Loading...
03/07/1989 City CouncilTHESE MINUTES SUBJECT TO MARCH 21, 1989 APPROVAL EDMONDS CITY COUNCIL MINUTES MARCH 7, 1989 The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Larry Naughten at the Library Plaza Room, 650 Main St., Edmonds. All present joined in the flag salute. PRESENT Larry Naughten, Mayor Bill Kasper, Council President Steve Dwyer, Councilmember Laura Hall, Councilmember Roger Hertrich, Councilmember Jo -Anne Jaech, Councilmember John Nordquist, Councilmember Jack Wilson, Councilmember Dave Berdine, Student Rep. STAFF Mary Lou Block, Planning Div. Mgr. Peter Hahn, Comm. Svc. Director Bob Alberts, City Engineer Dan Prinz, Police Chief Bobby Mills, Public Works Supt. Jim Barnes, Parks & Rec. Div. Mgr. Brent Hunter, Personnel Mgr. Linda McCrystal, Arts Coordinator Jack Weinz, Fire Chief Scott Snyder, City Attorney Jackie Parrett,, City Clerk Margaret Richards, Recorder Councilmember Dwyer and Councilmember Hall arrived a few minutes late and did not vote on any item preceding item (C) on the Consent Agenda. Mayor Naughten referred to a memorandum by City Clerk Jackie Parrett noting that the minute taker was unable to drive to the office on Thursday due to weather conditions and was unsure whether she could make it on Friday and so the minutes were not placed on the Consent Agenda for approv- al. However, she completed the minutes late Friday afternoon but Staff was not able to determine in advance if they would be published before the end of the day. Ms. Parrett noted that approv- al of the minutes could be deferred until next week or they could be placed on the Consent Agenda by motion as Item (G). COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER HALL, TO ADD THE MINUTES AS ITEM (G) TO THE CONSENT AGENDA. MOTION CARRIED. rnNCFNT A(:FNnA Items (C) and (G) were removed from the Consent Agenda. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO APPROVE THE BALANCE OF THE CONSENT AGENDA. MOTION CARRIED. The ap- proved items on the Consent Agenda include the following: (A) ROLL CALL •� (B) APPROVAL OF LEASE OF PROPERTY FOR COMMUNITY GARDENS �u�(D) AUTHORIZATION TO CALL FOR BIDS FOR 1989 WATER REPLACEMENT PROGRAM (E) AUTHORIZATION TO CALL FOR BIDS FOR INSTALLATION OF DOWNTOWN DECORATIVE STREET LIGHTS (F) AUTHORIZATION FOR MAYOR TO SIGN LABOR AGREEMENT WITH FIREFIGHTERSUNION PROPOSED ORDINANCE AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE 20.90.020 REGARDING PUBLIC TESTI- MONY AT PUBLIC HEARINGS LITEM C ON THE CONSENTAGENDA] Councilmember Hertrich requested City Attorney Scott Snyder to explain the amended ordinance. Mr. Snyder said because there are two situations in the Code when there is no applicant (there is no applicant when there is a request for review of an issued permit or when someone appeals a Staff decision), he referenced them in the second sentence under applications for review or ap- peals from Staff permits. He pointed out that another amendment was included to allow final Staff comments after the close of public testimony in the event that Council had a question of 7r' Staff. Councilmember Hertrich noted that the wording was somewhat confusing. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER DWYER, TO REFER THE ORDINANCE TO THE CITY ATTORNEY FOR CLARIFICA- TION. MOTION CARRIED. APPROVAL OF MINUTES OF FEBRUARY 28, 1989 [ITEM (G) ON THE CONSENT AGENDA Councilmember Kasper requested that his comments regarding the political nature of the Mayor's street policy on page 3 be included. His comments follow verbatim: Councilmember Kasper: "It's pure politics, Mr. Mayor. That isn't what we agreed to. We said we would chipseal all nonarterials, if possible. Now you got rules about between curbs and things, and I haven't seen those. You show me where I've seen them. Mayor: "This was in your packet". Councilmember Kasper: "I know it. Tonight. Tonight. Mayor: "You didn't get it Friday"?" Councilmember Kasper: "Well, what's the difference? I already had it marked all down. This is the first time I've had a chance to discuss it. Mayor: "If you people want to move ahead on these projects, let's move ahead on these projects". Councilmember Kasper: "Yeah. Well, you move ahead and you come up with the money yourself. This isn't what we agreed to when we pulled this money out. You're spending it wrong". To allow the Council to review the verbatim comments of Councilmember Kasper, COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO DEFER APPROVAL OF THE MINUTES TO MARCH 21, 1989. MOTION CARRIED. Councilmember Hall noted that her absence was not indicated in the minutes. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO EXCUSE COUNCILMEMBER HALL'S ABSENCE ON FEBRUARY 28, 1989. MOTION CARRIED. AUDIENCE Mayor Naughten opened the audience portion of the meeting. Rick Slettvet, 2101 Shell Valley Rd., said he is the father of two children and they frequently visit City Park. He was disturbed that a variance was granted to allow a 5 foot setback on the northern boundary of the park to construct a parking lot for an apartment building. He pointed out that ECDC mandates a 15 foot setback from a creek for building foundations but is silent with respect to setbacks for parking lots, even though construction of a parking lot is just as damag- ing to the environment as the construction for a building. Mr. Slettvet stated that even though a 20 foot setback has been indicated adjacent to the wet- lands, most experts would agree that that setback is inadequate. He noted that the Snohomish County Aquatic Resources Protections Plan is going to require a minimum 35 foot setback for an urban wetland, and the Smithsonian Institute Study calls for a 60 foot setback. Mr. Slettvet said the zoning for the property on which the apartment complex is proposed to be built is not consistent with Chapter 15.20 of the Comprehensive Plan because it is not a compati- ble land use with adjacent properties (the park). In addition, 16.65.000 requires that the City regulate the use of lands and private ownership which cannot be developed without severe and irreversible environmental impacts. Mr. Sletvett asked the Council what they would consider severe and irreversible environmental impacts if they did not consider the proposed project, which would replace one house with 29 apartments and parking spaces for 60 cars with parking for 2 cars, a severe and irreversible environmental impact. Mr. Sletvett pointed out that if the project is allowed to be constructed as proposed, a resource will be lost that can never be reclaimed. Natalie Shippen, 1022 Euclid, referred to Item #8 on the agenda (Continued Discussion on Edmonds Ferry Terminal Study). She said the Department of Transportation (DOT) has defined the ferry problem as a rapid increase in vehicular traffic on the Edmonds -Kingston route. She said the solution they propose is to utilize jumbo ferries. Ms. Shippen felt the problem was ill-defined and exaggerated and that the solution was wrong. Ms. Shippen suggested that more information be acquired regarding the specific nature of the problem. She posed the following questions: 1) how many workers commute on the Edmonds -Kingston ferry Monday through Friday? 2) how many are foot passengers? 3) how many take a bus or an employ- er van to work once they get off the ferry? 4) how many park a car at each end of the terminal? 5) how many drive a car on and off the ferry? 6) how many travel east across the Sound to work and how many travel west across the Sound? 7) to which employment centers are the daily commuters going? 8) does public transit provide service to any of the employment centers? 9) which employ- ers provide transportation for employees who are ferry commuters? 10) how many recreational trav- elers use the Edmonds -Kingston ferry each month? 11) how many recreational travelers use the ferry Monday through Friday and Friday through Sunday? 12) what percentage of the larger vehicles are recreational and service trucks? 13) what percentage increase have Edmonds citizens utilized the ferry over the last ten years? 14) what percentage increase have recreational passengers used the ferry over the last ten years? EDMONDS CITY COUNCIL MINUTES Page 2 MARCH 7, 1989 Ms. Shippen said it appeared to her that the question posed to the City is: Where shall we dump these cars? She felt it would be more prudent to decide if there are more facets than one to the issue and more solutions than one. JD�Gy% Dave Earling, 17511 Talbot Rd., also spoke to Item #8 on the agenda. He suggested that the State, and not the City, hire the consultant to conduct the Edmonds Ferry Terminal Study and initiate the direction of the study with input from the City. Joan Longstaff, 809 Fir, President of the Chamber of Commerce, also encouraged the City to allow the State to hire the consultant to conduct the Edmonds Ferry Terminal Study but that a task force, composed of concerned Edmonds residents, represent Edmonds' citizens. She said the Cham- ber of Commerce Economic Development Committee and Legislative Committee are anxious to be part of the discussions. _ Jerriiyn Brusseau, 806 Cary Rd., encouraged the City to allow the State to hire the consultant to conduct the Edmonds Ferry Terminal Study. She requested the Council to seriously consider the impact that possible relocation of the ferry terminal would have on local businesses. Mayor Naughten closed the audience portion of the meeting. CWC-HDR MONTHLY TREATMENT PLANT REPORT Henry Benges, CWC-HDR, Inc., apologized that a representative was not at last week's Council meeting. He explained that he and Gordon Culp and Bruce Wiley each thought that one of them planned to make the presentation. Mr. Benges reported that the contractor is fully mobilized but he is two week's behind schedule. The site perimeter fence is in place. The primary clarifier area and support have been removed and salvaged material has been moved to the City storage site. The three dewatering wells at the influent pumping station have been installed. Groundwater monitoring wells have been installed and are being monitored. Mr. Benges said that phase of.work is sensitive because offsite ground- water levels must be maintained while the contractor excavates the area for the pumping station construction. If the offsite groundwater falls below specified limits, it may be necessary to use different techniques for excavation shoring than planned. Councilmember Dwyer inquired about the impact, if any, as a result of the contractor's delay. Mr. Benges said the contractor will be liable to liquidate damages if the contract deadline is not met. Councilmember Dwyer inquired if the delay will affect any other subcontractors' sched- ules. Mr. Benges said he did not anticipate any effect on subsequent work. Mayor Naughten recognized Jeff Nelson, Fire District and Olympic View Water District Commission- er, in the audience. He also recognized Scout Troop 58, who were in attendance to earn their citizenship merit badges. CONTINUED HEARING TO RECEIVE INFORMATION FROM STAFF ON HEIGHT OF FENCE IN CONNECTION WITH APPEAL g.E OF HEARING EXAMINER DECISION REGARDING THE GRANTING OF A CONDITIONAL USE PERMIT FOR FENCE OVER 6 FEET IN HEIGHT AT 9826 CHERRY ST. APPELLANT: BYRON CLARK CU-57-88/AP-26-88 CONTINUED FROM 8 U FEBRUARY 21, 1989 Mayor Naughten stated that this matter was continued from the February 21, 1989 Council meeting. At that meeting, Staff was directed to measure the height of the Newland/Granfors fence adjacent to Mr. Clark's property. Planning Division Manager Mary Lou Block noted that a drawing which illustrated the fence height at several points along the interior and exterior of the fence between the Newland/Granfors and Clark's property was included in the Council packets. Byron Clark, 9822 Cherry St., disputed the information that was contained in the document submit- ted by the applicants at the previous hearing. He stated that two-thirds of the fence was com- pleted to its full height at the time of his initial complaint to the Planning Department in late July 1988. He said Staff investigated the matter and subsequently issued a stop -work order on further construction of the fence. He said scaffolding had been entirely removed from the west and south wall, and the only work that remained was ground clean-up of debris and water blasting of the completed wall. Mr. Clark said two-thirds of the fence had been constructed to heights in excess of six feet by that time. Mr. Clark said two of the four adjoining neighbors, himself and Mr. Butler, object to the height of the wall. He noted that the applicants' attorney, Mr. Cody, had implied at an earlier hearing that Mr. Butler may not have any right of appeal because he did not bear title to the property and that the views of the owner of that property, Mr. Levy, were unknown. Mr. Clark read a let- ter from Mr. Butler, dated September 19, into the record which stated, in essence, that he EDMONDS CITY COUNCIL MINUTES Page 3 MARCH 7, 1989 does have an ownership interest and equity in the property located at 1610 - 9th Ave. N., Edmonds, but legal title was in the name of Robert Levy. He said Mr. Levy also strongly opposes the excessive fence height. I The applicant had no testimony to offer at that time. J Mr. Clark inquired if the City Council would enforce the 6 foot height limitation for fences. He began to elaborate on the circumstances for which a conditional use permit may be granted when City Attorney Scott Snyder raised a point of order. Mr. Snyder pointed out that the Council's motion was to extend 3 minutes to the applicant and appellant to discuss the measurement and height issue, and not to summarize previously -made statements. Mr. Clark requested the Council to allow him to refresh their memory by discussing the issue of whether or not a conditional use permit should be granted. Councilmember Wilson said the testimony was well preserved in his mind and that he was prepared.to proceed with the hearing. George Cody, attorney for the applicants, noted that the illustration depicted a clear difference between the established grade, or finished grade, on the Clarks' side of the fence from that on the Newland's side of the fence. Mr. Cody maintained that absent any regulation by a municipali- ty, an owner bears the right to do with his property as he wished. Mr. Cody said the issue before the Council was the height of the fence relative to the finished grade on the property owners' side of the fence and not the height on the exterior of the proper- ty. Mr. Cody said the burden that is placed upon Mr. Clark as it relates to the ordinance and issu- ance of a conditional use permit is his obligation to show that there is a substantial detriment to his private property interest because of the height of the fence in question as it exceeds six feet. He pointed out that Mr. Clark has failed to provide any testimony, nor has any evidence been submitted, which would document that a substantial detriment does, in fact, exist. Councilmember Hertrich inquired from what points the fence height measurement was taken. Plan- ning Division Manager Mary Lou Block replied from the top of the fence to the grade. Councilmem- ber Hertrich inquired if the footing was measured. Ms. Block said the footing was not measured 'i because it lies beneath the surface. Councilmember Hall. noted that the Hearing Examiner, during his annual report last year, had called the Council's attention to his concern that the fence code is weak and causes controver- sy. He said he believed the City should redefine the Code with respect to: 1) height of fences; 2) under what conditions a fence height should be allowed to exceed the standard; 3) from what topographical point should a fence be measured; 4) should fences be measured from the top of a retaining wall, or is a retaining wall included as part of a fence. Councilmember Hall said the Council would be hard-pressed to come up with some criteria if the Hearing Examiner was having difficulty with the definition of a fence. She said, therefore, the Council would have to render a decision based on pure common sense. Councilmember Hertrich pointed out that Mr. Clark had previously stated that the fence in ques- tion was detrimental to his property value. Councilmember Hertrich said he considered the foot- ing of the fence in question to be an integral part of the fence and it should be included as part of the height measurement. Councilmember Jaech asked the Council to consider whether or not a conditional use permit would be granted for the fence in question if it was not yet constructed. * Councilmember Dwyer said the relevant height of the fence to be considered was on the exterior (Clark's side) of the fence. He pointed out that the issue to consider was not simply if the City had a six foot height limitation and if that Code would be enforced, because he said there are provisions for a conditional use permit and a hearing process. Councilmember Dwyer said the question, then, was whether or not a significant detriment existed as set forth in the Code. He noted that Mr. Clark is only one of four neighbors who have expounded as to why the fence is detrimental. Councilmember Dwyer said he was having difficulty with Mr. Clark's concern, i.e.,the potential detriment to his property value if fences in excess of the height limit contin- ue to be constructed contiguous to his property, as being significantly detrimental because he said that concern was speculative and also controllable through the hearing process. He recom- mended that the conditional use permit be granted for the fence heights as depicted in the illus- tration that was provided by Staff. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER WILSON, TO UPHOLD THE HEARING EXAMINER'S DECISION REGARDING THE APPEAL OF THE HEARING EXAMINER DECISION REGARDING THE GRANTING OF A CONDI- TIONAL USE PERMIT FOR A FENCE OVER 6 FEET IN HEIGHT AT 9826 CHERRY ST. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCILMEMBER DWYER, COUNCILMEMBER HALL, COUNCILMEMBER NORDQUIST, AND COUNCILMEMBER WILSON IN FAVOR; COUNCILMEMBER KASPER, COUNCILMEMBER HERTRICH, AND COUNCILMEMBER JAECH OPPOSED. * See Council Minutes of March 21, 1989 EDMONDS CITY COUNCIL MINUTES Page 4 MARCH 7, 1989 /4•E' a4L#- HEARING AUCE—so ON APPEAL OF HEARING EXAMINER DECISION REGARDING APPROVAL OF CONDITIONAL 1 D' M M L B1 t d that on A.... 19 1989 the Hearin Examiner anning ivisik P Ms. Block noted that the Hearing Examiner's decision, the appeal letter, and exhibits from the hearing were included in the Council packets. Ms. Block noted that an accessory dwelling unit is an allowed use, subject to the granting of a conditional use permit, in a single family dwelling -in residential areas of the City. Ms. Block reviewed the criteria of ECDC 20.21.030 for single family dwelling units. She also reviewed the Hearing Examiner's Decision. Councilmember Hertrich inquired if it was customary to request right-of-way dedications when a conditional use permit is granted for an accessory dwelling unit. Ms. Block replied affirmative- ly. Councilmember Nordquist noted that the Council has officially stated that they do not wish to widen 74th Ave. W. Ms. Block said the Official Street Map indicates that 74th Ave. W. is subject to a 5 foot additional dedication but could be amended at the Council's direction. Councilmember Nordquist said it appeared to him that the intent of the accessory dwelling unit, when it was initially under discussion, was to provide. additional room in a home for a relative. Ms. Block said the ordinance does not specify who the inhabitant(s) of an accessory dwelling unit shall be. Councilmember Nordquist inquired about the difference between a duplex and an accesso- ry dwelling unit. Ms. Block said the owner of the home for which an accessory dwelling unit is being proposed must live either in the primary unit or accessory unit; only one electric and water meter are allowed; an accessory unit is secondary to the main dwelling unit; and the build- ing is not to change in appearance from a single family structure. Councilmember Nordquist in- quired what legal recourse would be available to the City if the owner moved away from the resi- dence shortly after a conditional use permit was granted for an accessory unit. City Attorney Scott Snyder stated that section 20.21.040 (3) of the Edmonds Community Development Code provides for automatic permit expiration in that event. Councilmember Nordquist read an excerpt from a letter marked as an exhibit from Mr. Gibbs stat- ing, in essence, that the Planning Staff assured him that the granting of a conditional use per- mit would not be a precedent -setting action and would not have any effect on any other zoning or permits. Councilmember Nordquist questioned, then, if Staff was promoting the conversion of single family homes to multiple dwelling units. Ms. Block replied negatively. She explained._ that the granting of a conditional use permit was not precedent setting in that anyone who ap- plied for a conditional use permit would not automatically be granted it. Mr. Snyder noted that the letter which Councilmember Nordquist referred to was dated March 7, 1989 and marked as "Gibbs Exhibit". Mr. Snyder also noted that the Council received a letter dated March 27, 1989, also marked "Gibbs Exhibit" purporting to be a letter addressed to Bob and Peggy Boye. The City Clerk placed a copy of each letter on the table by the door for public review. James Gibbs, 23832 - 74th Ave. W., said the use for which he has applied is an allowed use under the Code and the application meets all of the requirements of the Code. Bill Lancaster, 23911 - 74th Ave. W., said Mr. Gibbs does not meet criterion #1 of the applica- tion for submittal of a notarized sworn statement of the applicant that he or she had resided in the single family dwelling for at least three years since such single family dwelling was complet- ed. He noted that Mr. Gibbs has only resided in his home for approximately 6 months. Mr. Lancaster said the conditional use permit, if granted, will be in conflict with the covenants of the Lake Ballinger area, which were established in 1960. He said he is aware that the Council has no authority to enforce those covenants but felt the covenants should be taken into considera- tion when the Council renders its decision. EDMONDS CITY COUNCIL MINUTES Page 5 MARCH 7, 1989 In response to Mr. Lancaster's concern with respect to compliance with the criterion, Ms. Block clarified that the issue was not the length of time that an owner has resided in a residence for which an accessory dwelling unit is proposed but for how many years the home was in existence prior to the application for a conditional use permit. She said Staff has an affidavit on file which indicates that the home in question is thirty years old. Mr. Snyder reviewed 20.21.010 (A) of the ECDC and noted that the single family dwelling in which an accessory dwelling unit is pro- posed to be built has been occupied by someone since the date the home was built. Mayor Naughten opened the audience portion of the hearing. Rebecca Coffee-Garvie, 23816 - 74th Ave. W., said the neighborhood is a long-established neighbor- hood; residents have lived there for as long as fifty years. She said those residents would like the neighborhood to remain a single family area. Ms. Garvie said the covenants of Lake Ballinger were grandfathered when the area was annexed into the City in the 1960's. She said it seemed odd that the City would not uphold those covenants. Because Ms. Garvie's time allotment expired and she had additional testimony, she submitted her written testimony to the City Clerk, which was marked as Exhibit 1. Mr. Snyder stated that the City does not have constitutional authority to try title to land. He said private covenants are agreements between groups of property owners which are enforceable by those individuals themselves through civil proceedings in court. The City cannot enforce the covenants on their behalf because it is a private matter. Mr. Snyder said the purpose of the covenant requirement in the City ordinance is to give notice to people who purchase a house with an accessory dwelling unit that the conditional use permit is not transferable and the use does not pass with the land. Councilmember Dwyer noted that the Council has, in the past, conditioned approval of an applica- tion if the applicant could prove that a restriction which was alleged by opposing residents did not apply. He inquired if it would be appropriate for the Council to approve the application for the conditional use permit for an accessory dwelling unit conditioned upon the applicant proving that the use was not significantly detrimental to the neighborhood. Mr. Snyder said the case to which Councilmember Dwyer referred related to subdivision disputes over ownership of property. He said that ruling was not generally applicable to the type of situation before the Council at the present time. Mr. Snyder stated if the covenant is valid, then the surrounding property owners can enforce it and prevent Mr. Gibbs from proceeding to have the premises occupied by injunctive relief. He said, however, there is no injunctive relief on the part of those residents to prevent the City from issuing a building permit or a conditional use permit. Mr. Snyder said the Council must separately determine the issue of the detriment; if the covenants are enforceable, then there is no detriment. Dennis. Bright, 23905 - 74th Ave. W., said he.moved into the neighborhood because it is a single family zone. He said he has a distinct feeling that anyone can apply for a conditional use per- mit and be granted it. He questioned the validity of zoning laws if the density can be altered by the issuance of a conditional use permit. Ron Howard, 23823 - 74th AVe. W., former President of the Lake Ballinger Community Club and present member of the Concerned Citizens of Edmonds, representing himself only, spoke in favor of granting the conditional use permit. He said Mr. Gibbs and his tenants are very quiet neighbors in contrast to the tenants of homes that have been rented in that neighborhood. He pointed out that Mr. Gibbs and his tenants are considerate of one another and they will have a favorable impact on the neighborhood. Sam Buckley, 23619 - 74th Ave. W., said he believed the neighborhood should remain a single fami- ly area. He said multi -family dwellings contribute to the crime rate. Randy Garvie, 23816 - 74th Ave. W., said he was not opposed to the accessory unit per se but would feel more comfortable if the occupant(s) was related to Mr. Gibbs. Mr. Garvie was concerned that the allowed additional parking of an accessory dwelling unit would increase the risk of traffic accidents in the neighborhood and threaten the safety of his young son. He said he would like the neighborhood to remain a single family area. Meredith B. Stokes, 23525 - 74th Ave. W., said a majority of the homes on Lake Ballinger could be converted to duplexes, but he said the residents wanted the area to remain a single family area. EDMONDS CITY COUNCIL MINUTES Page 6 MARCH 7, 1989 Mr. Stokes said since the Crime Watch Program was established in his neighborhood, the crime rate has diminished significantly. He said the introduction of mutli-family dwellings in the neighbor- hood will increase the crime rate. Mr. Stokes said he would not be opposed to occupancy of the accessory dwelling unit by a relative of Mr. Gibb's but he was opposed to unrelated tenants. Mr. Stokes read a letter into the record from his neighbor, Gordon E. Lindstrom, 23511 - 74th Ave. W., who strongly opposed the multi -family residency that has appeared in his neighborhood. He urged the Council to disallow the use of multi -family dwellings in single family areas. Jennifer Strauss, 23925 - 74th Ave. W., said many of the residents in her neighborhood would like to maintain the integrity of the single family neighborhood. She said the Council should require the following additional conditions that are more in keeping with the ordinance if they allow the issuance of the conditional use permit; 1) limit occupancy of the accessory unit to relatives; 2) the smaller portion of the home is to be used as an accessory dwelling unit and not the larger portion; and 3) disallow the use of the structure as a duplex. Nancy Gilmore, 23828 - 74th Ave. W., said the term "mother-in-law apartments" was used when the hearings were conducted which led to adoption of the accessory dwelling unit ordinance. She said she was in favor of mother-in-law apartments because they provide a home for elderly people. She pointed out that the occupants of Mr. Gibbs' home are not related. Ms. Gilmore said without the requirement that an accessory unit be occupied by a relative, the home is then converted to a duplex. She was opposed to the conversion of her neighborhood to a multi -family area. Ms. Gilmore said the accessory unit in question was constructed without a permit or inspection for electrical wiring and plumbing. Ms. Gilmore submitted copies of Council minutes of January la and February 8, 1983 regarding accessory dwelling units (marked Exhibit 2) to Ms. Block. Mr. Gibbs said the Lake Ballinger covenants specified that only a house could be constructed on the property and did not speak to the issue of an accessory dwelling unit. In response to Mr. Garvie's concern regarding increased traffic, Mr. Gibbs pointed out that the number of vehicles would increase if he were to invite roommates into his home rather than the elderly couple who live there at the present time. Mr. Gibbs said he was opposed to the requirement for the dedication of five feet of his property in order to obtain a conditional use permit. In response to Ms. Gilmore's statement that the accessory unit was constructed illegally, Mr. Gibbs said City Staff have verified that only one kitchen exists in the home. He noted that the unit will be inspected as a condition of the permit. Mayor Naughten closed the public portion of the hearing. Because Mr. Lancaster wanted to give additional testimony, COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HALL, TO REOPEN THE PUBLIC HEARING FOR FIVE MINUTES. MOTION CARRIED. Mr. Lancaster asked Mr. Snyder to explain, once again, the occupancy provision of the ordinance. Mr. Snyder clarified that that provision states that the dwelling must be occupied for at least three years from the date the construction of such single family dwelling was completed but does not stipulate by whom the dwelling must be occupied. Mr. Snyder said the intent of that provi- sion was to preclude the construction of homes for the sole purpose of renting them. Betty Mathay, 8006 - 240th S.W., said she was opposed to the accessory dwelling unit in question because it violates the spirit of the ordinance, which was to provide elderly people with an affordable means to reside in their own homes, and the character of the neighborhood. Mayor Naughten closed the public portion of the hearing. At the request of Councilmember Kasper, Mr. Snyder read the definition of "family" in 21.30.010 as follows: "An individual or two or more persons related by genetics, adoption, or marriage or a group of five or fewer persons who are not related by genetics, adoption, or marriage, and none of whom are wards of the court unless such wards are related by genetics, adoption, or marriage to all other members of such group living together in a dwelling unit". Councilmember Kasper said he raised that question because single family housing is becoming nonexistent. Councilmember Kasper said the intent of the accessory dwelling unit ordinance, when it was in the process of enactment, although it was not specified, was to provide an affordable means for elder- ly people to continue to live in their own homes. EDMONDS CITY COUNCIL MINUTES Page 7 MARCH 7, 1989 Councilmember Hertrich inquired if additional conditions could be imposed on a conditional use permit. Mr. Snyder replied affirmatively. He said, however, those conditions must bear some rational relationship to the purpose for which the ordinance was intended. Councilmember Hertrich inquired if the use of an accessory dwelling unit could be limited to relatives of the owner. Mr. Snyder said courts have repeatedly held that there is no rational governmental pur- pose related in limiting the use of buildings to related family members. Councilmember Hertrich asked about the number of parking spaces that are allowed for the main dwelling unit and an accessory dwelling unit. Ms. Block said a maximum of three parking spaces are allowed on site but off -site parking must also be provided. Councilmember Hertrich inquired if the property in question can accommodate three vehicles on site. Ms. Block replied affirma- tively. Mr. Snyder noted that the City recently passed a requirement in accordance with recent Supreme Court decisions that if a person objected to a mandatory dedication in accordance with the street plan, the burden of proof would shift to the City to establish a logical nexus between the taking of the property and the grant of a conditional use permit. He said there has not been sufficient proof to satisfy the Supreme Court requirements on mandatory dedications. Mr. Snyder said he was unsure whether the applicant filed an appeal from the Hearing Examiner recommendation for the dedication. He advised the Council to remand that matter to the Hearing Examiner to ask Staff to address that issue if the Council wished to preserve the dedication. Because Councilmember Hertrich questioned the true intent of the Code when the accessory dwelling unit provision was in the process of enactment, COUNCILMEMBER HERTRICH MOVED TO CONTINUE THE HEARING TO CLARIFY THAT INTENT. MOTION FAILED FOR LACK OF A SECOND. Councilmember Hall said she had been one of the main proponents of the mother-in-law accessory unit. She recalled that discussions had focused around providing an accessory unit in one's home for an elderly relative. For the benefit of the audience, Councilmember Hall said conditional use permits are granted when the criteria are met, but she said the objections of adjacent neighbors are also taken into con- sideration. In response to a concern raised by Councilmember Dwyer regarding 20.05.010 (3), Mr. Snyder noted that the appropriate ordinance should always be referenced first and if no ambiguity exists, then there is no need to look beyond the terms of that ordinance. He noted that the accessory dwell- ing unit ordinance does not make reference to "mother-in-law" and the family definition refers to unrelated individuals. Mr. Snyder stated that the other rule that is typically applied in situa- tions similar to the issue before the Council is that specific criteria of the zoning code take precedence over the general provisions of the Comprehensive Plan. Councilmember Hall inquired if the intent of the Code that the accessory unit be the lesser unit and that the owner occupy the main portion of a home could be upheld. Mr. Snyder said the intent could be upheld if the ordinance was ambiguous. He noted, however, that ECDC 20.21.030 (F) states, "The primary dwelling or the accessory dwelling unit shall be occupied by the owner of such residence or unit, excluding lessees and renters, so long as the accessory dwelling unit is used for dwelling purposes separate and distinct from the primary dwelling". COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO UPHOLD THE HEARING EXAMINER'S DECISION BECAUSE ALL CRITERIA OF THE CODE APPEAR TO HAVE BEEN MET. Councilmember Hertrich said he was not prepared to vote on the motion until the question was resolved of whether or not the true intent of the Code was written into the Code. Councilmember Dwyer inquired if the requirement of the dedication was included in the motion. Councilmember Kasper replied negatively. The seconder agreed. A ROLL CALL VOTE WAS TAKEN. MOTION CARRIED WITH COUNCILMEMBER KASPER, COUNCILMEMBER DWYER, COUN- CILMEMBER HALL, AND COUNCILMEMBER WILSON IN FAVOR; COUNCILMEMBER HERTRICH, COUNCILMEMBER JAECH, AND COUNCILMEMBER NORDQUIST OPPOSED. The meeting recessed at 9:20 p.m. and reconvened at 9:32 p.m. y PREVIEW OF 1989 ARTS COMMISSION ACTIVITIES I Larry Hulbert, Edmonds Arts Commission reviewed the major goals and program activities that the Commission plans in 1989. EDMONDS CITY COUNCIL MINUTES Page 8 MARCH 7, 1989 Mr. Hulbert said a sculpture will be purchased as part of the Percent for Public Art Program. Councilmember Jaech inquired where the sculpture would be located. Mr. Hulbert said a committee has identified three or four priority sites but the actual location would be dependent, in part, on the artwork that is commissioned. Councilmember Wilson inquired if the goals have been dovetailed with the Centennial Committee so that use of the expenditures is maximized. Mr. Hulbert said discussions are in the initial stag- es at the present time with respect to that issue. Councilmember Hall complimented the Arts Commission for its accomplishments. APPROVAL OF INTERLOCAL AGREEMENT WITH SNOHOMISH COUNTY REGARDING CHASE LAKE DRAINAGE IMPROVEMENTS Community Services Director Peter Hahn reported that the Council approved a joint study by the City and County of the Chase Lake drainage area in the past. The study had been presented to the Council and the costs of various elements were discussed. He said the Council was informed that the project costs would be shared on the basis of the participant's acreage in each problem ar- ea. The City's share of the costs are included in the 1989 and 1990 C.I.P. budgets and will be funded under the Combined Utility. Mr. Hahn said the interlocal agreement formalizes the cost sharing .and the respective roles of each jurisdiction in implementing the projects in the three problem areas. Mr. Hahn noted that a table was included in the Council packets that summarizes the cost appor- tionment. He said the agreement was drafted by staffs from the City and County and reviewed by the City Attorney. Mr. Hahn noted that the total Chase Lake project cost is estimated at $1 million. Based on acre- age within current political boundaries, the City's share is $266,000. The City's costs are included in the budget. Mr. Hahn said the amount which the City would reimburse the county for 50% of the cost of improve- ments in the County's share of the three problem areas ($367,000) would be budgeted if and after annexation takes places. He noted that the City's share decreases with time if annexation oc- curs. For example, if the 1989 vote is not favorable to annexation, the City's share would de- crease 10% with each year that passes. Councilmember Kasper inquired if the agreement encompassed only drainage improvements. Mr. Hahn replied affirmatively. Councilmember Hall inquired if any beautification measures will be made. Bill Dairy, Snohomish County Surface Water Program Supervisor, replied affirmatively. He said approximately four acres have been acquired adjacent to the School District for the project site. He said the site will appear, upon completion, as,a natural pond and marsh. A meandering shoreline will be constructed and planted in native vegetation to enhance wildlife. In addition, he said a trail will be pro- vided around the perimeter, the site will be landscaped, and a small parking area will be provid- ed. Councilmember Hertrich inquired if any grants are available for the project. Mr. Dairy said a grant may be available through the Centennial funding. Councilmember Hertrich inquired if any grant received will be applied towards the reduction of the total local costs. Mr. Hahn replied affirmatively. Councilmember Hertrich suggested that the agreement include a provision to that effect. Mr. Dairy added that availability of a grant is enhanced if interlocal cooperation is demonstrated. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER KASPER, TO APPROVE THE INTERLOCAL AGREE- MENT AND INCLUDE A GRANT CLAUSE. MOTION CARRIED. CONTINUED DISCUSSION ON EDMONDS FERRY TERMINAL STUDY Mayor Naughten said it is necessary to answer some questions in order to structure the study. He A suggested that the Council adopt the format which was included in the Council packets. Councilmember Wilson felt that the issue was sensitive and controversial enough that public input should be elicited. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO SCHEDULE A PUBLIC HEARING ON APRIL 4, 1989 TO DISCUSS THE STRUCTURE OF THE DEPARTMENT OF TRANSPORTATION STUDY. Mayor Naughten adjourned the meeting at 10 p.m. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCIL - MEMBER KASPER, TO EXTEND THE MEETING UNTIL 10:30 P.M. MOTION CARRIED. EDMONDS CITY COUNCIL MINUTES Page 9 MARCH 7, 1989 The Council discussed the scope of issues that could be raised at the April 4 hearing. Councilmember Hertrich said if the City allows the Department of Transportation (DOT) to conduct the study, it will result in a less than desirable outcome because DOT proposes to utilize two jumbo ferries and promote more vehicular traffic and less passenger -only service. MOTION CARRIED. REVIEW OF HEARING EXAMINER STATUS Personnel Manager Brent Hunter reported that on December 6, 1988 Scott Snyder notified the Coun- cil that Hearing Examiner James Driscoll's four-year appointment would expire on December 31, 1988. The Council took action to advertise the position for RFP's. Mr. Driscoll agreed only to one three-month extension of his contract to March 31, 1989. Mr. Hunter said the RFP was developed in early January and advertised in local papers. He said Mr. Snyder recommended that advertisements be placed in local bar journals but Snohomish County was the only journal that had a February publication. Mr. Hunter said the City has had nine inquiries but has not received any proposals. He said it will be necessary to appoint an interim Hearing Examiner after March 31, 1989 until a final selec- tion and appointment are made. Councilmember Dwyer inquired how it occurred that the deadline for applications coincided with the last day of the interim period of Mr. Driscoll's service. Mr. Hunter said the deadline date was set to allow thirty days to receive correspondence from the Snohomish County Bar Journal advertisement. He said Staff attempted to advertise in other local journals but the publication dates were too far into the future. Councilmember Dwyer inquired if any efforts have been made to extend Mr. Driscoll's interim period of service beyond March 31. Neither Staff nor the Coun- cil President had contacted Mr. Driscoll. Councilmember Wilson said Mr. Driscoll has done an excellent job and he did not want to lose him. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER KASPER, TO RENEW THE HEARING EXAMINER'S TERM FOR FOUR YEARS BEGINNING APRIL 1, 1989. Councilmember Hertrich said he spoke with Mr. Driscoll over the telephone recently and learned that he was willing to extend his contract for another interim period. Councilmember Hertrich said he felt it was unnecessary to pursue the motion in light of that verbal agreement. Councilmember Dwyer requested Councilmember Wilson to withdraw the motion to avoid the appearance of a decision on the merits of Mr. Driscoll's tenure. COUNCILMEMBER KASPER MOVED TO AMEND THE MOTION TO EXTEND MR. DRISCOLL'S CONTRACT TO OCTOBER 1, 1989. MOTION FAILED FOR LACK OF A SECOND. Councilmember Wilson said he would withdraw the motion if Council President Kasper would contact Mr. Driscoll tomorrow and obtain a written agreement to extend his contract for an interim peri- od. Council President Kasper concurred. COUNCILMEMBER WILSON WITHDREW THE MOTION. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER JAECH, TO OFFER A THREE MONTH EXTENSION TO MR. DRISCOLL'S CONTRACT. MOTION CARRIED. PROPOSED ORDINANCE AMENDING EDMONDS CITY CODE CHAPTER 5.05 RELATING TO ANIMAL CONTROL Police Chief Dan Prinz noted that the amendment reorganizes existing sections, clarifies proce- dures for abatements and hearings, and adopts State law (RCW 16.08.080) regarding dangerous dogs certificates of registration. He said it also defines "dangerous dog", "potentially danger dog", "proper enclosure of a dangerous dog", and "severe injury". Chief Prinz reviewed the amendments with the Council. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO MOVE THE ITEM TO APRIL 25 FOR FURTHER REVIEW. City Attorney Scott Snyder noted that the definitions that Chief Prinz referred to are all con- tained in State law and the City is required to adopt them. EDMONDS CITY COUNCIL MINUTES Page 10 MARCH 7, 1989 MOTION FAILED WITH COUNCILMEMBER KASPER, COUNCILMEMBER HERTRICH, AND COUNCILMEMBER NORDQUIST IN FAVOR; COUNCILMEMBER DWYER, COUNCILMEMBER HALL, COUNCILMEMBER JAECH, AND COUNCILMEMBER WILSON OPPOSED. COUNCILMEMBER HALL MOVED, SECONDED BY COUNCILMEMBER WILSON, TO APPROVE THE AMENDED ORDINANCE. Councilmember Hertrich said would not approve the amended ordinance until a number of questions that he had were clarified. Mr. Snyder noted that the existing ordinance has been in effect since 1976. He said the only definitions that are referenced in the amended ordinance are re- quired to be adopted by the State. Councilmember Hertrich continued asking questions until the extended meeting period expired. Mayor Naughten adjourned the meeting at 10:30 p.m. The motion on the floor was not passed because the meeting was adjourned. Because an Executive Session was scheduled, COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER WILSON, TO EXTEND THE MEETING TO 11 P.M. MOTION CARRIED WITH COUNCILMEMBER KASPER AND COUNCILMEM- BER NORDQUIST OPPOSED. The meeting recessed to an Executive Session at 10:30 p.m. to discuss a presentation to the Bound- ary Review Board and an issue related to Olympic View Water District and reconvened at 10:40 p.m. COUNCILMEMBER JAECH MOVED, SECONDED BY COUNCILMEMBER HALL, TO PASS RESOLUTION OF INTENT #267 STATING EDMONDS' INTENT WITH RESPECT TO ITS ASSUMPTION OF THE ASSETS AND OBLIGATIONS OF OLYMPIC VIEW WATER AND SEWER DISTRICT. MOTION CARRIED. The meeting adjourned at 10:41 p.m. THESE MINUTES ARE SUBJECT TO MARCH 21, 1989 APPROVAL. a JACQUELINE G. PARRETT, City Clerk LARRY S. NAUGHTEN, Mayor EDMONDS CITY COUNCIL MINUTES Page 11 MARCH 7, 1989 AGENDA EDMONDS CITY COUNCIL PLAZA MEETING ROOM -LIBRARY BUILDING 7:00 - 10:00 P.M. MARCH 7, 1989 CALL TO ORDER FLAG SALUTE 1. CONSENT AGENDA (A) ROLL CALL (B) APPROVAL OF LEASE OF PROPERTY FOR COMMUNITY GARDENS (C) PROPOSED ORDINANCE 2703 AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE 20.90.020 REGARDING PUBLIC TESTIMONY AT PUBLIC HEARINGS (D) AUTHORIZATION TO CALL FOR BIDS FOR 1989 WATER REPLACEMENT PROGRAM (E) AUTHORIZATION TO CALL FOR BIDS FOR INSTALLATION OF DOWNTOWN DECORATIVE STREET LIGHTS (F) AUTHORIZATION FOR MAYOR TO SIGN LABOR AGREEMENT WITH FIREFIGHTERS' UNION 2. AUDIENCE 3. CWC-HDR MONTHLY TREATMENT PLANT REPORT (10 MINUTES) 4. CONTINUED HEARING TO RECEIVE INFORMATION FROM STAFF ON HEIGHT OF (30 MINUTES) FENCE IN CONNECTION WITH APPEAL OF HEARING EXAMINER DECISION REGARDING THE GRANTING OF A CONDITIONAL USE PERMIT FOR A FENCE OVER 6' IN HEIGHT AT 9826 CHERRY ST. (APPELLANT: BYRON'CLARK) (CU-57-88/ AP-26-88) (CONTINUED FROM FEBRUARY 21, 1989) 5. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING APPROVAL OF (45 MINUTES) CONDITIONAL USE PERMIT FOR ACCESSORY DWELLING UNIT AT 23832 74TH AVE. W. (APPELLANTS: MARY A. LANCASTER, ET. AL./FILE AP-5-89/CU-90-88) 6. PREVIEW OF 1989 ARTS COMMISSION ACTIVITIES ( 5 MINUTES) 7. PROPOSED ORDINANCE 2704 AMENDING EDMONDS CITY CODE CHAPTER 5.05 (10 MINUTES) RELATING TO ANIMAL CONTROL 8. CONTINUED DISCUSSION ON EDMONDS FERRY TERMINAL STUDY (20 MINUTES) 9. REVIEW OF HEARING EXAMINER STATUS (10 MINUTES) 10. APPROVAL OF INTERLOCAL AGREEMENT WITH SNOHOMISH COUNTY REGARDING (15 MINUTES) CHASE LAKE DRAINAGE IMPROVEMENTS 11. MAYOR 12. COUNCIL 13. EXECUTIVE SESSION - PENDING LITIGATION THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE HANDICAPPED ACCESSIBLE