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08/15/1995 City Council8122195 EDMONDS CITY COUNCIL APPROVED MINUTES AUGUST 15,1995 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Laura Hall in the Library Plaza Room, 650 Main Street, followed by the flag salute. ELECTED OFFICIALS PRESENT Laura Hall, Mayor Tom Petruzzi, Council President William J. Kasper, Councilmember Michael Hall, Councilmember Dave Earling, Councilmember John Nordquist, Councilmember Roger L. Myers, Councilmember Barbara Fahey, Councilmember ALSO PRESENT Emily Shen, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Tom Miller, Police Chief Michael Springer, Fire Chief Art Housler, Administrative Services Director Paul Mar, Community Services Director Brent Hunter, Personnel Manager Jeff Wilson, Current Planning Supervisor Stephen Koho, Wastewater Treatment Plant Manager Phil Olbrechts, City Attorney Sandy Chase, City Clerk Christine Laws, Recorder Mayor Hall asked to add to the end of the Agenda, following the Mayor and Council portions, a ten minute Executive Session on a legal matter. City Attorney Olbrechts reminded Council that since City Attorney Scott Snyder could not be present tonight, Agenda Item 10 should be deferred to another meeting. RDP COUNCIL PRESIDENT PETRUZZI MOVED, SECONDED BY COUNCILMEMBER MYERS, TO ADD A TEN MINUTE EXECUTIVE SESSION ON A LEGAL MATTER TO THE AGENDA s; s1P4 FOLLOWING THE MAYOR AND COUNCIL PORTIONS, AND THAT ITEM 10 BE MOVED TO SEPTEMBER 5, 1995, AND TO APPROVE THE AGENDA AS AMENDED. MOTION CARRIED. 2. CONSENT AGENDA ITEMS Council President Petruzzi pulled Item C as he was not in attendance at that meeting. COUNCIL PRESIDENT PETRUZZI MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The agenda items passed are as follows: (A) ROLL CALL (B) APPROVAL OF MINUTES OF JULY 25, 1995 (D) APPROVAL OF MINUTES OF AUGUST 8, 1995 CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE i Item C: (E) APPROVAL OF CLAIM WARRANTS #953488 THRU #954080 FOR THE WEEK OF JULY 31, 1995 IN THE AMOUNT OF $473,667.07; APPROVAL OF PAYROLL WARRANTS #954079 THRU #954448 FOR THE PERIOD OF JULY 16 THRU JULY 31, 1995 IN THE AMOUNT OF $428,227.85 (F) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM LORRIE PRUITT (Amount Unknown) (G) REPORT ON BIDS OPENED JULY 10, 1995 FOR A BACKHOE LOADER AND AWARD OF CONTRACT TO WESTER POWER & EQUIPMENT ($73,855.16) (IT) REPORT ON BIDS OPENED JULY 10, 1995 TO PURCHASE A BURGLAR/FIRE ALARM FOR HISTORICAL MUSEUM, AND AWARD OF BID TO SECURE SERVICES ($6,197.96) (1) REPORT ON BIDS OPENED AUGUST 8, 1995 FOR THE CHERRY STREET STORM DIVERSION PROJECT AND AWARD OF CONTRACT TO UNIVERSAL/LAND CONSTRUCTION COMPANY ($169,658.84 INCLUDING SALES TAX) (J) REPORT ON BIDS OPENED JUNE 26, 1995 FOR PORTABLE STORAGE TANKS FOR THE DECHLORINATION PROJECT AND AWARD TO HOOVER MATERIALS HANDLING GROUP, INC. ($3,499.00) COUNCILMEMBER MYERS MOVED, SECONDED BY COUNCILMEMBER FAHEY, FOR APPROVAL OF THE MINUTES OF AUGUST 1, 1995 AS SUBMITTED. MOTION CARRIED WITH COUNCIL PRESIDENT PETRUZZI ABSTAINING. The agenda item passed is as follows: (C) APPROVAL OF MINUTES OF AUGUST 1, 1995 3. AUDIENCE Dorothy Williamson, 703 Main Street, Edmonds, spoke regarding the recent Taste of Edmonds. She reported that this year's event had the same disturbances and the same complaints as cited in previous 516 years. She indicated that their first class neighborhood consists of 500 residents in homes, apartments, pF condos, two churches and a Bible college. Ms. Williamson commented on the influx of 100,000 people VMoaD5 within a 31 hour period. She noted that the City was allowing liquor to be sold on public property and did not feel that was the kind of business the City should be promoting. She believes that puts the City in competition with licensed establishments already existing. Ms. Williamson reminded Council that representatives from the neighborhood were before Council in 1993 with neighborhood petitions involving over 500 people, met with the Chamber of Commerce, and wrote letters. In 1994 they got a six foot chain link fence to have the function in the same neighborhood. It still resulted in similar complaints. She also expressed concern that the City is allowing the trashing of this neighborhood, increased traffic, increased noise, and the fact that cleanup is at the City's expense. Ms. Williamson also commented on the trashing of a playfield being allowed. She cited the various uses of the monies from the Taste of Edmonds and stated that these things were being done before 1983 without the Taste of Edmonds. Mayor Hall said these concerns will be discussed with the City Attorney and among Council. Kenneth Radu, 8629 - 238th Street S.W., Edmonds, stated they have problems with speeders and big TAAF f& trucks on 238th oS-f- Mr. Radu also thanked the Edmonds Police Department ftreet SW. He suggested the posted sin should onding totbe seen and obeyed. heir concerns. CITY COUNCIL APPROVED NflNUTES AUGUST 15, 1995 PAGE 2 Gary Crocker, 1021 Brookmere, Edmonds, remarked about two instances which required dealing with the City government. The first instance was a result of.a bill received from the City for combined water 1� ��� and sewer. He questioned why he was being required to pay the bill when he didn't live in the house at the alt. time and was told it was easier for the City to get its money. He does not think it a very good process. The next instance dealt with a tree abutting his house which he took out because, on purchase, the inspector had told him it was dangerous. He received word from a City employee that he should not have taken the tree down without a permit. Mr. Crocker acknowledged that he was unaware of that fact and asked for piAlAlf information on the process now and whether a penalty would be imposed. He was advised he had to start Y the process from the beginning as though the tree were still there and later received a 24-page Environmental Impact Statement to be completed. He finds no logic in the convoluted processes he has encountered. Mayor Hall noted there was another side to the story and suggested Mr. Crocker could come to her office to discuss the matter further. Natalie Shippen, 1020 Euclid, Edmonds, spoke regarding the expansion of the ferry dock. She hopes fgsd Council will start thinking about the possibility of asking for two of the big jumbo ferries which have the DV41C same capacity as three other boats and do not need the overhead loading ramp or the second dock. She also stated her belief that the only reason the new ferries were going to Bainbridge was because of political clout. 4. COMMENDATION FOR BRAVERY Police Chief Tom Miller introduced Timothy Howley of Everett. On the evening of July 27, 1995, Mr. Howley was in a restaurant parking lot when he observed the vehicle occupied by Mr. and Mrs. Cornish go into Puget Sound. Without regard for personal safety, Mr. Howley entered the water to assist the occupants escape the sinking vehicle. Officer Carl Roth who was the first officer on the scene told Chief Miller it was less than five minutes between the time of the call and his arrival at the scene. The car was already under more than two feet of water. Chief Miller relayed the thanks of Mr. and Mrs. Cornish to Mr. Howley who were unable to attend. It is believed that Mr. Howley's quick action saved the lives of these two elderly individuals. Mayor Hall read and presented the Commendation for Bravery dated August 15, 1995, to Mr. Howley. 5. INTRODUCTION OF NEW POLICE OFFICERS Police Chief Tom Miller introduced three new police officers: Officers Steve Harbinson, Jim Lawless and Rhonda Rohde. Chief Miller also gave brief backgrounds of each of the officers. He expressed pride in each of the officers and welcomed them to the Department. 6. APPOINTMENT OF ASSISTANT FIRE CHIEF AND INTRODUCTION OF FIRE CAPTAIN Fire Chief Mike Springer reported two fire personnel were present to receive recognition and their Oath of Office for advancement in rank. First presented was Assistant Fire Chief Tim Whitman who introduced his family: wife Jubilee and daughters Hillary and Lea Marie. Chief Springer then presented a brief career history of Assistant Chief Whitman and emphasized his devotion to the city. Mayor Hall administered the Oath of Office and pinned the new badge of office on his uniform. The promotion of Greg Lucas to the line officer rank of Fire Captain was next. Capt. Lucas introduced his wife Noreen. Chief Springer provided Council with a career history for Capt. Lucas and identified him as CITY COUNCIL. APPROVED MINUTES AUGUST 15, 1995 PAGE 3 the Department's computer -friendly person. Mayor Hall administered the Oath of Office and pinned his new badge on his uniform. 7. PRESENTATION OF JAPANESE DELEGATION TO CITY COUNCIL Fire Department Chaplain Ken Gaydos talked briefly about his recent visit to Japan and brought greetings from Mayor Kobayashi as well as Dr. Kobayashi of the Kobayashi Medical Center. For the past few days he and Leann Onishi, former exchange teacher, have had the opportunity to host a delegation from the Hekinan Christian Church, one of two Christian churches in the city. Chaplain Gaydos then presented Reverend Tadashi Fukase and the rest of the delegation. Rev. Fukase introduced himself as being the current pastor of the United Church of Christ in Hekinan -- Edmonds Sister City. He expressed heartfelt thanks for the hospitality and kindness extended by the citizens of Edmonds. He acknowledged the Economic Encounter Project as being the reason they were able to make this trip to study evangelism. Rev. Fukase then introduced the various individuals with him. He offered a prayer of peace upon the City of Edmonds and its citizens. 8. HEARING ON THE RECOMMENDATION OF THE HEARING EXAMINER REGARDING AN APPEAL OF THE RESPONSIBLE OFFICIAL'S ISSUANCE OF A DETERMINATION OF NONSIGNIFICANCE FOR A PROPOSAL BY BURLINGTON NORTHERN RAILROAD FOR A SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT (SM-95-86). THE PERMIT IS FOR THE INSTALLATION OF FENCING TO BE CONSTRUCTED ADJACENT TO THE EASTERN PORTION OF THE BURLINGTON NORTHERN RAILROAD RIGHT-OF-WAY, PARALLEL TO OCEAN AVENUE FROM WATER STREET ON THE NORTH, TO THE END OF OCEAN AVENUE (Appellant: Teresa Verhev / Applicant/Appellee: Burlington Northern Railroad) (File No. AP-95-101) Mayor Hall recused herself from this hearing as she had taken part in the negotiations with the railroad. Council President Petruzzi asked City Attorney Olbrechts to administer the oath to all individuals who were to testify. Five individuals were sworn in. Current Planning Supervisor Jeff Wilson and Community Services Director Paul Mar reported on this matter. Mr. Mar reminded Council that at the June 6 Council meeting he had reviewed the events that led up to the July 20 hearing held on the Sunset Avenue issue which has not been appealed. There was also a July 20 hearing on the SEPA appeal regarding the Ocean Avenue proposal which is tonight's focus and topic as documented by the contents of Agenda Item No. 8. Depending on the outcome of tonight's hearing and/or subsequent legal steps on the appeal, the public review process for the Shoreline Substantial Development Permit for the Ocean Avenue fencing project could begin within the next month. Mr. Mar then turned the discussion over to Mr. Wilson who is also the SEPA Responsible Official. Mr. Wilson described this as an appeal of the environmental determination he issued on the proposal by Burlington Northern to install approximately 660 linear feet of tubular metal fencing ranging from 3 to 4 feet in height, in the Burlington Northern right-of-way adjacent to the Ocean Avenue right-of-way running from Water Street on down to the southern end of Ocean Avenue. The appellant is Teresa Verhey and filed the appeal after the issuance of the environmental determination raising certain issues regarding the adequacy of the environmental determination. After review of the proposal by staff in the Planning Division, reviewing the Environmental Checklist, investigating the site, reviewing what known material the City has available regarding environmental conditions in the area, a recommendation was prepared for Mr. Wilson. He issued a determination of nonsignificance which basically says that the proposed action would CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE 4 not have any potential adverse environmental impacts in the context of the State Environmental Policies Act (SEPA) and that the proposal could proceed. In the SEPA review process, Staff looks at the location of the proposal which in this case is on top of the bluff between the Ocean Avenue right-of-way and the top of the bluff which is the eastern end of the Burlington Northern right-of-way. This area is basically flat and is covered with grass. Also considered is the effect that would have because immediately to the west there is a change in elevation; it is a steep area which is covered by native vegetation, except in certain areas where the public has climbed down the slope to cross the tracks. In those areas there are visible signs of erosion, primarily from the pedestrian traffic down the slopes. In looking at what effects the fence would have in this location on erosion or vegetation in the area, Mr. Wilson determined that the placement of the fence would have a positive effect. It would serve as a barrier preventing people from going down the slope and further degrading the slope. Further, it prevents further loss of any vegetation. Also considered is whether there are any sensitive flora or fauna in the area that could be effected by the proposed construction. Based on the materials in the office, there are no threatened, endangered, or sensitive species which exist in that area which would require additional information from the applicant before an environmental determination was issued. Finally, Staff looks at the proposal itself. This proposal is a two rail metal tubular fence and what type of impact that type of structure might have on the area. Because it is of open construction and relatively low in height, it was determined there would probably be no visual impacts created by that construction. Mr. Wilson called Council attention to Exhibit 1 to the Council packet which is the appellant's letter. He highlighted the issues contained therein as follows: 1) potential impacts to animals, siting a habitat for frogs which exists in the drainage ditch which lies between the eastern side of the tracks and the toe of the slope; 2) potential impacts to vegetation on the slope as well as potential erosion of the slope which the appellant felt might be in an unstable condition; and 3) the fence may potentially narrow the width of the street, thus providing concerns with access on the street. The Hearing Examiner held a hearing on July 20, and on August 3 he issued his recommendation to the Council finding the Environmental Determination which had been issued had been issued correctly and in compliance with the State Environmental Policy Act and that there were no identifiable probable impacts that would be created by the proposal that would warrant any change in the issuance of the determination. The Hearing Examiner's recommendation was for Council to deny the appeal. Mr. Wilson reiterated the City has no State or Federal records of a local nature that identify any threatened or endangered animal species in the area of the proposed fencing. The location of the proposed bluff in an area which is flat would not require removal of any vegetation from the slope, and it is believed the location of the fence at the top of the bluff is going to have a greater positive impact and benefit than negative. Regarding the need for additional studies, there are no records that indicate any serious environmental consequences or concerns in the area that would lead the City not to require any additional studies such as a geotechnical analysis of the slope or habitat studies. Mr. Wilson utilized the overhead to show the vicinity map, the location of the fence, the type of fencing being constructed in the area, and some property ownerships. The fence posts could be placed by use of a post -hole digger instead of mechanical means; the fence is very open design and is designed more for visual identification of a point not to cross than an actual barrier. This was felt to be the least obtrusive design in that area. Mr. Wilson then discussed property ownership. There are, at most, two privately held tidelands to the western portion of the railroad tracks. This last point is important because while it is not relevant to the environmental review process, it should be addressed as it was raised during the hearing. The Hearing Examiner was concerned with public access that might, or would be eliminated by the construction of the fence. The situation is that while there may have been a historical use of crossing the railroad tracks to go down to the beaches, there are no public lands available on the western side of the railroad tracks for public use. Therefore, in Staffs analysis there is no way they can look at the issue of trespassing on private property to go onto privately held tidelands on the other side for public use. CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE 5 Responding to Councilmember Earling, Mr. Wilson likened the height of the fence to the height of the "curtain" in front of the Council table. Post size was clarified for Council President Petruzzi. Councilmember Kasper questioned the location of the numerous other accesses discussed in paragraph 3(e) of page 5 of the Findings of Fact. Councilmember Kasper said he was unaware of legal points of public access located north of main to the northern limits of the city. Mr. Wilson stated that they were from just north of Main Street south. He repeated that they require public held beach property in order to deal with access issues; otherwise, they would be dealing with trespass issues. Councilmember Nordquist questioned the wording of Item 2 on page 6 on the Environmental Checklist. Mr. Wilson explained that the document uses "adjacent" in a broader sense. They were trying to identify that it is not going to occur over water. It is not that they are building up to the water's edge, but they are building within their property which is contiguous to and adjacent to the water. That is borne out by a review of the plans submitted with the application. In this instance it is probably within 100 feet of the water. Appellant Teresa Verhey, 19115 Ocean Avenue, Edmonds, was next to speak. She referred to the 1983 Soil Survey of Snohomish County Area of Washington which identifies Ocean Avenue as Area 13 with a Custer soil type. She provided information regarding the composition and characteristics of Custer soil. She noted that Custer soils are broken down into subclass of Class IV. Class IV soils have severe limitations that require very careful management. The engineering section of the soils studies book provides information for planning land uses related to urban development and to water management. It states, and she quoted, "the information is not site specific and does not eliminate the need for on -site investigation of the soils or for testing and analysis by personnel experienced in the design and construction of engineering works". Ms. Verhey then discussed the issues of corrosion and erosion. Based on the information she has obtained, she feels an EIS should be required on this area due to questions regarding hill erosion, drainage management, appropriate management of Custer soils, and corrosion. Ms. Verhey asked Council if it could agree to the DNS without questioning the information before it. She also asked Council to consider what Ocean Avenue would look like at various time intervals. Ms. Verhey reserved three minutes for rebuttal. Michael Hughes, Project Engineer, 999 Third Avenue, Seattle, represented the applicant's position. He stated that Burlington Northern would like to construct a fence that would provide a warning and deterring effect that the public would understand that it would be trespassing to bypass the fence to go onto the Burlington Northern property. Mr. Hughes discussed the safety factor of trespassing on the railroad tracks. He stated that the fence would allow the native vegetation to re-establish itself in the currently eroded areas. The property at the top of the bluff on which the fence would be located is leased to the City of Edmonds. He again described the construction materials to be used. The fence will be painted in a way to allow it to blend in with the background. Light blue was used at White Rock, B.C., and it looks nice. Mounted on the fence will be no trespassing signs. The fence will be constructed by Burlington Northern, will be located no closer than 24 inches from the face of the bluff. The cement that supports the fence will be placed in 8-10 inch diameter, hand augured holes to a depth of 18 inches. There will be no heavy equipment or site destruction for the necessary 67 holes. There will be no trace evidence that construction took place, and there will be no destruction to flora and fauna. The lowest railing of this fence will be approximately 21 inches above the ground which will provide adequate clearance for the City of Edmonds who leases the land and will own and maintain the fence once it is installed and provide vegetation control at that location. The fence will allow emergency personnel to get over it as it is not intended to be a barrier. They are trying to install a pleasing type fence akin to what might be seen in an overlook park. CITY COUNCIL APPROVED hM4UTES AUGUST 15, 1995 PAGE 6 Mr. Hughes quoted from the Shorelines Management Act of 1971, Chapter 90.58.020: "Coordinating and planning is necessary in order to protect the public interest associated with the shorelines of the state while at the same time recognizing and protecting private property rights consistent with the public interest". Subsection 7 goes on to say: "In the implementation of this policy, the public's opportunity to enjoy the physical aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interests of the state and the people generally." Mr. Hughes says they have considered all aspects of the Shoreline Management Act as stated and feel that the construction of the fence meets the intent of the document. They feel there are no environmental impacts and they have enhanced the safety for the citizens of the state of Washington and Edmonds and that they have met all the SEPA requirements. The bottom line is that the fence will not be an environmental disaster. He believes the fence will be a benefit rather than a detriment. Mr. Hughes reserved four minutes for rebuttal. Council President Petruzzi opened the public portion of the hearing. Nancy J. Wood, 19107 Ocean Avenue, Edmonds, stated she has appreciated an unobstructed view of Puget Sound from her living room, bedroom and kitchen. She asked if there was not a significant impact on Edmonds to fence two gorgeous areas that many. tourists and visitors utilize. She questioned Mr. Hughes' comments that a light blue tubular fence would blend into the horizon. She invited him, Council, and anyone else to her home to see what it will do to her view. Ms. Wood then questioned whether the crossing of the railroad tracks for 100 years by pedestrians would fall within the doctrine of adverse or inverse condemnation where the public crosses a right-of-way for a sufficient number of years to establish public access. She asked if there are some established areas in that neighborhood where that could be done once the fence was built. Council President Petruzzi stated that at the end of the public portion of the hearing he would have the City Attorney address the visual impact and adverse possession issues. Steve Verhey, 19115 Ocean Avenue, Edmonds, discussed the drainage and runoff situations on Ocean Avenue. By today's standards it is a substandard street, only 30 feet wide with no curbs or gutters. The surface is not even asphalt. It has poor drainage and lots of chuckholes. This is an existing environmental situation that is only going to be accelerated by disturbing the soil. Mr. Verhey thinks a site -specific issue that has to be addressed prior to looking at the fence is the drainage and water situation. A site -specific EIS would cover the problems that need to be addressed prior to a fence being built. He also expressed his opinion that a fence is not going to stop people from going there, in part because of the view park that the City currently has there. He then discussed the traffic as it pertains to that park. He believes all of this should be considered in one package in order to discover what impacts the fence will have on the drainage, the traffic, and the soils. Council President Petruzzi closed the public portion of the hearing. Teresa Verhey, 19115 Ocean Avenue, Edmonds, handed out for Council information copies of her letter with attached tables from the soils book. She commented that when initials are etched into the fencing, it will leave room for additional corrosion. She then asked why these two areas were picked by the WUTC when there have been no problems there. Ms. Verhey questioned further how someone on that street can be guaranteed that the environment is not being injured. An EIS is needed. She quoted from Washington Section 197.11.794 (from the hearing paperwork): "Significant as used in SEPA means the reasonable likelihood of more than a moderate adverse impact on environmental quality... The severity of the impact CITY COUNCIL APPROVED MIND I' S AUGUST 15, 1995 PAGE 7 should be weighed along with the likelihood of its occurrence". All information she has obtained says that there is going to be an adverse impact to the soil. She asked that all of this be considered before an opinion was rendered. Mike Hughes, Burlington Northern Project Engineer, 999 Third Avenue, Seattle, said that safety was the issue for Burlington Northern. If there are multitudes of people coming to the city to have a view of Puget Sound, should they not also be warned of the dangers of trespassing by having a visual barrier there to warn them, with no trespassing signs visible. For law abiding citizens it would be an effective barrier to keep them off the property and away from active train tracks. He then referenced the comments made regarding runoff from City property to Burlington Northern property causing erosion. The most impacted place is the eroded path being used to cross the tracks. With the fence, vegetation will reclaim that area and stop any further erosion. He questioned the advisability of considering trespassing to be safe just because it has been done for a long time. He feels every effort should be made to keep people off the tracks except at authorized crossings. He cited other existing crossing areas which could be used. Council President Petruzzi asked City Attorney Olbrechts to provide comment and answer to Ms. Wood's questions. Mr. Olbrechts advised that if Council decides to mitigate or change the recommendation of the responsible official, it would have to be based upon SEPA policies. SEPA policies for the City of Edmonds do include the Comprehensive Plan which has at least a couple of policies that deal with aesthetics. One provides that in urban designated areas, you are to provide for public access, both physical and visual, as an integral component of the ten multiple uses in this area. Also, the Land Use Section of the Comprehensive Plan (15.20.005(3)) provides that you will minimize encroachment on views of existing homes by new construction or additions to existing structures. It is permissible to regulate aesthetics, but you have to be very careful. You have to have policies that have standards. Based on the standards read, it would be pretty hard to justify any kind of aesthetic regulations based on that as it is pretty broad -ended. Mr. Olbrechts believes it would be difficult to regulate aesthetics. On the issue of inverse condemnation, Mr. Olbrechts If this were private property, he believes there would be a good case for prescriptive easements. If it were public property, it would make a difference because you can't own a public property by adverse possession. Ultimately it doesn't matter because that has not been decided by the courts. If the public who has been using that property feel they have a right to cross there, they can go to court and get an order establishing that they have the right to use that property, and the fence would have to be torn down. Council cannot make that determination as it is a legal determination that must be made in a court of law. Mr. Wilson added to Mr. Olbrechts' comments. He feels that any claims for adverse possession or prescriptive right would also only be allowable to those people who have the legal right to cross the tracks in order to access their private property on the other side. That means the general public as a whole would not have the ability to claim a right to cross private property onto someone else's private property unless those claims are upheld in court. Mr. Wilson further clarified that Area 13 referenced by Ms. Verhey includes more than the area between the top of the bluff and the railroad tracks; it also includes property on the east side of the street on which single-family homes have been built, fences have been built, and other substantive structures have been constructed. Mr. Wilson reiterated that this project is a fence with posts every 10 feet and no more than 3 to 4 feet in height. The effects of the soil on the fencing material is not of environmental impact. It is the effect of the project on the existing natural environment and whether or not that will create some significant consequences -- as stated in the RCWs, a probable significant adverse environmental impact. Mr. Wilson expressed great concern over setting a precedent of requiring an EIS on fence construction. There is nothing he has seen in the documentation he has read to indicate that this project would have a detrimental effect on the environment. On the contrary, the issues of soils erosion are CITY COUNCII, APPROVED NCK TrES AUGUST 15, 1995 PAGE 8 created by the people going up and down the slope, damaging the vegetation, and exposing the soils to erosion by wind and water. If anything, the construction of the fence will prevent that trespassing from occurring which will limit the impact on the slope, improve the stability by allowing the vegetation to reseed itself, and stopping the unchecked runoff of water down overexposed soils. The runoff on the street is a pre-existing condition and not subject to the construction of the fence. With regard to the issues of views and aesthetics, Mr. Wilson called Council attention to the packet information which contains not only information on the fence location but also a topography map. The ground on the east side of Ocean Avenue is at a higher elevation than the bluff on which the fence would be constructed. He reiterated his belief in the lack. of visual impact. He called attention to Exhibit G which are photographs of the grass strip for the proposed fence. In reviewing the proposal, Mr. Wilson feels Burlington Northern has done all they can to meet the requirements of the State Environmental Policies Act. The DNS issued is warranted. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEMBER MYERS, TO EXTEND THE HEARING 10 MINUTES. MOTION CARRIED. Mr. Olbrechts advised he had a letter to the Hearing Examiner to introduce into the record which deals with the Sunset Drive fencing. It was written by the Washington Utilities and Transportation Commission. As part of the Shoreline Substantial Development Permit process, they were considering moving the fence from the top of the bluff down closer to the tracks. The. WUTC learned about this and responded via this letter. It states that that would be contrary to the order they issued which was based on the fence sitting on the bluff. If it were closer to the tracks, it would have to be more substantial. If it is desired to move the fence, Mr. Olbrechts suggested contacting the Utilities and Transportation Commission to come up with some mitigation measures. Additionally, on standard of review hearings, Council looks at all the evidence for the first time but is also to give substantial weight to the determination of the responsible official who issued the DNS initially. The hearing was closed and the matter remanded to Council for discussion. Councilmember Earling asked Mr. Wilson if, after hearing all of the testimony tonight, he had heard anything that would lead him to change his recommendation to Council. Mr. Wilson responded there was not. Councilmember Hall questioned the placement of the fence and access to waterfront. He questioned Council's legal authority regarding the issue of prescriptive easement. Councilmember Hall further indicated that the UTC has stated the fence should not be placed on top of the bluff. Council President Petruzzi issued the reminder that the ruling was on the understanding that the fence would be on the bluff. Councilmember Hall asked about the authority of the UTC to tell the City to place a fence on its own property. Mr. Olbrechts suggested if Council wanted to mitigate conditions, it may want to consult the UTC before the conditions are laid so both boards could be satisfied at once. Council President Petruzzi expressed his understanding that tonight Council is charged with a very narrow view. The burden of proof is on the applicant to prove significant adverse environmental impact. He did not think there was any way Council could in this hearing start questioning the location of the fence. What must be decided is whether or not the appellant has carried the day with significant evidence stating it would cause a significant adverse environmental impact. Councilmember Hall reminded Mr. Petruzzi that Mr. Olbrechts had stated one of the significant issues in environmental impacts can be view corridors over which Council has authority to bring that into discussion. CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE 9 Mr. Olbrechts restated the polices that address aesthetics. Under the Shoreline policies, one is that there shall be provision for public access, both physical and visual, and is an integral component of the 10 multiple uses in this area. It seems to mainly apply to intense multiple uses and intense developments. This area is a railroad right-of-way which is fairly clear of any development. The other policy is under the Residential Land Use Policy which speaks of minimizing encroachment on the view of existing homes by new construction or additions to existing structures. With regard to aesthetics you need some strong standards, and these are somewhat vague. Mr. Olbrechts suggested that if Council does find a significant detrimental impact, it should be remanded to the Hearing. Examiner with your finding and to look st alternatives and mitigation measures which would include moving the fence, and also to direct him to communicate with the UTC so we don't run afoul of that ruling. Discussion followed concerning potential appeals. Councilmember Hall acknowledged that there may be other alternatives to be considered where there would not be visual impact. In that event it should be remanded to the Hearing Examiner. Mr. Olbrechts reminded Council that the first question to be answered is whether or not there is a significant detrimental impact. Councilmember Kasper questioned prescriptive easements. On page 16 of the Environmental Checklist, fourth section under recreation, it says no impact on the vicinity. This is a shoreline issue, and access to the waterline is a major factor in this city as well as others. Mr. Kasper noted there are no comments from the staff, and the application says "none". He feels there is an impact when getting into that type of issue. He suggested further investigation was needed with regard to proving the use of that property as it has been used for waterfront access for the last 50-100 years. Councilmember Earling thinks that a six foot fence would open up some public safety issues. Councilmember Hall indicated he does not want a six foot chain link fence but some kind of permeable fence like that on the bluff. Mr. Hall agreed with Councilmember Kasper that if we have an option to say we need to mitigate, it would be to have access to the beach. To gloss over the environmental impact of excluding people from the beach for recreational purposes he thinks would be a valid opportunity to take another look at it for mitigation purposes. Councilmember Myers received clarification that Council's job tonight is to determine whether there is an environmental impact from this fence. City Attorney Olbrechts said the access matters should be discussed if that is considered a substantial impact. Because it is all private property and people shouldn't have a right to cross there should not be a consideration. Mr. Wilson interjected that another reason why that potential impact was not considered is that there is no established legal right to consider it in this proposal. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEM 3ER MYERS, TO ADOPT THE RECOMMENDATION OF THE HEARING EXAMINER AND DENY THE APPEAL COUNCILMEMBER KASPER VOTED NO; COUNCILMEMBER HALL VOTED NO; COUNCIL PRESIDENT PETRUZZI DID NOT VOTE AS THERE WAS NO TIE. MOTION CARRIED. Council President Petruzzi declared a five minute recess. The meeting was reconvened by Mayor Hall at 9:17 p.m. 9. REPORT ON TRAFFIC SAFETY AND ENFORCEMENT ISSUES STEMMING FROM THE TRANSPORTATIONPLAN Police Chief Tom Miller reported that when the Transportation Plan was presented to Council and during the public hearings, a number of concerns were raised by the community at large in regard to traffic, traffic CITY COUNCIL APPROVED MATUTES AUGUST 15, 1995 PAGE 10 enforcement, speed and policies on speed, particularly along the areas of 9th Avenue and various areas of downtown. As a result, Chief Miller contacted Councilmember Earling and requested a meeting with the Public Safety Committee with a view toward addressing the concerns of the Transportation Plan and perhaps coming up with some solutions to the concerns raised. On June 13 Sgt. Mark Marsh and Chief Miller met with Councilmembers Earling and Hall to discuss all the possibilities of solutions to all the issues. Tonight some of the issues discussed will be recapped and some of the data presented to Council. Chief Miller referenced a 10-year longitudinal study on significant work load. Over the last 10 years the population base has increased 11%, calls for service have increased by 53%, cases have increased 25%, staffing at the Police Department has increased 18%, and yet accidents have decreased over the last 10 years by 17%. They then did an analysis of the citation data and high accident locations. They found that 9th Avenue North and South did not come into the top 10 of high accident locations. All of the top 10 are on the Highway 99 or SR 104 corridors and various intersections along those routes. In response to questions about speed tolerance, Chief Miller noted that 69% of all citations issued were for 10-14 m.p.h. over the speed limit. On 9th Avenue North where there is a posted speed of 25 m.p.h., Engineering discovered that 80% of the vehicles travelled at 37 m.p.h. or less. Because the posted speed on 9th Avenue south of Main Street is 35 m.p.h. it is believed drivers were getting a mixed message. He also discussed the effect of the topography on traffic speeds. Enforcement measures discussed included selective enforcement, photo radar possibilities, narrowing lanes and eliminating parking on one side of 9th Avenue, installing enhanced or oversized speed limit signs, and engineering changes including synchronized traffic control systems. The recommendation and consensus of the Public Safety Committee was to use oversized speed limit signs along 9th Avenue to get people's .attention, and eventually install a synchronized traffic control system. Councilmember Kasper confirmed there are currently two motorcycle traffic officers, and also questioned criminal infractions. Chief Miller indicated the changes discussed by Councilmember Kasper were a result of the increased workload and lack of time to write discretionary tickets. Mr. Kasper indicated that police officers had been telling people that they don't write tickets until someone is 15 m.p.h. over the speed limit. Chief Miller said that was not the policy. Councilmember Kasper said in a time span of 30 minutes, he could write seven tickets to people traveling 15 miles an hour over the speed limit on 9th Avenue N. Councilmember Kasper further suggested that the signalization would not work because there are no planned additions of stop lights north of Main Street, Chief Miller indicated he would have to refer that comment to Engineering to review. At Councilmember Kasper's request, Chief Miller described the area to be covered by the synchronized traffic signals. Mayor Hall reminded all that tonight's business did not deal with engineering issues but traffic enforcement issues. Mayor Hall acknowledged Don Carr in the audience and thanked him for his Hekinan-related activities. 10. DISCUSSION ON PUBLIC-SERVICE ANNOUNCEMENTS Because of the absence of City Attorney Scott Snyder who was to lead this discussion, the matter was deferred until the September 5 meeting. 11. REVIEW OF JOB DESCRIPTIONS FOR TREATMENT PLANT Personnel Manager Brent Hunter advised that these are updated and revised job descriptions for all positions in the Treatment Plant excluding the Plant Manager and Administrative Secretary. Several of the positions were changed as a result of the reorganization of the Treatment Plant approved earlier. this year and through the new union labor agreement for 1995-96. All changes with a cost impact have already been CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE I 1 approved and implemented. The approval of these job descriptions will not result in any new or additional salary increases. He then described the organizational chart included in Council packets. Steve Koho, Wasterwater Treatment Plant Manager reiterated that while the job descriptions have been updated, there are no significant changes. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCIL PRESIDENT PETRUZZI, FOR APPROVAL OF NEW TREATMENT PLANT JOB DESCRIPTIONS. MOTION CARRIED. 12. DISCUSSION ON METHOD OF AMENDING MINUTES COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER MYERS, TO UPHOLD THE CURRENT PROCEDURE FOR CORRECTING/AMENDING DRAFT MINUTES. COUNCILMEMBER KASPER RAISED THE ISSUE OF THE TIME FOR CALLING IN CORRECTIONS AND SUGGESTED 2:00 P.M. WOULD BE MORE APPROPRIATE AS THE COUNCIL RESOURCE PERSON LEAVES AT 3:00 P.M. ALL WERE IN AGREEMENT. MOTION CARRIED. 13. MAYOR Mayor Hall announced a successful Taste of Edmonds. While indicating she did not yet have he count of -fAs16 revenues, visitors were very complimentary. She also noted that those in the neighborhood to whom she �Of p�JS spoke felt that the 31 hours was workable once a year. She will, however, carry back to the Chamber of Commerce he comments made this evening. Mayor Hall further reported a need to evacuate the Public Safety Building because of fire in the ballasts of Fo kit, the lighting system during which phones and computers could not be used. She hopes that no disaster I'Pld& happens until the City can get into the new facility. 14. COUNCIL Council President Petruzzi advised that next week's agenda was overburdened by about 35-40 minutes. He suggested possibly moving the discussion with the residents of the Mariner Plaza Building regarding trees and shrubs owned by the City of Edmonds ahead a couple of weeks. He also asked if the discussion of the Regulatory Reform Act could be moved to September 5 for 60 minutes. No objections were raised by staff. Mr. Petruzzi also acknowledged receipt of a letter from Karen Miller regarding the 800 megahertz system. Councilmember Fahey reported that the Economic Development Group meeting scheduled for August 25 had been rescheduled for September 14. COUNCIL PRESIDENT PETRUZZI MOVED, SECONDED BY COUNCILMEMBER EARLING, TO EXCUSE COUNCILMEMBER HALLS ABSENCES OF JULY 25 AND AUGUST 1. MOTION CARRIED. Councilmember Kasper questioned the status of the bricks on the library. Mr. Mar advised that the forward a recommndaion to the Council 0Y consult will be on bard this k, and they wi $w101,4 on September 5. WhenoMr. Kasper asked asked bout he timing ofill be bringfcleaning out the bedset for the inspection, Mr. Mar responded that the inspection was being done his week and that the problem of needing to clean out the beds was rectified. CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE 12 iR Councilmember Nordquist again suggested that a report be scheduled on the disaster plan in particular with �Isky regard to the railroad and waterfront area. Mayor Hall interjected that there is a disaster plan in operation. PO Councilmember Nordquist reiterated that the public needs to know the substance of that plan. Council President Petruzzi asked Councilmember Earlmg to put that on for the Public Safety Committee to decide what kind of report be done. Councilmember Nordquist then discussed Ms. Shippen's presentation under the audience portion of the fg,tty agenda. He asked if there will be another hearing on that issue. Mr. Mar's understanding was that pox Washington State Ferries will be coming before the Council and the Architectural Design Board (ADB) this Fall with design. They have scheduled either an October or November meeting with the ADB, after which they will come before Council. Councilmember Hall asked Police Chief Miller if there was any status on the Edmonds Police involvement with the Police Olympics. There is nothing at present, but Chief Miller will report any news upon receipt. use COUNCILMEMBER MYERS MOVED, SECONDED BY COUNCILMEMBER FAHEY, TO AtSEwE EXCUSE COUNCIL PRESIDENT PETRUZZI'S AUGUST 1 ABSENCE. MOTION CARRIED. 15. EXECUTIVE SESSION There being no further business to come before the Council, the meeting was recessed at 9:47 p.m. for a ten minute Executive Session on a legal matter, to adjourn from there. CITY COUNCIL APPROVED MINUTES AUGUST 15, 1995 PAGE 13 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM - LIBRARY BUILDING 7:00 -10:00 p.m. AUGUST 15, 1995 CALL TO ORDER - 7:00 P.M. FLAG SALUTE 1. APPROVAL OF AGENDA 2. CONSENT AGENDA ITEMS (A) ROLL CALL. (B) APPROVAL OF MINUTES OF JULY 25, 1995 (C) APPROVAL OF MINUTES OF AUGUST 1, 1995 (D) APPROVAL OF MINUTES OF AUGUST 8, 1995 (E) APPROVAL OF CLAIM WARRANTS #953488 THRU #954080 FOR THE WEEK OF JULY 31, 1995 IN THE AMOUNT OF $473,667.07; APPROVAL OF PAYROLL WARRANTS #954079 THRU #954448 FOR THE PERIOD OF JULY 16 THRU JULY 31, 1995 IN THE AMOUNT OF $428,227.85. (F) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM LORRIE PRUITT (Amount Unknown) (G) REPORT ON BIDS OPENED JULY 10, 1995 FOR A BACKHOE LOADER AND AWARD OF CONTRACT TO WESTERN POWER & EQUIPMENT ($73,855.16) (H) REPORT ON BIDS OPENED JULY 10, 1995 TO. PURCHASE A BURGLER/FIRE ALARM FOR HISTORICAL MUSEUM, AND AWARD OF BID TO SECURE SERVICES ($6,197.96) (1) REPORT ON BIDS OPENED AUGUST 8, 1995 FOR THE CHERRY STREET STORM DIVERSION PROJECT AND AWARD OF CONTRACT TO UNIVERSAL/LAND CONSTRUCTION COMPANY ($169,658.84 INCLUDING SALES TAX) (J) REPORT ON BIDS OPENED JUNE 26, 1995 FOR PORTABLE STORAGE TANKS FOR THE DECHLORINATION PROJECT AND AWARD TO HOOVER MATERIALS HANDLING GROUP, INC. ($3,499.00) 3. AUDIENCE (3 Minute Limit Per Person) 4. (10 Min.) COMMENDATION FOR BRAVERY 5. (5 Min.) INTRODUCTION OF NEW POLICE OFFICERS 6. (10 Min.) APPOINTMENT OF ASSISTANT FIRE CHIEF AND INTRODUCTION OF FIRE CAPTAIN 7. (20 Min.) PRESENTATION OF JAPANESE DELEGATION TO CITY COUNCIL 8. (60 Min.) HEARING ON THE RECOMMENDATION OF THE HEARING EXAMINER REGARDING AN APPEAL OF THE RESPONSIBLE OFFICIAL'S ISSUANCE OF A DETERMINATION OF NONSIGNIFICANCE FOR A PROPOSAL BY BURLINGTON NORTHERN RAILROAD FOR A SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT (SM-95-86). THE PERMIT IS FOR THE INSTALLATION OF FENCING TO BE CONSTRUCTED ADJACENT TO THE EASTERN PORTION OF THE BURLINGTON NORTHERN RAILROAD RIGHT-OF-WAY, PARALLEL TO OCEAN AVENUE FROM WATER STREET ON THE NORTH, TO THE END OF OCEAN AVENUE (Appellant: Teresa Verhey / Applicant/Appellee: Burlington Northern Railroad) (File No. AP-95-101) -Continued- EDMONDS CITY COUNCIL MEETING AGENDA AUGUST 15, 1995 PAGE TWO 9. (10 Min.) REPORT ON TRAFFIC SAFETY AND ENFORCEMENT ISSUES STEMMING FROM THE TRANSPORTATION PLAN 10. (10 Min.) DISCUSSION ON PUBLIC SERVICE ANNOUNCEMENTS 11. (10 Min.) REVIEW OF JOB DESCRIPTIONS FOR TREATMENT PLANT 12. (10 Min.) DISCUSSION ON METHOD OF AMENDING MINUTES 13. (5 Min.) MAYOR 14. (15 Min.) COUNCIL Parking and meeting rooms are accessible forpersons with disabilities. Contact the City Clerk at 771-0245 with 24 hours advance notice for special accommodations. The Council Agenda appears on Chambers Cable, Channel 32. Delayed telecast of this Meeting appears the following Wednesday evening at 7.00 P.m. on Channel 36, and the following Friday and Monday at noon on Channel 32.