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09/10/2002 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES September 10, 2002 Following a Special Meeting at 6:00 p.m. for Committee meetings, the Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5"' Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Dave Earling, Council President Jeff Wilson, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember Deanna Dawson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT David Stern, Chief of Police Duane Bowman, Development Serv. Director Peggy Hetzler, Administrative Services Director Rob Chave, Planning Manager Dave Gebert, City Engineer Steve Bullock, Senior Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR APPROVAL OF THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE CONSENT AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: Approve (A) ROLL CALL 9/3/02 Minutes (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF SEPTEMBER 3, 2002 (C) APPROVAL OF CLAIM CHECKS #57803 THROUGH #57841 FOR THE WEEK OF Approve SEPTEMBER 2, 2002, IN THE AMOUNT OF $76,092.57. APPROVAL OF PAYROLL Claim Checks DIRECT. DEPOSITS AND CHECKS #33838 THROUGH #33988 FOR THE PERIOD AUGUST 16 THROUGH AUGUST 31, 2002, IN THE AMOUNT OF $757,536.28. laim for Damages I (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM PEGGY A. NEFF ($73.61). Ave. W (E) AUTHORIZATION FOR MAYOR TO SIGN SUPPLEMENTAL AGREEMENT NO. 2 TO ckery THE PROFESSIONAL SERVICES AGREEMENT WITH REID MIDDLETON, INC. FOR pair THE 76TH AVENUE WEST ROCKERY REPAIR PROJECT FOR CONSTRUCTION ADMINISTRATION SERVICES. Edmonds City Council Approved Minutes September 10, 2002 Page 1 3. CONTINUED CLOSED RECORD REVIEW OF THE HEARING EXAMINER'S Planned RECOMMENDATION TO APPROVE THE APPLICATION FOR A SEVEN LOT PLAT AND Residential Develop - PLANNED RESIDENTIAL DEVELOPMENT (PRD), KNOWN AS "TALBOT PARK ESTATES," ent (PRD) LOCATED AT 7707 — 171sT STREET SW. THE SITE IS ZONED SINGLE FAMILY Located at RESIDENTIAL (RS -12). (Applicant: Viking Properties, Inc. / File No. P-02-11 and PRD -02-12) 7707 -171" St. Sw (Talbot Park Mayor Haakenson advised as this was a continued closed record review of a quasi judicial matter, the Estates) Appearance of Fairness Doctrine applied. He asked whether any Councilmember had any conflicts or ex File P-02-11 parte contacts to disclose. and File RD -02-12 Councilmember Orvis advised he had visited the site once. Councilmember Plunkett recalled at the last Council meeting, a member of the public inquired regarding a contribution he had accepted from Mr. Sundquist to his campaign for the 32nd District. Councilmember Plunkett advised the Mr. Sundquist he had accepted a contribution from was not the Mr. Sundquist in this application; it was from a different person and a different company. Council President Earling recalled when this closed record review began several weeks ago, he stepped down because he lives in the neighborhood and after reviewing the record, did not feel he would be able to make an objective decision regarding the proposal. For the same reason, Council President Earling recused himself and left the dais and the building. Mayor Haakenson asked whether there were any challenges to any Councilmembers' participation. There were no challenges voiced. Mayor Haakenson advised all remaining Councilmembers would participate in this matter. Mayor Haakenson recalled at the conclusion of the Council's consideration of this closed record review on August 20, two members of the public spoke during the next agenda item, Audience Comments, regarding the closed record review. The first person's comments were regarding a closed record review. that the Council will hear next week. The second person, Jim Stein, made comments regarding the closed record review that the Council probably should not have heard. He asked counsel how this could be remedied. City Attorney Scott Snyder explained that because the comments were made outside the record, they were ex parte communications. A copy of the individuals' comments was provided to Richard Hill, Counsel for Viking Properties (applicant); Jonathan Hatch, representing 24 individual property owners; and Michael Smith, Lovell Sauerland & Associates (applicant) and was available for review by other parties of record. He suggested the parties of record be given an opportunity to provide rebuttal regarding the comments. Richard Hill, Counsel for Viking Properties, advised the applicant had no response to the comments. Jonathan Hatch, representing 24 individual property owners, asked whether the copy provided was an addendum to the minutes. City Clerk Sandy Chase advised they were part of the original minutes. Mr. Hatch asked for clarification when the comments were made. Mayor Haakenson explained when the closed record review was continued, the next item on the agenda was Audience Comments and two gentlemen made comments. Mr. Hatch advised he had reviewed Mr. Stein's comments and said his comments could be expected as the owner of the property. Mr. Hatch asked whether Mr. Stein's comments would influence any Councilmembers' decision. Councilmembers did not indicate they would . be influenced by Mr. Stein's comments. Mr. Bullock had no comment regarding the comments made during Audience Comments. Edmonds City Council Approved Minutes September 10, 2002 Page 2 Mr. Snyder advised the comments would not become part of the record. As ex parte communication, they must be revealed and the Council was obligated to allow parties of record to rebut the comments. Mayor Haakenson recalled at the close of the closed record review on August 20, Mr. Smith had completed his rebuttal and was responding to Council questions. Councilmembers had no further questions for Mr. Smith. Senior Planner Steve Bullock explained that after listening to the debate at the last review and the questions raised by the Council and members of the neighborhood, his response would focus on three areas, the first being the wetland. He recalled there were several questions raised regarding the wetland, specifically whether a sufficient determination had been made to allow consideration of the preliminary plat and PRD to move forward. He referred to a study submitted by the attorney for the neighbors (page 249 of the record) that describes a study done by a qualified consultant describing a Category 3 wetland on an adjacent property that extended onto the subject property. That study indicated the Category 3 wetland on the adjacent property was approximately 1600 feet and extended onto the adjacent property and may be large enough to be a regulated wetland. The applicant also submitted a study of the wetland on their property (page 265 of the record) and a review of a study of the wetland on the adjacent property, and that study confirmed there was a Category 3 wetland of approximately 1800 square feet in total. As both consultants had flagged the delineation of the wetland on their respective properties, the applicant's consultant then surveyed the dimension of the wetland on both properties (page 268 of the record) showing the wetland to be 2,193 square feet, less than the required 2,500 square feet for a regulated wetland. Staff and the Hearing Examiner's conclusion was that it was likely this would not be a wetland regulated by the City's code. Mr. Bullock summarized both the study performed by the neighborhood and the study performed by the applicant were done by consultants on the City's approved list of qualified wetland consultants. The Hearing Examiner included, as one of his recommended conditions (page 18 of the record), that to comply with the City's code and to ensure a study of the wetland was done in an impartial manner, one study be done for the total wetland under a three party contract as required by the City's code. Mr. Bullock explained that study would confirm the class and size of the wetland and confirm that it was less than the size required to be regulated. He explained both staff and the Hearing Examiner did not anticipate any change in the classification of the wetland and the development of the site based on wetland issues as the information provided was considered reliable. Mr. Bullock suggested the Hearing Examiner's recommendation that a wetland study be performed as a third party contract be included in the Council's final decision. The second issue Mr. Bullock addressed was the geotechnical report. He explained the Critical Areas Ordinance allowed the 50 -foot buffer from a steep slope to be reduced to 10 feet and required a 15 foot building setback from the steep slope foot buffer. He summarized the total buffer could be reduced from a maximum of 65 feet to a minimum of 25 feet, therefore, the closest any structure could be to the top of the slope was 25 feet. The Critical Areas Ordinance also states the reduction would be based on a review of a geotechnical report that should generally comply with the requirements of Chapter 19.05. He noted the Code specifically states the report of the geotechnical engineer shall generally comply with the requirements of the geotechnical report as described in Chapter 19.05. He pointed out this was significant because Chapter 19.05 was a portion of the building code and was typically in place to ensure construction occurred in a safe manner and was never used to limit where construction could occur or keep construction from occurring, only to ensure construction happened safely. He acknowledged if someone spent enough money on a foundation design, they could presumably build something that was safe almost anywhere. He explained Chapter 19.05 was intended to look at the characteristics of the Edmonds City Council Approved Minutes September 10, 2002 Page 3 slope and soils and consider the construction techniques and marry the two to ensure they occurred in a safe manner so that ultimately what was built on the property was safe and would not cause a potential increase in soil failure in the future. Mr. Bullock stated the review before the City was not building permits, but a subdivision which did not have the detail regarding the footings that would be used when the homes were constructed. He noted this was an issue better addressed when building permits for individual lots were submitted. Mr. Bullock referred to page 220 of the report, a reference made by the attorney for the neighbors, which states the project was required to comply with the requirements of a study as outlined in Chapter 19.05. Mr. Bullock read the relevant portion of 19.05 B. Geotechnical Report, "The owner shall retain a geotechnical engineer to prepare a report and evaluation of the subsurface soil conditions on the site." Mr. Bullock referred to the geotechnical report submitted by the applicant (page 110 of the record), reminding that the issue before the Council was the subdivision of land, not building permits, therefore, a geotechnical report of the property could be called a preliminary report because it was not addressing construction on the property, only generalities of whether the soils and slopes of a nature that will support construction and support construction closer to the top of the slope than the base limit of 50 feet plus 15 foot setback. Mr. Bullock read from the geotechnical report submitted by the applicant, "the purpose of this evaluation is to characterize the subsurface conditions of the site based on a published geologic map and our experience in the vicinity of the site, and to provide a qualitative assessment of the site stability." Mr. Bullock noted the geotechnical report indicated on page 112 of the record that they did subsurface soil evaluation with a T -bar penetrating the soil at a depth of up to 40 inches to confirm their knowledge of the site and published maps. Mr. Bullock referred to page 116 of the record, noting that in the Building Setback section of the report, the geotechnical engineer's recommendation regarding how close buildings could be to the slope was that the distance between the exterior face of a building footing foundation and the face of the slope needed to be at least 15 feet. He showed an example of the slope and the foundation, noting the distance from the footing to the face of the slope must be 15 feet. The distance was not from the top of the slope but the face of the slope. Therefore, when the excavation was done and the footing was embedded in the ground, the geotechnical report indicated it was safe if the distance from the footing to the face of the slope was 15 feet. Mr. Bullock explained the City's ordinance required a minimum of 10 feet from the top of the slope plus an additional 15 foot building setback. He concluded that the 25 feet from the top of the slope required by the City's ordinance provided substantially more protection than what the geotechnical report recommends. Mr. Bullock explained that although the geotechnical report was complete to the level that would be expected for a subdivision, the geotechnical engineer included on page 116 and 117 of the record his recommendation that further geotechnical review and analysis be done for the construction of each individual lot. Mr. Bullock noted this was in compliance with the spirit and intent of Chapter 19.05 which requires specific geotechnical evaluation of the individual lots and the construction that would occur on the lots. He stated the appropriate time to conduct further geotechnical analysis was with the building permits for each lot. Mr. Bullock noted the Hearing Examiner included in his recommendation a condition (page 19 of the record) that the following statement be placed on the face of the plat mylar, "Building Permit applications for Lots 1 and 3-7 must submit a geotechnical report which confirms reducing the steep slope buffer from 50' to a minimum of 10' based on the criteria outlined in ECDC 19.05." Mr. Bullock summarized staff and the Hearing Examiner concluded that the geotechnical report submitted at this time was detailed enough and appropriate for the level of approval. To ensure that future development was Edmonds City Council Approved Minutes September 10, 2002 Page 4 consistent with the Code, staff and the Hearing Examiner recommended a condition be included that required further geotechnical review for the specific development plan on each lot that marries the soil and slope conditions with the development that occurred. He concluded the proposal before the Council met the City's requirements regarding geotechnical analysis. The third issue Mr. Bullock addressed was the stream on the east side of the property. He recalled there was discussion/debate regarding the location of the stream bank and from where the stream buffer should be measured. He explained staff had been applying the Critical Areas Ordinance since its adoption in 1992 and he had been an employee of the City for the majority of those years and has always applied the stream buffer in a manner consistent with information provided as part of the record. He referred to page 290 of the record, an excerpt from Blacks Law Dictionary, which he noted was consistent with the Critical Areas Ordinance definition of a stream, "That part of a stream which retains the water. The elevation of land which confines the waters of a stream in their natural channel when they rise the highest and do not overflow the banks." The definition of a stream in the Critical Areas Ordinance indicated a waterway was not a stream unless there was enough water to demonstrate the passage of water through the creation of a channel or the sorting of sediments. Mr. Bullock recalled the Council had been asked to apply the top of the steep slope as the top of the bank for the stream. He noted it was obvious the stream never had enough water in it to reach the top of the bank as demonstrated by the vegetation on the steep slope. Therefore, in staff and the Hearing Examiner's opinion, the steep slope was not part of the stream channel. The stream channel and the bank defined by the stream channel were created by the passage of water. Staff as well as the Hearing Examiner have visited the site and the Hearing Examiner's recommendation after observing the site was that there was a defined channel for the stream. Mr. Bullock noted that although the survey was of the centerline of the stream, the stream was small enough and the property protected enough by the steep slope and steep slope buffer, that a much greater amount of protection was provided that it was not imperative that the stream bank be surveyed. Further, in the Hearing Examiner's report (page 10 of the record, Item D2) he indicates the top of a bank as it relates to a steep slope area has a buffer established by Code of 50 feet that can be reduced to 10 feet. The top of the bank or a stream channel is described differently and has a different setback requirement. The argument by the Hearing Examiner in his recommendation was that if the intent were to consider the top of a steep slope bank as the top of a stream bank, the same buffer requirement would be used rather than establishing different buffer requirements. He summarized it was the Hearing Examiner's determination as well as staff's after years of applying the Critical Areas Ordinance and the stream criteria, was that the stream bank was associated with the stream channel. Mr. Bullock displayed a depiction of a stream (page 279 of the record) illustrating the watercourse, no vegetation on both sides representing the stream channel, and the remainder of the slope is outside the bank of the stream. He acknowledged the slope continued fairly steeply atop the stream bank but was heavily vegetated and was no longer part of the stream channel or stream bank. Mr. Bullock concluded it was staff's position as well as the position of the Hearing Examiner that after reviewing the PRD for compliance with the PRD criteria and formal plats that it complied with the criteria and recommend the City Council approve the conditions provided on pages 16 — 18 of the record which adequately protect the City and neighborhood from any potential environmental issues as well as neighborhood concerns. Mayor Haakenson requested Mr. Snyder address the documentation provided by Mr. Hill. Mr. Snyder advised Mr. Hill had previously made the points that were outlined in his letter. After Mr. Hill emailed Edmonds City Council Approved Minutes September 10, 2002 Page 5 him, Mr. Snyder suggested he submit his points in writing to make a record regarding his points in the event of a potential appeal. Mr. Snyder advised he had provided the Council a written opinion that had been referenced in Mr. Hatch and Mr. Hill's earlier presentations. Mayor Haakenson summarized the documentation submitted by Mr. Hill was disagreement with the advice Mr. Snyder provided, including not allowing Mayor Haakenson to vote. Mr. Snyder agreed. Councilmember Orvis asked where specifically the word "generally" was cited. Mr. Bullock read Chapter 20.15B.110 Section 8, halfway through the paragraph, "such report shall be certified and the forms suitable for filing with the Snohomish County recorder and generally comply with the provisions of this chapter as well as the geotechnical report requirements of Chapter 19.05 ECDC." Mr. Snyder explained one of the purposes of the subdivision ordinance, the critical areas standards and the PRD ordinance were to ensure that in the course of approving development of sites the City does not create unbuildable lots and to ensure they basically complied with the Critical Areas Ordinance. Because the City has enacted in some detail provisions regarding steep slopes and earth subsidence as Chapter 19.05, the Critical Areas Ordinance defers to that chapter. Chapter 19.05, at the date of its adoption, was created in order that property owners themselves, in conjunction with their geotechnical expert and architect, could determine the extent of the hazard they would encounter in building on a lot and thereby design a foundation that would take that into account, basically determine the risk for themselves. He explained in the course of subdivision, the City determined whether a lot was to a certain extent buildable but the City made no warranty that the lot could be developed economically. The two sections were enacted to provide a base level of review to determine whether a lot was theoretically buildable and to defer detailed recommendations to the building permit phase so that property owners in conjunction with the property owner's geotechnical engineers, and not the City, could determine the degree of risk. The City has attempted not to be the guarantor of any specific building design, hence the reason for the references and the deferral from the Critical Areas Ordinance to Chapter 19.05. Councilmember Plunkett noted a preliminary plat review was a standard procedure. Mr. Bullock agreed. Councilmember Plunkett asked whether many preliminary plats approvals were subject to additional research. He recalled discussion during the Council's previous review where Mr. Hatch indicated the Council could not move forward without further information regarding the wetland and must have a full and complete geotechnical report. Councilmember Plunkett indicated it was his understanding that a preliminary plat subject to additional information was standard procedure and was therefore reasonable. Mr. Bullock agreed, noting he had not reviewed any subdivisions that did not have associated conditions. Councilmember Plunkett recalled Mr. Hatch was contending, specifically in his testimony to the Hearing Examiner, that the City did not define the term bank, and therefore the information added to the record by a biologist, the City's precedence, and the definition in Black's Law Dictionary were irrelevant and the City must rely on a Supreme Court precedence that allows the use of the common interpretation and give common interpretation its broadest reading. Councilmember Plunkett asked whether the City's code had a definition of top of the bank and if not, was the City required to adhere to the Supreme Court decision. Mr. Snyder explained anything an attorney put forward was basically an argument to be considered by the ultimate finder of fact, in this case the Council. He noted these were maxims of construction and there were a number of maxims that the court used to interpret terms found in statutes. They are tools to allow the quasi judicial body to make a determination regarding how the City's ordinance could be interpreted. Mr. Snyder noted Mr. Hatch cited one commonly used maxim of construction, when a term is not defined it should be given its common, ordinary meaning. Mr. Hill, in his materials, provided other maxims of construction, that deference be given to the Zoning Official, the body with expertise in their application. Mr. Snyder reiterated these were tools for the Council, as the quasi judicial body, to use. In Edmonds City Council Approved Minutes September 10, 2002 Page 6 making their decision, the Council could use either of those maxims, neither is controlling. He noted there were other maxims including that an attempt is made to give meaning to every word in a sentence or that an ordinance or statute or that the rules of construction are not used to reach an odd result. He pointed out the land use petition act specifically references issues relating to the interpretation of Zoning Officials and how they have been applied in the past. Mr. Snyder noted the courts did not give deference to the Council's legal interpretations but gave great deference to the Council's findings and facts. Councilmember Plunkett asked whether Mr. Snyder was familiar with Mr. Hatch's indication that if there is not a definition, the Council had to follow the Supreme Court's decision. Mr. Snyder reiterated these were tools; the courts used those that were most consistent with reaching the result they think is appropriate. He agreed what Mr. Hatch cited was a common, well validated, often used maxim of construction as is giving deference to a consistent pattern of interpretation by the Zoning Official, often called stare decisis, following an established line of precedence. Councilmember Plunkett asked whether there was precedence in this instance regarding how the top of the bank had been applied. Mr. Bullock answered yes. Councilmember Marin requested staff display the map illustrating the proposed PRD plat and the short plat with pie -shaped lots (page 142 of the record). He asked whether the applicant could propose a short plat if the Council denied the PRD proposal. Mr. Bullock answered yes, via a formal subdivision. Councilmember Petso referred to the geotechnical report and the recommendation that footing drains should be constructed around the perimeter of each building and should be tightlined to discharge into a storm sewer, asking whether that recommendation was binding if the PRD was approved. Mr. Bullock answered those were recommendations that staff would expect to be considered and reiterated with a geotechnical report for each building on each lot. He noted the geotechnical reports submitted for building homes on Lots 1 and 3-7 would have greater detail regarding the exact foundation design and would reiterate items such as those referred to by Councilmember Petso. Councilmember Petso asked whether those would be things the property owner had to do. Mr. Bullock answered yes. Councilmember Petso asked the consequence of not doing them. Mr. Bullock explained during inspections, for example, the footing drains would be inspected before the footings were allowed to be backfilled. Councilmember Petso noted RS 12 zoning required 12,000 square feet and an 80 -foot circle. Mr. Bullock explained in the past there was a required lot width for properties which required drawing a line from the front of the property to the rear and at the mid -point, there had to be at least 80 feet perpendicular to that line to meet the minimum lot width. As lot shapes became increasingly odd, it was difficult to establish the depth line and the lot width line. Therefore, a Code amendment was reviewed and approved by the Council that created a lot circle instead of the lot width. He noted if an 80 -foot lot circle could be placed on the lot, it demonstrated there was a buildable area on the property. The lot circle was the same diameter as the former lot width but was an easier method for staff and applicants to review property to ensure they have adequate building area. Councilmember Petso questioned whether the 80 -foot area had to be buildable. Mr. Bullock clarified if an 80 -foot lot circle could be placed on the lot, it demonstrated there was a buildable area on the property. Responding to further questions of Councilmember Petso, Mr. Bullock stated the lot circle requirement specifically states the lot circle cannot include wetland critical area or stream critical area but does not exclude steep slope areas because steep slope areas can potentially be built on with the proper Edmonds City Council Approved Minutes September 10, 2002 Page 7 geotechnical reports. Therefore, although the bulk of the buildable area on Lot 6 is in the steep slope area, with the proper studies, the applicant may be able to build in that area. He noted the site plan with the pie shaped lots had not been reviewed for compliance with the code and although it illustrated lots of at least 12,000 square feet, staff had not conducted a complete analysis as an application had not been submitted for that layout. Councilmember Dawson stated there appeared to be differing definitions of the stream bank, yet she had no idea what the stream bank actually looked like because there was no drawing or measurement of it. She asked what would be her responsibility for determining the location of the top of the bank if the record was silent regarding its location. Mr. Snyder answered the best approach would be to begin with the fact that the applicant always had the burden of proof of establishing that every requirement had been met. If the Council could not find that the applicant had met that burden, it could be a basis to find that they had not met a required element. Regarding the definition of the bank, Councilmember Dawson recalled a number of definitions had been provided including a dictionary definition that seemed counter to staff's recommendation. Further, there was a definition on page 290 taken from Black's Law Dictionary although she noted the portion read by staff was not the entire definition in Black's Law Dictionary. She pointed out there was a definition in Black's Law Dictionary that was similar to the more common understanding that appeared before the definition Mr. Bullock read in Black's Law Dictionary. Mr. Bullock agreed, noting there was also a definition in Webster's that supported Black's Law Dictionary. Councilmember Dawson agreed, noting there were two different definitions of a bank; the definition in Black's Law Dictionary appearing before the definition Mr. Bullock read was "an acclivity; an elevation or mound of earth, especially that which borders the sides of a water course. The land adjacent to a river." She noted there was nothing in the record that showed exactly what the bank looked like and the drawing staff displayed (page 279 of the record) was not a depiction of the stream on the subject property. Mr. Bullock acknowledged that the drawing did not depict the stream on the subject property. He explained he had visited the site and looked at the stream and prepared a report that indicates the application complies with the Critical Areas Ordinance as it relates to stream buffers. Further, the Hearing Examiner has reviewed the property and reached the same conclusion. Councilmember Dawson asked how the Council, as fact finders, could make a determination without any basis upon which to make a determination. Mr. Snyder explained the Council was working on a substantial and competent evidence standard; the report of an expert which contains sufficient evidence for the Council to determine whether an adequate basis for the opinion rendered was typically substantial and competent evidence. The statement of an opinion by a layperson was an opinion and it was up to the Council to determine whether there was information in the record to support the opinion. Mr. Snyder recalled Councilmember Orvis indicated he had visited the site; however what Councilmember Orvis may know as a result of that visit, if not reflected in the records, cannot be the basis for his decision. Councilmember Dawson noted there must be something in the record that provided a description or evidence, not just an opinion. Mr. Snyder explained the Council had two functions as a quasi judicial body, in this case making a decision based on the record of the Hearing Examiner and therefore must find fact and make a legal determination — adopt the standard to which those facts would be applied. Councilmember Dawson referred to the geotechnical report and ECDC 20.15B.110 which states the geotechnical report should generally comply with Chapter 19.05, noting Chapter 19.05 contained many requirements that were not applicable to this type of application. She agreed with staff in that respect that not every single word in 19.05 had to be in the geotechnical report for it to comply but if the geotechnical report did not have to be a report of the subsurface soil conditions, she questioned what Edmonds City Council Approved Minutes September 10, 2002 Page 8 wouldn't comply with 19.05. It appeared a subsurface exploration was the bare minimum of what the geotechnical report needed to contain in order to comply with 19.05. Mr. Bullock stated his opinion that the report submitted by the geotech was an evaluation of the subsurface soil conditions on the site. Councilmember Dawson asked if she were to find it was not a report that addressed the subsurface conditions, it would not generally comply with 19.05. Mr. Bullock answered yes. Councilmember Wilson recalled when the Critical Areas Chapter was adopted by the City, the language required a licensed geotechnical engineer prepare the geotechnical reports versus other areas of the Critical Areas Ordinance where it was not required that a person licensed by the State make the qualifications, only a person with knowledge in a particular area such as wetland delineation, etc. Mr. Snyder agreed, advising that his answers would be limited to the information in the record or to matters to which the Council could take quasi judicial notice of, information that was in the City's ordinances and the Council was presumed to know the ordinances. Councilmember Wilson noted the intent of requiring a licensed geotechnical engineer was that the person was licensed by the State and therefore subject to all liability for the reports issued including the findings in the report. He summarized the licensed geotechnical engineer had a different liability than the person delineating the edge of the stream. Mr. Snyder answered that was generally true, depending on the scope of the report. He explained an applicant had a minimum burden of providing evidence of every element of their required reporting and the criteria. Using an expert was typically held to be substantial and competent evidence assuming that the experts' opinion was based on a reasonable foundation. Councilmember Wilson referred to page 3 of the letter submitted by Mr. Hill where he references a statement by Mr. Hatch. Mr. Hatch refers to the requirements of ECDC 19.05 "requires the owner obtain a geotechnical engineer to prepare a report evaluating the subsurface soil conditions on the site." Was that a citation of Mr. Hatch's understanding of 19.05 as he [Councilmember Wilson] was unable to locate in the testimony that a geotechnical report required soil borings as a part of a geotechnical report. Mr. Snyder agreed it did not, noting the specific reason was that 19.05 contained a definition of stability. The State Building Code did not define stability. When Chapter 19.05 was enacted, the City took that Code definition of stability to the State Building Code Council as required by the State statute and the State Building Code Council has, the ability to approve or deny new standards. A definition of stability was adopted and is contained in Chapter 19.05.020(J) of the Code. The definition was defined in terms of 30% or less chance of earth movement in a 25 year period. Mr. Snyder added that at the date the ordinance was adopted, the City had been mapped extensively, particularly in the Meadowdale area. Therefore in many areas of the city, there are well established evaluations of the stability of several landslide masses within the City. He explained a geotech may rely on information contained in the City's records, 19.05.020(C) which describes the 1979 Roger Low report and the 1985 Geo Engineer's reports incorporated in the ordinance by reference. He noted in 19.05 internally, it was clear if a property was within one of the defined areas, the geotech could rely on that information. If outside one of those areas, more independent study may be necessary to determine stability. Under the subdivision statute, the City is not to plat land that is not buildable and in order to be buildable, lots must be stable and 19.05 defines stability. Mr. Snyder indicated he was not certain whether the subject property was within the Meadowdale landslide mass and was covered by the Roger Low report or the Geoengineer's report. Mr. Bullock was also uncertain. With regard to the definition of top of the bank/stream, Councilmember Wilson recalled the Critical Areas Ordinance was adopted in 1992 and there was a historical record regarding how the City has interpreted top of the bank. He inquired whether the City had ever issued an official interpretation to provide guidance regarding delineating the top of the bank. Mr. Bullock answered no. Edmonds City Council Approved Minutes September 10, 2002 Page 9 Councilmember Wilson inquired regarding the standard setback in the SR12 zone. Mr. Bullock answered the street setback was 25 feet, the rear setback was 25 feet, and the side setback was 10 feet. Councilmember Wilson referred to the map of the proposed PRD, and asked whether Lot 2 would have two front yard setbacks since it was a corner lot. Mr. Bullock answered it would typically meet the City's definition for a corner lot and would have a street setback on the southwest and west and side setbacks on the north and southeast. The applicant via the PRD process has requested a specific setback on the west as indicated on the map. He noted that because this was an internal setback, the setback could be proposed as part of the PRD. The applicant could not propose to modify the setback on the southwest side because it was an external setback. Councilmember Wilson asked whether the setback between Lots 1 and 2 complied with the minimum requirement for an RS 12 zone. Mr. Bullock answered no, they were also proposed as part of the PRD process. He referred to page 30 of the record, indicating the proposed setback was 5 feet, all internal setbacks were proposed to be 5 feet. Councilmember Wilson noted Lots 3-6 were proposed to have 10 foot street setbacks. Mr. Bullock stated the Hearing Examiner placed a condition on the project requiring the garage faces be setback 18 feet from the street property line to ensure there was additional parking in the garage aprons. Councilmember Wilson asked whether the street property line was coincident with the curb line. Mr. Bullock answered it was the back of the sidewalk. Councilmember Wilson asked if the Council looked at the information contained in the report and found there may be elements that did not answer all the questions, was the Council obligated to deny the application or could the Council condition the application prior to final approval and request more specifics and details. Mr. Snyder answered if it was a required element, then the applicant had the burden of providing the information to satisfy the burden of proof. If the applicant provided information that satisfied that burden of going forward and there was not information in the record to challenge it, the Council could require more detailed information for the final approval. Councilmember Wilson used the example of the differences in the delineation of the top of the stream bank where there was enough information to indicate it was something different than what the opponents may be suggesting, then the Council could condition that item and require a detailed delineation of the top of the bank based on scientific information. He referred to page 90 of the record, noting as part of the Critical Areas review process, there was an indication that more specific information was to be provided. Mr. Snyder explained that if the Council had questions regarding the details of the application such as the location of the building footprint in relation to the stream bank, whether it was a PRD process or subdivision process, that could be deferred to a final plat or final PRD approval. Councilmember Petso asked whether the distance between the structures on Lots 1 and 2 would be 10 feet. Mr. Bullock answered yes. Councilmember Petso asked whether that was the same distance between Lots 3 and 4, Lots 4 and 5, and Lots 5 and 6. Mr. Bullock answered yes, at a minimum. Councilmember Petso referred to the setback from the cul-de-sac road, asking the distance of the setback in a standard subdivision. Mr. Bullock answered 25 feet. Councilmember Petso asked the distance in the proposed PRD. Mr. Bullock answered the setback proposed by the PRD was the face of the building could be within 10 feet of their street property line although the face of the garage must be at least 18 feet from the street property line as proposed in the Hearing Examiner's condition 5. Councilmember Petso asked whether the house Lot 7 would be setback 10 or 5 feet from the property line to the west. Mr. Bullock answered 10 feet. Edmonds City Council Approved Minutes September 10, 2002 Page 10 If the record was silent and there was not enough information to go forward, Councilmember Dawson asked whether the Council would conclude the applicant had not met their burden. Mr. Snyder answered it would depend on which element; if it was a required element, for example an item that the application shall provide, that material needed to be in the record. If it was part of the elements used to determine the final detail such as the location of a natural feature and there was some evidence in the record that it would be preserved but needed a final determination, that could be deferred to the final approval. Responding further, Mr. Snyder suggested the Council determine whether there was sufficient evidence to make a determination, reiterating that the court gave great deference to the Council's finding of fact but little or no deference to the Council's determinations of law. Councilmember Wilson referred to Exhibit I on page 269 of the record which contained topographical information. Mr. Bullock indicated he did not have an overhead transparency of Exhibit I and displayed the landscape plan (page 52 of the record) which also had topographical lines. Councilmember Wilson recalled Mr. Hatch's testimony indicated the top of the stream was coincident with the top of the slope. For Councilmember Wilson, Mr. Bullock identified the top of the slope on the preliminary plat site plan (page 48 of the record) which also established the location of the 10 foot buffer. He explained that using Mr. Hatch's argument, there would be a 25 foot setback for the stream buffer and a 15 foot setback from the stream buffer. Hearing no further questions of staff, Mayor Haakenson remanded the matter to Council for deliberation. Based on the terms of the PRD ordinance, Councilmember Petso found there was no evidence in the record that the proposed PRD application provided safer and more efficient site access, onsite circulation and off-street parking and in fact there was evidence that the narrow lot sizes and clustering of homes would make parking more difficult than a standard subdivision and the reduction of the 25 foot front setback to 18 feet would further reduce available off-street parking. She referred to a letter in the record from a child who questioned what would happen if several residents had guests for Thanksgiving at the same time. Councilmember Petso answered what would happen would be there would be no place to park and there would be access, site and circulation problems. She noted this also indicated the proposed PRD failed the requirement that the street be adequate for anticipated traffic. Councilmember Petso also expressed concern with the lack of perimeter buffering, recalling a requirement in the ordinance that the perimeter of a PRD shall be similar in design, character and appearance with existing development. She found the proposed PRD was not consistent with the existing neighborhood as the homes would be 10 feet apart and there was no other development fronting on a road in the RS 12 zone that had homes 10 feet from the road. Therefore, the PRD should be buffered to prevent the neighborhood from viewing homes that were inconsistent with the neighborhood on the south side. Similarly on the west side, there were nine street trees proposed in an attempt to buffer four homes 10 feet apart from existing residences. A resident in an RS 12 zone would not expect to see homes 10 feet apart and if that was the proposal, they should be buffered with more than just nine street trees. Councilmember Petso stated Lot 7 had a long western exposure to existing residences and had only a 10 - foot setback which did not represent any buffering. She noted Lot 10 could have a home 10 feet from the existing property line. She referred to the requirement in the ordinance that the PRD be appropriate in design, character and appearance with the existing and adjacent development which she found the proposed PRD was not. She referred to Section E of the PRD ordinance which states coordinate development with the value, character and integrity of surrounding areas which have been, or are being developed under traditional zoning regulations and Section F which states, provide for the integration of Edmonds City Council Approved Minutes September 10, 2002 Page 11 new development into the existing community while protecting and preserving the value of the surrounding neighborhood. She noted neither of those provisions had been met. Councilmember Petso referred to page 193 of the record, an excerpt from a letter, that states the development is not compatible with the neighborhood as there are currently no other high density home developments in the neighborhood and that this would affect the look and feel of the neighborhood as well as negatively affect homes values. Councilmember Petso recalled Mr. Snyder indicated she was allowed to consider whether the rezone or PRD provided a substantial and positive relationship to the public health, safety and welfare. She noted the issues she had cited previously indicated the PRD would create parking and traffic problems, would change the character of the neighborhood, and reduce the safety and property values in the neighborhood. She indicated she would support a motion to deny the rezone. Councilmember Orvis stated he would not support approval of the PRD today. Although he found the PRD generally complied with the code, one of the most important parts of the PRD ordinance was the standards that could be modified as part of the PRD. As indicated in the ordinance, there were setbacks that could be modified and others that could not be modified such as the Critical Areas setback. He agreed the stream setback had been met and agreed with staff's interpretation. Councilmember Orvis disagreed with staff with regard to the significance of the geotechnical report. He read from the closure section of the geotechnical report, "The conclusions and recommendations in this report are preliminary in nature based on the geologic and soil conditions shown on the above referenced geologic map and our ground probing results. The geologic and soil conditions should be verified by a subsurface exploration program prior to the development of the short plat." He noted staff has indicated the City could wait on the geotechnical report until after the PRD was approved and the building permits applied for based on the word "generally." When reviewing Chapter 19.05, the section of the building permit that must generally be complied with, the subsurface words in the introductory section seem to be a general part of what a geotechnical report was. He did not find that the geotechnical report that was submitted generally complied with 19.05. He referred to 20.15B.040 which described exemptions to the geotechnical report and one of the exemptions was if an applicant was applying for a building permit and had already done a geotechnical report as part of the plat, noting this appeared to suggest that the subsurface exploration needed to be done at this level. Although the PRD approval was a two step process, it incorporated some of the building design standards in this portion of the process, therefore, it was appropriate to identify the setback at this level. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO DENY THE PRD. Councilmember Dawson indicated she would support the motion. One of the reasons she supported the motion was the issue of the steep slope buffer area. It was the general rule in the City if there was a steep slope, a 50 foot buffer was required and the 50 foot buffer could only be reduced if the applicant did certain things, one of which was the geotechnical report pursuant to ECDC 19.05. She noted it was clear from Chapter 19.05 that for a geotechnical report to comply with this section of the code, it must have a subsurface evaluation and in accordance with 20.15B, it must clearly demonstrate there would be no adverse impacts to the environment. The geotechnical report that was provided did not generally comply with Chapter 19.05. Further, the report clearly indicates it is a preliminary geotechnical evaluation, that they probed only surficial soils, that no subsurface evaluation was done, and that the report may need to be revised pending soil data obtained from a subsurface exploration. She summarized it was not clear from the geotechnical report whether the project would comply if there were a subsurface evaluation, Edmonds City Council Approved Minutes September 10, 2002 Page 12 whether the project would be safe, or would provide an adverse impact. Without that assurance, the requirement was for a 50 foot setback which the proposed PRD did not have. Councilmember Dawson also expressed concern with the wetland, noting she did not find any competent evidence in the record regarding how large the wetland was and whether it should be regulated. She recalled before the closed record review was continued, the applicant indicated there was concern about the wetland but it appeared the wetland was not large enough to be regulated. She also recalled the applicant indicated the wetland reports may be flawed due to how the wetland reports were prepared. She concluded there was no competent evidence regarding whether the wetland was of sufficient size to be regulated. She summarized this was the time that information should be determined. She was troubled that the geotechnical report was dated a year ago and questioned why a complete geotechnical report had not been done. She also shared Councilmember Petso's concern regarding traffic and parking. MOTION CARRIED (5-1), COUNCILMEMBER MARIN OPPOSED. 4. MAYOR'S COMMENTS Mayor Haakenson had no report. 5. COUNCIL COMMENTS arking Councilmember Orvis discussed a parking survey regarding disability parking that was conducted by ommittee Traffic Engineer Darrell Smith and Development Services Director Duane Bowman. The survey was distributed via the Chamber of Commerce website and their newsletter. He explained the survey described five locations for disability spaces; the responses to the survey favored alternatives 3 and 4. Councilmember Orvis referred to a newspaper article entitled, "New ADA Rule May Reduce On -street Parking 20%. He explained there was a ruling pending approval by the federal Disability Board that would require cities to provide on -street disability parking on each block face, reducing the available parking for others. He noted the Parking Committee was considering both the survey and the potential for increased on -street disability parking. andidate Councilmember Dawson encouraged the public to vote in the September 17 primary election. She Drum advised the League of Women voters was hosting a candidate forum on Thursday at the Senior Center. Findings of Mr. Snyder advised it would be a couple of weeks before the findings would be ready regarding the Fact for Closed Record Review of the Hearing Examiner's recommendation to approve the application for a Talbot Park Seven Lot Plat and Planned Residential Development known as "Talbot Park Estates." He cautioned Estates PRD Councilmembers not to discuss the decision until the findings had been formally approved. Council Mayor Haakenson advised the Council would meet next week at 7:00 p.m. on Monday, September 16 due Meeting on Monday, to the primary election on Tuesday, September 17. Sept. 16 With no further business, the Council meeting was adjourned at 8:45 p.m. 1 z4j_�� - GAY ENSON, MAYOR SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes September 10, 2002 Page 13 AGENDA EDMONDS CITY COUNCIL Public Safety Complex, Council Chambers 250 5th Avenue North, Edmonds SEPTEMBER 10, 2002 Special Meeting Time: The City Council Committee Meetings will be held at 6:00 p.m. followed by a meeting of all City Councilmembers scheduled to begin at 7:00 p.m. The City Council Committee meetings are work sessions for the City Council and staff only. The meetings are open to the public but are not public hearings. The City Council will meet separately as committees in different meeting rooms as indicated below. 1. Finance Committee - 6:00 p.m. (Meeting Location: Jury Meeting Room) (A) Preview of 2003 Budget 2. Public Safety Committee - 6:00 p.m. (Meeting Location: Police Training Room) (A) Interlocal Agreement for Snohomish Regional Drug Task Force 3. Community Services/Development Services Committee - 6:00 p.m (Meeting Location: Council Chambers) (A) Adoption of 2000 Uniform Plumbing Code (B) Planning Board Term Limits (C) Discussion on Office of Financial Management Population Count for 2002 CITY COUNCIL MEETING - 7:00 P.M. 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 September 3, 2002 Page 1 of 2 CITY COUNCIL MEETING AGENDA SEPTEMBER 10, 2002 Page 2 of 2 (C) Approval of claim checks #57803 through #57841 for the week of September 2, 2002, in the amount of $76,092.57. Approval of payroll direct deposits and checks #33838 through #33988 for the period August 16 through August 31, 2002, in the amount of $757,536.28. (D) Acknowledge receipt of Claim for Damages from Peggy A. Neff ($73.61). (E) Authorization for Mayor to sign Supplemental Agreement No. 2 to the Professional Services Agreement with Reid Middleton, Inc. for the 76` Avenue West Rockery Repair Project for Construction Administration Services. 3. (60 Min.) Continued Closed Record Review of the Hearing Examiner's recommendation to approve the application for a seven lot plat and Planned Residential Development (PRD), known as "Talbot Park Estates," located at 7707 - 171st Street SW. The site is zoned Single Family Residential (RS -12). (Applicant: Viking Properties, Inc. / File No. P-02-11 and PRD -02-12) 4. ( 5 Min.) Mayor's Comments 5. (15 Min.) Council Comments ADJOURN - 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 as well as a delayed telecast of the meeting appears on AT&T Cable, Channel 21.