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11/03/1986 City CouncilTHESE MINUTES SUBJECT TO NOVEMBER 10, 1986 APPROVAL EDMONDS CITY COUNCIL MINUTES SPECIAL MEETING NOVEMBER 3, 1986 A special meeting (on Monday instead of Tuesday because of the general election) of the Edmonds City Council was called to order at 7:0.0 p.m. by Mayor Larry Naughten in the Plaza Meeting Room of the Edmonds Library. All present joined in the flag salute. PRESENT Larry Naughten, Mayor Laura Hall, Council Pres. Steve Dwyer Laura Hall Jo -Anne Jaech Bill Kasper John Nordquist Lloyd Ostrom Jack Wilson Tom Peterson, Student Rep.. STAFF PRESENT Mary Lou Block, Planning Div. Manager Peter Hahn, Comm. Svc. Director Bobby Mills, Pub. Wks. Supt. Jack Weinz, Fire Chief Art Housler, Admin. Svc. .Director, Hal Reeves, Building Official Scott Snyder, City Attorney Jackie Parrett, City Clerk Margaret Richards, Recorder CONSENT AGENDA Items (B), (E), and (H) were removed from the Consent Agenda. COUNCILMEMBER JAECH MOVED, SECOND- ED BY COUNCILMEMBER KASPER, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The approved items on the Consent Agenda include the following: (A) ROLL CALL (C) ACCEPTANCE OF QUIT CLAIM DEED FROM MURIEL D. McCLINTICK FOR STREET RIGHT-OF-WAY AT 17029 - 76TH AVE. W. (D) REPORT ON BIDS OPENED OCTOBER 21, 1986 FOR THERMOPLASTIC APPLICATION EQUIPMENT AND AWARD OF BID TO NORRIS PAINT CO. ($16,062.20)" (F) ADOPIEO.ORDINANCE 2587 STATING EXPIRATION OF PREPAYMENT PERIOD AND AUTHORIZING ISSUANCE OF BONDS ON LID 212 (G) FINAL ACCEPTANCE OF WORK BY LAKESIDE INDUSTRIES FOR 1986 PAVEMENT OVERLAY PROGRAM AND SETTING 30 DAY RETAINAGE PERIOD (I) AUTHORIZATION FOR MAYOR '10 SIGN COASTAL ZONE MANAGEMENT GRANT #GO087044 BETWEEN DEPARTMENT OF ECOLOGY AND CITY OF EDMONDS (J) FINAL APPROVAL OF 10 LOT SUBDIVISION, NORTHWEST CORNER OF MEADOWDALE BEACH RD. AND 68TH AVE W., EDMONDS HEIGHTS (RWF JOINT VENTURE/P-2-86) (K) SET NOVEMBER 18, 1986 FOR HEARING ON APPEAL OF HEARING EXAMINER DECISION ON PROPOSED CONDITIONAL' USE PERMIT FOR SELF-SERVICE GAS PUMPS AT 1018 PUGET OR. (CU-13-86/APPEL- LANT: RAINIER NATIONAL BANK) (L) ACKNOWLEDGEMENT OF RECEIPT OF CLAIM FOR DAMAGES FROM K.F. AND B.E. DAVIDSON ($97.50) APPROVAL OF MINUTES OF OCTOBER 21, 1986 [ITEM (B) ON THE CONSENT AGENDA Councilmember Dwyer noted that the word "seminated" on page 5, paragraph 8, should be "dissemi- nated". City Clerk Jackie Parrett said that the minute taker had looked up both words in the dictionary and found that they were synonyms. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEM- BER JAECH, TO APPROVE THE MINUTES. MOTION CARRIED. APPROVAL OF TAXICAB LICENSE APPLICATION OF YELLOW/PLAZA CAB (WITH NON -WAIVER OF LICENSE FEES ITEMTUN.THE CONSENT AGENDA Councilmember Nordquist inquired if the City has continued to honor the taxicab stands in the downtown area. City Clerk Jackie Parrett said she did not know. Councilmember Nordquist request- ed that the Planning. Department research .the matter. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE ITEM (E). MOTION CARRIED. AUTHORIZATION TO EXECUTE ENGINEERING AGREEMENT WITH ERIC 0. TIETZE AND ASSOCIATES FOR CONSTRUC- TION ENGINEERING FOR LIST STATION 5 7,500 ITEM H ON THE NiISENT AGENDA - Councilmember Nordquist inquired if Staff could oversee the prcject as opposed to an independent contractor. Community Services Director Peter Hahn said Mr. Tietze has been recommended be- cause the City is shorthanded at the present time and needs someone to oversee the project who is familiar with the design documents and contract documents. COUNCILMEMBER NORDQUIST.MOVED, SECOND- ED BY COUNCILMEMBER KASPER, TO APPROVE ITEM (H). MOTION CARRIED. PRESENTATION OF NATIONAL ARTS MONTH PROCLAMATION Mayor Naughten read the proclamation into the record proclaiming November as "November is Arts Month". lie presented the proclamation to Gloria Ma.e Campbell, President of the Arts Commis. sion. Ms. Campbell expressed appreciation on behalf of the Arts Commission for support of arts from the City. Ann Saling, Arts Commission member, announcedthat the first annual writers' conference will be held on November 15, 1986 in Edmonds. Cliff Lenz of food Company, as well as twelve other speak- ers, will be in attendance. She encouraged people to attend. Ms. Saling mentioned that she was interviewed by KSEA, which will air on Sunday morning at 13 o'clock. AUDIENCE Mayor Naughten opened the audience portion of the meeting. Gordon Rosier said the storm sewer system in the north Meadowdale area did not service the area properly during the last storm because the upper portion is clogged, which created new ditches„ He commended the road crew for expeditiously correcting the problem. Councilmember Kasper inquired if the City corrected the problem or if the developer did. Mr.. Rosier said the City corrected the problem in the lower portion of the system but has not un-• clogged the drains. Councilmember Kasper inquired about the name of the plat. Mr. Rosier said it is the Point of Edmonds. Mr. Rosier noted that two years has passed since the sewer project has been completed; yet fifty percent of the neighborhood has still not hooked up to the system. He said his neighbors related to him that they saw raw sewage flow from their pond. He said his neighbor contacted the Health District, who contended that the problem was a City problem, but the City contends that it is a health problem. Mr. Rosier inquired what avenue could be pursued to require. the neighbors to hook up to the system. Councilmember Hall inquired about the time frame in which residents were required to hook up. Community Services Director Peter Hahn said the City Attorney researched the issue and ascer- tained that a municipality does not have the injunctive powers to enforce hookup. lie said the only recourse the City has is to charge those residents who are not hooked up the.full hookup fee., Councilmember Ostrom suggested that Staff contact the Health District for assistance. Counci1mem-- ber Kasper concurred. He noted that the City installed the system at the recommendation of they Health District. He said the District should provide back-up support. He suggested that the City Attorney further investigate this matter. Mr. Rosier requested the Council to reconsider its recent decision to appropriate the PUD rebate, to Project Pride. lie said by appropriating those funds to the Project, it appears that the City is lending the public's credit. EDMONDS CITY COUNCIL MINUTES Page 2 NOVEMBER 3, 1986 Mr. Rosier said he is not opposed to assisting the poor or infirm, but he felt the PUD is strong- arming cities and towns and individuals to donate to Project Pride to insure that it is reim- bursed the $.6.9 million that it has rebated. He suggested that the rebate be appropriated to the General Fund to assist the poor or.infirm. Councilmember Hall said she, also, would prefer that the rebate remain in-house and is adminis- tered locally. She said she does not believe that the elderly or infirm are capable of making two trips to Everett for the interview process. Mr. Rosier submitted the criteria that the Red Cross utilizes that recipients must meet to be eligible for Project Pride. Mayor Naughten closed the audience portion of the meeting. INTRODUCTION OF DR. WARD HINDS, SNOHOMISH COUNTY HEALTH DISTRICT ADMINISTRATOR, AND DISCUSSION OF HEALTH DISTRICT BUDGET Councilmember Hall introduced the new health officer of Snohomish County, Dr. Ward Hinds. She noted that the Snohomish County Health Board voted to increase the Health District's budget by 18%. Dr. Hinds stated that the Health District does have authority to take action in situations when residents refuse to hook up to a sewer system. He said the Health District would be interested in receiving specific information regarding the Meadowdale issue. He said the District may have been hesitant in the past to take action on this matter because of budgetary restrictions. lie said it is a lengthy and expensive process. However, if raw sewage is being discharged upon the surface of the ground, the act would constitute a violation of State statutes. Dr. Hinds noted that public health has brought the level of well being and health to residents of the State and country to its present high status by insuring a safe water and food supply, provid- ing low-cost or free diagnosis in treatment of various person -to -person communicable diseases, and providing low-cost or free vaccinations for vaccine -preventable diseases. Dr. Hinds reported that the population of Snohomish County has increased by approximately 40% during the last decade. The workload and responsibilities of Snohomish County Health District have also increased during that same period, i.e., home visits made by public health nurses to help new mothers with sick infants have increased by 80%; crippled children's case load by 115%. However, budgetary restrictions have allowed staff to increase by only 5 persons. Dr. Hinds said staff has tried to carry out their. responsibilities, but there has been an inadequate increase in Staff over the last decade. If the budgetary increase in 1987 is approved, it will help to in- crease staff and meet some of the increased workload demands. Councilmember Nordquist noted that the City of Edmonds has supported the Snohomish County Health District throughout the years. He said there. are cities in South County that would not have participated had it not been for. the influence from larger cities. He said the formula for par- ticipation was discussed at a recent Health Board meeting, and it was suggested that it be reeval- uated. Councilmember Nordquist expressed his appreciation to the Mayor and City Council for supporting the 18% budgetary increase and to the Health Board for its endeavors. Dr. Hinds said the Finance Committee of the Board of Health has been directed to analyze the formula by which the per capita for cities and towns is determined upon finalization of the 1987 budget. Councilmember Hall inquired if the investigation of food and beverage establishments has in- creased during the last year. Dr. Hinds replied affirmatively. He said there has been a restruc- turing of the food program within the Health District over the past year due to the increase in the number of restaurants. fie said they will be inspected approximately two to three times per year. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE $85,864 AND AUTHORIZE THE MAYOR TO SIGN THE AGREEMENT WITH THE SNOHOMISH COUNTY HEALTH DISTRICT FOR 1987. MOTION CARRIED. EDMONDS CITY COUNCIL MINUTES Page 3 NOVEMBER 3, 1986 INUED HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING REVOCATION OF HOME OCCUPATION Mayor Naughten reported that on November 4, 1985, the City Council granted 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 initi- ated due to his failure to comply with all terms and conditions of permit approval. The plant- ings had not been installed, and the bus and trailer were still parked on the property. On March ZO, 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, 19.86, 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. The City Council originally scheduled a hearing on the neighbors' appeal for July 1, 1986 and again on October 7, 1986. Both .times the Council postponed action on the matter to allow the affected parties time to try to work out a satisfactory solution. Apparently,the parties have not yet reached an agreement. City Attorney Scott Snyder noted that the hearing was continued from July 1 for the sole purpose of allowing the parties to review exhibits N7 through #10 of the tree cutting plan of the origi- nal home occupation permit and to respond to them, if necessary. Mr. Snyder noted that the City Clerk has received additional information since the hearing was continued. He suggested that the Council address whether or not it wished to accept that informa- tion into the record. If accepted, he .suggested that both parties be given an opportunity to examine and respond to the information. Councilmember Jaech noted that the hearing was originally continued to allow Councilmembers'to peruse the record. Mr. Snyder said that Derrill Bastian, attorney representing the Pomeroys, had requested an opportunity to review the letters from his client. Councilmember Jaech inquired if the hearing was open, then, for public input. Mr. Snyder said it was only open on the issue of the submittal date of the tree cutting plan. Councilmember Ostrom noted that lie had in his packet a letter from Mr.. and Mrs. Utter, as well as a petition for a decree of dissolution. He inquired if the Council would accept that information into the record. Mr. Snyder said the matter before the Council at the present time was whether or not the home occupation permit that was granted should be revoked because of the parking issue and the tree planting issue. He said if the Council feels that these issues are a nuisance and the permit should be revoked, there is a procedure for review in the Community Development Code section 21.00.040 that the Council should follow. If the Council finds that a nuisance exists, it may request Staff to review the matter and make preparation to the Hearing Examiner. Councilmember Ostrom inquired if the hearing was closed. Mr. Snyder replied negatively. Grant Sargent, 8608 - 194th Pl. S.W., said the residents met with the Pomeroys and their attorney in an attempt to reach an agreement but to no avail. He said the surrounding neighbors have requested that the permit be revoked based on the nuisance factor and Mr. Pomeroy's failure to comply with some of the criteria and neighborhood requests. The business, he said, is disrupting the neighborhood. Mr. Sargent said Mrs. Pomeroy told him that her son intends to expand the business when he is feeling better. He noted that the build- ing for which the home occupation permit was granted was never finally inspected. Mr. Sargent submitted a petition for revocation of the home occupation permit signed by the neighbors to the City Clerk. Isabelle Egdorf, 19213 - 86th Ave. W., said she submitted information on behalf of Mrs. Utter, who was unable to attend the hearing. She said Mrs. Utter has requested that the home occupation permit be reviewed. Mr. Snyder recommended that the Council make a decision at that time whether or not to accept the ten -page document from Mrs. Utter in order to allow Mr. Bastian an opportunity to review it. FDMCNDS CITY COUNCIL MINUTES Page 4 NOVEMBER 3, 1986 COUNCILMEMBER OSTROM MOVED, SECONDED BY COUNCILMEMBER KASPER, TO ACCEPT THE TEN -PAGE DOCUMENT SUBMITTED BY MRS. UTTER INTO THE RECORD. MOTION CARRIED. Derrill Bastian, 3405 - 188th St. S.W., Lynnwood, said although he had not reviewed the docu- ment by Mrs. Utter, he had an idea what it contained. Mr. Bastian said the neighborhood meeting took place several weeks ago. He said he felt some of the residents were fairly reasonable with the exception of Mr. Sargent. Mr. Bastian said the Hearing Examiner rendered his decision based upon the evidence that was presented to him and it was a correct decision. Mr. Bastian submitted a letter from the younger Mrs. Pomeroy to the City Clerk which described the discussion which took place at the neighborhood meeting. Mr. Bastian said he had hoped that the issue could be resolved on a neighborhood basis, but it did not appear that it would come to fruition. He said Mr. Sargent has contended that the area is an industrial area and that he has been awaken during the early hours of the morning by noise emanating from machinery at the Pomeroy residence. Mr. Bastian said he asked Mr. Pomeroy to turn the machinery on at 9 p.m. They walked to the edge of the Palmer home and did not detect any noise with the machinery on "full blast". Mr. Bastian said he could hear noises only a few mo- ments later from the apartment house on the next block. lie said that because people sometimes become so paranoid, they place blame. on a subject person for every event that takes place in an area. Mayor Naughten opened the public portion of the hearing. *Terry Demeroutes, 8609 - 194th P1. S.W., said she grew up in the neighborhood where the Pomeroys _reside. She said she never saw the bus or the activity that now takes place at the Pomeroy home. She asked Mr. Bastian if a piece of wood was put into the skill saw when it was turned on, noting that the machinery is not audible unless a piece of wood being cut. Ms. Demeroutes said the neighborhood meeting was held at her house. She disagreed with Mrs. Pomeroy's rendition of events. She said the meeting was friendly and suggestions were made. Joe Harmer, 8.614 - 194th P1. S.W., said the residents have attempted to resolve the issue in a timely fashion. He said he felt that part of the delay was due to the wording regarding the bus in failing to characterize it as a commercial vehicle and as unsightly. He requested that the nei.ghbors be afforded a timely trial. Councilmember Jaech inquired if an applicant must first meet the criteria in order to be granted a conditional use permit. Mr. Snyder replied affirmatively. Councilmember Jaech inquired what the time frame was for Mr. Pomeroy to submit a tree planting plan to the City. Community Servic- es Director Peter Hahn said it was one month from the date of the home occupation permit. Coun- cilmember Jaech inquired about the date of the home occupation permit. Planning Division Manager Mary Lou Block replied November 4, 1985. She said because of a mix up, the final date for submit- tal was December 13, 1985. Councilmember Jaech inquired if the tree .planting plan was received on time. Ms. Block replied negatively. Grant Sargent, previously identified, said he felt the neighborhood meeting was friendly. He said he never stated that he heard noises while he was at his home, but did state that the neigh- bors had heard machinery as late as two o'clock in the morning. Isabelle Egdorf, previously identified, said many of the suggestions made at the neighborhood meeting were disregarded. She said Mitsy Pomeroy told the neighbors that Mr. Pomeroy intended to expand the business as soon as his back healed. She said Mrs. Pomeroy, Sr. told a develop- er to "look the other way" regarding the gravel that was splattered on the street. The Pomeroys, she said, never agreed to relocate the vehicles nor did they respond to a request from Mrs. Utter to view the property. Mr. Bastian said every effort was made to attempt to have a friendly neighborhood meeting. *See Council. Minutes of November 10, 1986 EDMONDS CITY COUNCIL MINUTES Page 5 NOVEMBER 3, 1986 Mr. Bastian said he was not involved in this issue at the time that the tree planting plan was required. He said Mr. Pomeroy told him that he requested .the City to provide some guidelines or suggestions regarding the tree planting plan but did not receive that information. He said he' .felt the City does have an obligation to provide guidelines. Mr. Bastian said Mr. Pomeroy ha's installed the plantings in accordance with City requirements. However, four plants have died but are on order and will be planted upon delivery. Mayor Naughten closed the public portion of the hearing. Councilmember Hall said the recommendation of Staff implies that all criteria have been met. She inquired why the issue of the tree planting. plan was not included. C.ouncil.member Jaech raised a point of order. She asked the City Attorney if her understanding' that no input from Staff could be taken once the public portion of .the hearing was closed was correct. Mr. Snyder replied affirmatively. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER KASPER, TO REOPEN THE PUBLIC PORTION OF THE HEARING. A ROLL CALL VOTE WAS TAKEN. MOTION UNANIMOUSLY CARRIED. In answer to Councilmember Hall's question, Ms. Block said the Hearing Examiner found at thin revocation hearing that the intent of the tree .planting plan had been met. The recommendation by Staff that the Council address the issue of the vehicles was felt to be the most significanit issue. + Councilmember Hall said she felt the bus was an eyesore and was appalled that Mr. Pomeroy would not relocate .the bus and trailer to another area on his property. She said the tree planting plan requirement has not been met. Councilmember Ostrom said the issue before the Council at the present time was the vehicles and tree planting plan and not if the vehicles are a nuisance. Mr. Snyder concurred. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER OSTROM, TO CLOSE THE PUBLIC PORTION OF THE: HEARING. MOTION CARRIED. Councilmember Jaech said the testimony that has been presented thus far to the Council addresses the "letter of the law". She said the letter of the law, in her opinion, specifically enumerate} the criteria regarding conditional use permits. Because a tree planting plan was not submitted within the time requirements, she said the applicant did not meet the letter of the law. COUNCILMEMBER JAECH MOVED, SECONDED I3Y COUNCILMEMBER HALL, TO REVOKE THE CONDITIONAL USE PERMIT THAT WAS GRANTED TO THE POMEROY'S. MOTION CARRIED. Councilmember. Jaech noted that her motion included directing the City Attorney to draft Findings; of Fact. The seconder agreed. Mr. Snyder proposed that the Findings of Facf be placed on the November 18, 1986 Consent Agenda. Councilmember Hall raised a point of order. She noted that the Executive Session on the agenda had been rescheduled to follow the Council portion of the agenda. The meeting recessed at 8:27 p.m. and reconvened at 8:35 p.m. HEARING ON APPEAL OF HEARING EXAMINER DECISION UPHOLDING STAFF DENIAL OF BUILDING PERMIT AT 7400 158TIl ST. S.W. APPELLANT JOHN PECK/AP-13-86 Planning Division Manager Mary Lou Block reported that on August 15, 1986, the City of Edmonds, denied a building permit'of John Peck for a proposed residence at 7400 - 158th St. S.W. The`-- decision to deny the permit application was based on the hazardous soil conditions on the proper ty and the inadequacy of the building plans to mitigate.the landslide hazard. Mr. Peck filed an appeal of the Staff decision. On September 18, 1986, Diane VanUerbeek, Hearing Examiner Pro-Tem, held a public hearing on the appeal. She issued her report on October 2, 1986 denying the appeal. On October 15, 1986, Mr. Peck filed an appeal to have the matter heard by the City Council. EDMONDS CITY COUNCIL MINUTES Page 6 N.OVEMBER 3, 1986 1 The Hearing Examiner's reason for denial was apparently based upon Mr. Peck's response to her inquiries that he would not be willing to sign a covenant to run with the land notifying future owners of the landslide hazard, nor sign a hold harmless agreement for the City's protection. Ms. Block stated it should be emphasized that a covenant to notify and a hold harmless agreement are not a substitute for adequate geological studies and a structural design and stabilization system capable of providing the minimum standard safety factor of 1.5. (Safety factor for slopes is defined as the ratio of resisting forces divided by driving forces. Code standards specify 1.5 as the minimum acceptable factor of safety for slope instability.) Mr. Peck's geological studies confirmed that his property is subject to deep-seated instability problems and to "eliminate the potential for landslide movement is not economically practical". With this assumption as a guiding principle, the geological report makes recommendations which should apply in any ordinary steep slope site and concludes that their proposed system "will not prevent damage to the residence should a large portion of the landslide mass begin moving". The report stated further that the proposal will not prevent damage to the residence even if an area slightly larger than the house itself should begin to move. Denial of Mr. Peck's present permit application is based on the unsuitability of the property for the type of construction proposed. Mr. Peck is free to modify his design proposal and reapply for a building permit. Ms. Block said it is Staff's recommendation to uphold the Hearing Examiner's decision and deny the appeal. John Peck, 2404 - 234th P1. S.W., Brier, said an LID was formed subsequent to 1969 in the sub- ject area to reduce the health hazard and landslide potential. Mr. Peck said he filed an application for a building permit. His piece of property is , 60'xl20'. He said the entire landslide area is much larger than his property. Mr. Peck said he never refused to sign a hold harmless agreement or covenant. Fie said he did state he would not sue unless there was negligence on the part of the City. He said the hearing tapes will reflect his sentiments. Mr. Peck said he was appearing before the Council to make an appeal for "some good old common sense and maybe a little sense of fair play". Mr. Peck said the question before the Council should be: Can development occur in the slide area with 100% assurance of removing the slide potential on individual lots? He said that scenario could not take place in Edmonds if common sense and a sense of fair play are applied. Mr. Peck questioned who runs the City of Edmonds --the City Council or the Building Official. He said the.Building Official has.had a very negative approach to this issue from the beginning. Mr. Peck said he thought the LID was favorable and will continue to reduce the risk of slides. He said be believed the lots can be developed individually as long as money is invested to im- prove them. Mr. Peck said he would be willing to sign a covenant and put it on the title if the Council has the "political stomach" to require everyone in the area to do likewise. However, he said he will sign a covenant if it is the only way that he will, be granted a permit. Mr. Peck said he would institute a lawsuit based on discrimination if others are not imposed the same requirement that has been imposed upon him. Councilmember Hall noted that the Hearing Exami.ner's Finding of Fact.N8 states, "Mr. Peck emphati- cally testified that he would refuse to sign any agreement which would release the City of Edmonds from liability for damages which he would suffer as a result of a landslide". Councilmem- ber Hall said she understood from his testimony earlier that he had a change of heart. Mr. Peck replied negatively. He said he never made that statement. Mayor Naughten inquired how the Hear- ing Examiner Pro Tem had gotten that impression. Mr. Peck said she was probably under that im- pression because she is a lawyer, and lawyers frequently make misinterpretations. Councilmember Jaech requested Mr. Peck to clarify his statement that he would sign a hold harm- less agreement but would have to qualify it first. Mr. Peck said it goes without saying that he would not sue the City unless there was negligence involved on the part of the City. EDMONDS CITY COUNCIL MINUTES Page 7 NOVEMBER 3, 1986 Councilmember Jaech noted that a Conclusion of the Hearing Examiner states, "Mr. Peck . would only sign a covenant putting subsequent owners on notice of the potential problem "under pro- test". Mr. Peck replied that tie would sign a statement if it was the only way that a permit would be issued. He said if everyone in the area was not imposed the same requirements as he, lie would sign it under protest and then file a lawsuit based on discrimination. City Attorney Scott Snyder said a hold harmless and indemnification clause that indemnifies the City from errors and misstatements of fact submitted in the building permit process, are included on a building permit application. The City requires a covenant that indemnifies the City from loss and promises to notify subsequent purchasers of any defects found in the building permit review process. Mr. Snyder said the Council recently removed the requirement that it be record- ed. The ordinance only requires that Mr. Peck provide those clauses and not record them, which is the same requirement that would be placed on anyone in the landslide hazard area. Mr. Snyder said he seriously disagreed with Mr. Peck's contention that lie is being discriminated against on that basis. Mr. Peck inquired if the ordinance applies to already -existing residents. Mr. Snyder replied affirmatively. Mr. Hahn emphasized that Staff's position is that a covenant: or hold harmless agreement are not .substitutes for adequate geological studies and a structural design and stabilization system.f,. Councilmember Kasper asked whose expert testimony should be taken into consideration regarding geological studies and a structural design and stabilization system. Mr. Snyder said that Build- ing Official Hal Reeves reviews the process. Councilmember Kasper inquired if the process has been examined to determine if the lots can be developed. Mr. Hahn said the lots are not impossi- ble to build on, and the requirements are not impossible to comply with. He said there are vary- ing kinds.of technological measures which can stabilize property economically. Mr. Snyder noted that not every lot in the City can be economically developed at the present time with standard building practices but that does not preclude future development. lie said the City does not have the obligation to allow everyone in the City to build whatever they desire on their lot. The Building Code requires certain standards and minimums of safety which may put certain lots on today's market out of reach of development due to costs. Councilmember Kasper inquired how the City Building Official reviews the process of accepting geological studies and structural designs. Pair. Reeves said the building permit process has beesi a developing process over the past two years in that Staff has utilized the existing plan check system and Uniform Building Code (UBC) as already adopted by the City and then has developed in-house rules, as well as contacting other jurisdictions with similar problems and researching their process. Councilmember Kasper inquired if Mr. Reeves has been influenced by the fact that the International Conference of Building Officials (ICBO) has refused to review plans similar to what Mr. Peck has submitted. Mr. Reeves replied affirmatively. The ICBO, he said, inter- prets the UBC as stating if a property is not stable, then it is to be made stable and then construction can proceed. If it is not made stable, then construction should not proceed. Councilmember Hall inquired if the lot could be developed if one million dollars was invested to stabilize the property. Mr. Reeves said any of the lots in that area could be stabilized and built upon but the costs would vary. Councilmember Nordquist reviewed Conclusion of Law N2 as follows: "The City of Edmonds Community Development Code at Section 19.00.020 provides a series of stringent requirements with respect to development on hazardous slopes." He inquired about the process that Mr. Reeves followed in evaluating Mr. Peck's application. Mr. Reeves said the City's plan checker, Jack Whitely, does review applications. lie drew up a list: of criteria for the soils report for reviewing documents., which was utilized for Mr. Peck's proposal. Councilmember Nordquist inquired if Mr. Peck was ever recontacted to ascertain if he would meet the criteria. Mr. Reeves replied affirmatively„ He said Mr. Peck's engineer said some of the criteria were not appropriate and did not attempt to address the measure of lot stability. Mr. Snyder suggested that Mr. Reeves review the various events that occurred. Mr. Reeves said the exhibit list for the hearing indicates when the application was submitted and contains the plan check letters and dates. Councilmember Dwyer inquired what information was missing that led to the refusal to approve the application, disregarding the hearing before the Hearing Examiner. Mr. Reeves said the geotechnical report stated that the lot was subject to: deep-seated movement and instability;, EDMOVDS CITY COUNCIL MINUTES Page 8 NOVEMBER 3, 1986 a 30% chance of movement on the property within 25 years, and that probability would increase over time; to correct the problem was not economically feasible. Mr. Reeves said the engineers then proceeded to submit a design for any steep 'slope that was not subject to that type of insta- bility. Councilmember Dwyer inquired what element would have been necessary to approve the application. Mr. Reeves said very detailed geotechnical studies that resulted in a program of stabilization for the property. Councilmember Dwyer inquired what wording would be. necessary to determine that the level of stabi- lization was appropriate in order to approve the application. Mr. Reeves said the standard engi- neering factor is 1.5, which the geotechnical engineer did not qualify the lot as having. He said he would also approve a proposal which met the criteria similar to the City of Seattle's standards. Mr. Hahn said the design measures were not adequate nor did they support language which illustrat- ed that the slide hazard had been minimized. Councilmember Wilson asked what amount of money would be necessary to invest to stabilize the lot. Mr. Reeves said he did not know. Ile said the only way to obtain that information.would be to conduct a fully detailed geotechnical study and..map all of the soil deposits on the site and then design a stabilization program. Mr. Hahn said he spoke with the geotechnical engineer for the City of Seattle who related to him that to stabilize a lot in a Seattle neighborhood in terms of very sophisticated measures would cost well under $100,000. Councilmember Jaech requested Mr. Snyder to outline the criteria which was utilized in assessing the building permit application. Councilmember Nordquist inquired if the applicant was aware of the criteria at all times. Mr. Reeves said although he was unaware if Mr. Peck was aware of the criteria, an engineer would be aware of them and an architect could prepare the plans and coordinate between the geotechnical and structural engineer and the Building Department. Councilmember Nordquist inquired if Mr. Peck was aware of the in-house criteria. Mr. Reeves said the handout packet contains that information. In answer to Councilmember Jaech's question, Mr. Snyder said Community Development Code section 19.00.010 requires that there must be a finding that the lot is suitable for improvement and lists a variety of criteria to be satisfied; either that the lot has a safety factor of 1.5 or that the risk of movement is minimal. Mr. Snyder said he has always cautioned municipalities not to design structures for people. The responsibility of the Building Official is to review submittals. Mr. Snyder said he viewed the Hearing Examiner's Findings to be dangerously flawed in that she stated that a permit will be granted if a two -page procedure is submitted. Ife said in advising Staff, he has stated that a procedural process must be followed in reviewing a design, and the design must satisfy all of the criteria of the UBC and ordinance (one of which is lot stabili- ty). Councilmember Nordquist inquired: 1) if the applicant was cognizant of and understood the crite- ria set forth by the City, 2) if the design met that criteria and, if not, why. Mr. Snyder said the safest way to deal with hazardous situations from an administrative viewpoint is to drag the process out for years, but he has never made that recommendation to Staff. He said denial of a building permit is not absolute; any defect in the process can be corrected on an amended applica- tion. Councilmember Nordquist inquired if Mr. Peck's engineer interpreted the development standards as the City's Building Official does. Mr. Hahn said the professionals working for Mr. Peck under- stood that the property must be stabilized and that the building must stand by itself. He said the report they submitted stated that the property could only be partially stabilized and the slides could not be minimized completely. On that basis, .the Building Official was unable to issue a building permit. Councilmember Kasper inquired if Mr. Peck was required to stabilize not an undeveloped lot, but a lot that will be developed. with a structure on it to insure that damage will not occur to sur- rounding properties should erosion or slippage occur. Mr. Hahn concurred. Councilmember EDMONDS CITY COUNCIL MINUTES Page 9 NOVEMBER 3, 1986 f ' y: Kasper inquired, then, if stabilization was not for the lot itself but for the structure which would be built on the lot. Mr. Snyder said the City requires that measures are taken to protect the home not only from site specific problems but also from problems relating to the area in which it is located. Councilmember Kasper inquired how an applicant would know if his lot is buildable. Mr. Snyder said the City is not a guarantor of anyone's lot within the City and does not provide any guaran- tee that any lot in the City can be developed for a certain price. Councilmember Hall expressed concern with the wording "Mr. Peck's geological studies confirmed that his property is subject to deep-seated instability problems and to "eliminate the poten- tial for landslide movement is not economically practical". She asked who would make that deter- mination. She recommended that wording he deleted and that the criteria be defined more narrow- ly. She said if every proposal is reviewed on a case -by -case basis, then revisions should be made to the Code. Mr. Snyder said every building permit is reviewed, by definition, on a case -by - case basis. The wording that Councilmember Hall referred to, he said, was taken directly from the engineer's information and was conclusory. Councilmember Hall inquired if the design would be stable if it had a safety factor of 1.495. Mr. Reeves said he would accept a design if the safety factor was 1.499 and the engineer made statements that the risk would be minimal. Councilmember Hall noted that Mr. Reeves stated that the ICBO will not review applications of a similar nature to Mr. Peck's. Mr. Reeves said the ICBO will not approve construction if a lot is unstable. Councilmember Kasper inquired how the ICBO ascertained that the subject lot was unstable. Mr. Reeves said the applicant's geotechnical report states that the lot is unstable. Councilmember Ostrom raised a point of order. He inquired if anyone else wished to testify. Mayor Naughten asked if anyone else in the audience wished to testify. Norm Nelson, 15729 - 75th Pl. W., inquired if Edmonds citizens will be required to pay sewer assessments and taxes if their lots are not capable of being developed. Administrative Director Art Housler stated that the insurance pool provided criteria to the City that building permit requests would have to meet in the Meadowdale area. The pool highly recommended that the crite- ria be followed. Mr. Nelson's opinion was that the applicant would not be issued a building permit no matter what criteria he followed. Mr. Hahn said each lot is evaluated on a case-bycase basis. Whether or not a lot can be developed cannot be determined in advance. fie said there are other types of foundations that can be built that are different from what has been proposed, and Mr. Peck has not proposed any different foundations to date. Councilmember Kasper recalled that Lowe & Associates had stated that the Meadowdale area could be salvaged economically when the LID was formed. He inquired what other factors would be neces- sary if the existing criteria cannot be satisfied. fie suggested that Lowe & Associates provide some assistance. Mr. Snyder noted that Mr. Lowe based his findings and follow-up findings on approximately 12 piezometor readings in an area over 100 acres. One of the characteristics of glacial till is that it represents a jumble of soil of all types, and it is impossible to make any generalization from lot to lot or from a specific area on each lot. Mr. Snyder said one reason the process is so lengthy is because a specific building footprint must be identified, and then the soil underneath the area where the structure will be built must be analyzed. Councilmember Jaech said she understood from the testimony that there are plans that could be drafted which could mitigate the instability problem which have not yet been presented to Staff; the applicant has stated that he is willing to sign documents that are required by the City. She inquired if the issue could be remanded to Staff to allow the applicant to proceed with another design. Mr. Snyder replied affirmatively. Ms. Block clarified that design documents, as well as covenants, would be required. Mr. Peck said the soils report states that the top 25 feet of the subject lot is "a certain quali- ty of soil that normally makes a good base for foundation". Fie said the top soil is deeper than the top soil of the road in front of his property. lie said that the soils report answers all of the questions regarding instability. He contended that the Council has not read that report. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO CONTINUE THE HEARING TO A DATE CERTAIN TO ALLOW THE COUNCIL AN OPPORlUNITY TO REVIEW THE RECORD. I:.DMONDS CITY COUNCIL MINUTES Page 10 NOVEMBER 3, 1986 Councilmember Hall expressed her appreciation .to Staff in cautiously reviewing the issue. The hearing was continued to December 16, 1986. .MOTION CARRIED. Mayor Naughten formally closed the hearing, which he had not done previously. Councilmember Kasper restated his motion for the record. COUNCIL DISCUSSION ON PROPOSAL TO ARTS DISTRICT ON EVALUATION OF PUGET SOUND CHRISTIAN COLLEGE AUDITORIUM AS A PERFORMING ARTS CENTER Mayor Naughten reported that the following proposal is an alternative proposal to the recently rejected $19 million Cultural Arts Convention Center (CASCD) and a practical alternative that, if accepted by the CASCD and the District voters, could at least satisfy the present need that ex- ists in South Snohomish County for a first class facility to support the performing arts communi- ty. He said the proposal is to renovate the Puget Sound Christian College (PSCC) auditorium. The present auditorium seats approximately 930 people. This capacity may be reduced to 700 or 800 with major renovation. The advantage of this proposal is that the auditorium presently exists and when updated could provide the community's base support for a larger facility in another location. It would not replace the need or plan for a new larger scale community center but could compliment such a center and be part of a new proposal. The estimated cost of the project would be less than $2 million. Mayor Naughten requested the Edmonds City Council to support the concept and the request to CASCD to consider the PSCC auditorium as part of a new proposal and authorize a preliminary study to determine the feasibility of the facility. Councilmember Kasper inquired if parking requirements are grandfathered. Mayor Naughten re- plied affirmatively. He noted, however, that parking should be improved. Councilmember Ostrom said he was in support of the proposal. Councilmember Dwyer said he, too, was in favor of the proposal because he said the study will either prove that the concept is workable at a lesser cost or that it is unworkable and the find- ings will satiate the curiosity of the citizenry. Councilmember Wilson strongly urged the Council to take into consideration the resistance that the proposal would receive from people from the Cultural Arts Board in other areas. He said Edmonds Community College would be an ideal site for a cultural arts center for South County. Mayor Naughten reminded him that the proposal would only be one phase of a new package. He said the PSCC auditorium could be the smaller of two auditoriums. Councilmember Dwyer said the City must do everything possible to guarantee an otherwise reluctant public that the money they are, asking to spend for a proposal is the wisest choice. He recalled that people were not comfortable with the site selection process in the past. Mayor Naughten adjourned the meeting at 10:00 p.m. COUNCILMEMBER BALL MOVED TO EXTEND THE MEET- ING. THE MOTION DIED FOR LACK OF A SECOND. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEM- BER WILSON, TO EXTEND THE MEETING FOR THIRTY MINUTES. MOTION CARRIED. Councilmember Hall expressed her surprise and chagrin that the Council and Mayor of Lynnwood received a letter from Mayor Naughten regarding the proposal dated October 9, but the City Coun- cil did not receive any information until October 29. She noted that the PSCC auditorium was analyzed as inadequate in a study conducted. She said she felt the proposal would be satisfacto- ry for a cultural arts center for Edmonds but not for the entire district of South County. She expressed concern that the neighborhood would be adversely affected due to parking restrictions if the PSCC is utilized Mayor Naughten said he spoke to the Council several weeks ago about the proposal. The ad hoc committee drafted the letter and sent it to different entities. Rob Morrison of the Main Streets Program independently chose to approach the Arts District. . EDMONDS.CITY COUNCIL MINUTES Page 11 NOVEMBER 3, 1986 Mayor Naughten said the committee viewed the proposal as a two-part proposal which would pro- vide South County with a 600 to 700 seat auditorium that was decent and at an affordable price. Mayor Naughten said he was presenting the proposal to the Council to request their support to the Board and ask them to consider conducting a feasibility study. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER OSTROM, TO SUPPORT THE MAYOR'S REQUEST TO/~ ASK THE BOARD TO CONSIDER CONDUCTING A FEASIBILITY STUDY FOR THE PSCC AUDITORIUM AS PART OF A NEW PROPOSAL. Councilmember Wilson said he would vote against the motion because no action by the Council was necessary. Councilmember Hall said she would vote against the motion because a study has already been conducted. A ROLL CALL VOTE WAS TAKEN. MOTION FAILED WITH COUNCILMEMBER DWYER AND COUNCILMEMBER OSTROM IiN FAVOR AND COUNCILMEMBER HALL, COUNCILMEMBER JAECH, COUNCILMEMBER KASPER, COUNCILMEMBER NORDQUIST; AND COUNCILMEMBER WILSON OPPOSED. COUNCILMEMBER OSTROM MOVED, SECONDED BY COUNCILMEMBER KASPER, TO ADJOURN THE MEETING. Mayor Naughten inquired if anyone was present in the audience to hear Council Discussion of Recom- mendation for 1987 Building Permit Fees (Item N9). No one noted their presence. Councilmember Dwyer said he would be willing to reschedule Council Discussion of Staff Appeal of Hearing Examiner Decision Re: Gil Thiry Building Permit (Item #10), noting that Staff has 30 days in which to address that item from the date of the appeal. Councilmember Hall inquired when the appeal was filed. Community Services Director Peter Hahn said the 30 days would elapse on November 21, 1986. The discussion was rescheduled for November 10, 1986 and the hearing sched- uled on November 18, 1986. COUNCILMEMBER JAECH MOVED TO CLOSE THE NOVEMBER 18, 1986 AGENDA. Councilmember Ostrom noted that a motion was already on the floor. COUNCILMEMBER KASPER WITHDREW HIS MOTION TO SECOND THE M0= TION. THE MOTION FAILED FOR LACK OF A SECOND. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER HALL, TO CLOSE THE NOVEMBER 18, 1986 AGENDA. MOTION CARRIED. COUNCILMEMBER KASPER MOVED, SECONDED 13Y COUNCILMEMB.ER HALL, 10 CONFIRM THE MAYOR'S APPOINTMENT Of DAVID KEHLE TO POSITION 7 ON THE ARCHITECTURAL DESIGN BOARD, TERM TO EXPIRE NOVEMBER 5, 1988, AND THE REAPPOINTMENT OF SHAWN PARSONS TO POSITIONI 4 ON THE ARCHITECTURAL DESIGN BOARD, TERM TO EXPIRE NOVEMBER 5, 1990. MOTION CARRIED. Councilmember Hall announced that a Saturday morning work session is scheduled at 8:30 a.m. ai'. the Community Services Building. Councilmember Nordquist requested that a line -by-line year -to --date expenditure for each depart-; ment be submitted to the Council prior to finalization of the 1987 budget. Coun.cilrnember Jaech clarified that the Council would like to see what changes were made, if any, in the 1986 line item budgets. The meeting recessed to an Executive Session at 10:24 p.m. to discuss a legal matter for approxi mately twenty minutes. These minutes are subject to November 10, 1986 approval. ac_'Y_� �- P JA QUELINE G. PARRETT, City Clerk ARRY NAUGHTEN, Mayor 1 EDMONDS CITY COUNCIL MINUTES Page 12 NOVEMBER 3, 1986.