANCE OF WORK BY SHORELINE CONSTRUCTION COMPANY FOR THE MEADOWDALE /164TH ST. S.W. AND 75TH PL. W. PROJECT AND SETTING OF 30 DAY RETAINAGE PERIOD (1) AUTHORIZATION TO SELL SURPLUS GRADER AND PURCHASE SNOW PLOW ($4,000) APPROVAL OF MINUTES OF SEPTEMBER 30, 1986 [ITEM (B) ON THE CONSENT AGENDA] Councilmember Hall clarified that the memorandum from Margaret Richards should note that Planning Division Manager Mary Lou Block's presence was not reflected in the September 15, 1986 minutes instead of the September 30 minutes. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER JAECH, TO APPROVE THE SEPTEMBER 30, 1986 MINUTES AS SUBMITTED. MOTION CARRIED. PROPOSED ORDINANCE AMENDING COMMUNITY DEVELOPMENT CODE TO DELETE TRAILER SIGNS AS PERMITTED TEMPORARY SIGNS LITEM E ON THE CONSENT AGENDA Councilmember Hall said she received a telephone call from the owner of a restaurant located on Highway 99 expressing concern regarding the deletion of trailer signs. Councilmember Hall in- quired if trailer signs would be excluded throughout the City if the ordinance is passed. Plan- ning Division Manager Mary Lou Block replied affirmatively. . Councilmember Kasper inquired if the County allows businesses on Highway 99 to utilize trailer signs. Ms. Block said she did not know. Councilmember Hall noted that many businesses advertise through the use of signs. She said she did not 'feel that temporary trailer signs on Highway 99 were offensive. She said because she has served on the Sign Code Committee in the past, she recognizes the advantages of trailer signs. The owner of the restaurant, she said, related to her that trailer signs attract a lot of busi- ness to the restaurant. Councilmember Hall said she would bring this issue before the Community Services Committee. Councilmember Nordquist said he also served on the Sign Code Committee, and temporary trailer signs was one of the topics of discussions. He said he could understand the necessity of a tempo- rary sign to advertise the opening of a new .business but felt the signs were a nuisance and aes- thetically unappealing. Councilmember Hall said she agreed that temporary signs, and not the flashing lights, should be allowed. Councilmember Ostrom noted that the City Code states that merchants should rely on attracting business via the quality of their product or service of their business. He said temporary signs are hard to dispose of once they are allowed. Councilmember Kasper expressed concern that the policy of the County regarding temporary signs was unknown because he said City businesses on Highway 99 must compete with the County. fie con- curred that temporary signs should be allowed for new businesses. Councilmember Jaech said merchants have abused temporary signs by leaving them in place for ex- tended periods of time or by advertising individual goods for sale. She said Staff has been unable to control the signs and enforce the Code. She said the Planning Board has held a number of hearings regarding this issue and finally made the recommendation to the Council to disallow temporary signs. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER"NORDQUIST, TO APPROVE ITEM (E).. Councilmember Kasper said he felt businesses on an intercity street such as Highway 99 have to be competitive. lie reminded the Council that an Code Enforcement Officer was recently hired. Councilmember Nordquist said there are signs which are attractive, but the temporary signs with the arrows and flashing lights are aesthetically unappealing. Councilmember Hall noted that Councilmember Nordquist has a pole sign, as well as many other signs, located on the window of his business. She reiterated that new businesses should be al- lowed to use temporary signs for a period of thirty to sixty days. She said the Code Enforcement Officer will have a record of those businesses and can enforce usage of the signs. Councilmember Nordquist said he does not own the building where his business is located. The sign is owned by the owner of the building. Ile noted that he does have a small sign in the window, which is in conformance with the Planning Department, as well as a sign that says, "Vote for Katie Allen". MOTION CARRIED WITH COUNCILMEMBER DWYER, COUNCILMEM13ER JAECII, COUNCILMEMBER NOROQUIST, COUNCILMEM- BER WILSON, AND COUNCILMEMBER OS'1ROM IN FAVOR AND COIJNCIL14EMBEII HALL AND COUNCILMEMBER KASPER OPPOSED. PRESENTATION OF COMMUNITY SERVICE AWARD TO FRANCES MURPHY Mayor Naughten announced that the presentation had to be postponed because Frances Murphy was ill. AUDIENCE Mayor Naughten opened the audience portion of the meeting. Betty Clark, 20010 - 18th Ave. N.W., started to discuss the proposed retail store at Five Cor- ners. Councilmember Jaech told Ms. Clark she would have an opportunity to express her concerns when the hearing related to that issue connnenced. Mayor Naughten closed the audience portion of the meeting. EDMONDS CITY COUNCIL MINUTES Page 2 OCTOBER 7, 1986 CONTINUED BEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING R TION OF CUPATION Planning Division Manager Mary Lou Block reported that the hearing was continued from August 5, 1986. However, Staff has received a request from the parties involved to continue the hearing to a later date. They are in the process of trying to resolve the issue outside of the hearing process. Ms. Block said November 3, 1986 is the next available date on the agenda. Derrill Bastien, First Interstate Bank Building, Lynnwood, attorney representing the Pomeroys, said some of the neighbors suggested to him after the last hearing that an attempt be made to resolve the issue outside of the hearing process. Mayor Naughten inquired if there was a date certain when neighborhood discussions would be completed. Mr. Bastien requested a continu- ance to November 3. Councilmember Hall noted that the hearing has been continued several times. She inquired if it would be more feasible to remove the item from the agenda altogether until the neighborhood dis- cussions were completed. Mr. Bastien replied negatively. He said some of the neighbors think there are ulterior motives surrounding the continuance, and he would not want to arouse their suspicion even more by removing the item from the agenda. Councilmember Ostrom inquired what the Hearing Examiner Decision was. Ms. Block said he decided not to revoke the home occupation permit. Councilmember Ostrom inquired if Mr. Bastien was implying that the appellants may drop their appeal. Ms. Bastien said that may be the case if the differences are resolved. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO CONTINUE THE HEARING TO NOVEMBER 3, 1986. MOTION CARRIED. HEARING ON APPEAL OF AUB DENIAL OF PROPOSED RETAIL STORE AND SELF-SERVICE GAS STATION AT 8339 - 212TH ST. S.W. ADB-50-86/APPELLAANT: RAINIER NAIIONAL BANK) Planning Division Manager Mary Lou Block reported that on July 2, 1986 and September 3, 1986, the Architectural Design Board (ADB) reviewed the development plans of Rainier National Bank for a proposed retail store/self-service gas station at 8339 - 212th St. S.W., under- file #ADB-50-86. The ADB, at their September 3rd meeting, voted to deny the project based upon the setback of the proposed building from 212th St. S.W. and the location of the driveway along that same street. Subsequently, an appeal was filed by Sarah Mack, attorney representing the applicant. Ms. Block noted that copies of the ADB minutes, the appeal letter, site plan and building eleva- tions were attached to Council packets. The AUB rejected the present plan due to the location of the proposed building relative to 212th St. S.W. and the south driveway entrance location. The Council may uphold the AUB decision, modify the decision, or remand the matter to the ADB for further consideration. Ms. Block said Staff has not submitted a recommendation regarding this issue. Staff has tradi- tionally not made recommendations to the AUB because it is a body comprised of professional indi- viduals, and Staff has followed that practice when issues are presented to the Council. Ms. Block displayed the site plan on the overhead projector. Councilmember Jaech inquired if Rainier National Bank owns the subject property or if it is held in trust. Ms. Block said she believed it is held in trust. Councilmember Jaech requested that the name of the owner be revealed so the building permit can be issued in the correct name. Ms. Block repeated information from a man in the audience that Rainier National Bank is the agent for Lakeshore Development Investment Company, Councilmember Ostrom inquired about the location of Lakeshore Development Investment Company. An unidentified man in the audience said the agent's address is 600 University Street but the actual corporate address is 926 Cary Road, Edmonds. Ms. Block said the applicant/appellant does have a revised site plan which they would like to discuss with the Council. 1 EDMONDS CITY COUNCIL MINUTES Page 3 OCTOBER 7, 1986 Co.uncilmemb.er Nordquist inquired if the issue was presented to the Council for review of the record or to hear new items related to the issue. Mayor Naughten said the Council can uphold the AUB decision, modify it, or remand the issue to the ADO for further consideration. Councilmember Ostrom said if the applicant/appellant is withdrawing the present site plan and submitting a new plan, the issue should not be heard by the Council. Ms. Block said a new site plan is not proposed. She said the applicant has simply indicated that a revision was amenable to them. City Attorney Scott Snyder said because the hearing. is a de novo appeal, .the Council has the same authority that th.e ADB possesses, which includes the ability to accept, reject,, or modify a pro- posal, as well as remand the issue to the ADB. Councilmember Nordquist said the ADB was not clear in the revisions that it desired. Mr. Snyder stated that the appellant had the right to be heard at that particular time. Mayor Naughten opened the public portion of the hearing. Sarah Mack, Hillis, Cairncross, Clark, R Martin, attorneys, 500 Galland Building, 1221 - 2nd Avenue, Seattle, noted that the project has been before the ADB on two occasions in the re- cent past. The applicants have complied with the ADB's requests and has worked very closely with Staff and has responded to their requests as promptly as possible. The City issued a miti- gated Determination of Nonsignificance (DNS). Ms. Mack said if the Council reviewed the minutes of the July ADB meeting, it would come to the same conclusion that she had: How could the applicant have had any idea that there was any con- cern regarding the building and setback and location of the driveway at that time? She said those issues were not addressed at that time. The ADB had only requested at that point that a traffic study be conducted, and the conclusions were subsequently submitted. It expressed inter- est in ascertaining the comprehensive plan for the property. The applicant submitted the site plan for Phase I at the September meeting and conceptual plans depicting the possible configura- tion and location of possible future uses (Phase II). Ms. Mack said the applicant is not requesting approval of any second phase at the present time. She said the question of the setbacks from 212th St. first arose at the September meeting. She noted that the applicant was prepared to redesign the site plan to meet the concerns of the set- back if the City feels that an increased setback beyond the zoning requirements is desirable, as well as relocate the driveway leading off of 212th St. farther to the east. Ms. Mack said there were no other problems or concerns raised about the site plan, building de- sign, or any other aspect of the project other than the location of the building and driveway. She said she did not understand why the ADO did not conditionally approve the design based on its concerns. She said the appeal was raised because: 1) the applicant did not have a clear direc- tion from the ADB and was concerned that approval would not be granted if they appeared before the ADB a third time with a site plan incorporating the ADB's concerns, and 2) a neighboring business owner told the. applicant that he intends to appeal any approval of the ADB to the Coun- cil. Diane Monroe, Commercial Design Associate, 4230 - 198th St. S.W., Lynnwood, reviewed a color board of the site plan. She said the site was designed with very clear circulation and to keep the traffic separate from the retail store and gas pump islands. - Ms. Monroe noted that the landscaping, as required for Phase I, is almost entirely satisfied in the parking island alone. She reviewed a sketch of the intersection. The building, she said, is currently set back 20 feet. The stop sign and flashing red light was clearly visible. The photograph was taken 250 feet from the intersection. She noted that visibility would still be as clear 300 feet from the intersection. Because visibility is clear, she said the building is not proposed to be set back any farther than 20 feet. However, the applicant has agreed to an additional setback of 20 feet' if the Council feels that the building would create a hazard or obstruction. EDMONDS CITY COUNCIL MINUTES Page 4 OCTOBER 7, 1986 . Ms. Monroe said the texture of the materials, construction, color, and scale of the project is in conformance with residentially zoned projects and is purposefully scaled with quality materi- als that fit into the neighborhood. Councilmember Nordquist noted that the site plan depicted an arrow. lie inquired if it was intend- ed to direct people out of the property going eastbound on 21.2th. Ms. Monroe said one of the mitigating measures of the DNS permits a right turn heading west on 212th to access the proper- ty and a right turn exiting the property on 212th. Councilmember Ostrom inquired if a revised plan was proposed. Ms. Monroe said the applicant is prepared to submit revised building permit drawings if the Council concurs with the ADB that the building should be set back farther away from 212th St. and the driveway relocated farther to the east. Councilmember Ostrom raised a point of order. He said the issue should be remanded to the ADB. COUNCILMEMBER OSTROM MOVED, SECONDED BY COUN.CILMEMBER NOROQUIST, TO REMAND THE ISSUE TO THE ADB FOR CONSIDERATION OF ANY MODIFICATIONS. Councilmember Hall reviewed the motion of the AD8 minutes of September 3, 1986 as follows: "BOARD MEMBER HERMAN MOVED, SECONDED BY BOARD MEMBER BECK, TO DENY ADB-50-86 AS SUBMITTED. HE RECOMMENDED THAT A SITE PLAN BE SUBMITTED WHICH DEPICTS OPTION "A" WITH THE BUILDING CONSTRUCTED ON THE NORTH ELEVATION AND THAT THE CURB CUT ON 212TH IS RELOCATED FARTHER TO THE EAST. MOTION CARRIED". She said if the Council remands the issue to the AUB, it may render that same deci- sion. Councilmember Ostrom said he did not think the decision would be the same because the ADB would be reviewing a different proposal. Councilmember Dwyer said that the Council should render a decision that evening. He said a legit- imate concern was raised by Ms: Monroe regarding time elements. He said a good -faith attempt has been made on the part of the applicant to address the concerns that were raised regarding the proposed project. A ROLL CALL VOTE WAS TAKEN. THE MOTION FAILED WITH COUNCILMEMBER HALL, COUNCILMEMBER NORDQUIST, AND COUNCILMEMBER OSTROM IN FAVOR AND COUNCILMEMBER DWYER, COUNCILMEMBER JAECH, COUNCILMEMBER KASPER, AND COUNCILMEMBER WILSON OPPOSED. Mayor Naughten opened the public portion of the hearing. Laura Park, 21603 - 84th Ave. West, Principal of Chase Lake Elementary School, expressed concern regarding, the increase in traffic that the proposed project would generate. She said there is only a traffic blinker at the intersection at Five Corners and not enough guards to protect the school children. Ms. Park said the traffic study was inaccurate because traffic is greater during the school year, and it was conducted while school was not in session. Ms. Park said she conducted a self -study of traffic situations in proximity to convenience stores within the County and ascertained that a traffic control system was installed at each intersection. Robert Turcott, 8928 Main Street, said he felt the ADB and public should have an opportunity to review any modified site plan before further action is taken. Mr. Turcott said he would support any decision rendered by the ADB. He felt the traffic study was conducted during an inappropriate time of year. Mr. Turcott said the present configuration and traffic flow at Five Corners works very well, but additional traffic that would be generated by the proposed project would create traffic prob- Iems. Betty Clark, 20010 - 18th Ave. N.W., Seattle, said she owns the building at 8311 - 212th St. S.W. Ms. Clark said she was amazed that the architects that drafted the site plans for the pro- posed project did not realize how unreasonable the design of a twenty-five foot concrete building was. She said the proposed building would be a "sore thumb". Ms. Clark said there are presently four tenants renting space in her building, and the project, as proposed, will completely obstruct her tenant's vision as well as visibility to passersby. 0. FUMONDS CITY COUNCIL MINUTES Page 5 OCTOBER 7, 1986 Bill. Stermer, 20903 Woodlake Drive, said he understood the proposed business would be •a' twenty-four-hour.convenience store.. Ms. Block said it would not be open for twenty-four hours. Mr. Stermer said traffic is already congested at Five Corners. He did not feel traffic should be compounded by the construction of another business. Councilmember Ostrom inquired about the nature of the convenience store. Ms. Block said unless'a conditional use permit is granted, businesses are not allowed to remain open after 11 p.m. in a BN zone. Roger Hertrich, 1020 Puget Drive, submitted an exhibit to the Council from a traffic engineering report. He referred to the Bell -Walker Report, August 26, 1986 which stated, "The site distances from' 212th St. driveway are adequate although there is a possibility of vehicles approaching from the• north leg of the intersection being obscured by vehicles .in the proposed gasoline pump area". He said that restricted site distance has not been addressed yet. Mr. Hertrich said the ADB rendered a decision which he felt was appropriate for the City. He., said the present configuration at Five Corners works very well because of the openness. Any - structure which is constructed close to the street, lie said, will obscure visibility. Mr. Hertrich said the proposed gas/grocery store was a change in usage, which requires a condi- tional use permit. He said he raised that issue at a previous ADB meeting, but Staff said his comments were incorrect. He requested that the City review the requirements for conditional use permits as well as nonconforming uses. Eric Anderson, 8406 Bowdoin Way, owner of Five Corners Shopping Plaza, said comments that were elicited that evening reflected that the ADB did their job. The ADB was concerned with the com- prehensive plan of the subject .property. The applicant admitted, he said, that certain phases of the plan were only conceptual. The ADB denied the proposal because they were dissatisfied with the plan as proposed and requested that a proposal be submitted which depicted the structures towards the rear of the property. Mr. Anderson said when lie first bought the Plaza, lie demolished the gas station on the corner and" reconstructed it towards tine rear of the property because it was causing congestion. Mr. Anderson said the neighboring community of Five Corners would like the applicant to submit a comprehensive plan not only for the proposed project but one which also encompasses the effects to the neighborhood, .taking into consideration future developments and improvements to the sur- rounding area. Ken Sterm, 21107 - 84th Ave. West, said he owns and lives in a duplex that abuts the subject property. He expressed concern regarding relocation of the gas pumps to the rear of the proper- ty. He said the noise factor is much too high as it presently exists because of close proximity to the fire station and traffic generated by the hospital. Mr. Sterm said lie did not feel that another convenience store at Five Corners was necessary. He said traffic is already congested at that corner. Fie requested that the Council not support the construction of the proposed project. Ms. Mack submitted an exhibit that was prepared by Ms. Monroe to the Council. She said the ADB was provided a copy of the exhibit. It depicted the intersection, location of the buildings, and relative setbacks. Ms. Mack said the applicant agrees that it would be not appropriate to move the proposed use to. the rear of the property. Councilmember Ostrom inquired about the location of Mr. Sterm's property. Ms. Block said it is located directly north of the subject property. Ms. Mack commented that everyone agrees that openness is a major concern at Five Corners and that the building should be set back farther than twenty feet.. Ms. Mack reiterated that the applicant is prepared to provide an additional setback of twenty feet, if necessary. EDMONDS CITY COUNCIL MINUTES Page 6 OCTOBER 7, 1986 Ms. Mack noted that a lot of discussion has centered around traffic impacts. She said the miti- gated DNS issued by the City was designed to mitigate those traffic impacts. She noted that the DNS and conditions have not been appealed. Mr. Snyder asked Ms.. Mack if she had an opportunity to review the exhibit that was submitted by Mr. Hertrich. Ms. Mack said although the exhibit was not identified, she thought she was famil- iar with it. Mr. Hertrich said the report was the Bell -Walker report that was submitted to the City. Councilmember Dwyer inquired about the location of a 40 foot setback in relation to the existing structure on the site. Ms. Block indicated its location to him on the site plan. Councilmember Hall raised a point of order. She said it may be desirable to discontinue the discussion at that point on the basis of the last motion. Mr. Snyder noted that the motion failed. Councilmember Dwyer asked how far the existing structure is set back. No answer was discernible. Councilmember Dwyer inquired if the gas pumps will be constructed in the same place and if not, their location. Ms. Block said because there is no scale to the drawings, it appears that the building is approxi- mately 30 feet. Ms. Monroe said the first overlay of the exhibit that Ms. Mack displayed depicts the current site and a 40 foot setback. The second overlay depicts a 20 foot setback. Councilmember Jaech inquired if a conditional use permit was not necessary because the site is grandfathered because the former structure was built prior to the requirement for a conditional use permit. Ms. Block replied affirmatively. Councilmember Jaech inquired how the City could assume that a conditional use permit was transferable when taking into consideration that there was no documented form of a.con.ditional use permit on file. Mr. Snyder said the rights would have been vested at the time the zoning category was changed to require a conditional use permit. Ile said the issue before the Council was nonconforming uses. Mr. Snyder cited a section from Chapter 17.40.010 "H" - Conditional Uses - as follows: "A legal use does not become noncon- forming because the zone in which it. is located is changed to a zone district which requires a conditional use permit. However, the use may ,not be altered as stated in .Subsection "B" without obtaining a conditional use permit". Subsection "B" states, "A nonconforming use may continue unless required to be abated by Subsection "C" below, but it may not be expanded in any way, including additional lot: area, floor area, number of employees, equipment, or hours or opera- tion". Mr. Snyder noted that one of the required findings of the ADB and Council is that the proposed project conforms to tiie Comprehensive Plan. Councilmember Jaech noted that Chapter 20.05.010 "D" states that a conditional use permit shall either run with the land or be personal, and. the Hearing Examiner will make that determination. She inquired how a conditional use permit could be grandfathered since no determination was ever made. Mr. Snyder said those rights were vested under a prior zoning enactment. He said the usage would not be affected because the City requires a determination of transferability unless it was established that it had been altered in some way. Councilmember Jaech said the usage has been altered because the tanks have been removed, the lot area is different, etc. Councilmember Hall noted that the ADB minutes of September 3 reflect that the gas pumps that were removed will be reinstalled within six months of their removal. She inquired if reinstallation of the gas pumps presented a different issue to be considered. Mr. Snyder said it is within the Council's discretion to find facts and apply the law in this case. Mr. Snyder noted that there is a novel legal question that lie could not find any direction for, i.e., when a grandfathered use is enhanced by the addition of an otherwise permitted use, is it an alteration that triggers the expiration of those vested rights? Mr. Snyder said the only direction that he could give the Council was that ambiguity should be resolved in favor of the applicant. Councilmember Nordquist inquired if a conditional use permit would be required if the property was sold before the issue before the Council was resolved. Mr. Snyder said the use right would continue with the land unless it was altered. EDMONDS CITY COUNCIL MINUTES Page 7 OCTOBER 7, 1986 Councilmember Hall inquired if the gas pumps would be reinstalled in the same location as the' previous pumps. Ms. Block replied negatively. She said the term "altered" refers to expansion and not relocation. Councilmember Jaech inquired when the traffic study was conducted. City Engineer Bob Alberts said it was conducted in July of 1986 during the weekday. It was conducted to establish the peak' hours, which were ascertained to be between 4:30 and 6 p.m. Councilmember Ostrom inquired how future improvements are taken into consideration, i.e., widen- ing of 212th street, when reviewing a project such as the one before the Council, particularly., with respect to setbacks. Ms. Block said the Official Street Map is referenced to ascertain the. projected width of a street by how much right-of-way is intended to be acquired. Any setback is` determined from that projected right-of-way, and any right-of-way that is required is.required to be dedicated. Councilrnember Hall inquired how traffic would be impacted by the proposed development. Mr. Al- berts said the overall daily traffic impact was estimated to increase by 3%, or 1400 cars per day. Peak hours are estimated to increase between 5 to 6%. Councilmember Hall inquired if the increase in traffic will be beyond the traffic that was generated by the former gas station. Mr.: Alberts said Ire was not aware of the volume of traffic created at that time. Ile said the traffic data was provided based on existing traffic and projected impacts. Ms. Mack said the findings that the ADB must make in connection with its decisions, which are the same findings .that the Council must make in acting upon the appeal, are that the proposal is consistent with the Comprehensive Plan and that Staff has found that the proposal meets the re- quirements of the zoning ordinance. She noted that Staff has made that finding. Ms. Mack said it is not within the Council's authority to decide whether or not the zoning ordinance requires'a conditional use permit for the project. Ms. Mack said it is clear that the setback is suppose to be measured from the street and not the intersection. Mayor Naughten closed the public portion of the meeting. Councilmember Dwyer said he respectfully disagreed with Ms. Mack's statement. It is abundantly clear in the Community Development Code that powers are delegated, and those powers start with the Council. He said the Council is not bound on a land use issue by Staff's findings. Councilmember Dwyer said he made the. best effort he could to put the Council in a position to resolve the issue that evening. Based on the insufficient answers to questions that were posed by the Council, he thought it would be unreasonable for anyone to expect the Council to render a decision. ile expressed concern regarding the setbacks proposed in the initial site plan. He said the issue could be remanded to the ADB or heard at a later date by the Council, and he was amenable to Council direction. Councilmember Dwyer said although he was sympathetic with the applicant's position, he was frustrated with the inadequate answers to questions that were raised by him earlier. COUNCiLMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER WILSON, 10 REMAND THE ISSUE TO THE ADB. SHE REQUESTED THAT A CONDITIONAL USE PERMIT BE REQUIRED. Councilmember Dwyer said he did not feel that a conditional use permit was necessary unless there' was an indication that the nonconforming use was to intended 'to be expanded. He said his con- cerns were related to setbacks and issues that the appeal raised. Based on those issues, he said. he would vote in favor of the motion. THE MOTION CARRIED. Councilmember Hall inquired when the issue would be placed on. the ADB agenda. Ms. Block said in approximately two months. Councilmember Dwyer said he would like to propose a more limited motion. Mr. Snyder said he could make a motion to reconsider the motion. tDMO.NDS CITY COUNCIL MINUTES Page 8 OCTOBER 7, 1986 7 COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER KASPER,•10 RECONSIDER THE MOTION TO DELETE REFERENCE 10 ADB REVIEW OF A CONDITIONAL USE PERMIT. A ROLL CALL VOTE WAS TAKEN. THE MOTION FAILED WITH COUNCILMEMBER DWYER, COUNCILMEMBER HALL, AND COUNCILMEMBER KASPER IN FAVOR AND COUN- CILMEMBER JAECH, COUNCILMEMBER NORDQUIST, COUNCILMEMBER OSTROM, AND COUNCILMEMBER WILSON OPPOSED. The meeting recessed at 9:50 p.m. and reconvened at 10 p.m. Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCIL - MEMBER DWYER, TO EXTEND THE MEETING FOR ONE HOUR. MOTION CARRIED. HEARING ON APPEAL OF HEARING EXAMINER DECISION DENYING VARIANCE TO EXCEED 25% LIMITATION OF T1T''T k�GiTJTS UNO L lF�i G k NC2LL ST V-19-86 AP E N1 WILL SRIlH Planning Division Manager Mary Loci Block reported that the Community Development Code, Chap;.e• 17.40.020, limits the amount of improvement which may be made to a nonconforming structure to 25% of its current assessed valuation in any one year. The appellant's residence is nonconforming as to the required five foot east side yard setback. fie is proposing to remodel the existing home by constructing an addition onto the front of the house. Although the new addition will comply with current setback requirements, the proposed improvements will exceed the 25% limitation al- lowed by the Code and would impact the view of the property to the east. On August 7, 1986, the Hearing Examiner conducted a public hearing on the variance request of Will Smith to do improvements in excess of the 25% limitation. Staff recommended denial of the variance based upon the findings that it did not meet all of the required variance criteria. The Hearing Examiner issued his decision on August 22, 1986 denying the variance request. On September 8, 1986, Mr. Smith filed an appeal seeking to overturn the Hearing Examiner's decision. Ms. Block said the Hearing Examiner, in his decision on this matter, points out the difficulty in regulating improvements to nonconforming structures under the requirements of Chapter 17.40.020 of the ECDC. There are policies in the Comprehensive Plan that call for retaining and improving existing older residences but also indicate that views should be preserved. In this particular case, the appellant's plans call for a complete upgrade of the existing noncon- forming house, together with an addition at the north end of the house. The addition complies with all zoning code requirements. However, it will block the view of the property owner to the east. Since the improvements contemplated by the appellant exceed 25% of the current assessed value of the existing residence, a variance is required. In order to approve a variance, all of the crite- ria of Chapter 20.85.010 of the ECDC must be met. The Hearing Examiner did not find that all of the criteria were met. Ms. Block said Staff recommends that the decision of the Hearing Examiner be upheld. Mayor Naughten inquired if views of neighbors would be impacted if the proposed addition exceeded the height limitation. Mr. Block replied affirmatively. Mayor Naughten inquired if the resi- dence was nonconforming only because it did not meet the five foot side yard setback. Ms. Block replied affirmatively. Councilmember Ostrom said Section 15.20.005 (8)(3) of the ECDC, which was cited by Ms. Block at the hearing before the Hearing Examiner which sets forth the policy that encroachment on views of existing homes by new construction or additions to existing structures is to be minimized and Ms. Block's statement to Mr. Smith that new or remodelled construction which conforms to th.e zoning setbacks are not restricted by that section conflict. Ms. Block clarified that when the zoning ordinance and policy plan are considered together, the zoning ordinance supersedes the zoning code. Councilmember Ostrom inquired, then, if there was no legislation that puts into effect restrictions on view encroachments. Community Services Director Peter Hahn said because the existing residence does not conform to side yard setbacks, there is a different consideration and, therefore, the criteria for variances must be taken into consideration. City Attorney Scott Snyder said the legal distinction is between administrative decisions and discretionary decisions by the Council. If the zoning code requirements are met, he said a per- son has an absolute right to the issuance of a permit. In any situation where there is discre- tion to be exercised, the Code provides that the Comprehensive Plan is then referenced to exer- cise that discretion. EDMONDS CITY COUNCIL MINUTES Page 9 OC10BER 7, 1986 Councilmember Nordquist left the meeting at 10:10 p.m. Councilmember Ostrom inquired if the addition_ would meet new Code requirements. Ms. Block re- plied affirmatively. Will Smith, 732 Bell Street, noted that Councilmember Kasper's car was seen at Mary Ann and John Kaska's home on August 17, 1986. lie said he, the Kaskas, and Councilmember Kasper at- tend the same church, and that Mr. Smith's daughter had conducted business with Councilmember Kasper. He said he would leave it to Councilmember Kasper's discretion whether or not -to par- ticipate in the proceedings. Mr. Smith submitted an exhibit to the Council. He said the addition was initially proposed -in three phases, as illustrated in the exhibit, which .would conform to the 25% limitation. He said he preferred to complete the addition within a year's time, though. Mr. Smith said he was advised by Ms. Block that the proposed addition does not meet all of the required variance criteria. Mr. Smith said both the Hearing Examiner and Staff report state that there do not appear to be special circumstances relating to the property; there is an area to the west of the house which could be developed. Lie said it appears that the proposed addition would be acceptable if con- structed to the west and, therefore, acceptability is based on use and not on special circumstanc- es relating to the property. Mr. Smith said Staff stated that there did not appear to be any special privileges in grantino the variance. Lie said because lie did not find any reference from the Hearing Examiner regarding special privileges, he assumed that he satisfied that criterion. Mr. Smith said both Staff and the Hearing Examiner stated that the proposed addition does not conform to the Comprehensive Plan or zoning ordinance because of view blockage. Mr. Smith submitted an illustration to the Council which depicted the five properties that would be impacted by the proposed addition. lie said a house is currently being constructed adjacent to his property that will block approximately 45% of his view. Mr. Smith said he discussed revi- sions to the adjacent house with the Planning; Department which were not approved prior to the issuance of the building permit and was told that there is no enforcement of Section 15.20.005 (B) (3) of the ECDC with respect to new Domes. Mr. Smith said the proposed addition does meet setback requirements and height criteria. He said that he took into consideration the impact to his neighbors and drafted the plans of the upper level seven feet farther away to allow a better view for the neighbors. He said the addition is planned to be constructed in the front part of the house to allow access to an enclosed garage. Mr. Smith submitted a photograph to the Council which depicted a 100% view impact to Bruce. Marsh's home if the addition is constructed on the west elevation. lie said the photograph was taken from the kitchen area of Mr. Marsh's home. Mr. Smith said it is true that the proposed addition does not comply with the Comprehensive Plan with respect to view. He noted that Staff findings state if the variance is granted, the proposed construction will he detrimental to views, but the Hearing Examiner made no evaluation of that criteria. Mr. Smith said neighboring property values will be. affected even if the proposed addition is constructed over a period of several years because the result will remain the same if construction was com- pleted within one year. Mr. Smith said the issue has been compounded because the Kaskas built a newer home with an 18 foot setback just below their horse on the hill to allow a greater view to that home on the hill. Lie said the Kaskas claim that the addition would devalue their property. Mr. Smith said he was "hard pressed to do anything with that situation". lie noted that their home was nonconforming. Mr. Smith questioned whether it was appropriate.for Staff to give preference in determining a . private party's property .values. lie said if new construction was planned, it will impact views as his addition will. 1 EDMONDS CITY COUNCIL MINUTES Page 10 OClOBER 7, 1986 Mr. Smith noted that Staff findings state that tfie variance request does appear to be the minimum necessary to allow the owner the rights enjoyed by other properties in the vicinity with the same zoning, but the Hearing Examiner stated that the minimum variance would be the extension of the structure to the west of the existing structure. Mr. Smith contended that he was not being al- lowed the opportunity to develop his property within required setbacks but is being asked to relocate the addition to suit the needs of the City Planning Department. Mr. Smith said the question before the Council was o.ne of policy. He said because the variance criteria are so.loosely written, he would have to appeal to the Council's sense of fairness. John Kaska, 736 Bell Street, said his home was constructed farther back than the required set- back to allow for a view to their home up the hill. He $aid he had not anticipated that the owner of the home at 732 Bell Street would propose an addition that far to the north. Mr. Kaska said Ire felt the proposed addition would not be an asset to the neighborhood. Mary Ann Kaska, 736 Bell Street, said no special circumstances exist to the subject property because there is property to the west which could be developed. She said the Code states that special circumstances should not be predicated upon the ability to secure a scenic view by the party, requesting a variance. Ms. Kaska said it was her opinion that Mr. Smith's request to build to the north was based upon a scenic view. Ms. Kaska said she was a direct descendant of the Bells, which Bell Street was named after. She said that should have some relevancy to the Kaskas' position regarding the issue before the Council. John Kaska, 430 - 3rd Avenue South, clarified that the home at 742 Bell Street was not noncon- forming, only the garage. Mr. Kaska said if the variance is granted, the proposed addition will eliminate approximately 80% of the view at 736 Bell .Street. and approximately 50% of the view at 742 Bell Street, in his opinion. With respect to special considerations, Mr: Kaska said Bell Street was named after his great, great uncle. He said if any special considerations,should be given, that fact should be relevant. Mr. Kaska said the home at 742 Bel Street. was the first home ever built on that block. It was designed to obtain a maximum view one hundred years ago. Ile said the annihilation of that view should be given consideration. Mr. Kaska said he believes Mr. Smith proposes to construct the addition to the north instead of to tine west to obtain a better view and not just to access tine garage. Mr. Snyder requested that the Council consider the language of the special circumstances section which provide, basically, he said, what is legally known as a self-imposed hardship. fie said if the Council grants the variance, it should make a finding with respect to the fact that the home is one foot from tfie property line. Councilmember Ostrom inquired if Mr. Snyder's opinion was that no special circumstances existed. Mr. Snyder noted that the Hearing Examiner made a finding that special circumstances had not been shown to exist. He said that issue should be addressed when considering the granting of the variance. Mr. Smith said the question in his mind was whether the cart was before tfre horse because fie did not know if the house was existent and them the property was subdivided or vice versa. He said the Kaskas' house is nonconfoniiiny. Councilmember Ostrom inquired if that issue was relevant. Mr. Snyder replied negatively. Councilmember Jaech said the issue has been raised regarding the location of the proposed addi- tion either to the west or north. She questioned: 1) if that issue was relevant, and 2) if the relevant issue before the Council was whether or not the proposed addition could exceed 25% of the assessed valuation of the structure in any one year. Ms. Block said the 25% limitation was the reason a variance would be necessary. Councilmember Jaech said the Council was not consider- ing the approval of a variance or whether the development takes place if a variance is granted. Ms. Block said all policy questions must be addressed when reviewing a variance EDMONDS CITY COUNCIL MINUTES Page 11 OCTOBER 7, 1986 application. She said Staff determined that the proposed addition would block views if construc- tion took place at the north elevation. Councilmember Jaech said it was her understanding that the issue before the Council was .whether or not the addition could exceed 25% of the assessed valuation of the structure within a year's period and not where the addition should be construct-' ed. Mr. Snyder said the "where" is considered in terms of determining whether or not it is the minimum variance necessary. He said the grant could be conditioned or limited to certain areas if the Council so desired. Councilmember Dwyer said tie concurred with Councilmember Jaech in that the question before the Council was the 25% limitation. fie said unlike the language in the conditional use permit, the Council must find that the granting .of a variance would result in a particular action. He said the question is: What is it a variance from? He said it is a variance from the 25% limitation and not from any site restriction. Mayor Naughten inquired if the fact that the house was noncon= forming was relevant. Councilmember Dwyer said the nonconformity only restricted the amount of improvements which could be made within a one-year period. Mayor Naughten adjourned the meeting at 11 p.m. COUNCIL14EM13ER JAECH MOVED, SECONDED BY COUNCIL - MEMBER DWYER, 10 EXTEND THE MEETING '10 11:30 P.M. MOTION CARRIED. Councilmember Jaech inquired if the addition would be conforming if it was constructed within the required setback. Mr. Block replied affirmatively. Councilmember Jaech said she interpreted the Code to state that the granting of a variance would allow improvements to be made over 25% of the assessed value. However, a variance would be necessary even if the addition -was built on the west elevation because the house was nonconforming. Ms. Block concurred. Councilmember Jaech said the issue before the Council was only the 25% limitation because the location of the addi- tion would be addressed within the building permit process. Councilmember Ostrom said the six criteria must first be met to grant a variance. Mayor Naughten closed the public portion of the hearing. Councilmember Ostrom said a special circumstance does not exist only because the house is noncon- forming because it was constructed within one foot of the property line. Councilmember Dwyer said the special circumstance did not relate to the one foot setback but, rather, that Mr. Smith purchased a dilapidated house that he desired to make improvements to which exceeded the 25% limitation. COUNCiLiIE14BER OSTROM MOVED TU UPHOLD THE HFARING EXAMINER'S RECOMMENDATION iN DENYING THE GRANT- ING OF A VARIANCE WHICH EXCEEDS THE 25% LIMITA'IlON_OF IMPROVEMENlS TO A NONCONFORMING STRUCTURE AT 732 BELL STREET ON *[HE BASIS lHAT NO SPECIAL CIRCUMSTANCES EXIST. 111E MOTION DIED FOR LACY, OF A SECOND. Councilmember Wilson said because the structure was constructed within one foot of the property line, a special circumstances does exist. Councilmember Ostrom reiterated Mr. Snyder's statement that a special circumstance does not exist based only on the fact that the house is nonconforming because of subsequent zoning regulations. Councilmember Dwyer recommended that the hearing be continued and, in the interim, Mr. Snyder's opinion is elicited regarding the contrasting views of the Council as to the intent of a variance and what the real issue before the Council is. He said if the issue is the 25% limitation, he would be prepared to remand the issue to the Hearing Examiner. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO CONTINUE THE HEARI14G 10 OCTOBER 21, 1986. MOTION CARRIED. . MAYOR Mayor Naughten announced that October 5 through October 11 was proclaimed as "Mental Health Aware- ness Week". Mayor Naughten requested confirmation of Sharon Thatcher to the Personnel Manager position. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER DWYER, '10 CONFIRM THE MAYOR'S REQUEST OF SHARON THATCHER TO THE PERSONNEL MANAGER POSITION. Mayor Naughten requested confirmation of James Barnes to the Parks & Recreation Manager posi- tion. COUNCiLMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER KASPER, 10 CONFIRM THE MAYOR'S REQUEST OF JAMES BARNES TO THE PARKS & RECREATION MANAGER POSITION. EDMONDS CITY COUNCIL MINUTES Page 12 OCTOBER 7, 1986 1 Mayor Naughten noted that there was a liquor license application for Felix's Broiler on Sunset Avenue. Mayor Naughten said if there was no objection, lie would recommend approval. No objec- tion was noted. Mayor Naughten said he would appreciate any referral for an opening position on the Architectural Design Board for an architect. Mr. Snyder said charges have been filed against Mr. Smith regarding the high glare light com- plaint that was brought to the Council's attention a few weeks ago. Mr. Smith, he said, is will- ing to lower the height of the pole to 18 feet. Planning Division Manager Mary Lou Block said Mr. Smith did install a shield which was amenable to the neighbors. Mr. Snyder said he intends to drop the charges because: 1) Mr. Smith has gone to great lengths to resolve the problem, and 2) if the Code was reinterpreted, the City should be prepared to reimburse Mr. Smith for his costs for the pole. COUNCIL Council President Hall said there was a memorandum in the Counc.il's packet in regards to a letter about another P.U.D. light pole. Council. President Hall reminded the Council that a meeting is scheduled on Saturday at 8:30 am. at the Community Services meeting room. Dr. Icon Doctor will be present to further discuss privatization for secondary sewer treatment. Councilmember Dwyer said he would prefer that the rebate from the P.U.D. for Project Pride is applied to the line item for that program which subsidizes utility rates for low-income people in the City. The meeting adjourned at 11:23 p.m. These minutes are subject to October 14, 1986.approval. ACQ ELTNE G. PARRETT, City Clerk '/LARRY(W..NAUGHTEN1 Mayor EDMONDS CITY COUNCIL MINUTES Page 13 OCIOBER 7, 1986