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09/26/2006 City CouncilSeptember 26, 2006 ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Deanna Dawson, Council President Michael Plunkett, Councilmember Richard Marin, Councilmember Mauri Moore, Councilmember Peggy Pritchard Olson, Councilmember Dave Orvis, Councilmember Ron Wambolt, Councilmember ALSO PRESENT Kisa Nishimoto, Student Representative STAFF PRESENT Tom Tomberg, Fire Chief David Stern, Chief of Police Duane Bowman, Development Services Director Stephen Clifton, Community Services Director Brian McIntosh, Parks & Recreation Director Noel Miller, Public Works Director Rob Chave, Planning Manager Dave Gebert, City Engineer Frances Chapin, Cultural Services Manager Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder 6:00 P.M. - JOINT MEETING WITH THE PORT COMMISSION TOPIC: EDMONDS WATERFRONT AREA REDEVELOPMENT PROGRAM Port Commissioners Mary Lou Block, Marianne Burkhart, Fred Gouge, and Jim Orvis were present; Commissioner Bruce Faires was absent. Port Executive Director Chris Keuss was also present. Development Services Director Duane Bowman explained the purpose of the joint meeting between the City Council and the Port Commission was to discuss the Edmonds Waterfront Area Redevelopment Program, the area between downtown and the waterfront. He advised this area was designated as a Master Plan area. Mr. Bowman displayed a map of the waterfront, identifying the primary study area comprised of a portion of Harbor Square and the Antique Mall /old Safeway property and a secondary study area comprised of the Washington State Ferries (WSF) parking lot, Skipper's property and the railroad station. He recalled in April 2006, the Council and Port Commission conducted a joint meeting to review the status and history of Harbor Square and Antique Mall properties and discuss public /private partnership opportunities. The meeting also included a presentation by Maritime Trust regarding development at Port Gardner on the Everett waterfront. The Council and Port Commission also reviewed the current Downtown Waterfront Plan and potential for a railroad quiet zone. At the conclusion of the joint meeting, the City and Port officials agreed to create a Redevelopment Committee and to focus their efforts on redeveloping the study area. Ron Wambolt and Bruce Faires serve as the primary City and Port committee representatives. Mr. Bowman stated redevelopment of the study area was a high priority and was identified in the Comprehensive Plan. The area contains large, under - utilized properties, structures with utilitarian architecture, large areas of concrete and unfriendly streetscape and the haphazard arrangement of uses are not reflective of the site's significant potential value and strategic location. The study area has strong Edmonds City Council Approved Minutes September 26, 2006 Page 1 economic and public access components and the ability to provide connections. Redevelopment would have a direct impact on the economic future of Edmonds as it promotes improvements focused on growth and enhancement of the community. If redeveloped properly, this area could provide the missing link between downtown and the waterfront and spur redevelopment in the community. Mr. Bowman reviewed benefits of redevelopment such as: the positive affects reach beyond the boundaries of the study area and create an attractive citywide destination; improved the quality of life for residents, visitors and businesses; and improvement in the City's favorable image in economic and social climates. Benefits that could occur as a result of redevelopment include encouraging others to invest in future development; wider range of available jobs; increased opportunities for shopping and recreation; improved infrastructure, public facilities and open space; new and renovated housing opportunities; diversified and increased tax base; improved appearance and circulation of the project area; improved connectivity between the downtown, waterfront and Port. He noted the committee was not interested in development that was in competition with downtown but rather development that would link the waterfront and downtown. Mr. Bowman explained the process for redeveloping the study area could be commenced and completed very quickly or over a longer period of time. The timeline would depend on a variety of factors including the level of political and public support, receptivity and participation of property owners, amount of public participation, availability and experience of professional consultants and the community's vision for the area. He noted the public involvement component was essential to ensure redevelopment was supported by the community. He reported that during the past few months, the committee had been meeting monthly to define a scope of work that could potentially lead to the redevelopment of the study area. In order to gain an understanding of the level of involvement that may be necessary to transform the study area, the committee invited staff and officials from the Port and City of Everett to the first redevelopment program meeting who shared their experience working on the Port Gardner development with Maritime Trust. The committee recognized property owners as major partners in this endeavor and believed it was important to structure the process to include them in all steps leading to eventual redevelopment. The committee has also spent time discussing the need to establish a vision, reviewing existing conditions and opportunities, the Master Planning process, public involvement, engaging stakeholders, project milestones, determining the financial feasibility of redevelopment, and interactions between the Port, City, property owners, citizens and development communities. He noted one of the differences between the study area and Port Gardner was that Port Gardner has one ownership, whereas the Edmonds Waterfront study area is a combination of private and public ownership which would likely require a partnership. For example, the parking lot at the railroad station was an opportunity where air rights for a parking garage could be considered. He pointed out the high water table in the study area prohibits underground construction. The committee believes a collective effort between City, Port officials and staff, property owners, residents, business owners, investors, developers, engineers, and architects will be necessary to redevelop the study area in such a way as to achieve positive results. As such, it is necessary to develop a process /plan that allows the involvement of these entities and recognition of the design parameters on the property. Mr. Bowman described the Master Planning process, envisioning Phase 1 would include a public workshop that would profile existing conditions and opportunities, identify user group needs and concerns and identify alternate use and development strategies. A second public workshop would present preferred land use and development strategies and the development of preliminary concepts and/or designs. A third public workshop would present Master Plan alternatives and provide an overview of the economic feasibility and employment impact. Planning Board approval of concepts would occur next, followed by Port of Edmonds Commission review and approval of concepts and City Council approval of Edmonds City Council Approved Minutes September 26, 2006 Page 2 concepts. Phase 2 would include environmental review and permitting and Phase 3 would be a phased site redevelopment. The committee envisioned Phase 1 would be redevelopment of the Antique Mall property and potentially some of the Harbor Square property (owned by the Port). Mr. Bowman relayed the committee's recommendation for the creation of a Redevelopment Plan, via a Master Planning process with a private - sector firm leading the planning effort. The committee would discuss costs associated with preparing and soliciting a Request for Qualifications (RFQ), costs associated with conducting the three phases, and options for funding the work. The Committee would then return to the City Council and Port Commissioners to report on their findings. If the City and Port officials agreed, a RFQ could be issued requiring any successful responder to have experience conducting public /private partnerships, community outreach, developing mixed use projects and be capable of undertaking the development following the master plan's completion. Commissioner Burkhart referred to Mr. Bowman's comment about recognizing the design parameters on the site. Mr. Bowman commented parameters include the high water table that may require increased building height, the site topography, surrounding uses such as the WSF parking lot and train station. He commented on the potential to use staggered building heights on the property, pointing out one of the tallest buildings downtown, the Ebbtide, was in the center of the property. He explained consideration could be given to taller buildings on the center of the site with other buildings stair - stepping down toward the street to preserve view corridors. Councilmember Marin advised Sound Transit planned to redevelop the parking lot into 240 spaces. In other cities, if the local entity wanted a parking structure, the local entity must provide the necessary funds. Councilmember Marin inquired about the cost of the proposed phases. Councilmember Wambolt responded the cost had not yet been quantified, that would be the next step. Mayor Haakenson pointed out the Port and property owners were the primary partners, the City was only a facilitator. Commissioner Orvis advised the property owner of the Antique Mall, Al Dykes, was committed to providing funds if development was determined to be feasible. The next step will be to convince the partners to provide funds for the first phase. In order to do so, the property owners needed some assurance from the City. Mr. Bowman advised the committee did not have detailed information regarding costs; the committee recommended authorization of a redevelopment plan via a Master Plan process and for a private- sector firm to lead that effort. If the City and Port officials agreed, prior to issuing a RFQ, the committee would investigate costs. Councilmember Marin clarified the next steps would require funds. He relayed his interest in redevelopment but preferred to develop a range of possibilities rather than a consultant developing a preferred alternative. Councilmember Plunkett commented density, uses and open space could be determined but the "elephant in the room" — acceptable building heights — needed to be resolved first. He recommended reaching some conclusion with regard to an acceptable height as early in the process as possible. Commissioner Gouge commented the developer and the Port Commission needed to know what limitations with regard to heights and uses the City would impose on the property before substantial funds were expended on a Master Plan process. He noted the contract rezone on the Harbor Square property allowed increased heights; the Antique Mall property had different height limits. Councilmember Marin proposed redevelopment of the area include a variety of building heights, noting varying elevations and architecture made an area look interesting. He commented a fixed height likely would result in buildings of all one height and he preferred to develop a formula that would allow a percentage of buildings above and below a certain height. He summarized some taller buildings would be acceptable if there were some lower buildings to balance them. Councilmember Plunkett suggested incorporating a decision mechanism into the process to get questions answered early in the process. Edmonds City Council Approved Minutes September 26, 2006 Page 3 Councilmember Olson asked the height of the buildings on the Port property. Mr. Bowman answered they were up to 35 feet; he estimated the height of the Ebbtide at 50 feet. He pointed out the Master Plan process would establish design parameters. Council. President Dawson commented the process was somewhat of "chicken and egg." A Master Plan and design work would allow greater control over the end result to incorporate open space and setback and avoid gigantic buildings. She suggested investing a small amount upfront to discuss what redevelopment might look like which she noted may increase the public's comfort with the concept. She acknowledged the concern with embarking on a Master Plan process without some assurances and suggested seeking input from the public and property owners regarding redevelopment before substantial amounts were invested in the process. She noted the Council had discussed redevelopment of this area at the retreat and were comfortable with some flexibility in height. Council President Dawson asked whether there was a vision for the property. Councilmember Wambolt answered a vision had not yet been developed. Mr. Bowman recalled the committee discussed basic policy issues such as connectivity and limitations imposed by soil conditions. He advised the committee was interested in stair- stepped buildings in recognition of the issues on the site rather than a uniforin building height. He noted the center of the site may accommodate 3 -4 floors with little impact. Council President Dawson pointed out the need to determine what would be necessary to make redevelopment feasible. Mr. Bowman stated that had not yet been determined. He explained in the Port Gardner example, Maritime Trust evaluated what would be necessary to make redevelopment financially feasible. The process for redevelopment of Port Gardner had been very public and he stressed the importance of seeking public input regarding redevelopment of the Edmonds waterfront area. In response to a comment by Council President Dawson regarding what building heights may be acceptable, Mayor Haakenson commented nothing higher than the Ebbtide was envisioned. Councilmember Plunkett, observing this was a legislative action, suggested review by the Port Commission and City Council prior to review by the Planning Board follow the third public workshop (before it was reviewed by the Planning Board). Councilmember Moore recalled Maritime Trust described the use of balloons to illustrate building heights. The Port Commission, City, property owners and public needed some way to visualize potential heights. She supported redevelopment of this area. Councilmember Marin suggested developing profiles from various vantage points such as 4th & Dayton of buildings with an average building height of 35 or 30 feet, 2 -3 buildings similar in height to the Ebbtide and others with a lower building height to offset the higher buildings. Profiles would assist the community in determining if increased heights were palatable before a great deal of money was expended. Commissioner Orvis referred to Councilmember Plunkett's comment regarding the "elephant in the room," asserting the Council and the public had height limits in mind for the site. He recalled the Maritime Trust representative consideration of 45 foot building heights and their determination that 55 -60 foot building heights were necessary to accommodate parking. He emphasized the need for review by private property owners. Commissioner Block asked whether Councilmember Marin was suggesting profiles for the Harbor Square property as well as the Antique Mall property. Councilmember Marin answered he was. Commissioner Block agreed that concept could be helpful. She pointed out a major consideration was economics; Maritime Trust determined what building heights would be necessary to make redevelopment feasible. She envisioned flexibility in height and use such as mixed use residential would be necessary to make Edmonds City Council Approved Minutes September 26, 2006 Page 4 redevelopment of Harbor Square feasible. She pointed out another consideration for the Port Commission was the financial impacts to the Port of losing the revenue from the existing tenant during redevelopment. Commissioner Burkhart recalled in the first joint meeting there was discussion regarding a quiet zone and asked whether there had been any work done on that. Mayor Haakenson advised the City was working on a quiet zone unrelated to redevelopment. Mr. Bowman commented one of the difficulties with profiles is that the drawings were of little use if the project was not financially feasible. He suggested the more critical information at this point was determining the amount of square footage and uses that would be necessary to make redevelopment financially viable. From that, consideration could be given to how to distribute it on the property. He summarized unless a development was financially feasible, it would not be built. He noted the private property owner wanted to move ahead on development of the site, thus the importance of planning versus allowing the market to determine how development occurred. Councilmember Moore suggested the committee provide an estimate for the first stage of planning and the City's portion of that amount. She agreed time was of the essence as construction costs were continually escalating. REGULAR CITY COUNCIL MEETING The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. 1. APPROVAL OF AGENDA COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve 9/18/06 (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF SEPTEMBER 18, 2006. Minutes Approve Claim (C) APPROVAL OF CLAIM CHECKS #90890 THROUGH #91029 FOR SEPTEMBER 21, Checks 2006, IN THE AMOUNT OF $463,904.73. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #43824 THROUGH #43900 IN THE AMOUNT OF $781,767.85 FOR THE PERIOD SEPTEMBER 1 THROUGH SEPTEMBER 15, 2006. 76th Ave. W & (D) AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES 75th Pl. w AGREEMENT WITH GRAY & OSBORNE, INC. FOR THE 76TH AVENUE WEST /75TH Walkway PLACE WEST WALKWAY PROJECT AND THE 162ND STREET SW PARK PROJECT. Stevens 13. INTRODUCTION OF NEW STEVENS HOSPITAL CHIEF EXECUTIVE OFFICER. Hospital CEO Councilmember Moore introduced Stevens Hospital Chief Executive Officer Michael Carter, advising of his 28 -year healthcare executive background and reputation for turning around organizations. She also introduced Beth Engel, Director of Marketing and Public Relations. Edmonds City Council Approved Minutes September 26, 2006 Page 5 Mr. Carter advised he joined Stevens Hospital on July 10, 2006, providing him time to transition with the Interim CEO John Todd who was now retired. He described his family background and interest in the Northwest after a one year assignment at Good Samaritan Hospital in Puyallup. He described the need to modernize the Stevens campus, advising much of it was constructed in the 1960- 1970s. Most of Stevens' core services — emergency department, ICU, progressive care, operating rooms, and imaging — were located in the oldest building constructed in 1964. He planned to identify the right mix of programs and services to meet the community's needs as well as to produce a financially strong organization. He emphasized the need for effective partnerships, envisioning an improvement in the relationship between the administrative staff and medical staff's relationship. To accomplish this, he planned to work with the medical staff as well as the community. He pointed out the quality of care at Stevens was good but that may not be the perception of the community. He referred to the Strategic Plan developed last year, the first in the 42 -year old organization's history. The Strategic Plan is a three -year, broad -based plan; the 2007 business plan will focus on revenues, expenses, market share by product line, quality and customer service and from that a short series of objectives for 2007 will be developed. He advised Stevens had approximately 33 days of cash on hand, 115th of what a strong hospital of their size should have, placing the hospital in a vulnerable cash position although it was better than last year. The hospital made a modest profit over the past six months and intended to meet their budget this year, the first time in 10 years the hospital had a positive bottom line. He planned for the following year to be slightly better and to include putting capital into the buildings and campus as well as savings with a goal of 40 days of cash on hand. Long term goals include reconstructing the balance sheet and financing, increasing reserves and developing a vision for a new tower. A new tower was not feasible with the current financial position; the organization had to get stronger before they could request debt financing. Councilmember Olson pointed out Stevens Hospital was the largest employer in the City and it was important to the community that the hospital be successful. Mr. Carter remarked he did not take that responsibility lightly, acknowledging there were many people depending on his decisions. Councilmember Wambolt agreed with Mr. Carter's assessment regarding the community perception of Stevens Hospital but was surprised by its poor reputation. He explained most people who spoke poorly about Stevens Hospital have not had a bad experience themselves, they had only heard about it. Councilmember Wambolt commented on the excellent care his wife received at Stevens Hospital following a heart attack. Councilmember Moore commented she had also had a great experience at Stevens Hospital. She urged Stevens not to overlook emergency planning, noting the hospital would be a key player in an emergency. Mr. Carter advised emergency services were the core of what the community wants and needs from Stevens and that will be one of their focuses. Councilmember Moore suggested he provide another status report in 1 -2 years. Councilmember Marin advised the Hwy. 99 Task Force was anxiously awaiting plans for redevelopment of the hospital. He suggested as soon as Stevens began to explore a new tower or other facilities, they involve the Hwy. 99 Task Force. Mr. Carter acknowledged the uncomfortable orientation of the hospital to 76th Avenue and the onnortunity to orient toward Hwv. 99. National Arts & 4. PROCLAMATION IN HONOR OF NATIONAL ARTS AND HUMANITIES MONTH, OCTOBER Humanrt�es 2006 Month Mayor Haakenson read a proclamation in honor of National Arts and Humanities Month and Arts Commission Chair Mary Monfort and Richard Suico, Sno -Isle Library, accepted the proclamation. On behalf of the Edmonds Art Commission, Ms. Monfort thanked Mayor Haakenson and the Council, Edmonds City Council Approved Minutes September 26, 2006 Page 6 cultural organizations and the citizens of Edmonds for their past, present and future support of the arts. Mr. Suico invited the public to attend one of the programs enumerated in the proclamation as well as share their favorite book by filling out the "Judge a Book by Its Lover" book review card. Next, Mayor Haakenson presented a special recognition to artists Rose Morgan and David Murphey, the founders and mentors for the artist co -op Sculptor's Workshop at the Frances Anderson Center in honor of their 30 years of leadership and dedication. Initiative 933 1 5. PUBLIC HEARING ON INITIATIVE 933. THE BALLOT TITLE READS AS FOLLOWS: INITIATIVE MEASURE 933 CONCERNS GOVERNMENT REGULATION OF PRIVATE PROPERTY. THIS MEASURE WOULD REQUIRE COMPENSATION WHEN GOVERNMENT REGULATION DAMAGES THE USE OR VALUE OF PRIVATE PROPERTY, WOULD FORBID REGULATIONS THAT PROHIBIT EXISTING LEGAL USES OF PRIVATE PROPERTY, AND WOULD PROVIDE EXCEPTIONS OR PAYMENTS. SHOULD THIS MEASURE BE ENACTED INTO LAW? (PUBLIC COMMENTS BOTH IN FAVOR AND OPPOSED TO THE INITIATIVE WILL BE RECEIVED.) Mayor Haakenson advised on November 7, 2006 the voters of the State of Washington would have an opportunity to vote on Initiative 933. This ballot measure would alter the regulation of development on private property in the State of Washington. Tonight's public hearing would give residents the opportunity to comment on the initiative. Invitations had been extended to both the proponents and opponents to make presentations on I -933 after which the public would be allowed to voice opinions on the initiative. He introduced Paul Roberts who would speak in opposition to I -933 and Preston Drew who would speak in favor of 1 -933. Mayor Haakenson advised each would have ten minutes to speak, followed by the public hearing and a brief rebuttal by each speaker. Following a coin toss, Mr. Drew chose to make his presentation after Mr. Roberts. Paul Roberts, representing the "NO on 933" campaign, and a member of the Everett City Council, explained his background included many years in the public and private sector addressing land use and environmental law, although he was not a lawyer. He also had a background in the history of GMA, Shoreline Management Act, State Environmental Policy Act and other land use policies in Washington State. Land use law evolved over a number of years and I -933 presumed a very different legal structure than anything that existed in Washington State or the nation. I -933 presumed there were not already safeguards in place for the taking or inappropriate exercise of diminishment of value in the law which was not true; Washington had one of the most conservative constitutional structures in the United States. He referred to recent litigation regarding the exercise of eminent domain before the U.S. Supreme Court, commenting the decision was irrelevant in Washington because Washington State's constitution and statutory structure prohibited the type of things that had been litigated before the Supreme Court. Washington case law has been very conservatively interpreted by the courts to protect property rights. Mr. Roberts commented the issue that led to the initiative, critical area protection measures in King County, had not yet been litigated and was currently before District 1 court of appeals. I -933 would remove cities' ability to regulate land use and protect the environment in their community. For example, if I -933 passed, the issue of downtown heights would be resolved as the City would not have the ability to enforce a height regulation of any sort because it would represent a potential taking. The language in I- 933 provides cities three options, all three of which place the city and taxpayers at a disadvantage, 1) pay claims, 2) relax regulations, 3) fight the claim and pay the cost of attorney fees for the action brought under the claim. He explained I -933 dramatically and vastly expanded the basis of claims. I -933 provides an opportunity to bring action against the city for real property but expands the definition of property to include personal . property as well as intellectual property. He encouraged the Council to read the definition. He commented in the past the Council has likely been advised to settle claims for their nuisance value as the Edmonds City Council Approved Minutes September 26, 2006 Page 7 cost of pursing it was not worth the fight. He invited the Council to imagine any claimant who brought a claim under I -933, which expanded the basis of the claim, taxpayers were left to pay the claim, fight the claim and pay the costs, or waive the regulation. He referred to a comparison of I -933 to Referendum 37 in Oregon, pointing out there were significant differences. Although many believe Referendum 37 was a radical proposal; comparisons with I -993 made Referendum 37 appear tame. He pointed out the expanded definition of property in I -933 did not compare to Referendum 37. Referendum 37 provided an exception for federal law which I -933 did not. Referendum 37 provided protection for government in the exercise of actions required by State law; I -933 did not. Referendum 37 did not require compensation; I -933 required compensation. Property left in its natural state under Referendum 37 did not have to be compensated; it did under I -933. He advised I -933 did not provide an exception for nuisance claims; Referendum 37 did. He summarized under I -933, the city's ability to exercise its responsibilities under State and federal law placed the city "between a dog and a lamppost." For example the city was required by the State to administer the Shoreline Management Act as well as under federal law comply with mandates such as the Clean Water Act; under I -933 the city's application of those acts would place it at risk for claims as there were no exceptions for those actions. He noted one of his responsibilities has been to run utilities. He asked the Council to imagine the challenge of providing schools, water, sewer, transportation or any other public services if the city could not control /regulate the intensity /density of use on land. He urged the Council to take action to reject I- 933. Councilmember Moore asked for an example of a claim for intellectual property. Mr. Roberts answered a claim could arise as a result of a citizen not being allowed do something as a result of regulations such as developing software from a residence, operating an internet business from a residence, etc. He summarized claims were not limited to only real property, there was potential for an abundance of claims particularly because attorneys fees would be paid regardless of the outcome. Preston Drew, Vice President, Citizens Alliance for Property Rights, a Carnation resident, commented his understanding of I -933 was totally different than Mr. Roberts'. He explained I -933 arose after decades of land use and heavy- handed regulation that resulted in the severe restriction of traditional use of private property and therefore property values. I -933 would roll back existing land regulations to the January 1, 1996 threshold and from that point on, if government wanted to regulate, they must document the cost and consider other alternatives to address the issue or if government wanted to impose regulations that were detrimental to property value, there would be a compensatory claim. Mr. Drew commented many of the things Mr. Roberts saw, the Citizens Alliance for Property Rights did not see such as presumptions of takings, eminent domain, and nuisances. He explained in 1988 King County passed the Sensitive Areas Ordinance, one of the strictest land use codes in the nation at the time, creating 50 and 75 foot buffers from sensitive areas. He commented although many property owners objected to the buffers, people got used to them. In the more recent past, King County adopted the Critical Areas Ordinance that expanded buffers to 100, 200 and 300 feet from critical areas and expanded the definition of critical areas. He explained development on his 20 acre parcel in the Snoquahnie Valley was 100% constrained due to its location atop a critical aquifer recharge area which he characterized as any place water soaked into the ground. Critical areas also now include wildlife corridors and he cited several examples where the inability to locate a house on property to take advantage of a view significantly reduced the value of the property. He acknowledged the difficulty explaining I -933 to cities as much of it was the result of rural land use. With regard to nuisances, Mr. Drew explained there was nothing in I -933 that prevented a city from Edmonds City Council Approved Minutes September 26, 2006 Page 8 enforcing a nuisance ordinance such as junk cars as it had not been legal in most jurisdictions prior to 1996 to collect junk cars on property. Similarly, enacting and enforcing surface water regulations did not reduce a property's value. He explained landowners did not want the money; the reason a compensatory clause was included in I- 933 was to provide for an ability to negotiate with government to force them to act in good faith. He acknowledged "greedy" lawyers might want the money. Rural landowners wanted traditional use and value; in King County he could do virtually nothing on this property without permission. For example, if a property owner and King County disagreed about the existence of a landslide hazard area, the property owner must hire an expert. He concluded regulation had gone to ridiculous levels; I -933 was the result of thousands of landowners who had seen a heavy- handed government go too far in land use regulation. With regard to Referendum 37, Mr. Drew pointed out there had been no claims paid under Referendum 37. He was familiar with Referendum 37 as his family owned a farm in Oregon for 75 years. They lost the farm in 1982 because under the new land use regulation, they were unable to sell a portion of the land to resolve financial issues due to the LCDC in Oregon and SPIN land use code which Referendum 37 repealed. Because they lost the property, they did not have a claim. He advised further information was available in a paper developed by the Washington Policy Center that analyzed the situation in Oregon following the passage of Referendum 37. Councilmember Moore asked why January 1, 1996 was selected. Mr. Drew answered the Citizens Alliance wanted to go back further but the Farm Bureau who were sponsoring I -933 had agricultural zoning they did not want destroyed by the date and insisted on 1996. Councilmember Moore observed it was not just the GMA they were trying to repeal. He answered their goal was not to repeal the GMA. He pointed out the GMA had 13 goals, one of which was private property rights and another was environmental protection. The problem with the GMA was environmental protection received all the favor and private property rights were ignored. He noted the GMA placed equal weight on the goals; implementation of that has failed. Councilmember Moore observed his main concern was rural areas; Edmonds was a city that was nearly totally built out and had expanded their Critical Areas Ordinance to protect environmentally sensitive areas. If the issue was rural land versus King County, she asked why I -933 was a statewide issue. Mr. Drew answered jurisdictions statewide were affected by changes in land use regulations. He commented they had been at the legislature "forever" with no results. Councilmember Moore asked if he and the Citizens Alliance for Property Rights were aware of the impact I -933 would have on cities. Mr. Drew questioned the impact on cities, envisioning most land use actions since 1996 had been to up -zone property for greater development. He explained I -933 would set a threshold of 1996 and any down - zoning after that date would be compensatory. Councilmember Orvis commented this appeared to start with a confrontation between King County and farmers over regulatory issues. He recalled the farmers in King County tried to have an election by using the referendum process. Mr. Drew advised their organization had the referendum case before the Supreme Court. He explained the referendum was qualified for election and King County Superior Court disallowed it. He explained the Critical Areas Ordinance conflict in King County was not about farming, it was about extreme regulation. He explained the reference to takings in I -933 was due to the 65% taking in King County. For example, a property owner in rural King County, to build a residence on a 10 acre parcel must first sign over 7 acres to King County and never develop it. Councilmember Orvis clarified the rural land owners gathered sufficient signatures for an election. Mr. Drew agreed, explaining King County stopped it based on the fact that they were trying to overturn State law with a referendum. They disagreed because the Sensitive Area Ordinance met all the GMA requirements and the Critical Areas Ordinance was an addendum. He noted that issue was being Edmonds City Council Approved Minutes September 26, 2006 Page 9 considered by the Supreme Court. He advised of other litigation including a lawsuit by Pacific Legal Foundation against King County that the Critical Areas Ordinance was unconstitutional on its face. He noted if I -933 passed, the Critical Areas Ordinance would be eliminated. He pointed out their polling indicated very strong support for I -933 and they had easily gathered 350,000 signatures to place the initiative on the ballot. He summarized property rights were very important and there was a great deal of angst over regulations. Regardless of his feelings about I -933, Councilmember Orvis agreed they deserved to have an election on the referendum. Mayor Haakenson opened the public participation portion of the public hearing. He advised the Council received a letter from Steve Butler, President, American Planning Association, urging the Council to join other cities in recognizing I -933 would be a disastrous choice for the State and adopting a resolution opposing I -933. Janet Chalupnik, President, League of Women Voters of Snohomish County, expressed the League's opposition to I -933 for all the reasons Mr. Roberts expressed. She explained the League was a good government organization whose goal was making democracy work and supporting public participation. As a result they participated in land use decisions at the county and city level and in their experience, land use decisions were not made without public participation but made in a fair and orderly process that involved the public before a decision was made. If I -933 passed, she envisioned a wild, out of control process that would turn the process on its head. She also pointed out the danger that the passage of I -933 posed to environmental protection. Hearing no further public comment, Mayor Haakenson closed the public hearing. Mr. Drew pointed out in Jefferson County there was a default buffer around Class 1 critical areas of 450 feet. He explained that was enacted because the Washington Environmental Council negotiated with Jefferson County and to avoid a lawsuit that the 25,000 person county could not afford, Jefferson County enacted Washington Environmental Council's recommended buffer. He questioned whether that represented good government. Once the public learned about the negotiations, a lengthy public process was begun to debate the merits. In King County, the Critical Areas Ordinance would extend the Class 1 Critical Area buffer from the 75 foot buffer in the Sensitive Area Ordinance to 300 feet. He stated there was not good government in King County and the rural population did not have adequate representation. He referred to the statement in the Washington State constitution that private property shall not be taken or damaged before having made just compensation. However, the Supreme Court had never defined just compensation; I -933 would address that. Mr. Roberts pointed out Edmonds was not in King County. He described his background, including serving on the Technical Committee of the Governor's Task Force on Regulatory Reform and the Governor's Task Force on Land Use. A vision was developed out of those task forces that was incorporated into the 1996 GMA dealing with Best Available Science (BAS). He noted the reason for selecting January 1, 1996 is that was when BAS was incorporated into the GMA. He reiterated the matter had not yet been litigated and resolved, the matter was currently before the courts. Case law in Washington was clear and had generally been decided in favor of property owners. He agreed with Mr. Drew that this was a rural issue and not a city issue; however, most people in Washington live in cities and regulations protect cities, the environment and public health, safety and welfare. He referred to a memo from Preston Gates & Ellis to the Government Affairs Director of the Association of General Contractors that concluded beyond the imposition of significant administrative costs, adoption of I -933 would create potentially significant State and local financial liabilities if Edmonds City Council Approved Minutes September 26, 2006 Page 10 governments choose to continue to enforce basic regulatory programs and thereby encounter significant claims for compensation. Mr. Roberts pointed out land use regulations provided certainty and predictability for development. Developers who invest money in a project want certainty that compatible development would occur on adjacent lots. Under I -933 cities could not control what would be built. He explained I -933 was bad for business and that was why business did not support it; funds for I -933 were from out -of -state interests. Hearing no further questions of the speakers, Mayor Haakenson remanded the matter to Council for action. Council President Dawson explained in the past, with few exceptions, she had advocated against the Council taking a positive on ballot measures as she felt it was the responsibility of the voters to make their own decisions. Only in instances when the impact to the City would be real and dramatic did she support the Council taking a position; this was one of those instances. She explained if this initiative passed, although it could be beneficial to some rural areas of the State, it would be absolutely devastating to the residents, tax payers and property owners of Edmonds. It would be devastating financially and environmentally as well as devastating to the community character. She referred to the Council's review of the Critical Areas Ordinance, the downtown plan, etc., noting all that work would be wiped out by the passage of I -933. COUNCIL PRESIDENT DAWSON MOVED, SECONDED BY COUNCILMEMBER MARIN, TO DIRECT THE CITY ATTRONEY TO PREPARE A RESOLUTION IN OPPOSITION TO INITIATIVE 933. Councilmember Marin expressed support for the motion. Although he appreciated the passion that drove the initiative and had respect for the problems they were facing, this was not the right answer and he hoped they would discover an appropriate vehicle that would provide some relief. He shared his experience with the eminent domain process as a board member of Sound Transit, commenting there were some benefits to property owners when eminent domain was exercised. Although it was preferable not to exercise eminent domain, it was an essential tool to obtaining property. Councilmember Orvis expressed his support for the motion. He viewed this as a King County issue that had spilled outside their borders due to King County Council's decision to deny its citizens a voice. Although he disagreed with I -933 and would support the motion, he did not fault their methods and sympathized with their plight. MOTION CARRIED UNANIMOUSLY. Quasi - Judicial 6. REVIEW OF QUASI — JUDICIAL AND PUBLIC MEETING REQUIREMENTS and Public Meetings Mike Walter, Keating, Bucklin & McCormack, explained their firm represented cities throughout Washington via Washington Cities Insurance Authority (WCIA) as well as did direct assignment work for cities and counties. He has been providing land use training for local government entities since 1990. Mr. Walter provided a summary of problem areas in land use decision making for local government elected officials. He explained Washington State law allowed Councils to wear two hats — act as a legislative body via law making and act as a quasi judicial decision - making body making decisions on adjudicative types of land use applications (plats, rezones, permits, etc.) He noted the Edmonds Council may not be responsible for all these quasi judicial matters but Councils in many cities throughout the State made decisions on a wide range of land use matters. Regardless of the Council's authority, he pointed out there was a huge risk to Councilmembers personally as well as the City in making quasi judicial decisions, which is the reason WCIA has him provide this training. He advised the information Edmonds City Council Approved Minutes September 26, 2006 Page 11 he would provide would assist in reducing the risk of lawsuit, reduce potential legal exposure and assist the Council to make good, defensible and appropriate decisions in the quasi judicial context. Mr. Walter displayed a quote from a 1965 Supreme Court decision, "The conduct of government should always be scrupulously just in dealing with its citizens..." He commented this quote set the stage for what courts expected of elected officials and government decision- makers in land use matters. While the standard was the same for the City Council, Hearing Examiner and Planning Commission, courts implicitly expected more from elected officials in land use decisions and looked at whether the Council was following the law, acting fairly, and avoiding bias or prejudgment. Mr. Walter explained he often heard when providing training that the problem was not the Council, it was staff, the Hearing Examiner or Planning Commission that was causing all the land use mistakes that prompted litigation. He pointed out unfortunately that was not the case. His experience in land use litigation was the highest risk for local government decision making in the land use context was quasi judicial decision - making. There are three types of actions — legislative, quasi judicial and ministerial — quasi judicial had a very high risk, legislative had a low risk and ministerial had a moderate risk. He estimated 80 -90% of the land use lawsuits arose from quasi judicial decisions on a specific permit or land use application; it was rare that he defended a legislative decision. Statistically, Council decisions in the context of quasi judicial decisions constituted 95% of the lawsuits. Mr. Walter identified activities that could lead to a lawsuit, first playing politics with quasi judicial applications. One of the most difficult tasks for Council in their capacity as legislators and quasi judicial decision -maker was combining the two standards. Political influence and decision - making should apply only to legislative decision making. Another activity that could lead to a lawsuit was meddling in the province of staff. He provided an example of large, controversial or high risk projects where there was a great deal of political pressure and elected officials who feel beholden to their constituents try to direct staff to make certain decisions on quasi judicial activities and applications. He concluded elected officials should stay out of staff decision making on quasi judicial applications and allow each level of government to make their own independent decision free of influence from elected officials. Arbitrary and capricious decision - making was another activity that could lead to a lawsuit. He explained this was the legal standard by which the Council's decisions were measured. If a court determined that a land use decision the Council made was arbitrary and capricious (without good reason /cause), the court could invalidate the decision and entitle the applicant to damages. Other activities that could lead to a lawsuit included misapplying the law and ignoring the law. He noted these frequently arose because elected officials were thinking like legislators when the matter before them was a quasi judicial application. He reiterated the need to keep legislative and quasi judicial decision - making separate. Mr. Walter listed high risk Council land use actions that included the following: • Making assurances /representation regarding 1) utility service or capacity, 2) zoning boundaries /restrictions, 3) boundaries of sensitive areas, historic districts or "overlay districts ", or 4) property boundaries or utility lines • Zoning, regulations and permitting/licensing of 1) adult entertainment businesses, 2) group homes, 3) alcohol /drug rehabilitation facilities, 4) work release facilities, 5) sexual predator release facilities, 6) assisted care facilities, and 7) gambling casinos /card rooms • Approvals for large and/or controversial and/or politically sensitive projects like: 1) shopping centers, 2) strip malls, 3) large subdivisions, 4) essential public facilities, 5) environmentally or historically sensitive projects, 6) mobile homes /mobile home parks, and 7) "big box" commercial projects • Ignoring or violating vested rights • Adoption of and/or implementation of moratoria Edmonds City Council Approved Minutes September 26, 2006 Page 12 • Regulation and/or permitting of cellular /telecommunication facilities • Failure to plan for utility capacity, service or infrastructure • Imposing off -site development mitigation requirements • Design review criteria and decisions • Reasonable use exceptions /exemptions Next Mr. Walter described and compared the Council's role in legislative versus quasi judicial use decision - making. Legislative "policy making" actions, the predominant decisions made by the Council, include capital improvements, Comprehensive Plan /amendments, zoning maps, establish development standards, adoption of general application ordinances, long -term planning, general infrastructure planning /financing /extensions, annexations, contracts and Interlocal Agreements. Quasi judicial "judge - like decisions" include subdivision /short plat approvals, conditional/special use permits, site plan approvals, PUDs /PRDs /PDDs, appeal of administrative decisions, variances, reasonable use exceptions, shoreline permits, boundary line adjustments, site - specific rezones, and property - specific approvals. He reiterated when making a quasi judicial decision, the Council must adopt Findings and Conclusions, not be influenced by their constituents, and follow and apply the appropriate laws and standards. Mr. Walter provided a summary of the big rules for good quasi judicial decision making: • Get and follow the City Attorney's advice • Follow your code and state law • No policy- making, "visioning" or city goals • Recognize and enforce vested rights • Consider all of the evidence • Make decisions timely (120 day rule) • Always have good written findings and conclusions • Don't let citizen complaints or community displeasure influence decision • Use a Hearing Examiner for all final (or appeal) quasi judicial decisions • Do not base decisions on "what's good for the community" or on "the best interests of the city" • Base decisions on "substantial evidence" in the record • Don't promise, guarantee or assure results or decisions • Don't wave code requirements or standards • Treat all classes of applicants equally and consistently • Don't let citizens "taint the record" through comments on specific projects during "citizen comments" portions of Council meetings or workshops Councilmember Moore asked whether each Councilmember must state his /her own findings in a quasi judicial decision. Mr. Walter answered it was usually done as a group reflecting the majority decision. City Attorney Scott Snyder advised the Edmonds City Council stated their reasons during the hearing process; he collated the findings and presented Findings of Fact for adoption on a later date. Council President Dawson recalled in one instance when there was a 3 -3 tie, the Council adopted two sets of findings. Mr. Walter advised the intent was to build a consensus for the Findings of Fact. If that issue arose, he urged the Council to defer to the advice of the City Attorney. Councilmember Orvis asked whether the Council could consider public comment that referenced the legal standards versus a comment that a citizen simply did not like a proposal. Mr. Walter advised the Council could consider public comment during the public hearing that applied to the legal standards versus just citizen complaints. Mr. Walter explained decisions were tested using an arbitrary and capricious standard. The definition provided by the court is that a decision was "arbitrary and capricious" if it was made willfully and Edmonds City Council Approved Minutes September 26, 2006 Page 13 unreasonably, without consideration and in disregard of the facts or circumstances. He displayed several examples of arbitrary and capricious decision - making, such as failure to make findings of fact and conclusions of law for quasi judicial decisions, making quasi judicial decisions based on political agenda or motives, ignoring /not applying the law, ignoring evidence or testimony, making quasi judicial decisions based on the number of proponents or opponents, basing quasi judicial decisions on community desires /community displeasure /public sentiment or complaints, making quasi judicial decisions based on economic viability of a project, and ignoring the City Attorney's advice. Councilmember Plunkett asked Mr. Walter to comment on Councilmembers' personal liability such as to what extent a Councilmember would need to go to make themselves liable to a lawsuit. Mr. Walter commented he saw individuals named as defendants in approximately 20% of the lawsuits he defended. Of the 20 %, almost uniformly the reason the individual was named and incurred personal liability was because they made outrageous or reprehensible statements in open public meetings or during the decision - making process that illustrated a bias for or against a project or statements showing personal animosity, prejudgment or bias. Individual decision - makers could be held personally liable for the wrongful decision under RCW 64.40 and Civil Rights violations pursuant to the federal Civil Rights statute. Although individual decision - makers could be held legally liable, he advised individuals were not named in the overwhelming majority of cases because there was no personal animosity illustrated. If an individual decision maker could show they acted in good faith and honestly believed that what they were doing was honest and proper, the court would dismiss him /her from the lawsuit. On cases where he asserted that, approximately 70 -80% of the motions were granted and the individual was dismissed. Mr. Walter encouraged Council to review the Mission Springs v. Spokane case, a classic example of how individuals were sued in land use decisions. In Mission Springs v. Spokane, several Spokane Councilmembers were personally sued because they overtly disregarded the City Attorney's advice. Councilmember Plunkett stated he on occasion may be vulnerable as he recalled making a statement that he disagreed with Mr. Snyder's advice. Mr. Walter explained he was not saying Councilmembers had to agree with the City Attorney at all times. However, if the City Attorney did what Spokane's attorney did, stating in an open public forum that if the Council took that action they were acting illegally, it would not be a defensible case. Several Councilmembers said they would take their chances in court and if the court agreed with the City Attorney, they would give back the permit, otherwise it was what their constituents wanted them to do. They were subsequently sued, Councilmembers tried to get out of it on qualified immunity which the trial court denied. The case went to the Supreme Court who wrote a scathing opinion on the conduct of the Councilmembers in rejecting and ignoring the City Attorney's advice. Mr. Walter clarified there was a difference between what Spokane's City Attorney said and when the City Attorney advises the Council that a case is a close call or the facts support a different conclusion. He cautioned if the City Attorney gave strongly worded advice in Executive Session or open session that an action would be illegal or arbitrary and capricious, the Council disregarded that advice at their own peril. Mr. Snyder recalled advising the Council when something was a close call and he usually attempted to provide different ways for the Council to make their decision. He rarely asked the Council to go into Executive Session in the course of a quasi judicial hearing because, in his experience, that made the public suspicious. Although somewhat of a risk, he preferred to give the Council a straight answer in open session. He summarized the best advice was not to play to the crowd; be neutral, and wait until the hearing was closed to show their cards. He also recommended the Council avoid "playing Perry Mason" by asking a series of loaded, pointed, directed, leading questions because although it may play well to the crowd, a judge could clearly see a Councilmember's intent when reading the transcript. Mr. Snyder reviewed public meeting requirements, explaining under the Open Public Meetings Act, a Council meeting was a meeting at which an action was taken. An action was the transaction of public Edmonds City Council Approved Minutes September 26, 2006 Page 14 business by a majority of the Council or a subcommittee of the Council to which action has been delegated. He explained the statute defined action to include public testimony, deliberations, discussions, considerations, reviews, evaluations as well as final action; all the things that lead up to an action. He noted another complicating factor was the Council had the ability to hold meetings with one or more members participating telephonically; not all Councilmembers had to be physically present to have a meeting and a meeting could occur even though the Council was not together and taking action at the same time such as by telephone, round robin emails, and a rolling quorum where the discussion of Council business occurred 2 -3 at a time. He emphasized as soon as a majority of Councilmembers were discussing or deliberating an issue, inside or outside the Council Chambers, it was a meeting. He recalled earlier this year three Councilmembers were invited to meet with a group of citizens. Although it was not a majority of the Council, the group would be discussing City business. His reservation was that if any of the three Councilmembers talked to a fourth Councilmember about the information, it could be considered a meeting. Mr. Snyder described what did not constitute a meeting including social occasions, travel, or the passive receipt of an email. He pointed out if while traveling in a car or at a party Councilmembers began deliberating city business, it could be considered a meeting. Several other Councils had been chastised in the past year for social meetings at a bar. He acknowledged in the old days that may have been how business was transacted but other Councils had been called to task recently for such continued deliberation or discussion of public business. Meetings must be open to the public, noticed via establishing a regular meeting date or providing special notice. He explained special notice could be provided 24 hours in advance to those members of the public who have requested notice of a special meeting through the City Clerk. He learned when developing this presentation that a provision of State law not contained in the Open Public Meetings Act provided that special meetings could be called by the Mayor, the Council President or by three Councilmembers. He pointed out if three Councilmembers called a meeting and none of the other four attended, there would not be a quorum. The Council also must provide minutes of the meeting but only transactional minutes were required. The minutes could be a summary of the deliberations and discussions and record final votes and actions. Next Mr. Snyder provided a list of topics authorized for Executive Session including matters of national security; selection or acquisition of real property; minimum price real estate offered for sale or lease; issues regarding public bid contracts; export trading company financial/commercial information; receive /evaluate complaints /charges against a public officer or employee; qualifications of applicants for public employment/review of performance of employee, etc. (but not salaries); evaluate qualification of elected official candidates; discuss with legal counsel agency enforcement actions, "litigation" or "potential litigation, ", etc; or union negotiations. He advised an Executive Session must occur at a public meeting and if an Executive Session occurred at a special meeting, the Council was limited to precisely the subject indicated in the public meeting notice. At a regular meeting a Council could call an Executive Session on any of the authorized topics. He pointed out topics that were not appropriate for an Executive Session including personnel, deliberation on quasi judicial matters, discussion of public finances /salaries outside union contracts with the exception of leases, purchases, or sales; and any contract that was not publicly bid. The Open Public Meeting Law and the Open Public Record Law did not necessarily match up; there were things that did not need to be released in a public document that could not be discussed in Executive Session and there were topics that could be discussed in Executive Session that if contained in a public document were subject to release. If there was ever a doubt whether a topic was authorized for Executive Session, he recommended it be discussed in an open public meeting. Edmonds City Council Approved Minutes September 26, 2006 Page 15 If the Council violated the Open Public Meetings Act, civil penalties could be levied against each Councilmember individually and/or a citizen could recover attorney fees and expenses. He pointed out the Council was protected by the City Attorney's advice; if he told the Council they could take an action, the Council could not be sued for taking that action. He pointed out if a Council took action based on deliberation or information obtained at an illegal meeting, the action could be voided by the court. He explained although publishing an agenda was helpful to the public, if the circumstance arose, the Council could amend their agenda and consider anything they wished at a regularly scheduled Council meeting other than certain topics that were required to be noticed as a requirement of City ordinance or State law. At a special meeting, the Council was limited to precisely the subject matters that appeared on the special meeting notice. Executive Sessions could be held at a regular or special meeting; at a special meeting, the subject, length and whether action was anticipated must be in the notice and the Council was limited to that. Before the Council recessed to Executive Session, the Mayor must announce the subject, the length and whether the Council planned to adjourn or return following the Executive Session. Executive Sessions could be extended unless the Mayor had stated the Council planned to adjourn. No final decision could be made in an Executive Session; the Council could reach consensus or give direction to staff, but any final action must occur in the open public meeting. For Councilmember Plunkett, Mr. Snyder explained three Councilmembers could schedule a special meeting by asking the City Clerk to give notice to the other Councilmembers. Councilmember Plunkett observed Councilmembers could attend a social event. He clarified three or more Councilmembers should not attend a meeting designed to discuss politics even if they sat passively in the audience. Mr. Snyder clarified participation was the issue. For example if while attending a Rotary meeting and discussion occur regarding a site specific rezone, a Councilmember either needed to leave or plan to disclose it at the start of the hearing. He commented if a Councilmember attended a meeting where an impassioned plea was made and the Councilmember disclosed that information, he /she may still lose his /her right to vote because the Appearance of Fairness Act was based on what would appear fair to a neutral third party at a later date. Councilmember Plunkett recalled a meeting that Councilmembers wanted to attend that was not in regard to a quasi judicial matter. Mr. Snyder explained his concern was if three Councilmembers were involved in a collective process and wanted to talk with a fourth Councilmember outside a public meeting, it would potentially be a violation of the Open Public Meetings Act. If the Councilmembers wanted to discuss the information they learned, it should be done at a public meeting. Mr. Snyder explained the issue arose when Councilmembers attended a meeting intended to present a specific agenda and Councilmembers emailed each other regarding the subject. He pointed out all Council emails were public documents. Councilmember Plunkett recalled this arose at a meeting where the attendees wanted the Council to take very direct action. Mr. Snyder explained the problem was the meeting was intended to present specific information to Councilmembers which was different from passive receipt of information in a legislative context which would not generally be viewed as a violation. Councilmember Orvis stated he often wrote emails to the entire Council, copying staff to ensure it was a public document. His understanding was as long as the emails were public, it was acceptable. Mr. Snyder stated a Councilmember sending information to other Councilmembers did not give rise to a violation. The problem arose with a round robin discussion; one Councilmember replied to another who replied to another and once a fourth Councilmember entered the discussion, it was considered deliberation via email. Ideally a Councilmember's email would only be the passive forwarding of information or to raise a topic and indicate he /she would like to have it scheduled for Council discussion. The danger was "reply to all;" once a fourth Councilmember was involved, the Open Public Meetings Act was violated. Edmonds City Council Approved Minutes September 26, 2006 Page 16 Councilmember Orvis asked if a discussion group that was publicized and at which the public could state their opinions would allow a free email exchange. Mr. Snyder stated it could be structured via a chatroom . that was noticed as a special meeting on the website with a specific date and time. Councilmember Orvis envisioned a more free form discussion. Mr. Snyder advised a 24/7 discussion would be problematic. Council President Dawson asked about groups such as Snohomish County Cities and Towns that were moving away from being social groups that had general discussions to more focused discussion on topics with public officials taking some action. Mr. Snyder explained direction could be derived from a Columbia River Gorge Commission comprised of 40 jurisdictions; because there was not a majority for any jurisdiction and the body could only make recommendations, there was not violation. He advised meetings of staff and/or the Mayor were not subject to the Open Public Meetings Act, only meetings of the Council. Council President Dawson requested Mr. Snyder draft an opinion with regard to groups like Snohomish County Cities and Towns taking action. Councilmember Moore observed if a Councilmember sent an email containing his /her thoughts on an issue and each Councilmember responded with their reaction, the Councilmember was counting votes and asked if that constituted a rolling quorum. Mr. Snyder answered that would constitute deliberation. He explained this often arose when a Councilmember wanted to raise a new idea and get Councilmembers' thoughts; unfortunately that was deliberation, vote counting and public business and must occur during an open public meeting. Councilmember Moore asked how the Legislature handled this as they counted votes continually. Mr. Snyder answered the Open Public Meetings Act did not apply to the Legislature. Councilmember Moore asked how citizens should lobby Councilmembers. Mr. Snyder answered the best way was one at a time. He advised Councilmembers needed to act on topics at an open public meeting. Councilmember Moore observed in the past to add an item to the agenda, Councilmembers needed to obtain approval of the Council President. Mr. Snyder explained Edmonds delegated the function of establishing the agenda to the Council President. Via voice motion at a meeting, the agenda could be amended or three Councilmembers could call a meeting but a quorum was required to take action. 7. AUDIENCE COMMENTS Roger Hertrich, Edmonds, recalled he had raised the issue of a rolling quorum many times in the past, city council noting it was easy to obtain email records via the City Clerk. His questioned whether the expenditure of Executive � y y q p sessions public funds was an appropriate topic for Executive Session once a decision had been made. He suggested there was more discussion during Executive Sessions than there should have been with regard to the purchase of the old Woodway Elementary School site. Mr. Snyder advised the discussions at the Executive Sessions he attended were focused on negotiation points including the amount of land, the price, and the terms of the agreement. He advised setting a purchase price was always an appropriate topic for Executive Session. Mr. Hertrich advised in his experience as a Councilmember, Executive Sessions were short and sweet; it was his understanding that recent Executive Sessions that Mr. Snyder did not attend were not short and sweet. Norma Bruns, Edmonds, advised she provided a written copy of the comments she made to the Council conversion of last week to the City erk. She requested the Council consider action to address the issue she raised Rental Units to 5' q condominiums [conversion of rental units to condominiums]. She relayed information Mr. Bowman provided that a large number of units had been converted in Snohomish County. Natalie Shippen, Edmonds, relayed the next chapter of the "Ferry Terminal Farce" ferry tale, "Oregon Ferry Terminal Trail Revisited." She referred to a small, simple, efficient ferry terminal in Edmonds which the ferry system called unique, located on Main. Street and was 600 feet long. The Edmonds Crossing terminal would be 2,120 feet long with natural dangers at both ends - exposure that ferry captains indicated would make landing difficult and holding lanes in a landslide hazard area. 920 feet east of the BNSF tracks, the access roadholding lanes traversed the Unocal hillside at an angle to clear the tracks. Drivers parked in Edmonds City Council Approved Minutes September 26, 2006 Page 17 the holding lanes would be faced uphill. At the top, drivers would observe a dark pool of water below and the decent would exceed a 3% grade, making riding the ferry an adventure. Pedestrian passengers would be required to walk 1200 -1300 feet, a distance comparable to walking from the Main Street terminal to 4t'' Avenue, a distance WSDOT indicated exceeded any pedestrian standard. The ferry access road that would cross the north end of Marina Park was long, wide and uncomfortably low in places — 114 feet wide at its narrowest point. Heights under the access road would be 14 -19 feet in places and only 10 -12 feet over the pedestrian walkway. The Council overlooked these dangers, dimensions and distances and proceeded blindly ahead. She advised the next chapter entitled, "Where Did Those Pilings Go ?" would be about deep water. Planned Don Kreiman, Edmonds, described bulldozing of trees in the ravines and hills surrounding a Residential neighborhood, asking how a site with steep slopes and a watershed could be developed. He relayed that a Developments Planned Residential Development (PRD) was proposed and would contain houses that are too close together, lots that are too small, a road that is too narrow and driveways that are not level with the street. The anticipated destruction of Perrinville Woods was the most recent in a long line of PRDs in Edmonds, 30 in total. Via the use of the PRD process, the neighborhood hills and ravines were being cut and filled throughout Edmonds without Environmental Impact Statements and the Council was ultimately responsible. He noted the City must plan for growth, however, the Council apparently decided it was acceptable for developers to cut trees in ravines and hillsides. It would be better for Edmonds to allow more mixed use housing on arterials with transit service such as Hwy. 99 and SR 104 rather than impacting neighborhoods with more cars, traffic and people. If Council allowed 5+ stories on Hwy. 99 and/or SR 104, developers would redevelop those areas instead of cutting the trees in neighborhoods. He referred to the goals and policies section of the Economic Development Element of the Comprehensive Plan where the former Economic Development Director recommended the Council set a policy that would stimulate transit oriented development. He encouraged citizens to contact Council with concerns. Clirnate Rowena Miller, Edmonds, expressed her pleasure with the Council's approval of a resolution in support Protection of the K oto Protocol on emissions and endorsing the U.S. Mayors Climate Protection Agreement. She Agreement y g y g urged the Council to heed Mr. Kreiman's plea, pointing out as the Council considered development of Five Corners, Firdale, Hwy. 99 and Perrinville, the best way to decrease carbon dioxide and increase air quality was to retain trees and plant more trees. Executive Council President Dawson asked Mr. Snyder to describe the Council's requirements with regard to Confidentiality Session Con confidentiality of information discussed Executive Session. r. Snyder dentiality y f ti di d i E ti Si M Sd explained Councilmembers y p were obligated by State Statute to maintain confidence regarding information received in Executive Session. The Edmonds City Council had a practice of maintaining minutes of Executive Sessions. When the reason for denying access to minutes passed, the minutes of the Executive Session became public record with the exception of legal advice. Council President Dawson inquired about the Council's ability to talk to the public about what occurred in Executive Session. Mr. Snyder answered once the reason for the Executive Session passed, the Council was free to discuss it. He offered to research a potential rule of procedure such as once the minutes were released Councilmembers would be notified and provided a copy of the minutes. Council President Dawson inquired what the penalty was for violating confidentiality of Executive Sessions. Mr. Snyder recalled there was a criminal penalty and a potential violation of public duties, making the Councilmember subject to recall. 8. MAYOR'S COMMENTS Downtown Mayor Haakenson announced the Council would hold continued deliberation and potentially take action zoncs on the downtown zones at the October 3rd meeting. He also reported that when speaking to the public Old Mill Town recently, many had questions regarding Old Mill Town. Therefore, he asked the developer to post his plans in the window of Old Mill Town, and encouraged anyone with questions to visit Old Mill Town to look at the plans. Edmonds City Council Approved Minutes September 26, 2006 Page 18 9. INDIVIDUAL COUNCIL REPORTS ON OUTSIDE COMMITTEE /BOARD MEETINGS Sound Transit Councilmember Marin reported last week the Sound Transit Finance Committee saw the drawings of the Edmonds interim Sounder station which shifted the station south to Dayton and expanded the parking lot to 240 spaces. Ultimately the existing Amtrak station would be modified because the double track would be located between the existing track and the Amtrak station. Lodging Tax Advisory Councilmember Orvis advised he would provide a report on the Lodging Tax Advisory Tax Committee committee meeting next week. SeaShore Forum I Councilmember Olson reported on the SeaShore forum, advising Sound Transit and RTID planned to hold a series of open houses; the closest one to Edmonds was at the Everett Events Center on October 3 Sound Transit from 4:30 — 7:30 p.m. Public Facilities Councilmember Olson reported the PFD received their occupancy permit and selected new chandeliers District for the Edmonds Center for the Arts. The first performance will be the Cascade Symphony on October 23 and a grand opening was planned for January 2007. She also reported the South Snohomish Cities group so. Snohomish was holding a dinner with the Legislators in the 1st 21st 32nd and 44th Cities Districts to discuss the upcoming legislative session. Councilmember Wambolt welcomed Rowena Miller back to the Council meeting. He reported at the Port September 11 Port meeting, Commissioners updated the Port regulations and approved an economic Commission development budget that is approximately 10% less than the amount expected to be spent in 2006 as they did not plan to use a consultant. At the September 25 meeting, the Port Commission heard an appeal of the Executive Director's decision to terminate a tenant's moorage agreement due to overdue payments; his decision was upheld. The Commission also discussed the progress being made by Landau & Associates on the development of a stormwater pollution prevention plan, noting it was very difficult to meet the benchmark concentration for copper even with effective source control measures and practices. Councilmember Moore asked Councilmember Plunkett to schedule Ms. Bruns' concerns on the Community /Development Services Committee's next agenda. Councilmember Plunkett agreed and invited Ms. Bruns to attend the October 10 meeting at 6:00 p.m. snohomish co. Councilmember Moore reported she made a presentation at the Snohomish County Economic Councili °nev. Development Council meeting on behalf of Edmonds Community College regarding the drive to locate a Council P g y g g g university in Snohomish County that would serve Snohomish, Island and Skagit counties. A request would be made to the Legislature in January. She offered to provide a full report at a future meeting. Executive 10. EXECUTIVE SESSION REGARDING A LEGAL MATTER / POTENTIAL LITIGATION. Session At 10:15 p.m., Mayor Haakenson recessed the Council to a one hour Executive Session regarding a legal matter and potential litigation. He advised the Council would adjourn immediately following the conclusion of the Executive Session. Edmonds City Council Approved Minutes September 26, 2006 Page 19