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09/07/2004 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES September 7, 2004 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5tb Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Michael Plunkett, Council President Jeff Wilson, Councilmember Mauri Moore, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember ELECTED OFFICIALS ABSENT Peggy Pritchard Olson, Councilmember 1. APPROVAL OF AGENDA. STAFF PRESENT Tom Tomberg, Fire Chief Gerry Gannon, Assistant Police Chief Duane Bowman, Development Services Director Dan Clements, Administrative Services Director Noel Miller, Public Works Director Dave Gebert, City Engineer Darrell Smith, Traffic Engineer Steve Bullock, Senior Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER MOORE, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR APPROVAL OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL Approve 9/24/04 Minutes (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 24, 2004. Minute Approve (C) APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 31, 2004. 8/31 /04 Minutes (D) APPROVAL OF CLAIM CHECKS #73527 THROUGH #73680 FOR THE WEEK OF Approve AUGUST 23, 2004, IN THE AMOUNT OF $541,368.83. APPROVAL OF CLAIM Claim CHECKS #73681 THROUGH #73828 FOR THE WEEK OF AUGUST 30, 2004, IN THE Checks AMOUNT OF $307,202.05 APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #39084 THROUGH #39208 FOR THE PAY PERIOD AUGUST 16 THROUGH AUGUST 31, 2004, IN THE AMOUNT OF $865,981.29. Claims for I (E) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM JANE HINRICHS Damages (AMOUNT UNDETERMINED), LINDA ELLIS ($193.81), AND PAUL WASELL ($1,725.00). Edmonds City Council Approved Minutes September 7, 2004 Page 1 Woodway (F) AUTHORIZATION FOR MAYOR TO SIGN AN INTERLOCAL AGREEMENT Sewer Litt BETWEEN THE CITY OF EDMONDS AND THE OLYMPIC VIEW WATER AND Station SEWER DISTRICT RELATING TO A SEWER LIFT STATION LOCATED IN THE TOWN OF WOODWAY. Purchase Property on G AUTHORIZATION TO PURCHASE THE DACANAY-CABRALES & YUTUC 220`h St. Sw () PROPERTY FOR THE 220TH STREET SW IMPROVEMENTS. Ord# 3516 Traffic (H) ORDINANCE NO.3516 - TRAFFIC IMPACT FEE ORDINANCE. Impact Fee Res# 1070 (I) RESOLUTION NO. 1070 - INITIATING VACATION OF A PORTION OF THE 174`1, St. SW UNBUILT RIGHT-OF-WAY OF 174TH STREET SW, ESTABLISHING CONDITIONS, Right -of - Way AND SETTING A HEARING DATE. Edmonds 3. PROCLAMATION IN HONOR OF "EDMONDS FIRE DEPARTMENT DAY," SEPTEMBER 18, Fire 2004. Department Day Mayor Haakenson read a Proclamation declaring September 18 as Edmonds Fire Department Day to commemorate the department's 100 years of uninterrupted service. He presented the Proclamation to the Edmonds Fire Department and Edmonds Fire Safety Foundation. On behalf of the Edmonds Fire Department and Edmonds Fire Safety Foundation, Fire Chief Tom Tomberg thanked the Council for the proclamation. He described plans for the September 19 event including a display of antique fire engines in the downtown area, strolling musicians and a walking tour beginning at 10:00 a.m.; the Trolley Days band, a slide show and refreshment at the South Snohomish County Senior Center from 1:00 — 2:00 p.m.; and recognition of donors and dignitaries from 2:00 — 3:30 p.m. He advised the book "Edmonds Fire Department Celebrating 100 Years" would be available for purchase during the event. Motorized 14. PUBLIC HEARING REGARDING MOTORIZED SCOOTERS IN EDMONDS AND POTENTIAL Scooters COUNCIL DIRECTION TO CITY ATTORNEY AND/OR STAFF Council President Plunkett explained the City Attorney would make a presentation regarding motorized foot scooters, followed by a presentation from the Police Department, Council questions and answers and then public comment. He clarified the Council did not plan to take action on an ordinance tonight; staff was seeking Council direction via public input regarding prohibition, regulation, and education of motorized foot scooters, go-carts, pocket bikes, etc. Depending on the direction given by Council, the City Attorney could return with an ordinance at a future meeting where another public hearing would likely be held prior to adoption of an ordinance. City Attorney Scott Snyder explained the State licenses and defines a wide variety of motorized vehicles. The State legislature chose to define motorized foot scooters as having the same rights as bicycles which allows the City to regulate or prohibit the use of motorized foot scooters in City parks, on City property, on City streets and sidewalks. The City may not prohibit, but may regulate, their use on State highways and bike lanes and multi -purpose trails that were developed using federal funding. He explained motorized foot scooters and their operators were required to obey all traffic laws in the same manner a bicyclist was required to obey. Mr. Snyder commented on the variety of motorized foot scooters available for sale, explaining the mini - motorcycles were classified as motorcycles by the State and because they did not have Vehicle Identification. Numbers, they could not be registered and may not be operated on any street or highway in the State. He referenced other vehicles referred to in his memo in the Council packet such as Edmonds City Council Approved Minutes September 7, 2004 Page 2 neighborhood electrical vehicles, electronic personnel assisted mobility devices, noting those were not the devices the Council was being asked to regulate. Depending on Council direction, those vehicles could also be addressed in an ordinance. Mr. Snyder advised motorized foot scooters were prohibited by State law from being operated 1/2 hour after sunset or before sunrise unless they had approved reflective devices. He observed one of the common complaints was the removal/modification of mufflers on motorized foot scooters in order to increase their speed. He summarized the Council had the ability to regulate noise via the noise ordinance. Councilmember Wilson asked whether motorized foot scooters were currently required to follow motor vehicle laws. Mr. Snyder answered yes, explaining the same was true for bicycles. Councilmember Wilson asked whether a prohibition on motorized foot scooters would apply only on public rights -of -way and public property. Mr. Snyder agreed, reiterating motorized foot scooters may be operated on State highways and bike and multiuse trails that were developed with federal funds. He noted the Council could prohibit or regulate the use of motorized foot scooters in City parks and/or sidewalks. Councilmember Wilson asked if any regulations the Council adopted would affect their use on private property and private easement roads. Mr. Snyder answered no, other than hours of operation and noise. Council President Plunkett asked whether the enforcement the Council adopted could make an infraction non -criminal. Mr. Snyder agreed, noting civil infractions included most parking offenses and a few driving offenses. Council. President Plunkett asked whether regulations could make parents responsible. Mr. Snyder answered the Council could adopt an ordinance making parents responsible; proving it may be more difficult. Council President Plunkett asked whether riders 15 or younger could be prohibited from operation in certain areas of the City and riders with a driver's license be allowed with regulations. Mr. Snyder answered that would pass the rational basis test. Councilmember Dawson restated it was unlawful to operate go-carts and pocket motorcycles on City streets and further regulation was not required in the City's ordinance. She recalled the legislature took action regarding motorized foot scooters by grouping them in with Segway scooters, not requiring operators to have a license and not requiring them to be registered. She concluded there was no other motor vehicle in the State that could be driven/ridden on a public street by a person without a driver's license other than the motorized foot scooters and the only way that could be changed would be for the Legislature to take action; the City could not require it. Councilmember Dawson pointed out the municipal court did not have any jurisdiction over persons under the age of 16. Therefore, if a non -criminal ordinance were adopted prohibiting operators under the age of 16, and a person were found to have violated the ordinance, it could not be handled by the municipal court. She recalled the City had been told by the prosecutor that the juvenile court will not assume jurisdiction over such infractions. Mr. Snyder agreed, commenting many cities who encountered the same difficulties, used parental responsibility and a combination of notice and impoundment. Councilmember Dawson posed the question if the vehicles are not required to be registered, how could it be determined who owned the vehicle and which parent to pursue? Mr. Snyder explained many cities have addressed the issue via impoundment plus an adult has to sign for the release of the impounded scooter. Councilmember Dawson posed the situation if a juvenile was riding someone else's scooter. Mr. Snyder explained the release forms that have been devised for other cities attempt to address that via an. acknowledgement that the person signing is either the owner or parent/guardian of the scooter owner and understand the responsibilities the city has established. Edmonds City Council Approved Minutes September 7, 2004 Page 3 Councilmember Dawson inquired about other cities' experience with parental responsibility laws. Mr. Snyder answered he was not aware of any statistical study. Councilmember Dawson asked regarding an ordinance that placed responsibility on the parent instead of the child, did the parent have to knowingly allow the child to violate the city's regulations. Mr. Snyder answered yes if there were any criminal penalty or civil infraction. Councilmember Dawson inquired about other cities' experience with confiscating a scooter without a hearing. Mr. Snyder answered confiscation would require the opportunity prior to forfeiture for appeal and hearing with the same administrative hearing process applicable to any other deprivation of property such as vehicle impoundment or utility shutoff. He clarified impoundment would be holding the scooter for a period of time before it was claimed versus confiscation for sale. Councilmember Dawson inquired about the experience of other cities who have utilized confiscation. Mr. Snyder answered in ordinances he has reviewed, noting Lynnwood was a good example, typically there is a period of education, notice and fining the parents several times before confiscation of the scooter occurred. Councilmember Dawson asked how a fine could be imposed due to the difficulty of proving the parent knowingly allowed the child to violate the city's regulations. Mr. Snyder acknowledged he had no experience with that situation. Councilmember Dawson asked how a city kept track of the number of times a motorized foot scooter was cited when the child did not have identification and the scooter was not registered. Mr. Snyder answered staff was seeking direction from the Council on such issues. He noted one approach was impoundment in the same way the city temporarily seizes evidence. There would likely be sufficient legal basis for impoundment of a scooter that was being operated illegally — such as the child not obeying traffic laws — and held until claimed by a parent. He noted the other situations Councilmember Dawson posed had not been reached by other cities that have passed ordinances because of the relatively few instances that reached that stage after notice and a third fine. Councilmember Wilson referred to the memo regarding motorized foot scooters, noting they were not subject to State drivers and vehicle licensing and registration requirements and asked whether cities were prohibited from having a local registration process. Mr. Snyder answered cities were not prohibited, however, the required workload would discourage most cities from that process. Councilmember Wilson asked whether a scooter that was not being ridden properly could be required to be registered to provide the city the ability to track further infractions against that scooter. Mr. Snyder answered that would be a process similar to dangerous dogs although dogs were required to be licensed in most cities. Assistant Police Chief Gerry Gannon referred to Police Chief Stem's memo in the packet, explaining the Legislature chose to classify motorized foot scooters as bicycles thereby exempting them from licensing requirements, age limits, insurance, helmet requirements, etc. He explained the Police Department's biggest concern was the safety of the youth riding the scooters due to the potential for serious injury. It was staff s opinion that legislation at the State level was necessary for a cohesive and consistent approach to the issue including the establishment of a minimum age, licensing requirements, etc. Mr. Gannon explained another of the Police Department's concerns was enforcement, pointing out the Juvenile Justice System in Snohomish County could not effectively deal with motor vehicle infractions issued to juveniles. Further, juveniles under the age of 12 are presumed to be incapable of committing a crime and juveniles from 12-15 may be placed in the juvenile system but in reality the county did not process such cases. He concluded juvenile infractions were filed under deferment with no action taken. The City's Municipal Court cannot deal with juveniles under the age of 16. If the Council passed an Edmonds City Council Approved Minutes September 7, 2004 Page 4 ordinance making violations of the ordinance a crime, public defenders would need to be provided to offenders. Mr. Gannon explained one of the approaches being attempted by other jurisdictions was holding parents accountable for the actions of their children by making it an offense for them to knowingly allow violations of the local ordinance. He acknowledged the difficulty proving it was done knowingly. Mr. Gannon noted the issue of noise was likely the most frequent complaint received by the City. He pointed out the removal and/or modification of mufflers often increased the noise level. He explained the City had ordinances in place to address noise; however, usually before an officer arrived to take a decibel reading, the offender was gone. Prohibiting modification or removal of mufflers may be a useful step. Mr. Gannon concluded some level of enforcement was necessary; however, it needed to be coupled with education. He referred to a brochure that described what the City could legally do now; if the Council enacted an ordinance, it could be added to the brochure and distributed via the utility billing system. He reiterated additional legislation at the State level was needed to provide a consistent way to address the issue. He relayed Chief Stem's recommendations if the Council chose to regulate motorized foot scooters that included establishing an age restriction of 16, limiting use to streets with a speed limit of 25 MPH or less, prohibiting use on sidewalks, requiring a muffler and prohibiting removal or alteration, requiring adherence to the rules of the road, prohibiting use during hours of darkness, and some combination of parental responsibility and seizure as an enforcement strategy. Councilmember Dawson clarified Chief Stern also recommended pursuing the issue with the State Legislature. Mr. Gannon agreed, due to the need for consistent enforcement. Councilmember Dawson asked Mr. Gannon to comment on the Police Department's concern with seizure. Mr. Gannon described difficulties with record keeping, record management, and storage of the scooters due to combustible products. He explained the department was also concerned about the impact of confiscation on the relationship between officers and children and their parents. Councilmember Dawson recalled Chief Stern did not recommend confiscation as a first step in enforcement. Mr. Gannon agreed the preference would be a written warning to the parents and child prior to confiscation. Councilmember Dawson noted much of the issue was violation of the rules of the road and asked whether the Police Department issued citations for such violations. Mr. Gannon explained the Police Department could not issue an infraction for an activity that was reported; an officer must witness an infraction other than in instances where a collision has occurred. Councilmember Dawson asked how other cities were addressing pocket motorcycles or ATVs. Mr. Gannon answered riders were cited as operation of pocket motorcycles on a street was already a violation that was enforceable. Councilmember Moore questioned Chief Stem's recommendation to limit the use of motorized foot scooters to streets with a speed limit of 25 MPH or less, noting that would allow their use on neighborhood streets. She preferred they be limited to streets with speed limits of 25-35 MPH. Mr. Gannon pointed out the increased danger at higher speeds. Recalling motorized foot scooters were subject to the same laws as bicycles, Councilmember Wilson asked how bicycle riders who committed violations were handled. Mr. Gannon answered if an officer observed the violation, a rider over the age of 16 would be issued an infraction. He acknowledged there were not a lot of bicycle citations issued. Edmonds City Council Approved Minutes September 7, 2004 Page 5 Councilmember Marin referred to the Snohomish County Health Board's request that all cities adopt a resolution requiring the use of helmets, observing Chief Stem's list of recommendations did not include a requirement for a helmet. He emphasized the importance of riders wearing helmets. Councilmember Dawson questioned whether the reason Chief Stern omitted the helmet requirement was due to enforceability concerns. She recalled the motorcycle helmet laws have been struck down various times and finally passed only due to the sticker on motorcycle helmets identifying it as an adequate helmet. She asked whether there were any national traceable standards for scooter helmets that would allow it to pass constitutional muster. Mr. Snyder answered a number of cities have enacted bicycle helmet requirements. Bicycle helmets have a rating system and motorized foot scooters were subject to the same bicycle regulation. He noted there were model ordinances that used an underwriter lab's testing standard for bicycle helmets. Councilmember Wilson asked whether the City currently required helmets for bicyclists, inline skaters or skateboarders. Mr. Gannon answered no. Mayor Haakenson opened the public participation portion of the public hearing. Michele Joubert, 7924 212t`' Street SW, Edmonds, commented many of the young people operating motorized foot scooters had no respect and cut through their parking lot at a high rate of speed with mufflers emitting ear -piecing sounds. Although she was willing to accept some of Chief Stem's recommendations, she preferred they be prohibited. She acknowledged the difficulty with enforcement when the police had to witness the activity. Brian Furby, 8219 187th SW, Edmonds, encouraged staff to utilize research done by cities who had already developed ordinances including Lynnwood, Mountlake Terrace, Kirkland, Seattle and Issaquah. He summarized the major issues were safety and noise; whatever ordinance was developed should be consistent with neighboring jurisdictions so that the City did not become a magnet for motorized foot scooters. He concurred with the recommendation to establish an age restriction of 16 years and to require helmets. He also recommended the City implement a strong educational campaign directed at the users and their parents as well as the general population via notification in utility bills, information posted at middle and high schools, and posting information regarding the City's ordinance at stores that sell motorized foot scooters. He urged the Council to act quickly to avoid parents purchasing scooters for Christmas. Richard Fowler, 751.1 21 Oth Street SW, Edmonds, commented this was a public health issue, pointing out the intense noise level motorized foot scooters generate. He commented on scooters that operate in his neighborhood from 5:00 a.m. until 1:00 a.m. with no lights, reflectors or helmets. He commented on the safety issue when a pedestrian is approached by a scooter at 35 MPH, particularly when several are riding together. He relayed the Consumer Product Safety Commission's research that there were 2,800 emergency room treated injuries to motorized foot scooters riders in 2001 and 39% of the injuries were to children under 15 years of age. He supported a requirement for mufflers, helmets, age restriction, speed restriction and licensing requirements including fees. Larry Austin, 21822 97t" Avenue W, Edmonds, commented on the noise level of motorized foot scooters, the dangers of riding without a helmet and riders not having knowledge of traffic laws. He remarked the public was the victim of marketing due to ease of selling scooters. He described an incident when an electric scooter exited a driveway and hit the side of their car. He supported an ordinance that limited the use of motorized foot scooters and required licensing and registration. He concluded parents were not acting responsibly. Edmonds City Council Approved Minutes September 7, 2004 Page 6 Roger Stivers, 9514 224t" Street SW, Edmonds, concurred with the observations shared by previous speakers. He commented on the psychological implication of motorized foot scooters which allow youth mobility as well as the ability to escape. He remarked on the arrogance displayed by riders, concluding that scooters are producing insolence among youth and were becoming the nucleus for the formation of gangs. Brent Logan, 1004 Daley Street, Edmonds, stated residents were demanding protection from the impacts of motorized foot scooters. He found the City's safety brochure inadequate, opining it would have little impact on riders or their parents. In the absence of State licensing and prohibition on local bans, he acknowledged the Police Department had no real authority unless they impounded scooters and steeply fined the responsible adult. In addition to a 16 year age limit and helmet requirement, he recommended scooters be prohibited on residential streets envisioning the problem would cease if there was no place for scooters to be ridden. He concluded if these measures failed to stop the assault on the community's safety and sanity, he suggested citizens, in the tradition of civil disobedience, consider impounding scooters themselves. Sydney Parkhurst, 23721 101st Place W, Edmonds, commented the laws regarding motorized foot scooters were not clear. Although her father told her that it was illegal to ride scooters in the street, she had witnessed kids riding in the street. She relayed a dangerous incident when a group of kids were riding scooters in the street including one pulling a loaded wagon. Charles Karczewski, 18621 84th Avenue W, Edmonds, reiterated the need to license and register motorized foot scooters. He also supported establishing an age restriction of 16 years of age and requiring helmets and elbow and knee pads. As the driver of a large van with restricted visibility, he expressed concern with the safety of scooters. He commented on the hand -operated cycle he rides which has a flag for visibility, noting he wears a helmet and obeys the regulations of the road. He pointed out the importance of motorized foot scooter riders obeying traffic laws and encouraged the Council to develop an ordinance to regulate scooters. Jonlee Nunn, 520 61e Avenue S, Edmonds, commented that although she originally believed the City should regulate motorized foot scooters, after listening to the Council discuss the difficulty of enforcing regulations, she suggested the City prohibit their use. Tom Nunn, 520 6tb Avenue S, Edmonds, agreed with his wife's comments. Ray Martin, 18704 94t`' Avenue W, Edmonds, commented the main reason the City should do something was safety. He noted many operators of motorized foot scooters do not wear helmets and relayed an incident when he was required to pass a young person riding on Main Street. He suggested the City follow the lead of other cities to address the safety issue. He recalled seeing adults in the Seaview area riding noisy pocket motorcycles after dark with no helmets or lights. John Rocco, 20031 81st Avenue W, Edmonds, commented his goal was to attempt to teach some tolerance. He recalled riding motorcycles from the age of 10 and said his son rides a foot scooter that can travel 20 MPH. He explained when he or his son ride the foot scooter, they wear a motorcycle helmet. He disagreed an ordinance regarding motorized foot scooters was necessary, noting Edmonds was a family -friendly place. He noted options were limited for kids and the scooters provided them an independent activity. He explained his son received his scooter as a result of doing his chores and living up to his responsibilities and had a list of rules for riding the scooter. He reiterated the need for tolerance of youth, commenting weedeaters were louder than scooters. Edmonds City Council Approved Minutes September 7, 2004 Page 7 Deanna Smyth, 7924 212t" Street SW, Edmonds, relayed an incident when she was standing in her condominium driveway and a scooter came up behind her at 25 MPH. She commented although the rider had a helmet on, she did not. She chased the rider and his mother down to get their license number so that if a similar incident occurred, she could call the police. She found it outrageous that youth were allowed to ride motorized foot scooters on Edmonds streets. Nathan Love, 20031 81" Avenue W, Edmonds, commented his goal was to persuade the Council not to adopt a law prohibiting the use of scooters by riders under the age of 16. He explained he received his scooter for his birthday because he received good grades and did his chores. He concluded it would not be fair to prohibit him from riding his scooter. Gale Schwarb, 711 Hemlock Street, Edmonds, did not favor registering/licensing motorized foot scooters due to the cost of enforcement. She commented on the City's budget problems and the difficulty allocating funds for enforcement. She favored adopting regulations including an age restriction of 13-16 years of age. She relayed her observation of young children in her neighborhood riding their motorized foot scooters down the hill at approximately 35 MPH and turning onto the cross street without looking in either direction. She also favored a speed limit restriction of 10 MPH and a prohibition on the removal/tampering of mufflers. She cited the benefits of riding a bicycle — quiet, doesn't burn gas, doesn't pollute, and exercise. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER WILSON, TO EXTEND THIS ITEM FOR 30 MINUTES. MOTION CARRIED UNANIMOUSLY. Susan Blalock, 7939 186t" Street SW, Edmonds, commented that although noise was a huge issue, her main concern was safety of the motorized foot scooter riders. She relayed her observation of kids racing downhill and through the intersection without stopping, pointing out the danger posed to vehicles as well as pedestrians. She agreed with prohibiting their use or at least establishing an age limit of 16 years. She recalled seeing parents watching their children not obeying traffic laws. Coincidental to the reckless scooter and bicycle riding at the intersection, this was the first summer there have been fires set in nearby Seaview Park, broken bottles in the intersection, and kids darting out of bushes instigating road rage at the intersection. She acknowledged all scooter riders and/or their parents could not be stereotyped. Ron Wambolt, 530 Dayton Street, Edmonds, disagreed that the Police Department's first priority should be the protection of the scooter riders, preferring their first priority be protection of the victims. He summarized the riders' parents should be looking out for them. Hearing no further public comment, Mayor Haakenson closed the public hearing. Mayor Haakenson requested Mr. Snyder respond regarding the recommendation to ban the use of motorized foot scooters. Mr. Snyder advised under State law, the City was prohibited from banning motorized foot scooters from State highways and federally funded bike lanes and multiuse trails, leaving only the opportunity to ban them from neighborhood streets. He noted most bike lanes in the City had been constructed with the use of federal funds. Council President Plunkett clarified the City could prohibit the use of motorized foot scooters on City streets, sidewalks, parks and public property. If directed by the Council, he asked whether staff could develop an ordinance prohibiting the use of motorized foot scooters by riders of 15 years or Less to the greatest extent possible with impoundment and parental responsibility as enforcement. Mr. Snyder answered that would be possible. Edmonds City Council Approved Minutes September 7, 2004 Page 8 Councilmember Wilson clarified where the City could prohibit the use of motorized foot scooters was on City owned streets and sidewalks but not on private property, in private driveways, parking lots, apartments, or condominiums. Mr. Snyder agreed, noting those property owners could prohibit trespass and the City had the ability to enforce its noise ordinance on private property. For Councilmember Wilson, Mr. Gannon acknowledged an officer had to be physically present to obtain a sound level. Mr. Gannon explained the City's noise ordinance has acceptable decibel readings for noise in residential areas and in commercial areas during certain times of the day. Councilmember Wilson asked how an officer would respond if a rider turned off their scooter when an officer approached to take a reading. Mr. Gannon answered the rider could be asked to start the scooter but could not be required to start it. Mr. Snyder commented the approach other cities have taken is to prohibit the removal or alteration of the muffler. For Councilmember Wilson, Mr. Snyder explained most cities were utilizing an approach that included notification and parental responsibility with a graduated fine. Councilmember Wilson inquired about the Police Department's experience with scooter riders stopping for the police. Mr. Gannon answered generally kids were compliant. He pointed out the kids' lack of knowledge of traffic laws and the importance of education. Councilmember Dawson asked whether the City could ban modified motorized foot scooters, noting the scooters could only travel approximately 20 MPH as manufactured. Mr. Snyder advised the City could ban anything that was not in a State licensed or regulated category such as a motorized foot scooter that had been altered so that it no longer fit the definition under State law. Councilmember Dawson noted any licensing requirement would have to be at the State level. Mr. Snyder indicated that issue would require further research, noting the City could not infringe on the State's exemption of a vehicle from State registration as the purpose of registration was to authorize the use of public rights -of -way. Other than outright prohibiting the use of motorized foot scooters, Councilmember Dawson noted the only practical way to enforce any traffic ordinance was via the driver's license or vehicle registration, two things the City could not do. Hearing no further questions for staff, Mayor Haakenson remanded the matter to Council for action. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER ORVIS, THAT THE COUNCIL DIRECT CITY ATTORNEY SNYDER TO DRAFT AN ORDINANCE TO BRING BACK TO THE COUNCIL THAT PROHIBITS 15 YEAR OLDS OR LESS TO THE GREATEST EXTENT POSSIBLE, WITH ENFORCEMENT BEING IMPOUNDMENT AND PARENTAL RESPONSIBILITY, AND ALL REGULATIONS NECESSARY TO IMPLEMENT. Councilmember Wilson suggested Council President Plunkett withdraw his motion to allow the Council to discuss the issue in a format less formal than making amendments to the motion. Council President Plunkett preferred amendments to the motion be made in an effort to keep the discussion focused. COUNCILMEMBER MOORE MOVED IN ADDITION TO BANNING THEM FOR ANYONE UNDER 16, INCLUDE POCKET MOTORCYCLES, INCLUDE EVERYTHING IN CHIEF STERN'S MEMO, INCLUDE HELMETS, AND LIMIT TO STREETS BETWEEN 25 AND 35 MPH. MOTION TO AMEND DIED FOR LACK OF A SECOND Edmonds City Council Approved Minutes September 7, 2004 Page 9 Councilmember Dawson asked for clarification of the enforcement methods Council President Plunkett intended with regard to impoundment and parental responsibility. Council President Plunkett answered it would be determined by Mr. Snyder in the draft ordinance. Councilmember Dawson emphasized enforcement was the trickiest part; the Council needed to provide direction to the City Attorney with regard to enforcement. Council President Plunkett suggested Mr. Snyder draft the ordinance to include the most stringent enforcement possible. With regard to prohibiting use by riders under 1.6, Councilmember Dawson noted many 1.6-year olds have obtained their driver's licenses as a result of classes and tests and were subject to the loss of the driver's license if they violate traffic laws. She doubted there were many riders over the age of 16 and this likely would result in the youth who were unable to obtain a driver's license riding scooters. She reiterated the only effective way to regulate motorized foot scooters was for the State to require a driver's licenses and in the meantime, either the City did not allow the scooters to the extent possible, or wait until the State took action. Councilmember Marin acknowledged the young man in the audience who appeared to be responsible, wearing a motorcycle helmet rather than a bicycle helmet, and pointed out that although there were some kids who behaved irresponsibly, not all kids were acting in that manner. He concluded it was unfortunate the behavior of some made regulations/prohibition necessary. Councilmember Marin pointed out Council President Plunkett's motion was similar to the Lynnwood ordinance. Council President Plunkett clarified his intent was to prohibit youth under the age of 15 from riding motorized foot scooters in the City and to regulate riders over 15 and not criminalize the activity but handle via a letter, parental acknowledgement of the regulations and possibly paying a fine before the scooter was returned. Councilmember Marin commented the problem with motorized foot scooters would likely lessen with colder weather and as their popularity diminished. He indicated he would not support the motion. Councilmember Wilson disagreed with using a motion and a series of amendments to provide direction to the City Attorney and preferred the Council vote against the motion and then have a dialogue to provide direction to the City Attorney. COUNCIL PRESIDENT PLUNKETT WITHDREW HIS MOTION WITH THE AGREEMENT OF THE SECOND. Council President Plunkett commented if at the end of the discussion the direction to the City Attorney did not prohibit riders under the age of 15, he would again make a motion to do so. Councilmember Moore commented this issue had been discussed by the Council throughout the summer and recalled during a meeting, discussion was interrupted by the noise of a motorized foot scooter passing the Council Chambers. She expressed her appreciation to Mr. Rocco and Mr. Love, a responsible parent and rider. She agreed 50% of riders appeared to be acting responsibly but felt the scooters were a public nuisance due to the noise. She emphasized anytime anyone generated outrage about a public nuisance and public danger, the Council must act to protect the citizens. She was not concerned about the public relations aspect of enforcement. With regard to enforcement questions, those were issues to be addressed in the future, noting there were already a number of laws the City did not enforce and often with public education, citizens complied with the law regardless of enforcement. She recommended the users of motorized foot scooters be put on notice that their behavior while riding these toys was not acceptable in Edmonds City Council Approved Minutes September 7, 2004 Page 10 this community. She agreed with pursuing the issue via the Legislature and suggested a draft ordinance include Chief Stem's recommendations and include a helmet requirement. Councilmember Marin agreed with Chief Stem's recommendation to require a muffler and prohibit removal or alteration, require adherence to rules of the road, prohibit use during hours of darkness as defined by the RCW and use some combination of parental responsibility and seizure as an enforcement strategy and recommended the additional requirement that riders wear a helmet. He recalled a discussion at the Health District regarding the merits of a $20 bicycle helmet versus a $70 motorcycle helmet and although a motorcycle helmet was undeniably safer, he preferred a bicycle helmet to no helmet. Mayor Haakenson pointed out Chief Stem's recommendation was to prohibit use of motorized foot scooters on sidewalks in the downtown business district and urged the Council to prohibit their use on any sidewalks. Councilmember Dawson explained her concern was with enforceability. She referred to an audience comment that the scooters breed insolence, pointing out there were already regulations in the City that prohibit the way scooters were being ridden such as adhering to the rules of the road but the problem was enforceability on a rider who was not required to be licensed or a vehicle that was not required to be registered. She was concerned if the Council adopted an ordinance without any ability for enforcement, it would breed disrespect for the law because there was nothing the City could do if a rider did not obey the law. She reiterated the only way to effectively address the problem was via State legislation and in the meantime provide public education regarding expectations. She questioned the wisdom of a 16-year old age restriction, doubting many youth over the age of 16 rode motorized foot scooters. She concluded there was no difference between a motorized foot scooter and a dirt bike, and the Legislature, who created the problem via allowing this motorized vehicle to be driven on City streets without a license, should rectify the problem. She preferred either waiting for the Legislature to act or banning motorized foot scooters outright. Councilmember Orvis supported Chief Stem's recommendations with the addition of a helmet requirement and education and prohibiting scooters on residential streets. Councilmember Marin disagreed with Chief Stem's recommendation to establish an age restriction of 16 years of age and possession of a valid driver's license as he was persuaded that once a youth reached age 16, they would not be riding motorized foot scooters. He preferred establishing an age restriction of 14 or 15, noting the majority of those youth could be responsible enough. Councilmember Wilson explained the frustration with this issue was that in the past, parents taught children responsibility, being courteous to the neighbors, etc. and it was unfortunate the Council had to regulate parental responsibility. He acknowledged Mr. Rocco for providing an activity as a reward for appropriate behavior, commenting that unfortunately, many kids as well as parents had a disregard for appropriate behavior. He recalled seeing parents riding motorized foot scooters after dark, on the sidewalk, without a helmet, etc. He agreed the only way to address this was to send a strong message to the Legislature that they needed to address the problem they created. He suggested an age restriction of 15 years with a valid learner's permit. Councilmember Wilson disagreed that all kids riding motorized foot scooters were bad, recalling many of the arguments made tonight regarding gangs, etc. were the same arguments made about skateboarding and now many cities were building skateboard parks. With regard to safety, he noted there were just as many kids riding bicycles that were making the same mistakes that kids riding scooters made but there was no talk about prohibiting bicycle riding. He agreed with solving the problem short term in the City and placing the burden on the Legislature for a statewide solution. He urged the City to regulate motorized Edmonds City Council Approved Minutes September 7, 2004 Page I I foot scooters for the right reasons, acknowledging that although scooters disrupt life, so did other things like motorcycles, lawnmowers, etc. He was also concerned with the potential dangerous situations created via enforcement efforts if a rider chose to flee from the police. He agreed with the recommendation to require riders wear a helmet and suggested the City adopt requirements similar to helmet laws for bicyclist. Councilmember Dawson pointed out Chief Stem's memo stated staff's belief that there must be additional legislation at the State level to provide a consistent base for dealing with this issue, that the devices must be properly defined as motorized vehicles subject to the rules of the road and requiring licensing of vehicle and driver at a minimum. Chief Stem's memo stated in the absence of such legislation, there was no solid basis for local regulation. Councilmember Dawson summarized from the Police Department's viewpoint, most important was taking action at the State level. Only after his recommendation that there be additional legislation at the State level, did Chief Stern's memo guardedly provide a list of recommended regulations. Councilmember Orvis requested Mr. Snyder also provide a resolution to the State Legislature. Mr. Snyder agreed. Mr. Snyder described his plans to use the Lynnwood/Issaquah format which was developed by their office and establishing an age restriction, impoundment as a public nuisance requiring payment of a fine prior to release and a portion to be forfeited in the event of a second violation, and a series of parental responsibility provisions, restricting use to the places the State permitted their use and requiring safety equipment. He also planned to draft a resolution to AWC and the State Legislature. Councilmember Moore pointed out the Legislature would not be in session until January and the chances of getting regulations adopted by the Legislature were not good. She felt deferring to the State Legislature to address the issue was a copout, pointing out this was a problem in Edmonds that should be addressed by the City. Council President Plunkett observed of the Councihnembers present, three supported a ban and three did not and inquired whether Mr. Snyder could provide two separate ordinances. Mr. Snyder indicated his plans to provide one ordinance that could be amended by section. Councilmember Wilson asked if other cities' ordinances had a registration requirement after the first violation. Mr. Snyder answered no, there was an acknowledgement form for parents. He explained scooters could be confiscated as a public nuisance and impounded subject to release to a parent upon payment of a graduated penalty and a form for parents to sign to acknowledge the vehicle was being operated by their child/ward and that they are responsible for that person's behavior. Councilmember Dawson clarified this was a statewide issue and the Legislature created the problem for cities. Until 2003, motorized foot scooters were not street legal and could not be ridden on streets the same as any other non -regulated motorized vehicle. In 2003, the Legislature exempted motorized foot scooters from the motorized vehicle classification and precluded cities from requiring driver's licenses and requiring they be registered. She emphasized the Legislature created this problem and they should fix the problem. Mr. Snyder advised a draft ordinance could be completed by September 21. Council President Plunkett scheduled a public hearing and potential Council action on the draft ordinance at the October 5 meeting. Mr. Snyder suggested the draft ordinance be available on the City's website for review as soon as it was completed. Mayor Haakenson declared a brief recess. Edmonds City Council Approved Minutes September 7, 2004 Page 12 Proposal to 5. PUBLIC HEARING ON THE PLANNING BOARD'S RECOMMENDATION TO DENY A Amend ECDC 16.50 PROPOSED APPLICATION TO AMEND A PORTION OF THE EDMONDS COMMUNITY File CDC- DEVELOPMENT CODE, CHAPTER 16.50 (BC — COMMUNITY BUSINESS), ALLOWING 2004-37 ( RESIDENTIAL USES ON THE GROUND FLOOR IN LIMITED SITUATIONS (FILE NO. CDC- 2004-37). Senior Planner Steve Bullock referred to Exhibit 2 which described the initial proposal by the applicant. He explained in the downtown BC zone, residential units were not allowed on the ground floor. The applicant, who has a development under review and has had permits issued, proposed a code amendment due to his concerns with leasing excessively deep commercial space. Mr. Bullock explained the applicant's proposal would be to allow residential units on the ground floor if the 30 feet of the building consisted of only commercial uses as measured from the street (using the current limitation in the code that commercial uses be in the first 30), the property is adjacent to single family or multifamily zoned property, and the multifamily units are located on the ground floor in such a way that they face the adjacent residentially zoned properties. Mr. Bullock explained the Planning Board held a public hearing on the proposal on June 23, accepted testimony, deliberated and ultimately forwarded a recommendation (5-1) to deny the request. He displayed a map identifying the BC zone including parcels on the perimeter of the BC that would meet the qualifications initially proposed by the applicant. He recalled the Planning Board was concerned that the proposed amendment could occur on the perimeter of the BC and they were already considering changes for the BC zone via the Comprehensive Plan amendment. Mr. Bullock explained as a result, the applicant modified their proposal to limit it to property located on the 51h Avenue South entrance corridor (south of Walnut Street) and that the first 60 feet of the building consist only of commercial uses as measured from Main Street. Bob Gregg, 51h Avenue Development LLC, 16550 76th Avenue W, Edmonds, explained the development on the opposite corner of 5th & Walnut (MacGregor Place) was developed to the code that existed at the time. He noted applicants try not to change the code due to the amount of time it takes. He stated after 15 months, the residents at MacGregor Place were 80% absorbed with 100% vacancy in the commercial ground floor. Mr. Gregg explained when he began to acquire the property for the second project at 5th & Walnut, one of the financial institutions required the plans be reviewed by a marketing expert. The marketing expert studied the project as if there were no codes to determine what the market would absorb and found the market was for smaller units at more affordable prices, around $300,000. He noted the commercial space on the south side of their proposed project was 120 feet deep because that was all the code allowed. As a result, he approached staff suggesting residences in back with commercial in front. Although for this project a use variance would have been most appropriate, Edmonds does not have a use variance; therefore, a code change was initiated. Mr. Gregg explained the proposed change would apply not only to their project but also to several properties in the BC zone. When the proposed change was presented to Planning, staff suggested the wording "shares a property line with single family or multifamily zoned property" instead of "adjacent to single family and multifamily zoned property." In response to the Planning Board's concern that the proposed change would impact a scattering of properties, the requirement for property to be located on the 51h Avenue South corridor was added in the revised proposal. He explained this reduced the number of affected properties to eight. Edmonds City Council Approved Minutes September 7, 2004 Page 13 Mr. Gregg recalled the majority of public comment at the Planning Board was that a 30 foot depth was not adequate. He agreed, explaining the original proposal had 30 feet because that was required in the code and the revised proposal was the first 60 feet of the building. He noted the only property this was likely to impact was their property and their commercial depth was actually 90 feet. He pointed out the proposed change would only have a lifespan of approximately 6-9 months due to the upcoming Comprehensive Plan amendment. He summarized the proposed amendment would keep them from adding to the inventory another building with several thousand square feet of commercial space that was deeper than commercial tenants wanted. Further, it would address the Council concern with an earlier contract rezone where commercial encroached on residentially zoned property. He noted the proposed amendment would allow two residences on the ground floor and allow residences to face residences and commercial to face commercial. Mr. Gregg pointed out the Planning Board did not have the ability to do the top things they wanted to do, 1) have him apply for a use variance, or 2) send the request back to staff for further review regarding how it would impact other properties. He recalled after the Planning Board's public hearing was closed, there was a suggestion that the structure be built to accommodate either residential or commercial development and wait for the Comprehensive Plan update due to their belief it would be a simple design change to accommodate either residential or commercial. He pointed out the differences between constructing residential and commercial space with regard to fire sprinklers, plumbing, etc. Councilmember Moore asked what was the ceiling height in the commercial areas of the development. Mr. Gregg answered they were 12 feet. Council President Plunkett inquired about the appearance of the back of the building to the residents without the proposed amendment. Mr. Gregg answered the back of the building would look nearly identical but would have commercial windows versus residential -looking windows. He explained whether the use was commercial or residential, it was accessed via the front entrance or garage and an internal hallway. Council President Plunkett inquired about the appearance of the building with the proposed amendment. Mr. Gregg answered the building footprint and the same condominiums on the two floors above; however, the window space that would have had a commercial storefront would have residential -type windows. Whether commercial or residential, there would also be a door onto a patio at the rear of the building. Councilmember Wilson asked whether the proposed change would apply to only a small area of the zone. Mr. Gregg replied yes, explaining it would affect only the 5th Avenue South Corridor south of Walnut, essentially a total of eight parcels including the subject site. Councilmember Wilson asked whether Mr. Gregg was aware of any other development activity on those properties. Mr. Gregg answered no. Councilmember Wilson asked whether the proposed code amendment would apply to only the subject property. Mr. Gregg answered the amendment would allow his project to proceed and other property owners could, before the code was changed again, propose development that utilized the change although he doubted they could process an application before the Comprehensive Plan was amended. Councilmember Wilson asked Mr. Gregg whether his project would proceed without the proposed amendment. Mr. Gregg answered yes. For Councilmember Orvis, Mr. Gregg explained according to code, no residential uses were allowed on the ground floor in a mixed use building in the BC zone, only commercial space and parking was allowed on the first floor. He explained the prohibition on residential was to force developers to construct commercial space to at least a 30 foot depth on the first floor in the BC zone. He agreed a 30 foot depth was not adequate. He advised with the proposed change, the commercial space on the first floor of their building would be 210 feet long and 90 feet deep from 5th Avenue S. Edmonds City Council Approved Minutes September 7, 2004 Page 14 COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO EXTEND THE MEETING FOR 30 MINUTES. Mr. Snyder explained this was not a contract rezone although much of the discussion by the proponent was with regard to how the code change would affect his property. He cautioned the Council not to give the impression they were passing a special law for this developer; the Council's decision needed to be based on Comprehensive Plan compliance and how it met the code criteria. He suggested any further questions focus on Comprehensive Plan compliance. Councilmember Dawson asked how this was not a spot rezone. Mr. Snyder assured it was not a spot rezone because it was a text amendment. He explained it was a code text amendment that when it was originally proposed, affected a large area and was reduced in response to concerns with the scope. To the question of whether the proposed change affected more than the specific property, he agreed as worded it did. He suggested the Council's questions and findings relate to the general public benefit and Comprehensive Plan compliance and not how it impacted Mr. Gregg's property. Mayor Haakenson opened the public participation portion of the public hearing. Roger Hertrich, 1020 Puget Drive, Edmonds, pointed out in the Planning Board minutes Mr. Gregg referred to 120 feet and Planning Board Member Crim corrected that the depth was only 105 feet due to the 15 foot setback. Mr. Hertrich referred to the Planning Board's use of words "scattered" and "piecemeal" and indicated there had been no discussion by the Planning Board on the impact this would have on other properties in the BC zone. He recalled when the code was changed a number of years ago to add a second story use of residential over commercial, buildings were required to be 50% commercial. At that time the Planning Board specifically requested the first floor be all commercial to protect that use. That use was later reduced to a minimum of a 30 foot depth on the first floor to allow parking behind commercial on the first floor. He suggested the proposed change was premature, pointing out that the revisions Mr. Gregg made to the proposal had not been reviewed or discussed by the Planning Board. David Dwyer, 18709 Olympic View Drive, Edmonds, commented the problem was that commercial space on the first floor could not be sold because of the development of three stories in a two-story zone. He explained the 25 foot height limit accommodated only a two-story building which created a better environment for commercial spaces on the first floor. When an additional 5 feet in height was allowed for a pitched roof, building heights were increased to 30 but it was not intended to result in a third story. He recommended the first floor remain commercial. He noted the addition of a third story often added a view, increasing the value of the property. Eliminating the third story would lower the value of the property and allow an increase in the height of the first floor, making commercial uses more viable. Hearing no further public comment, Mayor Haakenson closed the public hearing. In response to Mayor Haakenson's invitation for the Council to ask Mr. Gregg further questions, Mr. Snyder noted although Mr. Gregg may have initiated the amendment, he did not have a special property interest in this legislative amendment. Mr. Gregg disagreed and Mr. Snyder explained an applicant only had the right of rebuttal when they had a property interest. He clarified this was not a rezone, contract rezone or spot zone. Council President Plunkett asked whether the code allowed alternative uses on the first floor beyond the 30 foot depth. Mr. Bullock referred to Section 16.50.010 where permitted primary uses for the first floor of the BC zone were identified. He pointed out paragraph 8 indicated multiple dwelling units may not be located on the ground floor of a structure. Edmonds City Council Approved Minutes September 7, 2004 Page 15 Council President Plunkett asked whether the Comprehensive Plan encouraged mixed use downtown. Mr. Bullock answered yes. Council President Plunkett asked whether residential -to -residential offered a better transition than commercial to residential. Mr. Bullock answered generally yes. Council President Plunkett asked whether the Council had expressed concern with a building proposed in the area where the back of a commercial building was adjacent to residential. Mr. Bullock did not recall. Council President Plunkett asked whether staff had heard concerns from the Council or residents about commercial development abutting residential. Mr. Bullock responded that was an ongoing debate for many projects in the BC zone. Councilmember Moore asked staff about their sense of the Planning Board's response to the revised change. Mr. Snyder responded legally a board acted only by vote at their public meeting; even the comments of individual Planning Board Members would not be a sufficient basis for a legislative change. Councilmember Moore commented the staff was in the process of rewriting all its codes and asked whether this was a concept that staff would consider in the rewrite. Mr. Bullock answered yes, explaining staff was in the midst of reviewing and rewriting the Comprehensive Plan, particularly as it applied to the downtown area. He noted once the Comprehensive Plan amendments have been approved, the City's regulations would need to be revised as appropriate to implement the Comprehensive Plan changes. Councilmember Wilson asked whether staff was aware of any other development applications in process for this area. Mr. Bullock answered there were none at this time. Councilmember Wilson referred to the Planning Board minutes, pointing out there was no discussion regarding how the proposed amendment was consistent or inconsistent with the Comprehensive Plan. He noted the discussion appeared to focus on the benefits or detrimental effects of the one particular property. Mr. Bullock indicated there was some discussion in the minutes and there was more discussion of that issue in the report provided to the Planning Board. He noted there were a number of policies in the Comprehensive Plan that addressed separation of commercial and residential uses, protecting the privacy of residential uses, preserving commercial space in the downtown commercial area — all issues that could be debated either in favor of or in opposition to this proposal. He acknowledged there was concern with. the timing of the proposed amendment when amendments to the Comprehensive Plan were under consideration. Councilmember Wilson observed the code currently required a 30 foot depth for commercial on the first floor and a number of activities could occur beyond 30 feet as described in the code including a hotel or motel additional parking, etc. Mr. Bullock agreed. Councilmember Wilson asked where the Planning Board was in their review of the Comprehensive Plan. Mr. Bullock anticipated the Planning Board would be forwarding a recommendation to Council on the Downtown Waterfront Plan by the end of October. Councilmember Dawson asked whether the Planning Board during their review of the Comprehensive Plan was considering a similar proposal, to allow non-commercial space or residential space on the ground floor in certain areas. Mr. Bullock answered yes. Councilmember Dawson asked whether the proposal the Planning Board was considering would completely change the BC or divide the BC zone into different zones. Mr. Bullock answered the Planning Board was considering a number of alternatives including breaking the BC zone into sub zones. He noted the goal was still to have mixed use development in the BC zone — a residential core to support the commercial core — but it may be accomplished in different ways in different areas of the BC zone. He envisioned the southern portion of Edmonds City Council Approved Minutes September 7, 2004 Page 16 the BC zone, where it was somewhat more auto -oriented than the pedestrian oriented 5"' & Main, there could be provisions that allowed residential of the first floor or all residential in some cases. Councilmember Marin asked when the Planning Board could review the revised proposal if the Council remanded it back to the Planning Board. Mr. Bullock acknowledged remanding to the Planning Board was an option; he did not anticipate the Planning Board could consider it until at least their October 13 meeting. Development Services Director Duane Bowman explained the Planning Board's meetings were consumed with the Comprehensive Plan amendments and he was uncertain whether they could consider the matter before year end due to their current workload. Councilmember Marin noted he was persuaded there was value in the proposal due to the importance of commercial space facing the street. He noted a 60 foot depth was preferable to a 30 foot depth and requiring 105 foot depth may be too much. Council President Plunkett observed remanding the matter to the Planning Board would not allow a decision any sooner than their consideration of the issue via the Comprehensive Plan amendment. He asked whether there was any benefit to remanding it to the Planning Board. Mr. Bullock explained the proposal was a code amendment rather than a Comprehensive Plan amendment. The Planning Board was working on Comprehensive Plan amendments which would ultimately lead to code amendments to implement the Comprehensive Plan amendments. Councilmember Orvis asked whether Mr. Gregg was committed to 12 foot ceilings and a 90 foot commercial depth. Mr. Bullock answered he assumed so as that was how their building permits were submitted. Hearing no further questions for staff, Mayor Haakenson remanded the matter to the Council for action. Councilmember Wilson recommended upholding the Planning Board recommendation and denying the proposed code amendment. He pointed out the discussion should not be about Mr. Gregg's project as this was a code amendment. He expressed concern with the lack of discussion regarding how the amendment was consistent with the Comprehensive Plan. Mr. Snyder pointed out the Council was making a legislative decision regarding whether to enact a general code amendment with a recommendation from. the Planning Board. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO DENY THE REQUEST TO AMEND THE CODE. Councilmember Wilson recommended the Council avoid discussion of how the proposed amendment would impact a specific project and recommended it be considered in the context of whether it was consistent with the Comprehensive Plan. In view of the Planning Board's effort to review the entire Downtown Waterfront Plan, he did not support adopting piecemeal code amendments to address a specific instance. He concluded it was inappropriate to amend the code and preferred the Planning Board be allowed to complete the process of amending Comprehensive Plan policies. Councilmember Dawson agreed with Councilmember Wilson's comments, pointing out this proposal should be considered as part of the Planning Board's amendments to the Comprehensive Plan and not in isolation. She concluded if it were considered in isolation and with regard to how it impacted a specific property, it was a spot rezone. She referred to Mr. Gregg's reference to a transition zone, noting if the Council approved the proposed amendment, it would create a new transition zone between the current BC and residential zone. She pointed out there was no justification for limiting the proposed amendment to the particular area of the BC other than it was for one property. She concluded this would be a spot Edmonds City Council Approved Minutes September 7, 2004 Page 17 rezone that would not be upheld in a court challenge. She supported denying the requested amendment and recommended it be considered via the Comprehensive Plan update. She pointed out there was no testimony regarding how the proposed amendment would impact other properties in the area or how it complied with the Comprehensive Plan. Councilmember Marin acknowledged the timing may be bad and preferred to remand the matter to the Planning Board. He also did not want to send a message to the Planning Board that this was not a good idea, therefore, he planned to vote against the motion. Council President Plunkett noted the question for him was whether to amend the code to enhance a buffer between residential and commercial zones throughout that area. He found it complied with the Comprehensive Plan because the Comprehensive Plan supported mixed use. He found the amendment met the spirit of the existing code because the existing code allowed a number of uses beyond the required 30 foot depth. He questioned which was more important, getting in front of the Planning Board review or making a tangible improvement for the residents in downtown. He noted although he adhered to the Planning Board's recommendations as much as possible, he was capable of making a decision without the Planning Board's recommendation and he did not have a legal obligation to wait for the Planning Board's recommendation. Councilmember Moore agreed the timing was not the best but found this to be a very well advised change to the code for these eight properties and possibly more if a change were made to the Comprehensive Plan in the future. She commented it was a good use of buildings to put residences in the back as a buffer to other residences in the zone. She found it complied with the Comprehensive Plan goal of separating zones, protecting privacy and preserving commercial space in downtown. UPON ROLL CALL, MOTION FAILED (2-4) COUNCILMEMBERS WILSON AND DAWSON IN FAVOR AND COUNCIL PRESIDENT PLUNKETT AND COUNCILMEMBERS MARIN, ORVIS AND MOORE OPPOSED. In response to Councilmember Dawson's comment, Mr. Snyder advised this was a change that he could defend if the record was appropriate and the Council's findings were based on the Comprehensive Plan. With regard to Council President Plunkett's comment that the Council did not have a legal obligation to consider the Planning Board's recommendations, Mr. Snyder explained that although the Council could take action that did not follow the Planning Board's recommendation, the Planning Enabling Act and the City's ordinances required the Council to consider the Planning Board's recommendation on text amendments. Councilmember Moore questioned whether the Council had a recommendation from the Planning Board on this version. Mr. Snyder answered the proposal before the Council was the original proposal and there was a recommendation from the Planning Board. The Council could amend the proposal and/or treat the applicant's request as an amendment. He reiterated this was a legislative change with a recommendation from the Planning Board and he recommended the Council address their comments to the Comprehensive Plan basis for the proposed change, how it was consistent with the zoning ordinance, how it affected the public health and welfare and avoid discussions of a single, individual benefit. Mr. Snyder reiterated technically this was not a rezone but a bad record could make it look like a special law or spot rezone. COUNCILMEMBER MOORE MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO APPROVE THE REQUEST AS STATED. Councilmember Wilson spoke against the motion, explaining the Planning Board was undertaking an effort to amend the Comprehensive Plan, the foundation for the City's codes. He referred to comments Edmonds City Council Approved Minutes September 7, 2004 Page 18 that the proposed change would be good for the adjoining residential properties, pointing out that was unknown because there was no information regarding the relationship or benefits/detriments to adjoining properties or consistency with the Comprehensive Plan. He acknowledged the Comprehensive Plan identified mixed use but in the context that residential development occur above the first floor to retain sufficient commercial space in downtown on the first floor. He objected to adopting a code amendment that was out of context with the Comprehensive Plan and preferred the Council wait until a recommendation was provided by the Planning Board regarding whether this was a positive or detrimental move for the future of downtown. He urged the Council to deny the motion and refer it back to the Planning Board for consideration in the context of all Comprehensive Plan amendments. Council President Plunkett commented mixed use complied with the Comprehensive Plan, resident -to - resident development was beneficial to residents, and commercial space abutting residences was not beneficial to residents. He envisioned the Planning Board would reach the same conclusion in the near future. Councilmember Moore commented there was Comprehensive Plan compliance in other areas of the code as well and urged Councilmembers to approve the requested change. UPON ROLL CALL, MOTION CARRIED (4-2) COUNCIL PRESIDENT PLUNKETT AND COUNCILMEMBERS MARIN, ORVIS AND MOORE IN FAVOR, AND COUNCILMEMBERS WILSON AND DAWSON OPPOSED. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER MOORE, TO EXTEND THE MEETING FOR 15 MINUTES. MOTION CARRIED UNANIMOUSLY. 6. AUDIENCE COMMENTS Building Rowena Miller, 8711 182"d Place SW, Edmonds, shared her continuing concern about building heights Heights in in downtown Edmonds, noting building heights had been a recurring problem for three decades. She Downtown referred to studies and reports conducted from the 1970's to the present including the Reed Middleton Edmondplan in 1977, a Downtown Development Assistance Plan Report in the early 1980's, a 2020 committee study in 1989, and the HyattPahna study in the late 1990's. Her research of these studies found all had the same recommendations to retain the intimate scale of downtown Edmonds, protect the view corridors, preserve the small houses while allowing more use for business, ensure architectural compatibility of new buildings with old, avoid speculation rezoning, encourage pedestrian traffic, preserve and increase flower programs and open space, retain requirements for two story or less development with 25 foot heights, protect and preserve the unique image of Edmonds. She referred to the 2020 report that recommended preserving the small town atmosphere which was defined in the report as a quiet, uncongested, unpolluted, livable city. She pointed out these same recommendations have been made during citizen comments to the Council. At last week's Community Outreach Council meeting, almost all residents encouraged the Council to preserve height limits, the quality of life and charm of Edmonds. She noted the Comprehensive Plan required buildings of 25 feet and two stories or less in the BC zone. She noted modification of roof architecture allowed in the late 1990s resulted in large lot line -to -lot line buildings that impacted sunlight and small town atmosphere. Building Ray Martin, 18704 94`n Avenue W, Edmonds, commented residents were being told by proponents of Heights in increased building heights that building heights must be increased due to the trouble the City's economy Downtown was in and recent failures of small businesses. He acknowledged the national average according to the Edmonds g g g Department of Labor was that 80% of new businesses would fail during the first three years. He pointed out Edmonds taxable retail sales increased 3.3% and 1.5% in the first quarter of 2004. He acknowledged during 2002 the City's taxable retail sales were down 1.7%, down 3.7% in 2001 but were up 6.4% in Edmonds City Council Approved Minutes September 7, 2004 Page 19 2000 and up 4.9% in 1999. He concluded Edmonds was doing fairly well, noting in comparing Edmonds with other cities in the state, Edmonds was in the middle or slightly above. He questioned where Councilmembers Moore and Marin were obtaining their information regarding the City's economic crisis. Economy in Natalie Shippen, 1.022 Euclid, Edmonds, recalled a few weeks ago a group of developers presented an Ed o ds economic theory that the City's budget did not have enough to provide desired services because the City's Tax Revenue poor economy did not generate enough tax revenue and the remedy was to increase height limits in the downtown BC zone. She questioned this simplistic theory which she indicated was not factually correct. She read from a May Edmonds Beacon article that indicated Edmonds was making room for itself in the current business economy, taxable retail sales climbed 2% over the past year over the previous year, an increase that matched the figure for all Snohomish County including commercially viable centers such as Lynnwood and Everett. The article reported that the State Department of Revenue stated Edmonds taxable retail sales increased from $465 million in 2002 to $481 million in 2003. By contrast with Edmonds and Snohomish County, Seattle's retail sales dropped 1.2% in the one year period and Bellevue's taxable retail sales improved by 0.3%. She questioned the basis for the building height increase, noting the Edmonds economic sky was not falling and taller buildings were not the answer. Benda Item Roger Hertrich, 1020 Puget Drive, Edmonds, commented the majority of the Council, in an effort to NoAm nd benefit one person, had twisted the rules in the decision they made tonight. He commended ECDC 16.50 Councilmembers Dawson and Wilson for voting against the change. He pointed out the Planning Board was the appropriate body to provide a recommendation. He questioned how the Council could support their motion with the discussion they had. Agenda Item on Wambolt, 530 Dayton Street, Edmonds, commented he had never seen a developer come to the 5 - Council and lose; it seemed like the Council loved developers and no matter what they presented, the Amend Council would approve it regardless of the rationale. He agreed with the arguments posed by ECDC 16.50 Councilmembers Dawson and Wilson which the remainder of the Council disregarded believing it would be a nice building. He noted the residents of the condominiums behind Mr. Gregg's project had not provided comment, envisioning they may prefer to look at the back of a commercial space rather than another residence. Benda Item Bob Gregg, 16500 76th Avenue W, Edmonds, acknowledged he was a developer who has been before 5 — the Planning Board and Council, winning sometimes and losing other times. He commented he was Amend ECDC 16.50 frustrated when a project was denied because the commercial encroached on residential and then received votes against it again when he returned with a plan that rectified that issue. He explained his original plan treated all properties in downtown Edmonds with similar conditions identically; due to the Planning Department's interest in scaling it down, that was what he did. Engineering Duane Bowman commented he rarely reacted to audience comments and in fact in 20 years he had never Division - responded but now felt it was his obligation to respond. In response to the highly inaccurate portrayal of Grants the Engineering Division during audience comments made at the August 24, 2004 Council meeting, he explained the dedicated men and women in the Engineering Division deserved better than what was said that night. He recalled it was inferred by the former Parks and Recreation Director that the Engineering Division was not doing their job and should be writing grants to accomplish needed improvements. He recalled this was followed up by comments by Mr. Hertrich who did not have the facts when he stated Arvilla Ohlde was the star in acquiring grants. Mr. Bowman reported the Engineering Division had acquired approximately $4.875 million in grants or low interest Public Works Trust Fund loans over the last three years, much of it due to the efforts of Traffic Engineer Darrell Smith. He pointed out Mr. Smith wrote the $350,000 grants for the interurban walkway. Edmonds City Council Approved Minutes September 7, 2004 Page 20 Mr. Bowman explained staff was directed to consider all potential revenue sources for the Fund 112 which they did. The Council was provided the information to make a policy decision which they did, and. staff will abide by that decision but the attacks on the Engineering staff were unwarranted. He pointed out the Community Services Department in the past four years has obtained $16,904,000 in grants or appropriations which included a $1.3 million appropriation to acquire the last acquisition for Marina Beach. 7. MAYOR'S COMMENTS Mayor Haakenson provided a reminder that next week's Council Committee Meetings were scheduled at 6:00 p.m. on Monday, September 13 due to the primary election on Tuesday. 8. COUNCIL COMMENTS Councilmember Wilson expressed his thanks to Mr. Bowman for clarifying staff s efforts with regard to acquiring grants. With no further business, the Council meeting was adjourned at 11:05 p.m. GARY SON, MAYOR ' SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes September 7, 2004 Page 21 -� AGENDA EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 51h Avenue North 7:00 - 10:00 p.m. SEPTEMBER 7, 2004 7:00 p.m. - Call to Order Flag Salute 1. Approval of Agenda 2. Consent Agenda Items (A) Roll Call (13) Approval of City Council Meeting Minutes of August 24, 2004. (C) Approval of City Council Meeting Minutes of August 31, 2004. (D) Approval of claim checks #73527 through #73680 for the week of August 23, 2004, in the amount of $541,368.83. Approval of claim checks #73681 through #73828 for the week of August 30, 2004, in the amount of $307,202.05. Approval of payroll direct deposits and checks #39084 through #39208 for the pay period August 16 through August 31, 2004, in the amount of $865,981.29.* *Note: Information regarding claim checks maybe viewed electronically at www.ci.edmondsma.us. (E) Acknowledge receipt of Claim for Damages from Jane Hinrichs (amount undetermined), Linda Ellis ($193.81), and Paul Wasell ($1,725.00). (F) Authorization for the Mayor to sign an Interlocal Agreement between the City of Edmonds and the Olympic View Water and Sewer District relating to a sewer lift station located in the Town of Woodway. (G) Authorization to purchase the Dacanay-Cabrales & Yutuc property for the 220th Street SW improvements. (H) Adoption of Traffic Impact Fee Ordinance. (1) Proposed Resolution initiating vacation of a portion of the unbuilt right-of-way of 174th Street SW, establishing conditions, and setting a hearing date. 3. ( 5 Min.) Proclamation in honor of "Edmonds Fire Department Day," September,18, 2004. 4. (60 Min.) Public hearing regarding motorized scooters in Edmonds and potential Council direction to City Attorney and/or staff. Page 1 of 2 1 CITY COUNCIL MEETING AGENDA September 7, 20014 Page 2 of 2 5. (60 Min.) Public Hearing on the Planning Board's .recommendation to deny a proposed application -to amend a portion of the Edmonds Community Development Code, Chapter 16.50 (BC - Community Business), allowing residential uses on the ground floor in limited situations (Pile No. CDC-2004-37). 6. Audience Comments (3 Minute Limit Per Person)* *Regarding matters not listed as Closed Record Review or as Public Hearings. 7. ( 5 Min.) Mayor's Comments 8. (15 Min.) Council Comments ADJOURN 'arking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771-0241 vith 24 hours advance notice for special accommodations. The Council Agenda as well as a delayed telecast o he meeting appears on cable television Government Access Channel 21.