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11/09/1999 City Councilu I approve laim rrants EDMONDS CITY COUNCIL APPROVED MINUTES NOVEMBER 9, 1999 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Barbara Fahey in the Library Plaza Room, 650 Main Street, followed by the flag salute. ELECTED OFFICIALS PRESENT Barbara Fahey, Mayor Thomas A. Miller, Council President John Nordquist, Councilmember Michael Plunkett, Councilmember Jim White, Councilmember (arrived 7:50 p.m.) Dick Van Hollebeke, Councilmember ELECTED OFFICIALS ABSENT Gary Haakenson, Councilmember Dave Earling, Councilmember STAFF PRESENT Tom Tomberg, Fire Chief Robin Hickok, Police Chief Peggy Hetzler, Administrative Services Director Jeff Wilson, Planning Supervisor James Walker, City Engineer Kate Galloway, Planner Stephen Koho, Wastewater Treatment Plant Mgr Michael Karber, City Attorney Sandy Chase, City Clerk Council President- Miller began the meeting by explaining that although three Councilmembers were absent from the Council at this point in the meeting, the four Councilmembers present represented a quorum. He noted that Councilmember Earling was attending a State Transportation meeting in Yakima as a speaker; Councilmember Haakenson was out of town on a pre - planned vacation; and Councilmember White was at a family function and would be arriving late. 1. - APPROVAL OF AGENDA COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCIL PRESIDENT COUNCILMEMBER MILLER, TO APPROVE THE AGENDA AS SUBMITTED. MOTION CARRIED. ( Councilmember White was not present for the vote.) 2. CONSENT AGENDA ITEMS Councilmember Van Hollebeke pulled Item B from the Consent Agenda. COUNCH.MEMBER VAN HOLLEBEKE MOVED,. SECONDED BY COUNCILMEMBER PLUNKETT, FOR APPROVAL OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED. ( Councilmember White was not present for the vote.) The agenda items approved are as follows: (A) ROLL CALL (C) APPROVAL OF CLAIM WARRANTS #35896 THROUGH #37165 FOR THE WEEK OF NOVEMBER 1, 1999, IN THE AMOUNT OF $135,409.86. APPROVAL OF PAYROLL WARRANTS #26569 THROUGH #26691 FOR THE PERIOD OCTOBER 16 THROUGH OCTOBER 31,1999, IN THE AMOUNT OF $345,636.36. Edmonds City Council Approved Minutes November 9, 1999 Page 1 ]aim for (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM EUGENE (TOM) Damages STARWICH (Amount;to be Determined) Reso #964 (E) RESOLUTION NO. 964 FIXING A TIME AND PLACE FOR HEARINGS ON THE FINAL Set Hearing ASSESSMENT ROLLS FOR LOCAL IMPROVEMENT DISTRICT NOS. 215 AND 216, Date - LIDs DIRECTING THAT NOTICE THEREOF BE GIVEN IN THE MANNER REQUIRED BY 15 & 216 LAW, AND REPEALING RESOLUTION NO. 963 Item B: Approval of City Council Meeting Minutes of November 1. 1999 Councilmember Van Hollebeke explained the November 1 Council meeting included a vote on an increase in the Mayor's salary, Councilmembers' benefits, as well as a provision for the salary review committee to review Council salaries periodically. The vote on this item was three Councilmembers in favor, one abstention, two Councilmembers opposed, and one Councilmember absent. He advised although it was announced and recorded in the minutes that the motion passed, the City Attorney advised the motion failed because the affirmative vote of a majority of the Council (four members) was required. pprove ov. t COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED . BY COUNCILMEMBER Minutes as PLUNKETT, TO APPROVE THE NOVEMBER 1 MINUTES AS CORRECTED. MOTION orrected CARRIED, COUNCIL PRESIDENT MILLER ABSTAINED. (Councilmember White was not present for the vote.) utterfield/ 3. PRESENTATION OF ORAL ARGUMENTS TO DISMISS CLOSED RECORD APPEAL OF Sykes HEARING EXAMINER DECISION TO DENY ADB -99 -33 A ellant: Phil Carter. Re resentin ppeal ( pp p g P -99 -187 Brad Butterfield & Albert Dykes / File No. AP -99 -187. Applicant: Brad Butterfield /File No. ADB- 99 -33. Property Location: 110 Sunset Avenue) City Attorney Michael Karber advised he would answer questions on behalf of staff tonight. He introduced Attorney Larry Hard who was present to advise the Council. Mayor Fahey explained City Attorney Michael Karber would represent the City and staff and therefore cannot provide legal counsel to the City Council. Mayor Fahey further explained this was a quasi - judicial process and was not truly a public hearing because only parties of record could provide argument this evening. She advised the appellant and the City would both have 15 minutes to present their arguments. The appellant speaks first and may retain a portion of their 15 minutes for rebuttal. Attorney Larry Hard described his background. He explained the sole issue before the Council is whether or not the Council will permit the appellant, who had a hearing before the Hearing Examiner, to appeal that decision. If the Council decides to allow it, a separate hearing will be held. He clarified the Council was only to consider whether the appeal filed by the appellant on September 20, 1999, was filed in a timely manner in accordance with the Edmonds City Code. He cautioned the Council is not to deliberate on the merits of the application or the Hearing Examiner's decision, but only decide whether the appeal was timely filed. . Mayor Fahey asked if any Councilmember wished to make a disclosure regarding this item. Councilmember Van Hollebeke said although he has had no discussion with either party, he knows all the parties involved. He said he would be able,. to act in "an impartial and fair manner. There were no other disclosures. Edmonds City Council Approved Minutes November 9, 1999 Page 2 Appellant Phil Carter, Attorney representing Brad Butterfield & Albert Dykes, explained the issue before the Council is whether after a long and arduous hearing before the Hearing Examiner, many discussions with staff, and many months /years of planning, the Council would hear this case on the merits or dismiss on a technicality. He explained the Hearing Examiner's decision was made on August 19. A request for reconsideration was filed by the appellant on September ,2. ECDC 28.100.020, although confusing language, states a motion for reconsideration will be filed within ten working days and that period expired on September 2, 1999. Therefore the motion for reconsideration was timely filed. The Hearing Examiner then has five work days to issue a decision. His decision on the reconsideration motion was rendered on September 8, 1999, the fifth day. He pointed out these timeframes are reasonably short. On September 20, 1999, an appeal to the City Council was filed. Section 20.100.020 of City's code, the language staff recommends the Council adopt to deny Messrs. Dykes and Butterfield their right to have a hearing on the merits of this case, states "if the reconsideration request is.denied, the 10 working day appeal deadline for the Hearing Examiner's decision shall reconvene for the remaining number of days." Mr. Carter said the language regarding appeals found in ECDC 20.105.020, provides that an appeal must be filed within 14 calendar days, with no reference to working days, yet the reconsideration language refers to 10 working days. It also refers to "if the reconsideration is denied." Mr. Carter explained that he requested reconsideration of the Hearing Examiner decision on seven points; the Hearing Examiner changed his position to be consistent with the appellant's position on three of the seven points. The Hearing Examiner's decision was dated September 8 and was not received by either he or his client until September 10. City staff's interpretation of the unique language that if the reconsideration request is denied, between August 19 and September 2, all but one day of the appeal period had been used. Staff's argument is that via the reading of the ordinance, on September 9, the day after the reconsideration decision was made but the day before it was received, the appeal period expired. He pointed out this resulted in expiration of the appeal before the appellants knew the decision. Staff recognized the "absurdity" of the appellant appealing before they knew what they were appealing, recognizing that in order to appeal, the Code requires the specific issues be identified. Staff then stated this was jurisdictional, the appeal was not made by September 9 and therefore the City Council did not have the authority to extend the appeal period beyond that date. In order to. avoid this "absurdity," staff said they could indicate this was non jurisdictional and add three days for mailing. Mr. Carter said the addition of three days is not included in the ordinance. Mr. Carter said staff's arbitrary position was that the deadline for the appeal expired on September 13, 1999. In the Hearing Examiner's decision on the reconsideration mode, he states that the appellants have 10 days to appeal the decisions being appealed. Mr. Carter clarified there is actually 14, calendar days rather than 10 working days. He stressed they appealed in a timely manner, not within 10 working days, but 2 -3 days prior to that. The expiration of the appeal period would then be September 22 and the appeal was filed on September 20. He said their position was the City Council had the right to interpret the City's ordinances. He said the courts abhor harsh results; however, if the City Council states an appeal must be made within 10 days, the courts will give deference to the Council's decision. However, he pointed out all the issues in the Hearing Examiner's reconsideration decision were appealed within 10 days. He recommended the Council consider the original decision but consideration of the reconsideration decision was appropriate and it was filed in a timely manner. He said it "would be arbitrary and capricious and a denial of due process rights to expect an applicant to file an appeal, identify the basis for an appeal and the areas that are in error the day before the final decision is received. He suggested it was unfair to expect an appellant to appeal a decision before it is received. Edmonds City Council Approved Minutes November 9, 1999 Page 3 City Attorney Michael Karber pointed out there is a third party to this appeal, represented by Attorney Jonathan Hatch, who would like an opportunity to address the Council. Mr. Karber offered to allow Mr. Hatch 5 minutes of his 15 minutes to address Council. This was agreeable to the Council. Mr. Karber explained Mr. Hatch was an appellant to the ADB's application review by the Hearing Examiner and is opposed to the project. He said their position would be that the appeal not be allowed. Mr. Karber reiterated the sole issue before the Council is whether the Planning Department acted properly and lawfully in refusing to accept this appeal because it was untimely filed in their estimation. He pointed out the dates are not at issue, this is a legal case regarding the interpretation of the City's ordinances. As Mr. Carter indicated, the issue surrounds ECDC 20.100.020(G) which states, "If the request for reconsideration is denied the 10 working day appeal deadline of the hearing examiner's decision shall recommence for the remaining number of days." He commented a portion of this section was omitted for the packet materials as it was not relevant. As Mr. Carter indicated, staff admits this language is potentially confusing. However, in the Hearing Examiner's decision, (Section 3 on page 5 of the Council packet; page 9 of the Hearing Examiner's decision), the Hearing Examiner explains the appeal process, to each applicant and specifically how the section of the Code operates. Mr. Karber said any ambiguity that may arise, from the language of the ordinance was clarified by the direct notice presented in the Hearing Examiner's decision. Mr. Karber explained that as stated in the rebuttal brief submitted to the Council, on reconsideration the Hearing Examiner made a few, very minor changes to his decision. The Hearing Examiner specifically said these were clerical and clarifying changes to his original decision and denied the reconsideration, making no amendment to the substance of the original decision. Mr. Karber pointed out the untimely appeal received by staff on September 20, 1999, is dated August 12 (page 8 of the Council packet). He observed apparently they intended to appeal within the appropriate appeal timeline but "somebody made a mistake.and did not file the appeal in a timely manner" and now are arguing that the City's ordinances should be interpreted in a manner contrary to the way it is written and contrary to the manner in which they were specifically advised by the Hearing Examiner decision regarding how the appeal process works. Mr. Karber responded to Mr. Carter's allegation that staff may have caused some delay, that the Hearing Examiner took more time than is permitted for the issuance of the original decision. He said that makes no difference, there is no prejudice, because it does not affect the appeal period. He clarified the appeal period runs from the date the Hearing Examiner decision is issued; anything that happens before that time cannot prejudice-the rights of the applicant. He referred to page 54 of the Council packet, a memo to the Council that includes a quote from a similar case in Pierce County. In Graham Thrift Group v. Pierce County, Graham Thrift Group filed their appeal timely but they failed to include the appeal fee. The ordinance stated the appeal fee and the appeal must be filed on a certain date. Graham Thrift Group argued they substantially complied with the requirements. The court ruled that time limits for administrative appeals are jurisdictional in nature, they cannot be substantially complied with, either they are complied with or not. In arriving at the decision, the court made the statement, "a legislative body may determine that the interest in finality justifies applying a mandatory time limit for filing an appeal and paying a filing fee. This is particularly true in the context of land use decisions, where time is usually of the essence for the parties involved." Mr. Karber said staff's position is that because the appeal was not timely filed, Council never attains jurisdiction over the appeal; the Council's jurisdiction is dependent on the ordinance which states an appeal must be filed no later than 14 days from the date of the Hearing Examiner's decision or 10 Edmonds City Council Approved Minutes November 9, 1999 Page 4 working days which are the same in this case. Mr. Karber pointed out Mr. Carter was not arguing that they filed the appeal timely, instead, he is pointing out they asked for a reconsideration on the very last day of the reconsideration period to file their reconsideration motion. If the reconsideration motion had been filed sooner, when the decision was issued, there would have been adequate time to file the appeal. In fact, the way staff interprets this, because the reconsideration appeal was filed on the last day of the reconsideration period, they still had the day upon which they received the reconsideration decision to file their appeal to the initial decision. Although Mr. Carter might argue how could an appeal to the initial decision be filed on the same day the decision is received, Mr. Karber pointed out filing an appeal in the City is not difficult and requires name, case number, basic facts of the appeal, a signature, and payment of the appeal fee. Mr. Karber stated the date on the appeal letter, August 12, indicates that was their plan after 'the reconsideration decision was received but a mistake was made and the appeal was not filed until later. He pointed out there were strikeouts on the appeal letter, apparently trying to set up the argument that Mr. Carter is making that they were appealing the reconsideration decision which is the decision of the Hearing Examiner but this is not legally correct. If an appeal was filed on the reconsideration decision, the appeal was only to any substantive changes that the Hearing Examiner made as part of his reconsideration decision. In this instance, the Examiner made no substantive changes; he made only minor and technical clarifications and clerical corrections to his original decision but did not modify the substance of this decision. Mr. Karber agreed an appeal could be granted on the clerical amendments and clarifications because they represented minor changes the examiner made but did not represent a substantive amendment of the Hearing Examiner's original decision. Mr. Karber summarized the appellant was provided a decision that specifically informed how the appeal process worked and specifically advised how staff interpreted the reconsideration ordinance with the appeal ordinance in terms of totals. The decision even provides an example on the page advising them of their appeal rights. He stressed the appellants had fair and adequate notice but waited until the last day to file their .reconsideration motion which meant once the decision on the reconsideration was issued, they had the remainder of that day to file their appeal. This was not done. By failing to-do so, they deprived the Council of any jurisdiction it may have had. Jonathan Hatch, Attorney, 152 3r° Avenue S, Ste. 101, Edmonds, representing several parries of record, all of whom appeared at the original hearing before the Hearing Examiner, voiced his concern regarding the issue before the Council to waive the appeal period that is specifically set out in the City's ordinances. As Mayor Fahey correctly stated, tonight the Council is acting in a quasi-judicial capacity; therefore, political considerations, personal opinions, etc. must be set aside. The issue before th e Council is simple, whether or not the appellant timely filed their appeal. As Mr. Karber indicated there are no factual disputes regarding the dates or the relevant times, all parties agree on those. The only question is what do they mean. He said Planning staff has stated the appeal was untimely, Mr. Karber's lengthy and well- researched memo reaches the same conclusion. Mr. Hatch agreed with staff and Mr. Karber's decisions. Mr. Hatch said the timeliness of an appeal is a jurisdictional question and is not an insignificant issue. If the appeal is not filed on time, the Council as the appellant body, has no jurisdiction to hear the matter. The Council cannot grant to itself jurisdiction it does not have. The issue tonight is not whether the result seems fair, not whether there is a clear mandate that suggested the parties would be better served if the appeal period was ignored and the appeal heard, as these are not legally viable options. He recalled Mr. Carter described this problem as a "technicality" and pointed out all rules are technical in nature but Edmonds City Council Approved Minutes November 9, 1999 Page 5 rules are established for a reason. In this instance, it is important when considering this issue to keep in mind the ongoing integrity of the system. To take the unprecedented and legally questionable position of waiving the deadlines would, in his opinion, invite other parties in the future who may file untimely appeals to seek redress in the court system if they are not given the same consideration on the grounds that it was done in the Butterfield case. He said this was a very significant and potential problem, if the Council took the position of hearing an appeal where the rules clearly dictate it is not allowed. Mr. Hatch took exception with one of the dates in Mr. Karber's memo that states the appeal was filed on the 13 'h calendar day and the 9`h working day after the Hearing Examiner's decision. In fact, it was the 14' calendar day and the 10' working day. He said this was important because the Hearing Examiner's decision, as pointed out by Mr. Karber on page S of the Council packet, has a very carefully worded and succinct summary of the procedure for having appeals of his decision heard. Mr. Hatch said he reviewed this information carefully and concluded the information indicates there are two independent processes, a party has an appeal period of 14 calendar days to file their appeal with the City. If they want to, and it is not mandated, they can file a request for reconsideration as a preamble to filing that appeal. But the information clearly states they have 10 working days in which to do that. He said the reason the term working days is used is because in the context of the Hearing Examiner, that phrase is used throughout. The practical affect is that any reasonable person reading this information would know the 10 -day working period and the 14 -day calendar period are identical. Therefore, if a party wished to file a reconsideration request, it should be done quickly after the decision is received, to allow time to file an appeal if the result on the reconsideration was not satisfactory. That was not done in this instance and they must suffer the consequences of their own actions. He said the City's rules are clear and staff's interpretation is correct. He said finality is appropriate on this matter, both for his clients and the citizenry. He recommended the Council deny the appeal. Mr. Carter observed Mr. Karber began his comments by stating staff denied their appeal but staff does not have the right to deny their appeal. They appealed to the City Council and it is up to the City Council to make the determination whether to deny the appeal for the technical reasons indicated. He reiterated there is no question when the Hearing Examiner made his original decision on August 19, it included language indicating if a motion for reconsideration is made, once the decision is made and there is no change in the issues in the reconsideration, the periods run concurrently. However, he objected to Mr. Karber's assessment of the Hearing Examiner's decision on reconsideration. Mr. Carter said the issues were all architectural, one of them regarding a glass block on the south side of the building. In the Hearing Examiner's first ruling, he ruled that the glass block would not be permitted because it did not meet building code. This was raised in the appeal and the Hearing Examiner changed his decision. There were two other areas where the Hearing Examiner made changes he considered clerical but which Mr. Carter felt were significant. Mr. Carter said the Hearing Examiner indicated in the reconsideration decision that the appellant had 10 working days to appeal. Mr. Carter said his interpretation was that the Hearing Examiner felt enough changes had been made that there were 10 working days to appeal the decision. In response to Mr. Karber's observation that they intended to appeal on August 12 due to the date on the letter of appeal, Mr. Carter pointed out the date on the appeal was actually September 17 and he had been out of town on August 12. He observed Mr. Karber indicated the only appeal would be the changes the Hearing Examiner made. He said that was the opposite of what would be appealed; the areas the Hearing Examiner changed recognizing an error was made would be the areas that would not be appealed. He quoted from the Graham Thrift Group case, "we recognize the modern preference of the courts to interpret their procedural rules to allow credible appeals to be addressed on the merits absent serious prejudice to other parties." Mr. Carter pointed out that in the Graham case there was no record of an Edmonds City Council Approved Minutes November 9, 1999 Page 6 appeal filed by the appellant. The court stated that courts do allow appeals where there is prejudice to go forward but the court cannot superimpose its judgment over the municipality's. Mr. Carter stressed the Council had the right to interpret how it believed appeals should be handled. Mr. Carter summarized they believed they acted diligently throughout this process and did everything possible to comply in time. They were provided a reconsideration decision that indicated they had 10 days to appeal and an appeal was filed ahead of time. They could not have filed an appeal sooner because they did not know the decision. Mr. Carter asked the Council recognize that they were told by the Hearing Examiner in writing that they had 10 days from his reconsideration to appeal that part of the decision which they did in a timely manner. He requested the Council given them the benefit of arguing this case at a closed record appeal on its merits. Councilmember Plunkett noted that the Hearing Examiner's reconsideration was issued on September 8 .and apparently there was a question on what were minor amendments as suggested by Mr. Karber, or significant changes that Mr. Carter suggests. Councilmember Plunkett asked if the time frame would change if the Hearing Examiner had made substantial changes. Mr. Hard answered if the Hearing Examiner granted the request for reconsideration and indicated his findings, this would represent a change in his decision. In this instance, he denied the request for reconsideration. Councilmember Plunkett observed the Hearing Examiner made reference to some points and therefore had not reached a final conclusion. Mr. Hard said he could not respond to that issue because the information in the record was only the last pages of the Hearing Examiner's original decision and this request and he had no other knowledge of the Hearing Examiner decision. He suggested Councilmember Plunkett direct his question to Mr. Carter and Mr. Karber. Councilmember Plunkett observed Mr. Carter would respond there were significant changes and Mr. Karber would indicate they were minor and insignificant. Mr. Hard said the Council is restricted to the record before it and the record does not contain the substance of the Hearing Examiner's decision. Council President Miller asked who had the burden of proof. Mr. Hard answered normally the burden lies with the appellant. Council President Miller asked if the standard being used was a preponderance. Mr. Hard answered yes, the standard in a civil matter, versus a criminal matter, was that the burden of preponderance of evidence has been met if it is more likely true than not. COUNCIL PRESIDENT MILLER MOVED, SECONDED BY COUNCILMEMBER VAN. HOLLEBEKE, TO EXTEND THE DISCUSSION OF THIS MATTER FOR 15 MINUTES. MOTION CARRIED. (Councilmember White was not present for the vote.) Councilmember Van Hollebeke asked Mr. Karber to respond to Councilmember Plunkett's question regarding whether substantial changes were made in the Hearing Examiner's ruling and whether that would alter the time frame allowed in the event of this appeal. Mr. Karber referred to a copy of the Hearing Examiner's reconsideration decision, indicating it should have been included in the Council packet. He said the information provided to the Council is an argument packet, not the record. The record is what was decided by the Hearing Examiner and all the exhibits he considered. He suggested the Hearing Examiner's reconsideration decision be included as part of the record. Mr. Carter stated he assumed when this matter was considered by the City Council that the entire record, the Hearing Examiner's records and all the exhibits, would be part of the Council's records. He agreed with Mr. Karber's suggestion to have the Hearing Examiner's reconsideration decision included in the record. Mr. Carter suggested the package presented to the Council was crafted to support the City's position. Edmonds City Council Approved Minutes November 9, 1999 Page 7 Mayor Fahey requested clarification whether the Hearing Examiner's decision to deny the reconsideration was being appealed or whether the Hearing Examiner's original decision was being appealed. Mr. Carter answered both, referring to page 9 & 10 of the Council packet which references the Hearing Examiner's decision dated August 19, 1999, as well as the Hearing Examiner's Findings of Fact .and Conclusions in response to the applicant's request for reconsideration and specific items appealed in each. COUNCILMEM13ER VAN HOLLEBEKE MOVED, SECONDED BY COUNCIL PRESIDENT MILLER, TO INCLUDE THE HEARING EXAMINER RECONSIDERATION DECISION DATED SEPTEMBER 8 AS PART OF THE RECORD. MOTION CARRIED. (Councilmember White did not participate in the vote.) Mr. Karber read the final conclusion point in the Hearing Examiner's conclusion in the reconsideration decision, "after reviewing both the request for reconsideration and the examiner's decision dated August 19, 1999, the examiner concurs that minor typographical errors did exist and those have been acknowledged. However, the examiner has found no compelling argument to change the decision. The project will still need to be substantially redesigned to provide access to parking from the alley rather than from Sunset Avenue as has been proposed." The final paragraph of the decision states, "based upon the foregoing, the decision of the Hearing Examiner report remains unchanged. The request for approval of the proposed architectural design is denied." Mr. Karber said, contrary to what Mr. Carter argued, as a matter of law there is no appeal of a reconsideration decision. The manner in which the City's ordinance is drafted tolls the time period for appeal of the initial decision while the Hearing Examiner is making his decision on the reconsideration. If the Hearing Examiner concurs with the reconsideration motion, in this case Mr. Carter would not have wanted to appeal. He stressed the key issue is the denial of a reconsideration decision cannot be appealed. Regarding the Hearing Examiner's statement that he could appeal, there is a standard page the Hearing Examiner includes at the end of all decisions that lists the appeal process. Staff would find that the denial of a reconsideration motion, as a matter of law, cannot be further appealed and any process for the appeal of the initial decision is the process that must be followed. Although he agreed it is a bit confusing when read as an ordinance, the language in the Hearing Examiner decision gives a hypothetical example outlining the process. Councilmember Van Hollebeke asked whether a circumstance such as the filing being done on the apparent last day of the appeal period had occurred in the past. Planner Kate Galloway answered yes, and that is the reason the City Attorney recommended three additional days for mailing be allowed as was done in this instance. She said five additional days were actually given because the appeal period would have ended on a weekend so an additional two days were given to allow the period to end on Monday. Councilmember Van Hollebeke asked if notification of the decision was always done via US Mail or if fax, email, or other method that might allow the materials to be delivered more quickly was ever utilized. Ms. Galloway answered decisions made by the Hearing Examiner are mailed directly from his office. Councilmember Van Hollebeke asked if this was done by regular mail. Ms. Galloway answered it was always done by regular mail. Council President Miller referred to page 15 of the Council packet (a letter written by Mr. Fitzgerald on behalf of the appellant), quoting from the second paragraph of the letter, `from my review of the file, I have been unable to locate anything from the City stating that the deadline to file the appeal was September 13, 1999. It would have been a simple thing to do. For example, the transmittal letter could state that the deadline has been extended to that date. I have found nothing to that effect. Instead, the only reference is in the Hearing Examiner's decision on the request for reconsideration itself. It is captioned `RECONSIDERATION DECISION." It is dated, as aforesaid, September 8, 1999. The section under "Appeals "following the Hearing Examiner's signature states that the appeal must be filed Edmonds City Council Approved Minutes November 9, 1999 Page 8 1 with the Community Development Director within ten (10) working days after the date of the decision being appealed. Obviously more than 10 days have passed since the original decision, so the only reasonable construction of this language is that the 10 working days relates to the decision of the Hearing Examiner on the request for reconsideration. In short, 10 days from the September 8 is, arguably, a reasonable amount of time for requiring filing of an. appeal. One working day is not. The letter, as applied in this situation, is ambiguous and results in a denial of the due process rights of the appellant." Council President Miller observed Mr. Karber referred to the ordinance, ECDC 20.100.020, and said it is confusing and ambiguous. Council President Miller referred to the Hearing Examiner's letter of August 19 where he clarifies the ECDC and provides some examples and asked whether the Hearing Examiner's examples clarified how the appeal process should occur. Mr. Karber answered yes, explaining in the initial decision the appellant receives, the appellant is advised they have 10 working days to file an appeal to the original decision (Section 2). Section 1 states additionally the appellant may file a request for reconsideration by the Hearing Examiner. Mr. Karber said the language may not be ambiguous but he agreed it is somewhat confusing. He pointed out the Hearing Examiner explains the adjusted appeal date in Section 3. Therefore, if the motion for reconsideration is made on the third day following issuance of the initial decision, the appellant would have 7 days from the date of receipt of the reconsideration decision in which to file the appeal to the initial decision. Mr. Karber stated the reason staff has been advised to allow the three day period, since these decisions, both the initial decision and the reconsideration decision are mailed by the Hearing Examiner to the parties of record, is because it is not fair to subtract the mailing time from the appeal period as this would result in violation of due process. The reason a 3 -day period is used is because under the court rules, a document that is certified as deposited into the US Mail on a particular day is deemed to be received by the recipient on the third day following mailing. Councilmember Plunkett asked Mr. Carter to respond to Mr. Karber's comments regarding minor typographical errors. Mr. Carter said he identified various issues for the. Hearing Examiner, one was the glass block. They felt this was very significant because the City's code requires modulations and unique designs and the ADB and Hearing Examiner can deny a project if it does not "meet those criteria. Without using the glass block, the project would not be able to meet the test of having an interesting wall and therefore represented a very significant issue to them. The next issue he raised to the Hearing Examiner was what he assumed' to be a typographical error because of the way the Hearing Examiner wrote the decision. This was with regard to whether or not access to a parking garage that is part of a mixed use facility can access from the main street and go through the part of the building that would otherwise be designated for commercial. Mr. Carter said he assumed it was stated incorrectly and the Hearing Examiner agreed he had stated it incorrectly. Mr. Carter said there was another, less significant point he raised with the Hearing Examiner. He stressed anything that could result in denial of a permit was significant. Mr. Carter explained access to this parking structure behind the commercial space was permitted by the City Engineering Division in writing and the applicant proceeded through the process on the assumption that he had addressed that issue. However, the tape of the hearing before the Hearing Examiner malfunctioned. Mayor Fahey. asked if this was germane to the issue before the Council or was more appropriately addressed in an appeal, if one occurred. Mr. Hard answered it may be. Mr. Hard clarified the issue before the Council is the simple, technical question. of whether or not the appeal was timely filed, not whether the building should be granted a permit, etc. Councilmember Plunkett asked Mr. Carter if it was his contention that a final decision had not been made because there were significant issues. Mr. Carter answered until the Hearing Examiner has an Edmonds City Council Approved Minutes November 9, 1999 Page 9 opportunity to consider his argument, the City's arguments, and Mr. Hatch's arguments on the request for reconsideration, the final decision is unknown. Councilmember Plunkett observed Mr.- Hatch indicated the issue was how the ordinance was interpreted. Mr. Hatch agreed the issue was whether the appeal was timely filed; in order to make that decision, a variety of things may need to be considered. Councilmember Plunkett recalled Mr. Hatch indicated how the ordinance was interpreted would determine the Council's decision. Council President Miller said the appellant made a compelling case that a reasonable person could interpret the Hearing Examiner's letter such that because the use of the language regarding filing an appeal within 10 working days after the date of the decision that could mean September 20. He said Mr. Karber has acknowledged the language in the City's code is confusing. Based on that information, he felt denying the appeal would in fact deny the appellant their due process rights. Councilmember Plunkett said the fact the Hearing Examiner felt the need to provide examples to demonstrate and overcome confusion regarding the appeal period and that staff added days to overcome apparent confusion indicated there was confusion in the ordinances. He questioned whether the Council should adhere to a strict interpretation of procedural due process even when that due process may in fact be flawed by confusion. He suggested the Council would better serve the community by adhering to the principles of substantive due process. Substantive due process makes right what otherwise could not be done by a strict interpretation of procedural due process. He said a strict interpretation of procedural due process would destroy the substantive rights of the applicant, and he would uphold the applicant's request. ' Councilmember Van - Hollebeke concurred with Councilmember Plunkett and Council President Miller that the City's regulations were sufficiently confusing that a reasonable person would say we just received this ruling and have a 10 day window in which to respond. Councilmember Nordquist observed the ECDC has been in place for a while and there are many people in the community who have lived by the existing rule. He preferred staff had brought this to Council's attention in the past. Councilmember Nordquist questioned whether the City's rules should now be changed to revise this schedule in response to tonight's decision. Council President Miller suggested staff review the Code along with the City Attorney to determine if a date specific should be included on the Hearing Examiner letter rather than refer to the Code which has two interpretations, 10 working days and 14 calendar days. He said if the 14 calendar days was applied in this instance, the applicant would have been within the time frame based on their argument. He observed there was some reasonableness to their argument. _ COUNCIL PRESIDENT MILLER MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO FIND THAT THE APPEAL WAS TIMELY FILED. MOTION CARRIED, COUNCILMEMBERS MILLER, PLUNKETT, AND VAN HOLLEBEKE IN FAVOR, COUNCILMEMBER NORDQUIST OPPOSED. ( Councilmember White did not participate in the vote.) Reconsider,- 4. RECONSIDERATION OF THE COUNCIL'S DECISION TO DENY AN APPEAL OF THE appeal of by HEARING EXAMINER'S DECISION TO APPROVE A ONDITIONAL USE PERMIT TO Anne Waite ALLOW A DETACHED ACCESSORY DWELLING UNIT WITHIN A SINGLE - FAMILY P -99 -169 RESIDENTIAL (RS -8) ZONE (Property Location: 23303 100th Avenue W I Appellant: Anne Waite — File No. AP -99 -1691 Applicants: Lambrecht/Moerk — File No CU -99 -91 Edmonds City Council Approved Minutes November 9, 1999 Page 10 City Attorney Michael Karber referred to a memo provided to the Council, which addresses the point the appellant suggested that parts of the record may be missing that support their case. Mr. Karber said the memo clarifies when new /additional evidence may be considered. When the record is created before the Hearing Examiner, any party can submit any relevant evidence into the record, staff, the appellant, or citizens, and the Hearing Examiner may require additional evidence be provided if he feels the record is not complete. It is not staff's. responsibility to include items in the record that support the argument/position of a particular party, only to ensure there is sufficient evidence to, allow the Hearing Examiner to make a rational decision. At some point, the Hearing Examiner closes the record and indicates he will make his decision based on that information. The memo advises the Council they are bound to that same record. If the Hearing Examiner did not have the benefit of information, the Council is not allowed to have the benefit in reviewing the Hearing Examiner's decision. There is a small exception for newly discovered evidence and the standards for that are identified in the memo. Mr. Karber explained if a party could show that it was not reasonably feasible for them to know of the evidence with the exercise of due diligence at the time the record was open, Council may allow that additional evidence. However, the party submitting that evidence has a high burden to show they used due diligence but could not be reasonably expected to have located that evidence. Mayor Fahey advised this was a hearing for reconsideration of the Council's decision. The only people that may speak are those with standing in the matter. She advised staff would provide a brief presentation to outline the issue and the appellant, Anne Waite, would be given an opportunity to speak to this issue for 10 minutes and would be allowed to retain a portion of that time for rebuttal. The applicant would also have 10 minutes to make a presentation. Mayor Fahey asked if any Councilmember wished to make disclosure. Councilmember Van Hollebeke advised he knows may of the parties involved in this issue. The only conversation he had regarding this matter was with Mr. Beresford who is representing Anne Waite, and it was only an inquiry regarding the process if he wished to pursue an appeal. Councilmember Van Hollebeke indicated he directed him to the appropriate parties on City staff. Mayor Fahey asked if there were any challenges to Councilmember Van Hollebeke's participation or that of any other Councilmember. There were no challenges. Mayor Fahey stated for the record that Councilmember Nordquist left the meeting at 8:30 p.m. and. Councilmember White joined the Council at 7:50 p.m. Planner Kate Galloway explained the original application was for a detached accessory apartment that is part of a total building that includes a hobby shop, a garage, and the apartment. The process began in Snohomish County and the property was annexed into the City during the process. Snohomish County recommended approval, the decision was appealed to Snohomish County's Hearing Examiner who ruled Snohomish County did not have jurisdiction, and the matter was returned to the City. The City's legal counsel concluded the application should be accepted as if transferred on January 1, 1998, and the application processed accordingly. Staff reviewed the application in compliance with the Snohomish County Code and found it to. be consistent. Staff recommended to the Hearing Examiner that the application be approved. The Hearing Examiner concurred with staff's recommendation, approving the Conditional Use Permit (CUP) on July 29, 1999 (page 94 -106 of the Council packet). The appellant made a request for reconsideration on August 5; the Hearing Examiner stated no new substantial evidence had been provided in her request for reconsideration and upheld his original decision. An appeal was filed on August 20 and heard by the Council on September 21, 1999. The Council denied the appeal, upholding the Hearing Examiner's decision. At the October 5 meeting when the Council was Edmonds City Council Approved Minutes November 9, 1999 Page 11 presented the Findings, the appellant submitted a motion for reconsideration. The Council accepted the motion for reconsideration on October 19 and scheduled reconsideration for tonight. Ms. Galloway explained the request for reconsideration was based on three points, 1) Ms. Waite was not given adequate notification that she could speak at the appeal hearing, 2) the City erred in applying the Snohomish County Code in recommending approval of the application, and 3) limited information was provided by the City regarding Snohomish County's application. Regarding the appellant's indication that she was not prepared, Ms. Galloway directed the Council's attention to page 140 of the Council packet, the minutes of the September 21, 1999 meeting, which indicate that although Ms. Waite stated she was unaware she would be able to speak, she had a display prepared for the Council's review. Regarding Ms. Waite's second point, that the City erred in applying the County Code, staff directed attention to page 98, the Hearing Examiner's discussion regarding how this application was vested under the County Code and was applied appropriately. Regarding Ms. Waite's third point regarding limited information, she directed attention to the information provided by the City Attorney that indicates it is the appellant's responsibility to provide information. Staff provided the information they felt was appropriate to this case, specifically the County Code and the information provided when the County returned the application to the City. Appellant Richard Beresford, representing Anne Waite, requested five minutes of his time be reserved for rebuttal. Mr. Beresford referred to the memo regarding submission of additional evidence, pointing out they have not requested additional evidence to be admitted and questioned why the appellant was not provided the memorandum in advance of the hearing so that a response could be prepared. He said the memorandum has a very important point on the last page which states, "if both staff and examiner fail to include adequate evidence and information in the record to support the decision, then the Council has the authority to review the decision and determine that the decision is not supported by substantial evidence." Mr. Beresford said that sentence applies to this instance, the Examiner did not include adequate evidence to support his decision and for that reason he requested the Council determine that the decision was not supported by substantial evidence. Mr. Beresford referred to the footprint of the entire project, pointing out the building is approximately 135% the size of the house to which it is to be attached. He challenged the Council to recall when they have allowed such an extraordinary building to be built in a residential area. He acknowledged the County Code was being applied under the Vested Rights Doctrine, but County Code Section 18.90.018 (page 38 of the Council packet) states in part, "and does not substantially alter the single family character, harmony and appearance of the structure or its conformity with the character of the neighborhood." Mr. Beresford stressed this sentence is the essence of this appeal; this particular building does not fit within that criteria. Although staff and Council has suggested this matter be determined based upon the Vested Rights Doctrine, he reserved the right if this matter proceeded further to argue that point to the contrary. He said the point the Hearing Examiner failed to consider was in Section 18.14.030 of the Snohomish County Code, regarding unlisted uses, which states, "if a proposed use is not specifically mentioned in the use matrix, the planning director shall determine whether it closely fits another listed use. Any use which is determined not to fit anywhere else shall not be permitted." In this instance, as is pointed out in the letter he submitted, the Hearing Examiner should have made an interim determination whether the hobby shop, not the apartment, fit within that matrix. There is no evidence in the record of such a determination having been made. Based upon that determination, the Council was asked to ignore the hobby shop and garage and only consider the apartment. He said this was erroneous and was the basis for their appeal. Regarding how this Edmonds City Council Approved Minutes November 9, 1999 Page 12 application should be treated now, they feel the application should be interpreted as seeking approval of the entire project; therefore, the City must first determine whether all the uses are allowable under the code and whether the entire structure including those uses complies with the code. Based on this, he recommended the Council remand the matter to staff to determine whether the apartment should be approved with appropriate plans for just the apartment and require a separate permit application to be submitted in conformance with the Edmonds code for the remaining portions, the hobby shop and garage. Applicant MILisse Moerk, 23303 1001' Avenue West, Edmonds, explained more than two years ago, she and her husband decided to build a shop, garage, and detached accessory apartment on the unused portion of their '/s acre lot. The shop would allow her husband to pursue his woodworking hobby and the garage would be used for storage and to house vehicles. The apartment could be used for any one of several different uses, including housing one of .three 20- something children who might need temporary housing in the future, to house any one of three aging parents who might at some point not be able to live unassisted, to house a care -giver they may need when they are older, as a guest house for friends or relatives, to give low cost housing to any one of many single friends, provide added income to defray costs of the new mortgage, and allow them to live in the apartment while renovating the kitchen in the main residence. With this plan in mind, an architect was hired, a survey ordered, and discussions held with the Snohomish County Planning Department. They were told as long as they remained within County guidelines, building a home hobby shop and garage was allowed. These structures required standard building permits but no special permit. A detached accessory apartment is also allowed under County Code, however, a separate special use permit would be required. This meant that all neighbors within 500 feet would be notified of the proposed structure and if asked, the County would be required to provide information concerning the project. If a neighbor objected to the apartment, they could mount an appeal. Understanding this process, plans were drawn up for what they considered to be a visually attractive structure that included all three uses.- The structure was designed to meet all codes and regulations of Snohomish County and the appropriate fees were paid for application of all necessary permits, including those for all three uses. Due to an initial misunderstanding by a planner that is documented in the December 8, 1997 letter, certain changes were requested. A subsequent meeting between them, their architect, and the Planner Supervisor cleared up the misunderstanding and minor changes were mandated before the County would grant the permit. These changes involved the addition of a firewall between the garage and the shop. The record documents these changes. In May 1998, they were granted permission to build the structure if none of their neighbors mounted an appeal to the permit for the detached accessory apartment. During the seven months between application for the permit and the final approval, annexation of their property from Snohomish County to the City of Edmonds took place. She stated the only part of the proposed structure that could be part of an appeal was the detached accessory apartment, not the shop or garage as the latter two uses were acceptable to the County and City and do not require a special permit. Ms..Moerk pointed out in both the City and County, structures can cover up to but not more than 35% of the lot. Their lot size is slightly less than '%2 acre, approximately 20,000 square feet. Adding the footprint of the main house (1,556 square feet) to the footprint of the proposed structure (1,952 square feet) totals 3,508 square feet for both structures. The percentage of lot coverage is less than 17 %, well within established guidelines. Regarding the 35 %, the footprint of the new proposed structure is only 25% larger than the footprint of their existing house. It is 35% larger using the total square footage of the new structure but the footprint is only 25% larger. In addition, the new structure exceeds the minimum 5 -foot Edmonds City Council Approved Minutes November 9, 1999 Page 13 setback by a wide margin, the setbacks will be 14 feet on the north, 15 feet on the east, 56 feet on the west and a 51 -foot separation from the main structure. The height of the new structure is approximately 19.32 feet, well below the 25 -foot maximum allowable. Ms. Moerk pointed out the Snohomish County Planning Department gave them a green light for this project, the City of Edmonds Planning Department gave them a green light, and the Hearing Examiner for the City of Edmonds denied the appeal on two separate occasions (two green lights). Prior to the reconsideration, the City Council unanimously denied the appeal, another green light. She stressed the appeal has been denied every time. She concluded the appellant was using the system and its processes to control and delay the legal use of property she does not own. Ms. Moerk pointed out much care has been taken to preserve the appellant's rights but questioned the preservation of their rights since it has been more than two years since the original permit was filed. She contended that to allow this matter to proceed further was a serious violation of their rights as citizens to due process. Steve Waite, architect for the applicant, explained on September 21, City Attorney Scott Snyder quoted from the Snohomish County Code, "when separated by dividing walls without opening, each portion of the building so separated shall. be deemed a separate building." Mr. Waite pointed out this quote was from the Snohomish County Code which the Council is charged with interpreting. He pointed out the project represented two separate structures. The apartment is within' the guidelines of the Snohomish County Code. In addition, there is a statement in the code that the size requirements exclude garages and porches. Therefore, that portion of the building is clearly within the guidelines. He pointed out the hobby shop is a separate structure; and the fact that it shares a common wall with the other structure is irrelevant. Mr. Beresford said the appellant would not have a problem if three separate applications had been submitted for three separate, non - contiguous buildings. However, this is one large building. That point and a response to the architect's argument was addressed in Ms. Waite's previous objections that were filed with the Hearing Examiner, which stated they anticipated that the applicant would urge that the home hobby shop square footage be excluded from consideration of evaluating the accessory apartment application on the grounds that the home hobby shop constituted a separate building, i.e. firewall between the two. This argument overlooks that no where is a home hobby shop identified as a permitted use under the use matrix of the Snohomish County Code. By arguing that the home hobby shop is a separate building for purposes of Snohomish County Code, then the applicants are required to establish a permitted use for that building under Snohomish County Code. Mr. Beresford recalled when the reconsideration motion was filed, the Council was instructed to consider this issue as an application for an apartment only and to ignore the portion of the application that referred to a home hobby shop or a garage. He said this was erroneous because the Hearing Examiner, on page 101 of the Council packet, addressed this point but evaded it because the evidence was not present. Mr. Beresford read from the Hearing Examiner's decision "Fact: The term hobby shop is not listed as a permitted use in the use matrix of the County Code. A challenge has been made that no determination was made by the County Planning Director to permit the hobby shop. The hobby shop was discussed in the County's staff's approval of the application and in the City Staff's Advisory Report." He pointed out this acknowledged that such a determination must be made whether the home hobby shop was allowable under the code. Mr. Beresford read from the Hearing Examiner conclusion, "the fact that the City . Planning Director recommended approval of the application (which included the hobby room) and the fact that, based on the entire record, the Hearing Examiner has decided to approve the application, it is believed that the requirements of the Snohomish County Code have been satisfied." Mr. Beresford Edmonds City Council Approved Minutes November 9, 1999 Page 14 clarified this indicted the Hearing Examiner presumed they did what they were supposed to do, however, there was no evidence in the record of that preliminary decision having ever been made. He said if the Council found there was no evidence to support the Hearing Examiner's decision, the Council had the right to disapprove the application. Mayor Fahey remanded the matter to Council for consideration. Council President Miller referred to the December 8 letter from Snohomish County (page 92 of the Council packet) and asked if the project was under the jurisdiction of Snohomish County at that time. Ms. Galloway answered yes. Council President Miller observed the City's jurisdiction occurred on January 1, 1998. Ms. Galloway agreed. Council President Miller referred to the last sentence of the first paragraph that states, "please revise your current accessory apartment floor plan to eliminate the garage and hobby shop so as to more closely approximate the portions of the existing house." He observed the applicant indicated she took action to correct that and asked if that had been verified by staff. Ms. Galloway answered yes but that was not part of the record the Council is reviewing. It is part of the Snohomish County record which was not included as part of this application. Ms. Galloway clarified when the City received this application, she was instructed to follow the rules of Snohomish County and ignore the actions the County had already done as she was told this represented a new application transferred from the County. Councilmember White _clarified Ms. Galloway could not answer the question as that information was not part of the record. Mr. Karber pointed out upon transfer of the application to the City, this became a new application to the City including a new application form. While information from the prior County record could be included with the City application, it did not necessarily have to be. Staff included those portions they felt were relevant. He stressed the permit was processed according to the City of Edmonds procedure, not according to Snohomish County procedures which differ. The substantive standards of the Snohomish County Code were applied by Staff and the Hearing Examiner. Councilmember Van Hollebeke observed Mr. Beresford referred the Council to Attachment 3C on page 3 8 of the Council packet which refers to the. Code section 18.90.018, Accessory Apartments, and the statement, "does not substantially alter the single family character, harmony and appearance of the structure or its conformity with the character of the neighborhood." Councilmember Van Hollebeke read this section to. mean the home should conform to the appearance of the neighborhood. He commented that the proposed project appeared to substantially conform. The property is '/z acre and the setbacks and height are appropriate. He referred to Ms. Moerk's comments that every step along the way in the two -year process, every body that has had any deliberative authority has approved this project. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER - PLUNKETT, FOR THE RECOMMENDED ACTION TO DENY THE REQUEST FOR RECONSIDERATION AND APPROVE THE FINDINGS AND CONCLUSIONS.. Councilmember White said looking at the matter entirely objectively, given the record before the Council, he could not find it lacked substantial evidence which mandates the Council support the Hearing Examiner's decision. He clarified the Council would have to find the record lacked a sufficient quantity of evidence that no rational person would have made the decision made by the Hearing Examiner. Councilmember White said although the record lacked a lot and did not answer many questions he had, he felt a rationally prudent unprejudiced person could look at the record and make the same decision the Hearing Examiner made. Edmonds City Council Approved Minutes November 9, 1999 Page 15 Councilmember Plunkett said he too had some concerns with the record, but was impressed that the footprint of the structure was well suited for the lot and the setbacks and height were adequate. MOTION CARRIED. (Councilmember Nordquist was not present for the vote.) udget 5. BUDGET DISCUSSION Administrative Services Director Peggy Hetzler displayed a chart illustrating the significant items that were included in the preliminary budget presented to the Council on November 1. She explained that the budget anticipated revenues of $21,788,000 with expenditures of $22;529,000. That budget anticipated the use of $741,000 of the beginning cash balance to end 2000 with a cash balance of $476,000. She displayed a revised budget that reflected the status quo situation of revenues assuming no new revenue sources are utilized and no property tax increases are implemented. Ms. Hetzler pointed out this decreased the City's revenue projections by $2.2 million. In order to present a balanced budget, each department was asked to submit itemized cuts totaling between 8 -9% to develop expenditure reductions of nearly $2.2 million to reach a point of using approximately $783,000 of the beginning cash balance and ending 2000 with a cash balance of $434,000. Ms. Hetzler explained at the budget workshop on November 6, each department was allowed to give a 5- minute presentation on their itemized reductions. At the conclusion of the workshop, the Council gave instructions of several different scenarios they wanted developed. She displayed a list of revenues the Council was interested in considering, a 3% property tax increase which would generate approximately $188,000 and a utility tax on the City's sewer system of $180,000. She explained originally a utility tax on garbage collection was considered but when Councilmember Van Hollebeke asked staff to research notice periods, staff learned a utility tax applied against a private utility requires a 60 -day notice period. Therefore, the utility tax on the sewer system has been substituted because the rule did not apply to publicly held utilities. The third revenue item is a telephone tax, a reallocation of the tax the City receives on cellular telephones: In the past the Council dedicated this funding source to building up the emergency reserve fund. The $90,000 indicated would no longer be used to fund the emergency reserve and would be placed in the General Fund. At the request of Council, staff has analyzed the status of the emergency reserve fund in light of the current policy of maintaining the emergency reserve fund at 5% of the General Fund operating budget. At this time, approximately $335,000 would be available to transfer out of the emergency reserve fund to be used as ,a resource next year. She said revenues and funds from the emergency reserve fund total $793,500. She clarified the first three revenues would be collected on an ongoing basis, but the transfer from the emergency reserve fund was a one -time only transfer. She displayed a menu of the different scenarios the Council requested be researched. The first option was costing out the additional revenues necessary to avoid citywide layoffs. To avoid any layoffs and maintain police reserve levels, $566,000 in ongoing revenue would be required. Option 2, to fully restore all public safety positions (no layoffs and restoring vacant positions) including positions that support public safety but are not necessarily in the public safety budget such as the new public safety custodian and the equipment services mechanic that services the fire fleet, would cost $631,580. She said option 1 did not include any vacancies that departments identified as reductions, only positions that are filled at this time. Option 3 represents the cost' of funding fire battalion chiefs, $211,540, which includes the required civil service testing if these positions are established. She displayed the cost of restoring the Senior Center funding and certain economic development programs such as the Edmonds Alliance for Economic Development funding and the flower program funding which total nearly Edmonds City Council Approved Minutes November 9, 1999 Page 16 $115,000. She recalled there was also a request to increase the Council contingency fund level by $100,000. There was also a request to show the funding necessary to maintain current service levels. The $2.2 million is almost the exact amount cut from the original budget proposal with the exception of five new positions requested in 2000. If the Council wanted to consider maintaining staffing levels at status quo, the amount required would be $971,340. Councilmember Van Hollebeke asked Ms. Hetzler for clarification. Option 1 avoids citywide layoffs including public safety and Option 2 restores public safety positions but Option 3 was an addition to Option 1 or 2. Ms. Hetzler agreed, noting these were new positions. Councilmember White asked how the utility tax on sewers was computed. Ms. Hetzler answered 6% is collected on gross receipts which would be passed on to customers. Ms. Hetzler acknowledged the total amount would be based on the amount of a customer's bill. For Council President Miller, Ms. Hetzler explained garbage collection in Edmonds is provided by two private companies. Before a tax can be implemented on a private utility, state law requires a 60 -day notice period. Councilmember Van Hollebeke recalled the Council also discussed the possibility of a fee on business licenses. Ms. Hetzler recalled two options were presented at the budget workshop, revenue from a $50 and a $100 annual excise tax., A $100 annual excise tax would generate $165,000, which would be sufficient to cover the programs outlined in Option 4. Ms. Hetzler displayed the composition of the emergency reserve fund (prepared by Accounting Manager Doug Farmen), noting the Council contingency fund had been included in the emergency reserve funding. At the end of the year, when all interest earnings are recorded, the balance should be $1,358,000. The amount currently in the Council contingency fund is approximately $145,000. She explained the minimum amount of reserves the Council has discussed in the past has been 5% of the General Fund operating budget, the minimum the government finance officers and bond rating agencies view as showing the City has a prudent level of reserves. To meet the 5% level at least $1,050,000 must be maintained in any combination of reserve funds. If the level of the Council contingency was reduced and only 5% was maintained in the emergency reserve fund, approximately $453,000 could be transferred. Councilmember Van Hollebeke recalled the comment at the budget workshop regarding the Council contingency fund reflected a misunderstanding regarding what is in the Council contingency fund. He recalled that was the only context where an enhancement of the Council contingency fund be enhanced by $100,000. He agreed there was $145,000 in the Council contingency fund currently, the norm except for when contracts were being negotiated and funds were set aside in the Council contingency fund for that purpose. Ms. Hetzler recalled the Council also requested a breakdown in the staff reductions presented by departments in total. She displayed a schedule illustrating the total staff reductions included on the itemized list was $971,340. Of that amount, people in positions scheduled for elimination total $566,000. Staff reductions proposed via current vacant positions total $405,000. The Council also requested the total amount for positions proposed to be funded via the utility fund, drug - confiscated funds, and equipment rental fund. She said 4 -5 positions are proposed to be funded via those mechanisms that total $183,470.., Edmonds City Council Approved Minutes November 9, 1999 Page 17 Ms. Hetzler pointed out the list of itemized budget reductions totaled $2.2 million. The total proposed staff reductions are $1.2 million but that amount also includes five new positions that were requested in the 2000 budget. The $971,340 reflects only positions currently in place. The additional five positions were the three battalion chiefs, the computer technician, and a building official. Council President Miller thanked Ms. Hetzler and staff for an excellent summary and presentation on the requests Council made at the budget workshop. He requested the information presented be included in the Council packet to allow the Council to review it prior to the November 15 budget workshop. Councilmember White asked the rationale of transferring personnel from the General Fund to designated funds. Ms. Hetzler answered one position specifically that was proposed to be moved to the utility fund was an accountant in Financial Services who spends the majority of his time supporting utilities. Over the years, approximately 25% of his salary has been charged to the utility fund. She and Public Works Director Noel Miller have discussed how to avoid the cost of additional consulting contracts to do the stormwater fee study and water and sewer rate studies if more of this accountant's time was devoted to the utility. This is the reason for proposing to move one full -time accountant into the utility fund. There is currently one other position in Financial Services, the utility billing clerk, which is funded solely by the utility fund. She explained an attempt is made to allocate the overhead directly to other funds whenever there is a logical rationale to do so. She advised another position that is shown as a reduction in the General Fund is actually an employee that works in Equipment Services but is paid for by the Fire Department. The other position is the Recycling Coordinator whose position is being expanded to include water conservation responsibilities, therefore 20% of his salary would be funded via the water and sewer utility. Councilmember White noted the funding for these positions would no longer be from the General Fund but from the designated fund. He commented the designated fund can only be used to fund the designated fund's purpose.. Ms. Hetzler agreed there must be a direct relationship to the fund. Councilmember White asked if a person previously provided 25% service to the fund, and now would be providing 100% service to the fund, how the 75% vacancy would be filled. Ms. Hetzler said for a period of years the accountant's funding level had not been reviewed but for the past year, all the projects he worked on have been utility- related. Councilmember White questioned the.proposal about the fire mechanic. Ms. Hetzler said his support to the Fire Department would be reduced by approximately 50 %, the remaining 50% is paid from Equipment Rental. Councilmember White asked who would provide the service to the fire fleet. Ms. Hetzler said the Fire Department indicted newer vehicles with extended warranties may not need as much maintenance in the early years. Fire Chief Tom Tomberg advised the Fire Department is currently charged $105,000 per year, which is used to fund approximately 90% of the dedicated fire mechanic's time.. Chief Tomberg questioned whether the mechanic spent 36 hours of a 40 -hour week working on Fire Department vehicles. He said several years ago, when the fleet was in bad shape, the fire mechanic may have worked 36 out of 40 hours on the fire fleet. His discussions with Public Works Director Noel Miller, Fleet Maintenance Supervisor Greg Ramsland and the Fire Mechanic Dave Sittauer, indicate this would be an appropriate allocation. He summarized the Fire Department did not require 36 hours of the fire mechanic's time. Edmonds City Council Approved Minutes November 9, 1999 Page 18 Mayor Fahey advised the Council would also be provided ..a list of other revenues that could be considered. Councilmember Van Hollebeke asked if there had been any communication with local Legislators regarding timelines for consideration by the Legislature. Mayor Fahey answered she had not had any contact with the area Legislators. Ms. Hetzler indicated she not had any contact either. Councilmember Van Hollebeke requested. staff or Mayor Fahey contact bbcal Legislators, noting the proposals the Council is considering assumes the state provides no solutions. He was hopeful this would not be the case. Councilmember Van Hollebeke observed this was one of the strongest economies in the state in decades, yet the City was considering substantial layoffs and reductions in service. He recalled proponents of I- 695 indicated the state would need to reallocate 2% of their budget but instead the City was considering reallocating 8 -10% of its budget. He was hopeful the Legislature would provide solutions.and wanted the City to be in close touch with the Legislature to stress what is expected of them and to find out what they expect. Mayor Fahey advised information has been received from AWC including the type of activities they are planning to undertake. Mayor Fahey advised there were three cities in the state with the potential of having their bond rating downgraded. The City is not in that difficult position yet as long as the emergency reserve is maintained but that is a potential if there are indications revenues will decrease significantly or remain so static that the ending cash balance is spent in a year and the budget cannot be balanced. She offered to forward the information received from AWC to Councilmembers. ergy 6. PRESENTATION ON PROPOSED ENERGY IMPROVEMENTS AT THE TREATMENT PLANT prove. to AND AUTHORIZATION FOR MAYOR TO INDICATE CITY SUPPORT OF PROJECT TO PUD eatment Plant Treatment Plant Manager Steve Koho explained the Snohomish County PUD developed a new program to encourage commercial and industrial businesses to install more energy efficient devices. This program provides for up to a 70% reimbursement share to customers that make those changes. Treatment Plant staff have had a number of meetings with the PUD and their engineering staff has spent time at the plant evaluating equipment. PUD made a recommendation, identifying three specific areas where it appears significant energy savings could be realized. The three areas are replacement of a 300 - hp blower, downsizing a pump, and changing virtually, every lighting fixture in :the plant. The total estimated cost is $224,000 including the cost of buying the new equipment and changing the lighting fixtures and includes PUD being the contract manager on the job. The fee for contract management is included as well as a contingency fee. The City's share is approximately $120,000. Mr. Koho explained approximately $60,000 for this effort was included in the 2000 budget. The dedicated capital plant fund is approximately $1.25 million and can absorb the difference. PUD staff estimates the, payback will occur in less than four years, and result in an annual electrical savings of approximately $28,000. Due to PUD's financial participation, they have requested the Council provide a verbal affirmation of the City's interest in pursuing energy improvements to the Treatment Plant. PUD's next step will be preparation of ,a draft legal agreement for the City Attorney's review and consent agenda approval by the Council. Councilmember Van Hollebeke asked Mr. Koho to clarify the resource that would be utilized. to fund the City's share of the improvements. Mr. Koho answered there is a dedicated capital improvement fund for the Treatment Plant that is funded via an outside agency.. Use of those funds, due to an arbitrator's ruling, is restricted to only Treatment Plant capital improvement projects. Councilmember Van. Edmonds City Council Approved Minutes November 9, 1999 Page 19 Hollebeke clarified these funds were not from the General Fund but from a dedicated fund that was only allowed to be used for capital improvement projects. COUNCILMEMBER VAN HOLLEBEKE MOVED, SECONDED BY COUNCILMEMBER WHITE, FOR THE RECOMMENDED ACTION TO AUTHORIZE THE MAYOR TO INDICATE THE CITY'S INTEREST IN PURSUING ENERGY IMPROVEMENTS TO THE TREATMENT PLANT IN COOPERATION WITH SNOHOMISH COUNTY PUD. MOTION CARRIED. (Councilmember Nordquist was not present for the vote.) 7. MAYOR'S REPORT Mayor Fahey had no report. 8. COUNCIL REPORTS udget I Council President Miller advised a Council budget workshop was scheduled for Monday, November 15 Workshop at 7:00 p.m. at City Hall. COUNCILMEMBER PLUNKETT MOVED, SECONDED BY COUNCILMEMBER VAN Excused HOLLEBEKE, TO EXCUSE COUNCIL PRESIDENT MILLER FROM THE NOVEMBER 1 Absence COUNCIL MEETING. MOTION CARRIED, COUNCIL PRESIDENT MILLER ABSTAINED. (Councilmember Nordquist was not present for the vote.) With no further business, the Council meeting was adjourned at 9:47 p.m. BARBARA S. FAHEY, AYOR 'SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes November 9, 1999 Page 20 AGENDA EDMONDS CITY COUNCIL Plaza Meeting Room - Library Building 650 Main Street 7:00 -10:00 p.m. NOVEMBER 9, 1999 7:00 P.M. - CALL TO ORDER FLAG SALUTE 1. APPROVAL OF AGENDA 2. CONSENT AGENDA ITEMS (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF NOVEMBER 1, 1999 (C) APPROVAL OF CLAIM WARRANTS #35896 THROUGH #37165 FOR THE WEEK OF NOVEMBER 1, 1999, IN THE AMOUNT OF $135,409.86. APPROVAL OF PAYROLL WARRANTS #26569 THROUGH #26691 FOR THE PERIOD OCTOBER 16 THROUGH OCTOBER 31, 1999, IN THE AMOUNT OF $345,636.36. (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM EUGENE (TOM) STARWICH (Amount to be Determined) (E) PROPOSED RESOLUTION FIXING A TIME AND PLACE FOR HEARINGS ON THE FINAL ASSESSMENT ROLLS FOR LOCAL IMPROVEMENT DISTRICTS NOS. 215 AND 216, DIRECTING THAT NOTICE THEREOF BE GIVEN IN THE MANNER REQUIRED BY LAW, AND REPEALING RESOLUTION NO. 963 3. (45 Min.) PRESENTATION OF ORAL ARGUMENTS TO DISMISS CLOSED RECORD APPEAL OF HEARING EXAMINER DECISION TO DENY ADB -99 -33 (Appellant: Phil Carter, Representing Brad Butterfield & Albert Dykes / File No. AP -99 -187. Applicant: Brad Butterfield / File No. ADB- 99 -33. Property Location: 110 Sunset Avenue) 4. (45 Min.) RECONSIDERATION OF THE COUNCIL'S DECISION TO DENY AN APPEAL OF THE HEARING EXAMINER'S DECISION TO APPROVE A CONDITIONAL USE PERMIT TO ALLOW A DETACHED ACCESSORY DWELLING UNIT WITHIN A SINGLE - FAMILY RESIDENTIAL (RS -8) ZONE. (Property Location: 23303 100' Ave. W. / Appellant: Anne Waite — File No. AP -99 -169 / Applicants: Lambrecht/Moerk — File No. CU- 99 -91) 5. (30 Min.) BUDGET DISCUSSION 6. (10 Min.) PRESENTATION ON PROPOSED ENERGY IMPROVEMENTS AT • THE TREATMENT PLANT AND AUTHORIZATION FOR MAYOR TO INDICATE CITY SUPPORT OF PROJECT TO PUD 7. (5 Min.) MAYOR'S REPORT 8. (15 Min.) COUNCIL REPORTS Parking and meeting rooms are accessible for persons with disabilities. Contact the City Clerk at (425) 771 -0245 with 24 hours advance notice for special accommodations. The Council Agenda appears on Chambers Cable, Channel 46