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2018-10-03 Architectural Design Board Packet1. 2. 3. 4. 5. 6. 7. 8. 9. 10. o Agenda Edmonds Architectural Design Board snl. ynyo COUNCIL CHAMBERS 250 5TH AVE NORTH, EDMONDS, WA 98020 OCTOBER 3, 2018, 7:00 PM CALL TO ORDER APPROVAL OF MINUTES 1. Approval of Draft Minutes of August 1, 2018 APPROVAL OF AGENDA AUDIENCE COMMENTS MINOR PROJECTS PUBLIC HEARINGS CONSOLIDATED PERMIT APPLICATIONS ADMINISTRATIVE REPORTS / ITEMS FOR DISCUSSION 1. Processes, Scope and Roles of the Architectural Design Board ADB MEMBER COMMENTS ADJOURNMENT Edmonds Architectural Design Board Agenda October 3, 2018 Page 1 2.1 Architectural Design Board Agenda Item Meeting Date: 10/3/2018 Approval of Draft Minutes of August 1, 2018 Staff Lead: N/A Department: Planning Division Prepared By: Diane Cunningham Background/History N/A Staff Recommendation Approve the draft minutes Narrative The draft minutes are attached. Attachments: Exhibit 1: ADB Draft Minutes of 8.1.18 Packet Pg. 2 2.1.a CITY OF EDMONDS ARCHITECTURAL DESIGN BOARD Minutes of Regular Meeting August 1, 2018 Chair Strauss called the meeting of the Architectural Design Board to order at 7:00 p.m., at the City Council Chambers, 250 - 5' Avenue North, Edmonds, Washington. Board Members Present Board Members Absent Staff Present Lauri Strauss, Chair Mike Clugston, Associate Planner Joe Herr, Vice Chair Karin Noyes, Recorder Lois Broadway Cary Guenther Joshua Shupe Athene Tarrant Tom Walker APPROVAL OF MINUTES BOARD MEMBER BROADWAY MOVED THAT THE MINUTES OF APRIL 4, 2018 BE APPROVED AS w SUBMITTED. VICE CHAIR HERR SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. APPROVAL OF AGENDA BOARD MEMBER SHUPE MOVED THAT THE AGENDA BE ACCEPTED AS PRESENTED. VICE CHAIR HERR SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. REQUESTS FROM THE AUDIENCE: No one in the audience indicated a desire to address the Board during this portion of the meeting. a MINOR PROJECTS: z No minor projects were scheduled on the agenda. w c PUBLIC HEARING: z Public Hearing on proposed Paradise Heights Condominiums for three, 4-unit multifamily residential buildings, landscaping and associated site improvements. Site is located at 546 Paradise Lane (File No. PLN20180025 Q Chair Strauss reviewed the rules and procedures for the public hearing and then opened the hearing. She reminded the Board of the Appearance of Fairness Doctrine and asked if any member of the Board had engaged in communication regarding the application outside of the public hearing process. All Board Members answered no. She also invited Board Members to disclose any ex-parte communications, and none indicated any. She asked if any member of the Board had a conflict of interest or believed he/she could not hear and consider the application in a fair and objective manner. None Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 1 of 11 Packet Pg. 3 2.1.a indicated a concern. Lastly, she asked if anyone in the audience objected to any Board Members' participation as a decision maker in the hearing. No one in the audience indicated a concern. All those who planned to participate in the hearing were asked to stand, raise their right hand, and affirm that the testimony they give would be the truth, the whole truth and nothing but the truth. Mr. Clugston presented the Staff Report for a 12-unit multifamily condominium project located at 546 Paradise Lane. He explained that, due to its location and because it requires a State Environmental Policy Act (SEPA) threshold determination, general design review is required by the Architectural Design Board using the requirements in ECDC 20.11 for Type III-B permits. Following the hearing, the Board will be asked to make a final decision on the application. He referred them to the Staff Report, which includes 15 Attachments. He noted that three additional attachments (public comments) were added to the record after the Staff Report was sent out. Mr. Clugston advised that the project site is located at the western end of the Westgate Corridor where SR-104 (Edmonds Way) descents into the bowl. The parcel is a peninsula surrounded on three sides by rights -of -way (Paradise Lane and SR-104). Immediately adjacent to the southeast are single-family (RS-6) zoned and developed properties. The larger area is a mix of single and multifamily residential development with commercial further to the southeast along Edmonds Way. The subject site is currently developed with a single-family home. The Board approved a similar project to the one being proposed in 2007, but it was never built. Mr. Clugston reminded the Board that in order to approve the application, they must find that it is consistent with the General Design Review Criteria (ECDC 20.11.030), the Comprehensive Plan and the Zoning Regulations. He reviewed the Comprehensive Plan objectives applicable to multifamily development and explained how the application is consistent: Design Objectives for Site Design. The project is broken into three buildings to create more of a pedestrian scale a when viewed from Paradise Lane, and the proposed landscaping will provide some visual buffer to the side of the site. Vehicular access will come from the southeast side of the property, using the existing curb cut, which would be brought °r° up to standard. Frontage improvements (curb, gutter and sidewalk) will be required on Paradise Lane adjacent to the development. In addition, the street in front of the subject site will be widened. The buildings will be located towards - the street front, and parking will be located in the garages attached to each unit. Trash and recycling will be handled within each unit. • Design Objectives for Building Form. The applicant's intent is to reduce the apparent bulk and mass of the project by breaking it into three buildings. A mixture of materials, along with wall and roof modulation, will help reduce the apparent mass and create pedestrian scale, as well. • Design Objectives for Building Facade. Each fagade includes a variety of materials, window sizes, and articulation with roof overhangs and knee braces. Next, Mr. Clugston referred to the General Design Criteria found in ECDC 20.11.030 and explained how the project is w consistent: c d • Building Design. The intent of the building design criteria is to ensure that development is done at a human scale, r with a variety of windows, screened mechanical equipment, etc. The applicant is proposing to use numerous windows and a variety of materials. No brilliant colors are proposed, and the applicant has advised that all mechanical Q equipment will be screened or located inside the buildings. A condition requiring this screening is proposed. Rather than one, large building, the 12 units will be contained in three separate buildings to create a more human -scale project. No signage is proposed at this time. If the applicant wishes to add signage at a later time, it will require a separate building permit. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 2 of 11 Packet Pg. 4 2.1.a • Site Treatment. The subject site is a slightly elevated peninsula at the end of Paradise Lane. The buildings will be located in the center of the site, which is primarily flat, so the existing topography will be largely retained. Block walls will step the project down towards the end of the road at the northwest end of the site near the cul-de-sac. The landscaping proposed will provide a year-round buffer and interest. No exterior trash facilities are proposed. Wall sconces typical of residential development will be provided, but no exterior lighting is proposed. • Other Criteria. No street furniture is proposed, and the location of the mailbox has not been decided. It will likely be located somewhere within the Paradise Lane right-of-way. Mr. Clugston reviewed the development code standards applicable to multi -family residential development as follows: • Dwelling Units: The subject parcel is 0.69 acres. At 2,400 square feet of lot area per dwelling unit, the maximum number of dwelling units would be 12, and that is what the applicant is proposing. • Height: The base height limit for the RM-2.4 zone is 25 feet, with an additional height of 5 feet allowed for projects that include a 4:12 or greater pitched roof. Each building would have a 4:12 roof, which allows a height of up to 30 feet. It appears the proposal will meet the height requirements. • Structural Lot Coverage: The maximum lot coverage allowed in the RM-2.4 zone is 45% or about 13,500 square feet for the subject parcel. The applicant is proposing a lot coverage of 41.5% or 12,441 square feet. • Setbacks. The subject parcel is irregularly shaped, and street setbacks (15 feet) will be measured from the property lines adjacent to the Paradise Lane and SR-104 rights -of -way. Side setbacks (10 feet) will be measured from the east and south property lines. It appears that the proposed project will meet all of the setback requirements. w • Parking. The number of parking spaces required is based on the number of bedrooms per unit. Based on staff s calculations, 23 parking spaces will be required, and the applicant is proposing to provide 24 spaces inside the garages 00 of the 12 units. o • Landscaping. For this particular site, a dense landscape buffer (Type 1) would be appropriate along the west and southwest sides of the site facing the busy SR-104 right-of-way. A mixed buffer (Type III) would be appropriate along the south and east sides of the project where it is adjacent to single family residential parcels. While there are specific requirements for each of the landscaping types, the Board may interpret and modify the requirements as long as the proposal is consistent with the purpose of the design review chapter (ECDC 20.10.000). Type I landscaping is shown adjacent to the SR-104 right-of-way along the southwest property line, but the landscaping shown on the west property line would not meet the Type 1 requirements. However, existing mature trees and vegetation within the right-of-way along those property lines meets or exceeds the Type I buffering required z by code. While off -site landscaping does not typically satisfy buffering requirements for new projects, in this case, w the Board could consider interpreting the code in the broader context since it appears that the purposes of the landscaping chapter would be meet. The Department of Transportation has no plans for this area, and the existing trees and lower -growing vegetation will continue to be maintained. Landscaping that meets the Type III criteria is shown along Paradise Lane and on the south and east sides of the Q project. Three existing fir trees will be retained and supplemented with new evergreen and deciduous trees, numerous shrubs and groundcovers along the property line in some location and closer to the buildings in others. A 4-foot fence with an arbor is also proposed along the south property line. This combination of vegetation and screening appears to meet the Type III requirements along the south, north and east sides of the site. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 3 of 11 Packet Pg. 5 2.1.a • Vehicular Access. The current access will be improved to meet the current code requirements. No additional vehicular access has been proposed. In addition, Paradise Lane will be widened in front of the subject parcel to meet current code requirements, and curbs, gutters and sidewalks will be added, as well. Mr. Clugston summarized that a number of citizen comments were received prior to the meeting, and most voiced concern about parking, access, noise and tree loss. He acknowledged that some trees would be removed to accommodate the project and the site will change. However, the existing trees within the rights -of -way will remain and additional landscaping along Paradise Lane will improve the buffer. He also noted that the buildings will help reduce noise from SR- 104 to properties on the other side of Paradise Lane. Based on the findings, analysis, conclusions and attachments contained in the Staff Report, Mr. Clugston recommended the Board find that the Paradise Heights Project is consistent with the Comprehensive Plan, Design Criteria of ECDC 20.11.030, and zoning regulations and approve the design with the conditions outlined in the Staff Report. He explained that once the design has been approved, the project will be further analyzed as part of the Building and Engineering Permit process. Once permits have been approved, staff will do inspections to make sure that development matches up with the Development Permit Plans. Chair Strauss asked if the street improvements would extend to the cul-de-sac. Mr. Clugston answered that the City does not have the authority to require the developer to extend the street improvements beyond the boundaries of the subject site. Board Member Broadway asked if there is a fire hydrant on Paradise Lane. Mr. Clugston answered that there is a hydrant where Paradise Lane turns and heads north. The Fire Marshall is also requiring an on -site hydrant. Board Member Shupe asked if parking is allowed along Paradise Lane. Mr. Clugston said he does not anticipate that "no a parking" signs will be installed along Paradise Lane, but it is important to note that the roadway would be widened to accommodate two lanes of traffic, as well as some additional space along the side that could be used for parking. If the °r° Engineering Department determines there is not adequate space for on -street parking, "no parking" signs could be installed. M Vice Chair Herr asked if the buildings would have sprinklers, per the fire code, and Mr. Clugston answered affirmatively Rob Michel, Michel Design, was present to represent the applicant. He referred to the elevation drawings and pointed out that the first floor of each of the buildings will cantilever out from the ground floor, which will be smaller. This will $ allow light into the project and make the buildings appear less massive. Because of the irregular shape of the lot, the applicant is proposing to reduce the lot coverage below what is allowed to minimize impacts to neighboring properties. He pointed out the rectangular areas near the access way, which are requirements of the Fire District and one reason why a the access was designed as it was. The new fire hydrant will be located at the west end of Building B in a centralized location, and the Fire District is requiring connections to feed the fire suppression systems in all three buildings. Mr. Michel said the applicant had originally proposed a trash facility in the far -right corner of the site, but staff suggested x that the existing fir trees be retained. The applicant agreed to handle trash collection inside each of the units. This area w would also have been a good location for guest parking. However, because it is not required, the applicant has elected not to include it in the plan. z Mr. Michel recalled that traffic concerns and the narrow width of Paradise Lane were prime concerns when the subject Q site was rezoned in 2006. However, at that time, Paradise Lane met the City's minimum width requirement of 16 feet for existing streets. Today, the required street standard (ECDC 18.90.030) in the multifamily residential zone is 22 feet, and the applicant is proposing to widen the street to meet that requirement. In addition to widening the street, the applicant will also be required to install curb, gutter and sidewalks along Paradise Lane. The sidewalk improvements will help improve safety for pedestrians. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 4 of 11 Packet Pg. 6 2.1.a Board Member Tarrant noted that the north elevations of the buildings appear to be elevated to accommodate parking underneath. She asked if landscaping would be provided to screen the bottoms of these buildings. Mr. Michel answered that there will be a terraced rockery and the foundations of the buildings will be screened with landscaping. Board Member Broadway asked about the width of the required sidewalk, and Mr. Michel answered that a 7-foot wide sidewalk is required in multifamily residential zones, and that is what the applicant is currently proposing. However, the Engineering Department may require a 5-foot sidewalk to match the sidewalk that is a few lots to the south. Chair Strauss noted the stairs that lead from the sidewalk to the subject site and asked if the project would also provide ADA access in this location. Mr. Michel answered that there will be a ramp to provide ADA access. Board Member Walker said he anticipates the project will result in increased traffic at the corner of Paradise Lane and SR- 104. Mr. Clugston reminded the Board that traffic impacts will be addressed through the collection of Traffic Impact Fees at the building permit phase. Board Member Shupe asked if the applicant gave any thought to providing another access from the buildings to the sidewalk, such as between Buildings A and B, so pedestrians do not have to go all the way up the driveway to access the sidewalk. Mr. Clugston pointed out that there will be a walkway and stairway between Buildings B and C to go down to the sidewalk. Mr. Michel added that the access couldn't be moved further north because of the grade change. William Mezger, President of the Spinnaker Homeowner's Association, Edmonds, said he submitted written o comments on behalf of the homeowner's association that were included in the Staff Report as part of Attachment 11. He voiced concern that Paradise Lane is inadequate to handle the 60% increase in traffic that will likely occur with a 60% 0- increase in density. The roadway is only 18 feet wide, making it impossible for two vehicles to pass. He also voiced a concern about construction disruptions while the project is being built. The neighborhood residents anticipate there will be a large number of trucks accessing the site during construction, and the only access to the western portion of the site is °r° via Paradise Lane. He is concerned that current residents will be unable to access their homes. He noted that during the recent construction of one unit in the cul-de-sac, some construction vehicles had to trespass onto the Spinnaker CO Condominium Property in order to maneuver the street. They are also concerned about access for delivery trucks, waste disposal trucks, etc. Mr. Mezger pointed out that Paradise Lane serves as a trailhead for the walking and bicycle path to downtown Edmonds, $ and pedestrian often have to walk on Paradise Lane in order to access the trail. When accessing the condominiums, drivers have to pull to the opposite side of the road to allow toddlers and parents to safety walk to and from the trail entrance. He m hopes the required sidewalk will be sufficient to address this safety concern. The average household size in Edmonds is c 2.3 people and there are 8.7 vehicles for every ten people in Washington State. Based on these statistics, the 24 parking a spaces proposed by the applicant would be insufficient to meet the needs of the anticipated residents. No guest parking has been proposed by the applicant. The amount of parking along Paradise Lane is already severely restricted by the density and narrow road, and he anticipates the proposed new project will make it even worse because many of the x occupants will have more than two cars. It is likely that visitors and even residents of the units will have to park on Paradise w Lane where there is already limited space. He hopes that widening the roadway will provide additional area for visitor parking. z Lastly, Mr. Mezger said he is concerned about the environmental impact of removing the mature trees and foliage from Q the subject site. Edmonds Way is an extremely busy roadway, particularly when a ferry lands. The removal of mature trees will increase the noise level in the neighborhood. The removal of foliage will also expose neighbors to the back side of the proposed complex. He shared his experience with another property near Interstate 5 where noise significantly increased when the trees between the residential homes and the freeway were removed. Mr. Mezger concluded that the neighbors would have loved to meet with the developer in an informal setting to discuss their concerns. They understand that infill development is inevitable, but they want to make sure it is done correctly. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 5 of 11 Packet Pg. 7 2.1.a Lonnie Kopp, Edmonds, said he was also present to represent the Spinnaker Homeowner's Association. His main concern about the project is related to the removal of trees and other vegetation. He pointed out that the trees along SR- 104 are deciduous, and most of the old growth trees are located along Paradise Lane. Many of the trees along Paradise Lane will have to be removed to accommodate the wider road, a 7-foot sidewalk, and other street improvements. Removal of these trees will increase noise pollution from SR-104. He summarized that traffic, density and parking in the immediate area surrounding the subject site will get significantly worse, and visitor and resident parking will be permanently compromised. Unfortunately, it will be the existing residents who will suffer the most. Toni Sillicio-Prevasak, Edmonds, said she lives across the street from the subject site and agrees with the concerns raised by Mr. Kopp and Mr. Mezger. One of her big concerns is that emergency vehicles will not have adequate access to the existing properties during construction of the new project because large construction vehicles will be blocking the roadway. She is also concerned about noise and air pollution, noting that it is already quite loud as a result of the ferry lane that operates 16 hours a day. The fumes from the cars that are left idling wafts into the neighborhood, and the problem will increase if trees are removed. She questioned why the trees have to be removed and replaced with shrubbery. She pointed out that a lot of the vegetation that was supposed to be planted at Point Edwards still remains in containers. She asked if developers have to pay a fee to remove a significant tree. Removing the vegetation can cause drainage problems. In addition, all of the large trucks associated with construction will end up blocking Paradise Lane, making it difficult for the current residents to get in and out of their neighborhood. She voiced concern that guest parking is already a problem in the neighborhood, adding 12 new units with only 24 parking spaces will make the problem worse. Nancy Wienstroth, Edmonds, asked if the applicant would be required to widen the roadway all the way up to the bank o or just to the point where Paradise Lane turns into the cul-de-sac. She also asked if the sidewalks would end at the property la > line, too. She pointed out that, currently, the roadway is not wide enough for two cars to pass each other, and one has to n go off the road to let the other go through first. She also pointed out that the ferry traffic is already quite loud, and removing a the evergreen trees will definitely increase the noise pollution. She suggested that the Board Members drive down Paradise Lane to notice the unevenness of the street. She said she is also concerned about the ability of the current residents to get °r° to work on time given the turmoil and congestion that will come with construction. Mr. Clugston advised that the applicant will be required to submit a plan for how traffic will be managed during construction. Typically, for a project of this size, there would be flaggers at each end of the street to make sure traffic can get through. Mr. Clugston said the applicant will be required to meet all engineering and zoning codes, which include landscaping. He agreed that trees will be removed from the site to accommodate construction, but Type III landscaping will be provided m on Paradise Lane between the sidewalk and proposed new buildings. This landscaping will include evergreen shrubs at a c variety of heights, as well as ground cover. The intent is that, eventually, the buildings will be buffered from the street. a Chair Strauss asked about the boundaries of the required road and street improvements, and Mr. Clugston answered that they will extend to the edges of the property lines. Again, he reminded the Board that there is nothing in the code that x allows the City to require the developer to extend the road and street improvements along the entire length of Paradise w Lane. He noted that a recent development east of the subject parcel resulted in street improvements, as well. He advised that no road or sidewalk projects are identified in the City's Capital Improvement Plan or Capital Facilities Program for E Paradise Lane. However, as properties are redeveloped, frontage improvements will be required. Mr. Michel advised that, even though it is not required, the applicant is proposing to provide a strip of land where the Q sidewalk will eventually be located to use for construction parking. He emphasized that no construction parking will be allowed on the existing asphalt or concrete, but there will be plenty of space for construction vehicles to park along the front of the subject site. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 6 of 11 Packet Pg. 8 2.1.a Mr. Clugston reminded the Board that developers are required to pay substantial fees into a fund for traffic and sidewalk mitigation, and there are other groups in the City that have control over how this money is spent. He suggested that concerned citizens should contact these groups to voice their concerns about Paradise Lane. Board Member Shupe asked if the applicant will be required to pay a fee to remove the trees on the north side of the subject site. Mr. Michel said that used to be the case, but the code was changed a few years ago. Now there are landscape requirements that must be met. Board Member Shupe asked if City code requires developers to save trees above a certain size. Mr. Michel responded that there is criterion, which was considered by the Planning Division staff when reviewing the application. Vice Chair Herr pointed out that all of the trees along the property line that are slated for removal are on City right-of-way. If the neighborhood wants the street to be widened, it will require tree removal. The developer is not removing the trees to accommodate the buildings. He is doing it at the behest of the City to put in sidewalks, widen the road and provide landscaping along the front of the property. Chair Strauss asked Mr. Clugston to remind the Board on what they are being asked to rule on. Mr. Clugston said the Board is being asked to make findings that the project does or does not meet the objectives in the Comprehensive Plan, the design criteria in ECDC 20.11.030 and the zoning regulations. Staff has recommended approval, with a number of conditions. If the Board determines that the proposal is not consistent with the Comprehensive Plan and zoning code, they can either add more conditions or deny the application. If they deny the proposal, they need to provide specific reasons and references to support their decision. Board Member Tarrant said she understands the neighborhood concerns, but the Board has a limited scope of responsibility. Most of the concerns are related to zoning matters rather than design. The subject site was rezoned in 2006, and that is when all of the concerns and issues would have been addressed. Chair Strauss closed the public portion of the hearing and returned to the Board for deliberations. w Board Member Tarrant asked staff to explain the procedures for notifying the public when zoning changes are proposed. Oftentimes, when people receive notice of a proposed rezone, they do not realize the implications the change could have on their neighborhood. She suggested the City review the notice procedures and identify ways to better communicate with 5 the citizens in the future. Mr. Clugston explained that the code outlines the process for notifying the public whenever a proposal comes forward that requires a public hearing. A mailing is sent to all property owners within 300 feet of the subject site, and a notice is also posted on the site. In addition, notice of the hearing is posted in the local newspapers, in various public buildings throughout the City, and on the City's website. In the case of a rezone application, notice would c be given twice: once for the Planning Board hearing, and again for the City Council hearing. a Board Member Shupe asked if the posted notices provide sufficient details to inform the public of the proposed action. Mr. Clugston answered that the notices provide narrative language to describe what is being proposed and directs people x to other information and references. w c d Board Member Guenther said he was a member of the Planning Board in 2006 when the property was rezoned. He voiced E concern that people tend to be reactive rather than proactive and only comment on sensitive proposals. The concerns cc voiced by citizens in 2006 were also about the narrow street and potential increases in traffic. Both of these issues will be Q addressed as the project moves forward to the Engineering and Development Permit stage. Board Member Broadway commented that, based on the project's location abutting a row of dense vegetation along SR- 104, it will be a wooded development and the areas between the buildings will be quite dark. She suggested that more on - site lighting would be appropriate in addition to the individual sconces on each of the units. However, she emphasized that she does not want the lighting to spill out onto neighboring properties. Board Member Shupe agreed that the Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 7 of 11 Packet Pg. 9 2.1.a development, as proposed, would be very dark. He suggested that the developer consider a variety of colors to lighten it up. Chair Strauss agreed and asked about the materials the applicant is proposing. Mr. Clugston referred the Board to the lighting plan on Page 46 of the Staff Report, which identifies where the light sconces will be located. He also advised that the applicant did not identify building materials and specific colors as part of the application. Vice Chair Herr noted that the proposed lighting meets the code requirement. He reminded them that it is not desirable to have bright lighting that spills out onto adjacent properties. He said he drove through the neighborhood prior to the meeting and took note of the large trees that currently exist within the right-of-way along SR-104. Board Member Broadway said she also visited the site and likes the monochromatic design of the buildings, which blend into the forest as its backdrop. However, she is concerned that there will be insufficient lighting along the driveway, sidewalks, and pathways between the buildings. With the attractiveness of the dark buildings against the dark trees, the residents living in the buildings might appreciate some additional on -site lighting. Board Member Walker commented that it appears the proposed landscaping meets code. He agreed with Board Member Broadway that the monochromatic color of the building blends in well with the forested background. Chair Strauss asked if the Fire Marshall has reviewed the application for compliance, and Mr. Clugston answered affirmatively. He noted that the Fire Marshall's comments can be found on Pages 115 and 116 of the Staff Report. Vice Chair Herr emphasized the Board's purview is to decide on whether or not the project meets all of the code requirements and is consistent with the Comprehensive Plan. Their personal and emotional feelings relative to the proposal should not enter into their decision. Board Member Broadway suggested an additional condition of approval that the applicant consider some low-level lighting for pedestrian circulation on site. Mr. Clugston pointed out that the only street light is across the street and north of the driveway. VICE CHAIR HERR MOVED THAT THE ARCHITECTURAL DESIGN BOARD ADOPT THE FINDINGS, CONCLUSIONS AND ANALYSIS OF THE STAFF REPORT; FIND THE PARADISE HEIGHTS PROPOSAL (FILE NO. PLN20180025) IS CONSISTENT WITH THE COMPREHENSIVE PLAN, DESIGN CRITERIA OF ECDC 20.11.030 AND ZONING REGULATIONS; AND APPROVE THE DESIGN OF THE PROJECT WITH THE FOLLOWING CONDITIONS: w 1. AN UPDATED GEOTECHNICAL REPORT ADDRESSING THE SPECIFIC REQUIREMENTS OF ECDC 23.80 IS REQUIRED AT BUILDING PERMIT SUBMITTAL. 2. RETAINED TREES MUST BE PROTECTED DURING DEVELOPMENT IN ACCORDANCE WITH x ECDC 18.45.050.H. w 3. THE PROPOSED LANDSCAPING SHOWN ON SHEET Ll OF ATTACHMENT 5 MEETS THE INTENT OF CHAPTER 20.13 OF THE ECDC. E 4. ALL MECHANICAL EQUIPMENT MUST BE SCREENED FROM VIEW AT STREET LEVEL OR INSIDE THE BUILDING. Q 5. STAFF WILL VERIFY COMPLIANCE OF THE PROPOSAL WITH ALL RELEVANT CODES AND LAND USE PERMIT CONDITIONS THROUGH REVIEW OF BUILDING AND ENGINEERING PERMITS. MINOR CHANGES TO THE APPROVED DESIGN MAY BE APPROVED BY STAFF AT THE TIME OF BUILDING PERMIT WITHOUT FURTHER DESIGN REVIEW BY THE BOARD AS LONG AS THE DESIGN IS SUBSTANTIALLY SIMILAR TO THAT ORIGINALLY APPROVED. 6. THE APPLICANT WILL PROVIDE LOW-LEVEL, PEDESTRIAN -ORIENTED SITE LIGHTING (I.E. BOLLARDS) AT WALKWAYS AND STAIRWAYS. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 8 of 11 Packet Pg. 10 2.1.a BOARD MEMBER WALKER SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. CONSOLIDATED PERMIT APPLICATIONS (No Public Participation): Edmonds-Woodway High School Synthetic Turf Conversion Mike Clugston presented the Staff Report for Edmonds School District's proposal to upgrade the existing baseball and soccer fields along with the tennis courts at Edmonds Woodway High School. Phase I of the proposed project includes the relocation of a storage building and three storage containers north of the baseball field, relocation of the javelin and discus areas, a new synthetic turf multi -purpose baseball field that can accommodate both football and soccer practices, bullpens and lighting. Four new tennis courts are proposed east of the baseball field, along with three batting cages south of the tennis courts. A portion of the two tennis courts directly north of the baseball field and one tennis court to the east will be demolished to accommodate the improvements. If additional funding becomes available, Phase II of the project would include the installation of an unlighted natural turf football and soccer field west of the proposed baseball field, but separate land use and building permits would be required for this additional work. Mr. Clugston explained that because the school site is zoned Public, the Architectural Design Board must review the design of the proposed improvements. However, the applicant is also requesting a Conditional Use Permit (CUP) for the baseball L field lighting, as well as the baseball backstop, fencing and light poles at the tennis courts, which extend beyond the 25- o foot height limit. In addition, the applicant is requesting two variances, one for increased height for the baseball field light o poles that will be taller than 60 feet and another for a reduced setback to accommodate the covered batting cage structure > near 216'. Because this a consolidated review involving variances, the decision -making process in ECDC 17.00.030.0 0- is used. The Board first holds a public meeting (no public comment) and makes a recommendation on the design of the a project to the Hearing Examiner. The Hearing Examiner will then hold a public hearing on the design and three associated land use permits and, rather than issuing a decision, will make a recommendation to the City Council. The City Council °r° will conduct a closed -record review of the record established by the Hearing Examiner and issue the final decision on all 00 four permits. Mr. Clugston shared some before and after pictures to compare the existing development on the subject site with the proposed new development. He reviewed that in order to recommend approval of the design, the Board must find that it is consistent with the Comprehensive Plan, the design criteria of ECDC 20.11.030 and the zoning regulations. He advised that the athletic fields are described in the Edmonds-Woodway High School Master Plan that was adopted into the City's Comprehensive Plan in 1994, and the proposed changes are consistent with this plan. Next, he reviewed the design criteria the Board must consider when reviewing the application: Building Design. The only building proposed is the batting cage at the southeast corner of the site. It is proposed to be a simple building with steel siding, CMU wainscoting with a netted interior structure, and roll -up doors on the east fagade. The Board may want to discuss how the proposed color of the batting cage structure does not match the red x brick of the school building. The covered dugout will have a chain link perimeter fence and netting, with a galvanized w roof. The backstop fencing will have a black vinyl coating, and the netting will be black, as well. The proposed height for the backstop is 40 feet. The fence along the side of the field will have a black vinyl coating, as well. Small metal z bleachers are also part of the proposal. As per the lighting plan, the LED lighting will be directed down onto the playing field and tennis courts so very little will directly spill off site. The additional lighting will create a glow at Q night similar to the existing football field, but it will not be directed at any adjacent residential properties. Site Treatment. A fair amount of grading will be required to elevate the baseball field about six feet above the existing grade as seen from the sidewalk along 216' Street. The landscaping proposed will provide year-round interest. While the grass baseball field will become artificial turf, the existing landscaping east of the batting cage and tennis courts will remain. Type III landscaping will be required along the 216' Street frontage to buffer the field and batting cage. While the exact tree species mix requirement for Type III is not met by the proposal, the mix of deciduous Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 9 of 11 Packet Pg. 11 2.1.a and evergreen trees shown in the landscape plan meets the intent of the screening criteria. The ball control fencing, batting cages and light structures will all still be visible from the street, but their appearance will be softened by the proposed vegetation. The batting cage will be screened by a row of arborvitae. Based on the findings, analysis, conclusions and attachments in the Staff Report, Mr. Clugston suggested the Board recommend approval of the design of the proposed Edmonds-Woodway High School Synthetic Field Conversion Project with the condition outlined in the Staff Report. Bob Harding, Principle Landscape Architect with DA Hogan and Associates, and Nick Chou, Edmonds School District Project Facilities Manager, were present to represent the applicant. Mr. Harding said the proposal is to restructure and update the baseball field in its existing location. He noted the field's odd dimension and explained how the fence lines would be adjusted. He said, overall, the upgraded facility would be similar to other facilities in the school district. The baseball field would be constructed to accommodate soccer and football practice when baseball is not in season. The field would be completely fenced with a combination of chain link fencing and ball -control netting at a height of 50 feet along the backstop and north side adjacent to the track and field facility. Mr. Harding said portions of two tennis courts would be removed and two new tennis courts would be built. In total, there would be six tennis courts. He noted that the tennis courts would be open for public use when not being used by the school district, and there is a parking lot adjacent to the courts. Mr. Harding said three batting cages would be constructed as part of the project. Two would be basic net structures that are 80 feet long, 14 feet wide and 12 feet tall. The third batting cage would be a structure, similar to those built at adjacent 0- school districts. It would be about 100 feet long, with a building at one end for storage. The batting cage area would be a 80 feet long, 14 feet wide and 12 feet tall. Rather than being completely enclosed, the intent is to have an open structure so that coaches can see in and talk to the players who are using the batting cage. The only enclosed portion of the structure °r° will be the 20-foot storage area at the end. As per the code, no brilliant colors have been proposed. The batting cage structure color would be more muted, but the wainscoting or metal siding could pick up the red color in the brick on the CO school in the wainscoting or metal siding. w Mr. Harding advised that a fair amount of grading will be required, as the current field has a grade change of about 7 feet between home plate and the outfield. The fence and structures will be pulled away from the right of way to meet the 20- foot setback requirement. Landscaping around the current field is nonexistent, similar to the situation that exists on the north side of the property where there is grass and just one or two trees along the length of the softball field. The proposed landscape plan meets the intent of the Type III landscape requirement. Mr. Harding said the proposed new light poles would be consistent with the other light fixtures on site, metal poles with concrete foundations and a series of LED fixtures. The new LED fixtures are very efficient in terms of adding lighting without spilling onto adjacent properties. x w Board Member Broadway asked if the tennis courts would remain at the higher level. Mr. Harding answered that the tennis courts would follow the contour of the parking lot. They will be stepped down towards the lower elevations to the z south. Board Member Walker asked if the doors on the eastside of the batting cage structure would accommodate large trucks. Q Mr. Harding said the space would be used to store small utility vehicles that are needed to maintain the site. Board Member Walker asked if the fir tree at the corner in this location would remain, and Mr. Harding said that is the intent. Board Member Walker suggested the applicant consider doing more landscaping where the existing strip of landscaping separates the parking island and the fagade of the new batting facility. Mr. Harding said the intent was to leave the area open to provide clear access and make the site more defensible. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 10 of 11 Packet Pg. 12 2.1.a Board Member Tarrant said she doesn't mind the utilitarian design of the batting structure. She prefers the current design rather than making it relate to the design of the school. She suggested the batting structure would be a wonderful location to have a student contest to design something more playful for the exterior. On the other hand, Board Member Broadway said she likes the idea of matching the color of the brick on the school. Board Member Walker noted that no shrubbery or groundcover has been proposed on the south side where Type III landscaping is required. Mr. Harding said the intent was to make the area not only easy to maintain, but consistent with the landscaping in other locations on campus. There are only three trees along the entire length of the softball field, and the grass in this location is mowed and maintained. They are trying to meet the intent of the Type III landscaping requirements by providing trees, but still have low maintenance grass that is erosion proof. Board Member Walker asked if the sloped area could accommodate a lawn mower, and Mr. Harding answered affirmatively. Board Member Walker said he understands the district's desire to have the site defensible and open, but he felt it would be appropriate to include some shrubbery to break up the batting facility wall. Mr. Harding suggested that rather than requiring specific species, the Board could add a condition that additional screening be added. BOARD MEMBER WALKER MOVED THAT THE ARCHITECTURAL DESIGN BOARD ADOPT THE FINDINGS, CONCLUSIONS AND ANALYSIS OF THE STAFF REPORT IN FILE NO. PLN20180014; FIND THE PROPOSAL IS CONSISTENT WITH THE COMPREHENSIVE PLAN, DESIGN CRITERIA OF ECDC 20.11.030, AND ZONING REGULATIONS; AND RECOMMEND THAT THE HEARING EXAMINER APPROVE THE DESIGN OF THE PROPOSED EDMONDS-WOODWAY HIGH SCHOOL SYNTHETIC TURF CONVERSION WITH THE FOLLOWING CONDITIONS: 1. THE PROPOSED LANDSCAPING SHOWN ON SHEET F-1.6 OF ATTACHMENT 9 MEETS THE INTENT OF THE TYPE III LANDSCAPING CRITERIA IN ECDC 20.13. 2. ADDITIONAL LANDSCAPING AND SCREENING SHALL BE ADDED ALONG THE EAST SIDE °r° OF THE BATTING CAGE FACILITY. BOARD MEMBER GUENTHER SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ADMINISTRATIVE REPORTS/ITEMS FOR DISCUSSION: Mr. Clugston recalled that, last December, the Architectural Design Board met jointly with the Planning Board to discuss their future roles and responsibilities. Based on that discussion, staff will prepare some options for the Board to consider at their October 3'd meeting. ARCHITECTURAL DESIGN BOARD MEMBER COMMENTS: The Board discussed that they would like staff to send them a personal email to notify and/or remind them of meetings x and to provide links to the agenda and packet materials. w c d The Board also discussed the materials that are required to be submitted for design review. Mr. Clugston said there is a E handout that identifies the required elements. Board Member Guenther said it important that the materials presented to the Board for review are consistent and complete so the Board can make a fair and equal judgement on each application. Q ADJOURNMENT: The meeting was adjourned at 9:22 p.m. Architectural Design Board Meeting Minutes of Regular Meeting August 1, 2018 Page 11 of 11 Packet Pg. 13 8.1 Architectural Design Board Agenda Item Meeting Date: 10/3/2018 Processes, Scope and Roles of the Architectural Design Board Staff Lead: Mike Clugston Department: Planning Division Prepared By: Michael Clugston Background/History This discussion is a follow up to the joint Planning Board/Architectural Design Board meeting from December 2017. The packet and minutes for that meeting are attached. Staff Recommendation Based on Board member input, staff could prepare draft code revisions for review at a future meeting. Narrative Analyzing the ADB's role in the design review process has grown out of several issues: 1) The Board has indicated that they have noticed less meaningful impact at the project -review level. Projects are often completely 'designed' by the time they get to review it and so only have the ability to offer input on minor details. 2) The City Council's has indicated their desire to see code changes that remove volunteer boards like the ADB from the quasi-judicial decision -making process (Resolution 1367). 3) The Board has indicated an interest to do post -project reviews to see if the existing design guidance and standards are resulting in the type of development envisioned for Edmonds and, if not, propose refinements to the guidelines and standards. Staff will review some of the history of design review in Edmonds and then review the current codes that describe the powers and duties of the ADB and staff relative to design review. The ADB's enabling language is attached (ECC 10.05) as are the current review processes (ECDC 20.10 - 20.12). Attachments: Joint PB-ADB meeting minutes 2017-12-13 Joint PB-ADB meeting packet 2017-12-13 ECC 10.05 - Architectural Design Board ECDC 20.10 - Design Review ECDC 20.11- General Design Review ECDC 20.12 - District -based Design Review Packet Pg. 14 8.1.a CITY OF EDMONDS MINUTES OF JOINT PLANNING BOARD/ARCHITECTURAL DESIGN BOARD MEETING December 13, 2017 Chair Rubenkonig called the meeting of the Edmonds Planning Board to order at 7:00 p.m. in the Council Chambers, Public Safety Complex, 250 — 5t" Avenue North. PLANNING BOARD MEMBERS PRESENT ARCHITECTURAL DESIGN BOARD MEMBERS PRESENT Carreen Rubenkonig, Chair Tom Walker, Chair Nathan Monroe, Vice Chair Lauri Strauss, Vice Chair Matthew Cheung Cary Guenther Phil Lovell Joe Herr Mike Rosen Athene Tarrant PLANNING BOARD MEMBERS ABSENT Alicia Crank Todd Cloutier (excused) Daniel Robles (excused) STAFF PRESENT Rob Chave, Planning Division Manager Jerrie Bevington, Video Recorder Karin Noyes, Recorder ARCHITECTURAL DESIGN BOARD MEMBERS ABSENT Brian Borofka Lois Broadway READING/APPROVAL OF PLANNING BOARD MINUTES BOARD MEMBER LOVELL MOVED THAT THE MINUTES OF NOVEMBER 8, 2017 BE APPROVED AS PRESENTED. VICE CHAIR MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ANNOUNCEMENT OF AGENDA The agenda was accepted as presented. AUDIENCE COMMENTS No one in the audience indicated a desire to comment during this portion of the meeting. DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD Chair Rubenkonig referred the Board to the written report that was provided by the Development Services Director. Board Member Lovell asked if the Housing Strategy Task Force would report its progress and findings to the Planning Board. Mr. Chave answered that the Board would receive regular reports from the task force. Chair Rubenkonig requested more Packet Pg. 15 8.1.a information about the work of the Snohomish County Tomorrow Steering Committee as it relates to amendments to the Countywide Planning Polices to allow land in different urban growth areas to be "swapped" with each other. Mr. Chave said he is not directly involved in this arena, but he assumes there are some areas where it makes sense to expand the urban growth area, but reductions would be made somewhere else. Lastly, Board Member Rosen asked if the Board would receive a report of the findings from the Economic Impact of Arts and Culture Study. Mr. Chave said he would submit that request to the Parks, Recreation and Cultural Services Director. ELECTION OF 2018 OFFICERS BOARD MEMBER ROSEN MOVED THAT THE BOARD ELECT BOARD MEMBER MONROE TO SERVE A CHAIR OF THE BOARD IN 2018. BOARD MEMBER CHEUNG SECONDED THE MOTION. Board Member Rosen explained that he recommended Board Member Monroe because he is smart, has significant experience, is passionate about the work, and has demonstrated his abilities on numerous occasions. THE MOTION CARRIED UNANIMOUSLY. BOARD MEMBER RUBENKONIG MOVED THAT THE BOARD ELECT BOARD MEMBER CHEUNG TO SERVE AS VICE CHAIR OF THE BOARD IN 2018. BOARD MEMBER LOVELL SECONDED THE MOTION. Board Member Rubenkonig commented that Board Member Monroe has shown faith in Board Member Cheung's ability to serve as vice chair to administer meetings in his absence, and Board Member Cheung has also proven to be a person with great reasoning powers. THE MOTION CARRIED UNANIMOUSLY. VOTE ON RECOMMENDATION FOR STUDENT REPRESENTATIVE FOR THE PLANNING BOARD Chair Rubenkonig and Board Member Lovell reported that they interviewed three candidates for the student representative position. All are students at Edmonds Woodway High School (2 are juniors and 1 is a senior). They were particularly interested in selecting a junior to fill the position, hoping that the person could serve for a two-year period, including the summer months between his/her junior and senior years. Board Member Lovell advised that he and Chair Rubenkonig are recommending that the Board appoint Megan Livingston to serve as the student representative. He explained that Ms. Livingston is a junior and currently participates in the International Baccalaureate Program and also plays soccer. Ms. Livingston has indicated her desire to serve for a two-year period, including the summer months. Her interests are in leadership, and she is particularly interested and committed to the City of Edmonds. She was born and raised in Edmonds and indicated her desire to one day have a business of her own in Edmonds. BOARD MEMBER LOVELL MOVED THAT THE BOARD APPOINT MEGAN LIVINGSTON TO SERVE AS THE STUDENT REPRESENTATIVE ON THE PLANNING BOARD. VICE CHAIR MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. Chair Rubenkonig commented that it was a pleasure to meet with all of the candidates and learn of their love for Edmonds. JOINT MEETING WITH THE ARCHITECTURAL DESIGN BOARD (ADB) Chair Rubenkonig welcomed the ADB members to the meeting and invited each of the Planning Board and ADB Members to introduce themselves. She then invited Mr. Chave to explain the roles of the City Council, Planning Board, ADB, and the public in design review. Mr. Chave explained that the ADB represents citizens, architects and design professionals. Their role is to review projects in a quasi-judicial forum, which carries a certain level of liability. The ADB meets periodically with the City Attorney to review the rules for quasi-judicial hearings. The Planning Board, on the other hand, is more of an advisory body to the City Planning Board Minutes December 13, 2017 Page 2 Packet Pg. 16 8.1.a Council. Their role is much broader in scope, and much of their work involves Development Code and Comprehensive Plan development. The Planning Board also serves as a Parks Board, meeting periodically with the Parks, Recreation and Cultural Service staff to discuss issues related to parks. The only time the Planning Board acts in a quasi-judicial capacity is to consider rezone applications and forward a recommendation to the City Council. Mr. Chave explained that the ADB uses the criteria and regulations contained in the Development Code when reviewing projects. As long as a project meets all of the code requirements, including those related to design, the ADB is obligated to approve the project, and there is very little it can do to require an applicant to change the design. In recent months, the ADB has had discussions about potentially increasing their involvement in the code development process. In addition, the ADB has had discussions with the City Attorney that included the court case, Anderson vs. Issaquah, which represented a shift in Washington State for how design review takes place. The importance of this court case is that Issaquah's design review process and criteria was patterned after the City of Edmonds. Before the Anderson vs. Issaquah case, design review in a public hearing setting had relatively broad guidelines. Because there was not a lot of specificity in the design standards, the guidance given to applicants and the processes used for design review were a cause of frustration for applicants. Applicants basically had to guess what a city wanted for design. Following the court ruling, cities, including Edmonds, have adopted more specific guidelines and codes relative to design. However, these more stringent design guidelines and codes can result in projects that all look the same. The goal should be to allow enough flexibility for developers to design unique and creative projects that fit their circumstances and surroundings. At the same time, cities should provide enough specificity so developers have a clear understanding of what is required. Mr. Chave summarized that it is important to regulate what is important to the City, but not every little minutia or they will end up with the same thing over and over again. Over the years, the City of Edmonds has incorporated more specific standards and guidelines into the code, but they are not finished. As new planned areas have come about, such as Westgate and Highway 99, they have tried to include design standards. However, there is not much in the way of design standards for the multi -family residential zones, and they do not differentiate between the different parts of downtown. There is a lot of language in the Comprehensive Plan and in the Development Code that supports the idea of introducing more design guidelines than what currently exist. Mr. Chave said the City does not do a good job of analyzing completed projects to determine whether or not the end results are consistent with what was anticipated when projects were reviewed from a design standpoint. Sometimes, the ADB becomes frustrated when they don't necessarily like a design, but they do not have the design standards needed to require a change. He recalled that, prior to the court case, the ADB tended to wing design review and require the applicant to change a design without having any code to support the required change. Today, if there is nothing in the code, the ADB cannot insist on a particularly idea. The intent is to come up with design standards to lead to the outcome the Board wants without dictating how it will happen in every given case. Mr. Chave said the ADB has expressed an interest in having more input when the design standards are being developed, but this raises issues about how much time the volunteer ADB members have to focus on this effort. There is an opportunity in the coming year to think about how the ADB's role could be expanded. He referred to Resolution 1367, which was supported by the majority of the City Council. The resolution called for code revisions to remove quasi-judicial decision - making responsibility from the City Council and other volunteer citizen boards to the extent allowed by State law. It further requested that that the City staff and Planning Board prepare and forward to the City Council revisions to the code that are consistent with this resolution. Having the City Council act on appeals to quasi-judicial decisions puts them in a bind because of the strict Appearance of Fairness rules that apply. Constituents and project proponents can become frustrated when they are unable to discuss their concerns about a particular project with their local representative. If the City Council does not like the outcome of a particular project, they can amend the design standards to address the problems. The City Council and the Planning Board have an important role to play in the process of amending the code, but the ADB has more expertise than the Planning Board and City Council. Mr. Chave explained that projects typically look different three to five years after they are constructed compared to when they are initially completed. When a project is initially completed, none of the landscaping is mature enough to soften the streetscape, etc. A lot of the design aspects will happen over time. He emphasized that the ADB can have a lot to say about design codes, such as the type of landscaping that is important, what features make the fagade integrate with the streetscape, and how this can change over time. That is something the City has not done a good job of to this point. Moving forward, he Planning Board Minutes December 13, 2017 Page 3 Packet Pg. 17 suggested it would be appropriate for the Planning Board to solicit input from the professionals (ADB) when making code changes so that the end result is better design. He suggested that improving existing design standards and creating new design standards could be included in the Planning Board's recommendation to the City Council relative to the design review process. Mr. Chave explained that, currently, there are two different processes for design review. The idea behind the two-part public hearing, which was patterned after the City of Seattle, was to get design feedback from the ADB early in the process. Historically, the ADB was presented with finished designs that applicants had already invested a lot of time and money to create. The last thing the applicant wanted to do was redesign a project. From staffs perspective, the two-part public hearing has not really worked because the ADB is still getting projects that are basically designed when presented for design review. The two-part hearing is also awkward. He suggested that the two boards consider changing the process. One idea is to have staff do the preliminary meeting with the applicant. At this meeting, staff could explain how the guidelines and standards have been applied historically and provide examples of projects that have been approved in the City. This approach would eliminate the need for a two-part hearing. In order for this to work going forward, it will be critical for the ADB to be heavily involved in developing design standards. Ultimately, given the court's decision, the ADB will not have a lot of discretion when reviewing applications. A project is either consistent with the design standards or not. That means there must be strong guidelines in place to get the type of design the ADB desires for the City. Rather than a two-part hearing, Mr. Chave suggested it would be more beneficial for the ADB to focus its efforts on the design guidelines. He recalled that most of the time, people who testify before the ADB are concerned about zoning requirements, which the ADB does not have any control over. Staffs experience is that the ADB gets relatively little meaningful input related to the design of a project. Chair Rubenkonig explained that the purpose of tonight's discussion is to develop a platform for moving forward. The Planning Board is interested in learning about the ADB's concerns and ideas. She anticipates that additional meetings will be needed to implement change. She noted that concern about having design review early enough in the process for it to be meaningful was a topic of discussion when she served on the ADB in 2000, so the topic is not new. Chair Walker said the ADB's biggest concern is how it can have the most influence and provide direction on design standards. By the time projects come before the ADB, the ADB does not have the power to influence the projects as much as they would like. He referred to the Point Edwards Building 10 project. The people who participated in the design review hearing were mostly concerned about the large scale of the units, which is more of a zoning code issue that is outside of the ADB's purview. The ADB could only influence very minor cosmetic changes because the project was found to be consistent with the Development Code. The ADB members have raised concern about whether the design guidelines are working and if their talents and expertise are being used effectively to influence projects for the better. It seems that, most times, the Board is left with making minor tweaks to a project near the end of the process. He suggested that having the ADB involved earlier in the process would allow them to have more influence over a project's design. He also felt it would be appropriate for the ADB to have more input into the design guidelines. Vice Chair Strauss voiced frustration with the design standards that apply in the downtown zones and proposed that they be tightened up. When she joined the ADB, she was excited to have some influence over design in Edmonds. However, over the past two years, the ADB's focus has tended to be on windows, bump outs, blank walls, etc. She finds herself approving projects that are low -quality design. They have lost some really nice buildings in the downtown area because the design review standards currently in place focus on color, awnings, etc. rather than how a project impacts the character of the downtown. She asked if it would be possible to have a separate set of design guidelines for the downtown zones that recognize the historic character of the buildings. Totally demolishing the historic buildings changes the context of the surrounding neighborhood. She is concerned that downtown Edmonds will end up being a lot of tall condominiums and the quaint character will be lost. It is really important to talk about design review in the contest of the whole area rather than just the design of a proposed new building. Board Member Herr cautioned against moving in a similar direction as the City of Redmond, where the design standards and codes have been tightened so much that the concept of "affordable housing" is no longer possible. There is no economy of scale or reusing the same design, and this has resulted in $1 million homes because developers have to invest so much money into each individual unit. He cautioned against implementing regulations that are too strict. At the same time, they must Planning Board Minutes December 13, 2017 Page 4 Packet Pg. 18 8.1.a keep in mind that a property owner has invested in a piece of land and expects to receive a return on his/her investment. The City should not legislate everything they want to have or they will stymy redevelopment, which would be equally bad. Property owners could eventually choose to stop maintenance efforts, and the buildings could become dilapidated. The City must have effective design standards without tying the hands of developers. If the design standards are too strict, all development will start to look the same. Vice Chair Strauss said she is not suggesting that the City regulate all aspects of design. However, it may be appropriate to have specific design standards that apply to certain areas, such as the downtown. She questioned how many large developments are really desirable in the downtown. Board Member Guenther recalled that the Planning Board was working on design standards when he first joined several years ago. Since that time, the design standards have been amended three or four times. During the initial process of creating design standards, some people wanted everything to be spelled out. On the other hand, there were some who wanted to allow developers to be creative. He expressed his belief that there needs to be a balance. While he supports the idea of having specific guidelines that apply to certain areas, he also wants to allow enough flexibility for developers to be creative. Otherwise, they will end up with cookie -cutter development. Board Member Guenther observed that the current design guidelines represent a broad brush that applies everywhere in Edmonds. He supports the idea of having a different set of design guidelines for the downtown and Westgate zones. Perhaps this could be accomplished via an overlay. The design standards should not be complicated, but need to identify what is important for that particular area. However, they still need to maintain a separate set of design standards that apply to the other zones in the City. Board Member Herr referred to the City's 30-foot height limit for all residential development. He said he understands the need to limit height in areas with a view, but he never has understood the need for a blanket requirement for homes throughout the City. He suggested that perhaps the height limit should be different, depending on the zone. Chair Walker said he would favor establishing separate design guidelines for certain areas of the City. He also agreed that there needs to be a balance so that developers still have the ability to do creative design. He noted that, currently, the ADB is the last layer of design review before a project is approved, and it is the Board's responsibility to make sure that the design fits within the context of the surrounding area. Having good zoning in place, with appropriate and effective design guidelines that define this balance, is needed, and the ADB could play a significant role in this process. The ADB could also maintain the ability to make final tweaks to a design before it is approved. Chair Rubenkonig suggested that the Five Corners Subarea Plan would be a good place to start implementing more detailed design standards, and the ADB could play a significant role in that process. Mr. Chave agreed and noted that the intent of the Five Corners Subarea Plan is to create a separate district with unique design guidelines. He reviewed that, currently, there are no design standards specific to Five Corners. Only the vague general design guidelines in the code are applied. However, the plan that was prepared by the University of Washington students included some design recommendations, and that would be a natural place to start. Board Member Lovell recalled that a few years ago, the Planning Board forwarded a set of design standards to the City Council related to the BD1 zone. The City Council adopted the Planning Board's recommendation, which resulted in more stringent requirements for step backs, setbacks, awnings, windows, etc. He asked if this is the type of design standards the ADB is interested in implementing. Mr. Chave responded that the design standards in place for the BD zones are mostly related to the streetscape, and have very little to do with actual building design. He agreed that it would be possible to have different design standards that apply to specific areas of the City. For example, the design standards for the properties near the fountain in downtown Edmonds could be different than those for the surrounding properties. The standards could be tailored to meet the needs of the various zoning districts. Vice Chair Strauss referred to a recent proposal that met the City's requirements for windows, but their placement and size did not make sense from the standpoint of design and/or the Washington Energy Code. Rather than calling out a specific requirement for the percentage of windows, they need to also consider how the windows will impact the overall design of a building. There must be a way to adjust a guideline to improve a building's design. Planning Board Minutes December 13, 2017 Page 5 Packet Pg. 19 Board Member Tarrant liked the idea of creating unique design guidelines for specific districts within the City. She voiced concern that the ADB has not had the ability to significantly influence the design of any recent projects in Edmonds. It does not do any good to have ADB review if a project is complete before it is presented to them. The ADB has a duty to applicants to follow the City's code requirements, and it is particularly important that the ADB has an opportunity review projects early in the design process. If the Board is to do its job, it needs to give recommendations before a project gets too far along in the design. Board Member Herr commented that design professionals are required to meet all of the City's design standards. By the time a project comes before the ADB for review, it has already been reviewed by City staff for compliance with the code and the design is nearly completed. The applicant has already made critical decisions about whether or not a project will pencil out and meet the required conditions. The ADB's job is to ensure that all of the code requirements have been met and that all of the Board's concerns have been addressed. He cautioned that the ADB should focus more of its efforts on creating meaningful design guidelines. They cannot become a defacto judge and deny a project just because they do not like it. The ADB's job is to recommend approval once it has been determined that a project meets all of the design standards. Chair Walker said he is not sure that the current process represents the best use of the ADB's time and talents. He would like the Board to have more influence over the design guidelines so that the outcome is better. However, this must be coupled with the Board's ability to review projects earlier in the design process where their input can have a greater level of influence. Board Member Tarrant agreed and noted that this early involvement could be as informal as a pre -application meeting where an applicant shares a conceptual proposal with the Board. She suggested that if all of the responsibility for design is placed on the design standards, they must be written to be very specific. However, she is concerned that this might result in development that all looks the same. Vice Chair Strauss commented that the ADB's responsibility is to the Citizens of Edmonds and not the developers. She does not want to feel guilty for requiring design changes to meet the guidelines. Board Member Tarrant agreed, but added that they should also avoid creating undue hardship for developers. Chair Rubenkonig asked the ADB Members to share specific examples of what is broken in the current design guidelines. Vice Chair Strauss commented that the design guidelines could better address the historical context of buildings in the downtown. Even buildings that are not listed on the Register have an impact to the character of the downtown. Specific guidelines could apply to historic buildings in the downtown, requiring developers to spend more time addressing design. They must do something to require building design to be in character with the culture of the area. If a building cannot be reused, perhaps the new design could include a nod to some aspect of the historic structure. Board Member Herr recalled that Redmond used to look like downtown Edmonds, but most of the historic buildings have been removed and every new development looks the same because the design guidelines are so strict. He cautioned that the City must be careful not to tighten the guidelines too much. Board Member Tarrant commented that if everyone wants to maintain the current character of the downtown, then there must be a historic preservation provision as part of the design guidelines. While the City cannot require a developer to retain a building, it can require them to incorporate at least some aspects of the historic building into the new design. Mr. Chave explained that many of the design standards were put in place with an eye towards specificity, but this does not necessarily produce good design. He suggested that one option would be to create a basic set of design standards for staff to implement as projects come forward. Projects that meet all of the design standards would not need additional ADB review. The design guidelines process could include collaboration between the two boards. They could also establish a provision that allows developers to propose a departure from the design guidelines to meet unique circumstances. Departure requests could be reviewed and approved by the ADB, and it would be the applicant's responsibility to demonstrate why the departure makes sense from a design standpoint. This type of provision would give the ADB an opportunity to use its expertise and experience to address unique situations. He emphasized that this approach would hinge on having a good set of design guidelines that result in the kinds of projects the Board wants. If the guidelines do not work for a specific site, developers would be allowed an opportunity to approach the ADB with a departure request. Planning Board Minutes December 13, 2017 Page 6 Packet Pg. 20 8.1.a Chair Walker commented that, in addition to the process outlined above by Mr. Chave, the ADB could also be a pre - application body, which would allow them to be involved in the design at the conceptual stage where valuable input could be incorporated into the final design. Mr. Chave said pre -application meetings work well for public projects, but would difficult to implement for private projects. Typically, the City does not hear about a project until an application has been submitted, and most of the design work has already been done. The concept of design departures would allow the ADB to work with an applicant to come up with a design solution to address a particular problem. Again, Chair Rubenkonig suggested the two Boards consider an incremental approach to implementing the ideas discussed, starting with the Five Corners Subarea Plan. Board Member Tarrant commented that, given the design tools and technology currently available, it would not be difficult to prepare a conceptual design to share with the ADB. This conceptual design could be presented as an overlay without spending a lot of money. Chair Rubenkonig summarized that the two Board would wait to hear from staff as to what the next steps will be. REVIEW OF EXTENDED AGENDA Chair Rubenkonig briefly reviewed the extended agenda, noting that the topics of discussion on January loth will be select vegetation removal in critical areas and an update on the Housing Strategy. The final report on the Five Corners Feasibility Analysis will be presented on January 24th, and the Board will review the draft Urban Forest Management Plan on February 14th in preparation for a public hearing on February 28th. PLANNING BOARD CHAIR COMMENTS Chair Rubenkonig announced that she and Vice Chair Monroe are prepared to present the Planning Board Update to the City Council at their first meeting in January. She also noted that the Board may want to assign another Board Member to be their liaison to the Economic Development Commission since Vice Chair Monroe has been elected to serve as Chair of the Board in 2018. Chair Rubenkonig said she was asked a while back how the Board got along. Her reply was the Board got along amazingly well considering how little time they have to visit with each other and then being precluded from gathering in a group larger than three people. She expressed her belief that camaraderie has happened as the Board Members have practiced respect and tolerance for each other's opinions. This has been noticed, and the Board is recognized for providing a voice for issues concerning the community. She thanked the Board Members for allowing her to lead in the way she is most capable. Encouraging participation, actively listening to the public, appreciating the support and input from staff, and accepting direction from the City Council were all priorities for her, and she values the Board's help in achieving so much in 2017. She said she welcomed Vice Chair Monroe's backing and is confident in his ability to lead the Board in 2018. The Board is also fortunate that Board Member Cheung has agreed to assist him as Vice Chair. PLANNING BOARD MEMBER COMMENTS Vice Chair Monroe thanked Chair Rubenkonig for her service as Chair throughout 2017. ADJOURNMENT The Board meeting was adjourned at 8:45 p.m. Planning Board Minutes December 13, 2017 Page 7 Packet Pg. 21 Planning Board Agenda Item Meeting Date: 12/13/2017 Joint Meeting with the Architectural Design Board Staff Lead: Rob Chave Department: Planning Division Prepared By: Rob Chave Background/History This is a periodic joint meeting between the Planning Board and Architectural Design Board. Staff Recommendation N/A Narrative This is an opportunity for the Planning Board and ADB to discuss issues and topics of mutual concern. One subject for discussion involves the City's codes and design standards, with the related topic of the design review process. The Planning Board has been working through a number of code amendments over the past couple years. One subject the Planning Board will be addressing in 2018 will be the City Council's resolution #1367, which included the following: Section 1 . The city council intends to adopt revisions to the Edmonds Community Development Code that will remove quasi-judicial decision -making responsibility from the city council and other volunteer citizen boards to the extent allowed by state law. Section 2. The city council hereby requests that city staff and the planning board prepare and forward to the city council revisions to the Edmonds Community Development Code that are consistent with this resolution. The Architectural Design Board has also had discussions about its role in design review decisions; see for example the discussions with the City Attorney in Attachment 1. In general, the City's codes have steadily moved toward more specific guidance on design and have resulted in fewer projects going before the ADB for review and approval. At the same time, the ADB has not been very involved in developing or reviewing design standards; this could be an area where the ADB's role could change. Attachments: Attachment 1: ADB Minutes 2016-11-02 Attachment 2: Resolution 1367 Attachment 3: City Council Minutes 2016-08-09 Packet Pg. 22 Attachment 4: City Council agenda packet 2016-08-09 r Q Packet Pg. 23 8.1.b CITY OF EDMONDS ARCHITECTURAL DESIGN BOARD Minutes of Special Meeting November 2, 2016 Vice Chair Guenther called the meeting of the Architectural Design Board to order at 7:30 p.m., at the City Council Chambers, 250 - 5t' Avenue North, Edmonds, Washington. Board Members Present Cary Guenther, Chair Tom Walker, Vice Chair Brian Borofka Lois Broadway Joe Herr (arrived at 7:35 p.m.) Lauri Strauss Athene Tarrant APPROVAL OF MINUTES Board Members Absent Staff Present Brad Shipley, Planner Mike Clugston, Senior Planner BOARD MEMBER BOROFKA MOVED THAT THE MINUTES OF SEPTEMBER 7, 2016 BE APPROVED AS SUBMITTED. BOARD MEMBER STRAUSS SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. APPROVAL OF AGENDA BOARD MEMBER TARRANT MOVED THAT THE AGENDA BE ACCEPTED AS PRESENTED. VICE CHAIR WALKER SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. AUDIENCE COMMENTS No one in the audience indicated a desire to address the Board during this portion of the meeting. MINOR PROJECTS Review of Additional Shmne for Panda Express Located at 21940 Highway 99 Mr. Shipley provided the Staff Report, explaining that the subtenant, Panda Express, is located in the westernmost retail space in the new building at 21900 Highway 99. Two code -compliant wall signs were recently approved for the space on the north and south facades, but the tenant is asking for an additional sign on the west fagade. The applicant is seeking relief from the City's sign standards for the subtenant. Specifically, the applicant is requesting an additional wall sign on a non -qualifying building fagade and additional sign area for the requested wall sign. Mr. Shipley explained that staff cannot approve such requests and review by the Architectural Design Board (ADB) is required for an application that requests a modification to any of the sign standards. The Board reviews the project and makes the final decision on whether or not the proposal is consistent with the design review and decision criteria found Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 1 of 10 Packet Pg. 24 8.1.b ADMINISTRATIVE REPORTSATEMS FOR DISCUSSION Presentation and Training by Jeff Taraday, City Attorney City Attorney Tarraday provided training to the Board regarding the Board's powers and duties, as well as the Appearance of Fairness Doctrine and said he is available to provide additional training to the Board upon their request. He is also available to attend their meetings if there is a particularly tricky application before them. While tonight's application was straightforward, there may be other applications that require help from legal counsel to understand the criteria, etc. City Attorney Tarraday referred to Edmonds City Code (ECC) 10.50, which is the chapter that creates the Architectural Design Board and outlines its powers and duties. He advised that the chapter was last updated in 1973, so not all of the provisions are directly applicable to the Board's current responsibilities. At some point in the future, the ADB could have a discussion about its roll and propose code amendments. He reviewed each the Board's Powers and Duties as follows: • To study and prepare a recommendation for a comprehensive architectural design plan, including recommendations of establishment of specific design districts, which shall be part of the Comprehensive Plan. • To review and study land use within the City from a design standpoint. • To establish goals, objectives and policies for design districts. • Recommend legislation to effectuate the implementation of the Comprehensive Architectural Design Plan and the goals, objectives and policies for each established design district. • And for such other matters as shall be referred to the Board. City Attorney Tarraday explained that when the Board was originally created, it appeared to have more of a legislative policy -making role than a quasi-judicial role. Many of the Board Members are design professionals, and the Board may want to return to more of a policy making role. Currently, a variety of design review decisions (other matters) have been referred to the Board. These Type III-B design review decisions that come before the Board are quasi-judicial. Board Member Strauss asked if the Board could amend ECC 10.50 to change its role in design review. City Attorney Tarraday answered that the Board could make a recommendation to the City Council that ECC 10.50 be amended. Board Member Borofka asked if the Board could recommend that energy efficiency be included as part of the architectural review. City Attorney Tarraday agreed that is an option. However, they should avoid having two boards doing the same work. He noted that some of the Board's powers and duties, as described in ECC 10.50, have actually been going to the Planning Board for a long time. The Board could review its powers and duties from a division of labor standpoint and then propose recommended changes for the Council's consideration. Chair Guenther recalled that he previously served on the Planning Board, and one of its responsibilities was to review the Comprehensive Plan. These reviews included discussions about neighborhood plans and neighborhood districts such as Five Corners, Westgate, etc. It seemed perfectly normal for the Planning Board to review the Comprehensive Plan and set the boundaries. It seems there would be an overlap if the ADB were to assume the role of developing goals, objectives and policies for design districts. City Attorney Taraday agreed it would be difficult to parcel out all of the land use issues and send those that relate to design to the ADB and all others to the Planning Board. His intent in referring to ECC 10.50 was to call attention to the ADB's historic charge. Mr. Clugston agreed that it would be appropriate for the ADB to take on the responsibility of reviewing design -based issues. For example, it would have been appropriate for the ADB to participate in the process of creating design standards for Westgate. He suggested that an effort should be made to incorporate more ADB participation in design -related issues going forward. Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 5 of 10 Packet Pg. 25 8.1.b Board Member Borofka asked how the ADB could provide staff the tools and ability to look at design as it relates to environmental impact. He noted that design and building construction has changed substantially over the years, yet the Board does not seem to have the ability to ask questions related to energy efficiency, etc. He suggested that perhaps environmental impact should be incorporated into the design review process. City Attorney Tarraday requested clarification about whether Board Member Borofka is suggesting that environmental impact should be considered as part of design on a project -by -project basis or more on a policy -level basis. Board Member Borofka responded that the City has already established environmental policies, but there is a need to incorporate the policies in the design review of each project. Mr. Clugston advised that the Building Division reviews each application for compliance with the energy codes, but environmental policies are not currently part of the design review. He agreed that general environmental policies could be incorporated into the design review. Board Member Strauss said that while living in Alaska, she was part of a citizens' group that started a movement to 0 establish a city ordinance that required any project funded by the City to achieve a certain LEED Standard. Board Member Tarrant asked if projects require an Environmental Impact Statement (EIS). Mr. Clugston answered that, a generally, they do not. 0 W City Attorney Tarraday explained that the Appearance of Fairness Doctrine is required by State Law. As per the law, quasi-judicial hearings must not only be fair in fact, but must also appear to be fair. For example, if a Board Member meets with a proponent of a project, no matter how fair and objective you are, people will question your ability to be fair c and objective. In their quasi-judicial role, the Board Members are acting more like judges than policy makers and a a` certain process must be followed. He emphasized that the Appearance of Fairness Doctrine is not used for legislative m actions, but it does apply to quasi-judicial actions in which the Board is determining the legal rights of a parties in a Q hearing. He provided a list of application types that are and are not subject to the Appearance of Fairness Doctrine. M City Attorney Tarraday advised that the Appearance of Fairness Doctrine prohibits ex-parte communications. That means that Board Members are not supposed to have communications with opponents or proponents of a project with respect to the proposal. If an ex-parte communication does occur, Board Members can fix it by placing on the record the CD N substance of the communication, providing a public announcement of the content of the communication and allowing Y the parties to rebut the substance of it. He shared examples of ex-parte communications and how they should be resolved. Commissioner Strauss asked when Board Members should announce an ex-parte communication. City Attorney Tarraday said a script should be read by the staff or ADB Chair at the outset of every quasi-judicial hearing. Chair Guenther said that, at past hearings, he has read the script and invited Board Members to disclose ex-parte communications prior to starting the public hearing. There was some discussion about when the script is needed, and E City Attorney Tarraday answered that anytime the Board is being asked to decide a permit of any kind, it should be c assumed to be a quasi-judicial decision and the script should be read. He agreed that there are some actions when the Q requirement is unclear. When there is doubt, it is better to go through the script. a Board Member Strauss asked if the Board must read the script and formally disclose ex-parte communications even r c when there is no one in the audience. City Attorney Tarraday answered affirmatively. In case a Board decision is challenged, it is important that the disclosures are made on the record. City Attorney Tarraday explained that, during a hearing, the Appearance of Fairness Doctrine does not prohibit the z Board from seeking specific information or data from such parties, if both the request and the results are part of the a record. Board Members should not be hesitant to ask questions of the applicant during a hearing. For example, they could invite the applicant to speak directly about how the project meets the criteria. The Board could also direct questions to staff regarding the Staff Report. Chair Guenther added that the Board can also question people who provide testimony during the hearing. Board Member Tarrant said her understanding is that the ADB must review each application for compliance with the code, and they cannot make a decision based on opinion if it is contrary to the code. Board Member Broadway said that when applicants request a deviation from the code, it is the Board's responsibility to evaluate whether the request is Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 6 of 10 Packet Pg. 26 8.1.b reasonable based on the code. City Attorney Tarraday said anytime the Board finds code language that is not particularly helpful or clear, they should make note of it and provide feedback to staff. This information will be particularly helpful as the City moves through the code rewrite process. The City should not put the Board in the position of making completely discretionary decisions outside of guidance in the code. City Attorney Tarraday advised that bias comes into play if a Board Member has a conflict of interest or some type of prejudgment pertaining to a certain project, which renders him/her unable to be a fair and objective decision maker. If Board Members suspects that to be the case, they should recuae themselves from participating in the hearing and decision. In an extreme scenario, someone could challenge a Board Member's participation if they suspect bias. The audience should be given the opportunity to challenge the participation of any Board Member at the start of the hearing. Audience members must take that opportunity or they waive their right to do so. If challenges are made and multiple 0 Board Members are required to step down, the Doctrine of Necessity Rule prohibits the Appearance of Fairness Doctrine W from destroying the quorum. Board Members would be allowed to participate notwithstanding the ex-parte communication or bias. These situations are extremely rare. a 0 Aside from having the appearance of being unfair, City Attorney Tarraday explained that ex-parte communications rn create a bigger problem if a Board Member is making a decision based upon evidence that is not in the record. Decisions can be difficult to support from a legal standpoint if the evidence is not in the record. He said site visits can be tricky because not all Board Members visit the site, and the court is not going to visit the site. If a reference to a site visit c makes its way into the proceedings, it can be potentially challenging upon review. The staff report should provide a` enough photographs to orient the Board and provide a sense of what is going on in the surrounding area. If not, it is okay m for the Board to request more information. The Board is not bound to make a decision the same night as the initial Q hearing. They can continue the hearing and request additional information. M City Attorney Tarraday recognized that the Board Members are all familiar with the community, and there will be situations where they have some familiarity with the circumstances of a particular property. It may not be realistic to completely divorce themselves from the situations that are already in their head, but they should not a make a special N effort to walk a site. If the information would be helpful, perhaps staff could shoot a video of the surrounding area and Y enter it into the record. That same video would follow the record throughout the process, and everyone would have ancc opportunity to make a decision based on the same set of facts. Chair Guenther said the Board could also have a special Q' meeting and visit the site as a group. City Attorney Tarraday said that would work from an Open Public Meetings a� standpoint, but the site visit would need to be recorded and added to the record. E To provide further clarification, City Attorney Tanaday advised that having familiarity with the site does not call for c recusal. For example, in the previous hearing, Board Member Broadway converted her familiarity into a few sentences Q that are now part of the record for anyone to read. Anyone who disagrees with her statement could provide a rebuttal. a He encouraged the Board Members to get site information on the record early, ideally before the applicant speaks. If not, the applicants should be given the opportunity for rebuttal later in the process. 0 Board Member Borofka asked if it would be reasonable for a Board Member to request staff take video or pictures prior m to the hearing if they are familiar with a site and believe that the Staff Report missed important information. City z Attorney Tarraday agreed that would be appropriate. He clarified that staff are not considered to be proponents or opponents of a project. They are the Board's resource. Q City Attorney Tarraday summarized that at the end of the day, Board Members should ask themselves, "Would a disinterested person with knowledge of the totality of my personal interest or involvement be reasonably justified in thinking that my involvement might affect my judgement." City Attorney Tarraday said it is important that the Board Members do more than just vote. If the Board Members agree with the recommendation, analysis, findings and conclusions contained in the Staff Report, they can simply move to approve an application based on the findings and conclusions in the Staff Report. However, disagreements with the Staff Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 7 of 10 Packet Pg. 27 8.1.b Report or supplements to the Staff Report should be specifically called out in the motion. If the Board needs help from legal counsel, they can continue the hearing to a future date. Board Member Strauss asked if staff could propose a motion as part of the Staff Report. City Attorney Tarraday agreed that is an option if the Board finds it would be helpful. Chair Guenther noted that a motion proposed by staff would have to be amended if the Board wants to propose a deviation from the staff s recommendation. City Attorney Tarraday said that, with some advance notice, he could attend a Board meeting and provide direction. Board Member Broadway commented that it is difficult for the Board to know in advance when help will be needed. It typically becomes tricky when the Board wants to add on to the staff s recommendation. Again, City Attorney Tarraday reminded the Board that the hearing could be continued to allow time for the Board to seek direction from the City Attorney. Board Member Strauss suggested that the Board could also take a 10-minute break to craft language for their motion. City Attorney Tarraday agreed that would be appropriate. They could also schedule a special meeting rather than postponing a decision for an entire month. City Attorney Tarraday referred to the case Anderson vs. Issaquah, which is the most cited design review case in Washington State. It is an old case that had to do with a development proposed on Gillman Boulevard, which the Development Commission referred to as the cty's "signature" street. He provided excerpts from the case to illustrate what can go wrong in a design review hearing. He explained that, as per the Void for Vagueness Doctrine, a statute which either forbids or requires the doing of an act in terms so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. The vagueness test does not require a statute to meet impossible standards of specificity. The code does not need to be so specific as to remove all discretion from decision makers, but it cannot leave applicant's guessing as to what it means. The purpose of the Void for Vagueness Doctrine is to limit arbitrary and discretionary enforcements of the law. He referred to the Board's earlier discussion about setting a precedent. He stressed the importance of articulating the reasons for a decision as part of the motion so it is clear that the Board is not acting arbitrarily. City Attorney Tarraday summarized that in the case of Anderson vs. Issaquah, the court found that "neither Anderson nor the Commissioners may be constitutionally required or allowed to guess at the meaning of the code's building design requirements by driving up and down Gillman Boulevard looking at good and bad examples of what has been done with other buildings recently or in the past. " The court held that the code sections at issue were "unconstitutionally vague on their face. " He explained that when courts say that provisions are vague on their face, they are really saying that even if the commission had acted perfectly, they were not given the tools to make a valid decision because the criteria was too vague to be useable. He said the court also determined that the code sections at issue `failed to pass constitutional muster. " Further, "because the Commissioners had no objective guidelines to follow, they necessarily had to resort to their own subjective feelings. " City Attorney Tarraday said he always worries that there is language in the City's code that would not pass the test. He encouraged Board Members to provide feedback to staff or the City Attorney if they find problems that need to be addressed with respect to the vagueness issue. City Attorney Tarraday summarized that the Anderson vs. Issaquah case had two problems. First, the code was written in such a way that it did not give design professionals clear enough guidance. Probably the facts of the case contributed to the court's finding. Had the facts not been so bad, the court may not have reached the conclusion that the code language was void on its face. Even worse was the way the commission applied the vague language by requiring the developer to make change after change based on extremely open-ended direction. Board Member Broadway said she is particularly challenged by the interpretive language contained in the code. For example, what is meant by the term "articulated roof" City Attorney Tarraday commented that the design professionals on the Board can really add value to the analysis because the terns are used frequently in the industry. When interpretive situations come up, the design professionals should carefully explain their professional opinion as part of the record. Chair Guenther expressed his belief that design guidelines should include a certain degree of flexibility to allow for creativity. While a certain part of the construction industry wants the code requirements to be spelled out in a specific format, others believe it is too restrictive and limits creativity. The goal is to define a mid -point. Board Member Tarrant Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 8 of 10 Packet Pg. 28 8.1.b pointed out that each Board Member may have an extremely valid, yet different, opinion on any given code provision or design guideline. If the City enforces uniformity, everything will end up looking the same. Board Member Broadway explained that, in the case of Anderson vs. Issaquah, the design commission was not specific in their direction to the applicant. She asked if the Board can request modifications, as long as they provide clear direction to make their expectations clear. City Attorney Tarraday said he has found that the most helpful design guidelines combine words with illustrations that provide clear examples of what the City is trying to articulate with the words. Legally speaking, incorporating illustrations into the design guidelines provides an escape clause that allows the City Attorney to argue to a court if the Board denies an application. Illustrations are a good way to provide artistic guidance where words often fall short. Board Member Borofka said he sometimes gets anxious when the Board gets into discussions about color and finish. 0 The Board is often presented with panels showing a certain finish material and color and they provide feedback to the applicant. He voiced concern about how valid the Board's comments and directions are given that the code is quite a vague as it pertains to colors and finish materials. City Attorney Tarraday said the City could adopt an approved color 0 pallet, which could end up being very limiting. However, the Board cannot condition approval based on color alone, rn without an approved color pallet. Mr. Clugston said the City's design guidelines and codes contain very little direction about color, but the staff and Board tries to work collaboratively with the applicant. Chair Guenther recalled that 15 or 20 years ago, the ADB was considered the "color police." Since that time, there has been a deliberate move to get away c from that kind of specific review. He summarized his understanding that it is within the Board's purview to talk about (L` colors, but they should not become the "color police." City Attorney Tarraday said there is nothing wrong with having m very specific conditions of approval, as long as they give clear guidance to both the applicant and staff. Q Chair Guenther said the Board often has questions about how specific their conditions of approval can be and still fall M N within the limits of their purview. While they want to be specific in their decisions, they are often unclear exactly how far they can go. Board Member Tarrant noted that some things are not quantifiable, regardless of how good the code language is written. The City must have a certain level of faith that it can be fair and just in its decision making. She N summarized that, based on the City's Attorney's presentation, Board Member comments must be well considered and Y well delivered. The onus is upon the Board Members to backup their opinions with good substance and fair judgment.cc a With regard to color, City Attorney Tarraday said there is less risk in telling an applicant what color to paint a building a) than in telling an applicant to redesign a different aspect. There is no cost associated with requiring an applicant to change a color. Vice Chair Walker agreed that conditions need to be reasonable and supported. However, he questioned E the purpose of the ADB if they are not allowed to respond to a hideous color. The ADB does not have purview over the c code provisions, but it is responsible for addressing the aesthetic aspects of development. While the ADB should not Q necessarily mandate a specific color, it could give a general opinion about what looks good in a certain context. a City Attorney Tarraday said the Board has been tasked with a number of quasi-judicial responsibilities and not a lot of r c policy -making responsibilities. Down the road, the Board may decide they would rather focus more on design policy and send quasi-judicial applications to the hearing examiner to determine code compliance. The Board should let staff E know if that is their sentiment, since it could influence the direction of the code rewrite. z c� Board Member Herr noted that no permit is required when a building is repainted. Even if the Board approves a specific a paint color, nothing would stop the applicant from repainting the building after the permit has been issued. City Attorney Tarraday advised that if Board Members visit a site before a public hearing, they should disclose their visit on the record at the outset of the hearing and let it be a basis for a possible challenge. It should be made public as if it were an ex-parte communication since it would be considered evidence outside of the record. If there are no challenges to the site visit, then the Board Member is in the clear and can participate in the hearing. Chair Guenther said this is particularly important when controversial projects come before the Board. Board Member Broadway suggested that, at the start of each hearing, the Chair could simply ask Board Members to disclose site visits. City Attorney Tarraday Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 9 of 10 Packet Pg. 29 8.1.b asked if it would it be feasible for staff to do a site visit and create a video to display at each hearing. He explained that site visits by individual Board Members can present legal challenges. Providing a video of the site as part of the record would minimize the risk that the site visits can create down the road. City Attorney Tarraday cautioned against the Board assuming that an application is non -controversial if there is no one in the audience to participate in the hearing. It just takes one applicant to appeal and challenge that the City did something wrong. Even something that seems mundane could turn into an appeal, which could ultimately end up being a damage claim down the road. He encouraged the Board to develop good habits for all hearings. ARCHITECTURAL DESIGN BOARD MEMBER COMMENTS There were no Board Member comments. ADJOURNMENT: The meeting was adjourned at 9:35 p.m. Architectural Design Board Meeting Minutes of Special Meeting November 2, 2016 Page 10 of 10 Packet Pg. 30 RESOLUTION NO. 1367 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, EXPRESSING INTENT TO REMOVE THE CITY COUNCIL AND OTHER VOLUNTEER CITIZEN BOARDS FROM QUASI-JUDICIAL PERMIT PROCESSING TO THE EXTENT ALLOWED BY LAW UPON ADOPTION OF THE REVISED EDMONDS COMMUNITY DEVELOPMENT CODE. WHEREAS, the city has undertaken a comprehensive review of the city's land use permit processing regulations; and WHEREAS, the city council has played a quasi-judicial role in certain land use permits for many years; and WHEREAS, the city council has been deliberating whether to continue serving in that role; and WHEREAS, the city council understands that many citizens want the city council to serve in a quasi-judicial role, believing that the council would be more responsive to the desires of the public than a hearing examiner who is not elected; and WHEREAS, that desire of some of the public underscores one of the main difficulties with the council serving in that role, namely, that the council may be pressured to make a decision that may be contrary to the standards that the council has adopted to govern such decision -making; and WHEREAS, that difficulty also increases the legal risk to both city and to the councilmembers themselves; and WHEREAS, council engagement in quasi-judicial decision -making also prevents the city council from being able to freely discuss pending land use matters with constituents and suggests that councilmembers should not testify before the hearing examiner out of concern that they might later need to recuse themselves in the event of an appeal to the city council; and WHEREAS, the city council believes that it can adopt additional procedures that will ensure that the city council stays abreast of pending land use applications and that the public interest in access to justice is adequately addressed; now therefore THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The city council intends to adopt revisions to the Edmonds Community Development Code that will remove quasi-judicial decision -making responsibility from the city council and other volunteer citizen boards to the extent allowed by state law. Packet Pg. 31 8.1.b Section 2. The city council hereby requests that city staff and the planning board prepare and forward to the city council revisions to the Edmonds Community Development Code that are consistent with this resolution. RESOLVED this 9ch day of August, 2016. ATTEST: CITY CLERK, S OTT SSEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL RESOLUTION NO. F EDMONDS YOR, DAVE EARLING August 5, 2016 August 9, 2016 1367 Packet Pg. 32 8.1.b years 4 months. The request is to extend the existing lease 1 year so there is a 15-year lease. The grant documents have already been submitted, but the State staff knew changing the lease would take an act of Council and gave the center until early September to accomplish it. Dave Page, Edmonds, commented he had never bought coffee from an espresso stand, finding it too expensive, but recently visited the stand on 238"' twice. The ladies were very nice looking and wearing a bra and thong. At both visits, when he asked the lady if he could have "more goodies" if he gave her $100, she acted offended. It seemed to him the Council was spending an inordinate amount of time on an ordinance related to indecent exposure when any day of the week a person could drive from here to California and find people dressed the same way these ladies were dressed. This espresso stand is hard to find; if a person wants to see a scantily dressed person and pay $5 for coffee, that is their business, not the City Council's or Police Department's business unless they are offering other services. He urged the Council to leave well enough alone. 7. STUDY ITEMS 1. SENIOR CENTER LEASE AGREEMENT AMENDMENT Parks & Recreation Director Carrie Hite referred to Mr. Fleming's comments, explaining this is a request to authorize the Mayor to sign a lease amendment to add a year to the current lease with the senior center so that they are eligible for a State grant for the rebuild of the senior center. COUNCIL PRESIDENT JOHNSON MOVED, COUNCILMEMBER TEITZEL, TO MOVE THE AUTHORIZATION FOR THE MAYOR TO EXTEND THE LEASE AGREEMENT WITH THE SENIOR CENTER FOR ONE YEAR TO NEXT WEEK'S CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. 2. CITY'S PRACTICE OF CONDUCTING QUASI-JUDICIAL LAND USE HEARINGS Development Services Director Shane Hope explained the Council has had several discussions regarding the City Council's role in the quasi-judicial decision making process. In June, Councilmembers expressed interest in getting away from being the quasi-judicial decision maker on a number of types of land use issues that the Council is currently charged with doing under the City code. She recalled the Council requested information from the City Attorney regarding absolute versus qualified immunity. The packet includes background materials as well as a resolution that could be placed on the next Consent Agenda that provides direction when the Development Code is updated in near future to remove that discretionary quasi-judicial process from the City Council's responsibility. Councilmember Buckshnis recalled the Council considered this six years ago and four years ago she voted to return rights to appeal land use decisions, overturning previous Council actions that took away citizens' voice. She recalled whenever the City Council has reviewed a quasi-judicial matter in the past, they have worked out correctly. She did not support changing the Council's role in quasi-judicial hearings because she believed citizens should have a right to voice their opinion to Council. Councilmember Fraley-Monillas also did not support moving the Council out of quasi-judicial land use hearings. When the Council moved back to holding quasi-judicial hearings, the Council was not sure how that would work out; she has been involved in several quasi-judicial hearings in the past 6'/z years and it has been a good use of Council time and resources and allows citizens to appeal to the Council. In most cases the Council upheld the Hearing Examiner's decision. This provides a second step for citizens without the cost of going to court at a cost of $500-$5000 depending on whether an attorney is hired. She concluded this was a basic standard for citizen rights and shows the City Council is supportive of citizens. Edmonds City Council Approved Minutes August 9, 2016 Page 5 Packet Pg. 33 8.1.b Council President Johnson said in general the City has made progress by using a Hearing Examiner instead of a citizen board of appeals. To the greatest extent possible, she preferred to rely on the Hearing Examiner process and the Superior Court of Snohomish County to adjudicate any questions. She felt there was too much risk on the City if the Council makes a mistake. For those reasons she supported the proposal. She asked when this would be addressed in the code update. Ms. Hope answered in a few months. Councilmember Teitzel expressed support for the proposal; he did not believe that he, as a Councilmember, had enough training in the law to make a proper legal decision. The Council's role as legislators is to establish code, listen to citizens and ensure the code is clear so it can be interpreted properly. The proper place for interpreting a legal question and appeal issues is via the court system. He agreed with Council President Johnson that the Hearing Examiner process was working, there is an appeal process is place and available to citizens and it is not the Council's role to interpret the law. Councilmember Fraley-Monillas said there has been no risk to the City for nearly seven years and unless the Council interpreted things incorrectly, there was no risk to the City. She felt it was part of the Council's job to represent the citizens of Edmonds. Citizens should not have to appeal to court when that can be done by the Council. Councilmember Nelson recalled his personal experience on the one and only quasi-judicial hearing he participated in, commenting he did not enjoy it. However, just because he did not like something did not mean it was not necessarily good for the City or citizens. In reviewing the decisions the Council has made in past quasi-judicial hearings, there are more incidents where the Council has provided an oversight and check system to help citizens and he felt there was a role in the process for Council. He appreciated the City Attorney's research regarding immunity, relaying it was clear the only way Councilmembers were personally liable was if they went off the well -established legal path and felt it was well worth that risk. Council President Johnson said as legislators, the Council has many opportunities to help citizens including conversations with them, speaking on their behalf before the Hearing Examiner, discussing any inequities in the codes or law and taking a legislative action. It was not necessary for the Council to be in a quasi-judicial role. She has been very uncomfortable in the quasi-judicial role because Councilmembers are unable to communicate directly with citizens and help them with issues. She felt the risk was real and asked the City Attorney to speak to the subject of risk. City Attorney Jeff Taraday agreed it was a real risk. He distinguished between risk to the City versus risk to Councilmember personally, stating it was true Councilmembers have to go off the rails to find themselves personally liable, a high hurdle for a plaintiff to clear. The real risk is to the City. The City is a member of an insurance pool; if there were a significant plaintiff judgment against the City, while WCIA may come to the City's short term rescue, there is a long term cost to the City when WCIA considers it a risky city. Mr. Taraday referred to a recent judgment rendered against the City of SeaTac, explaining while not quasi-judicial, it was a land use case. When land use judgments go bad, they can get into the stratosphere in terms of costs; the judgment against SeaTac was $18 million. SeaTac is appealing the judgment but it will spawn litigation and risk for SeaTac and their insurance pool. He was aware of one other lawsuit where the reinsurer of CIAW (SeaTac's insurance pool) was essentially claiming they would not cover and defend because the actions of the City officials in that matter went off the rails, beyond what they considered a covered event. While the City can look to its insurance for coverage, there are instances that will not be covered and taxpayers are left holding the bag. In his five years as city attorney, he could think of at least one land use decision that while it did not translate into a dollar loss, he was not comfortable with the risk assessment after that decision was made. The Council did things in that case that it probably should not have done; the specifics could be discussed in executive session. In that situation there was real risk to the City and the City was fortunate to get out of it without significant cost or judgment against Edmonds City Council Approved Minutes August 9, 2016 Page 6 Packet Pg. 34 the City. He summarized the Council should not think quasi-judicial land use decision making is carefree; they are playing with big dollars. Mr. Taraday said the problem when sitting in a quasi-judicial capacity is Councilmembers will be tempted to fix their constituents' problems because the Council represents them, citizens voted for them, made campaign contributions, etc. If a Councilmember through that temptation crosses the line even a little bit, while probably not personally liable, could mean a multimillion dollar judgment against the City for reading something into the code that is not there for example. Councilmember Buckshnis said Mr. Taraday should not be using SeaTac's $18 million judgment as an example to scare Councilmembers because it was not quasi-judicial. In her six years on the Council, she can think of one instance where she took issue with how things progressed, but felt they progressed correctly. Issues arose as part of that because a Councilmember was part of process, a unique situation. She felt Mr. Taraday was trying to scare the Council; if the Council follows the process and the record, this process should be allowed to continue especially since situations like SeaTac have not arisen. Mr. Taraday said his point in using SeaTac as an example was to quantify the risk and to point out millions of dollars can be at stake in land use decisions. He was not telling the Council they could not retain this decision making authority; the Council has been doing it for years. He simply wanted the Council to do so with their eyes wide open about the nature of the risk. Councilmember Teitzel commented he was elected to represent the citizens of Edmonds and did not agree moving away from this quasi-judicial role was a disservice to citizens. He reminded if the Council felt the Hearing Examiner's decision was incorrect, the Council can request the City Attorney file an appeal to Superior Court and testify on citizens' behalf. He intended to use that process if he found an error in the Hearing Examiner's decision. Council President Johnson recalled this discussion when she was on the Planning Board many years ago. The City Attorney at that time, Scott Snyder, strongly recommended the Council not be in a quasi-judicial role. She recalled Mark Laughlin, WCIA, also strongly advised the Council not to participate in a quasi- judicial role and a person from MRSC gave the same advice. She asked Ms. Hope, Mr. Chave and Mr. Taraday for their best advice regarding the Council's involvement in quasi-judicial decision making. Ms. Hope responded because of the risks involved and the complexity of some issues, because the Council has a clear legislative role to assist and give direction on policies and if the Council is not in a quasi-judicial role, has the ability to appeal decisions and take the constituent's side, she believed moving away from the quasi-judicial role is prudent and still allows the Council to help citizens. Mr. Chave pointed out over the years more details and specifics in have been added to the code. The key reason for that is to avoid too much indefensible discretion which the courts dislike. Regardless of the Council's decision, that trend should be recognized. He summarized the value of retaining the appeal is outweighed by the potential value the Council can add by closer involvement with citizens. Mr. Taraday emphasized his recommendation is insignificant; he will defer to and do whatever the Council wants to do. To the Councilmembers who were interested in the status quo, his only recommendation was he believed the Council could better serve constituents by getting early notice of pending quasi-judicial actions that are coming to the Hearing Examiner, getting involved with and talking with constituents during the process, working with him to advocate for a particularly position in front of the Hearing Examiner and if necessary, direct him to appeal the Hearing Examiner's decision if the Council did not agree with it. The Council can do more to advocate on behalf of constituents via those techniques versus sitting as judge. If the Council tries to advocate for citizens while sitting as a judge, they can be sued. The Council cannot do both, be an advocate for constituents and a judge at the same time. If the goal was to represent constituents, he recommended getting involved earlier at the Hearing Edmonds City Council Approved Minutes August 9, 2016 Page 7 Packet Pg. 35 8.1.b Examiner level, talking to constituents, establishing a process whereby the Council is notified of items going to the Hearing Examiner, testifying at Hearing Examiner hearings, organizing people to rally for or against a project, etc. As the longest serving Councilmember present, Councilmember Fraley-Monillas disputed some of what has been said. Neither she nor Councilmember Buckshnis have ever had a citizen approach her wanting them to do something about their case. She recognized Mr. Taraday was uncomfortable with risk, pointing out the Council incurs risk every day; every decision incurs some level of risk. Although she appreciated what Councilmember Teitzel had to say, she pointed out six months as a Councilmember did not qualify him to understand the process as well as Councilmembers who have been on the Council longer and have been involved in previous cases. She pointed out Council President Johnson has been opposed to this ever since she got on the Council and has asked this question of everyone who interviewed for an appointment to Council. Council President Johnson raised a point of order; Roberts Rules of Order state a person is not to make arguments that are personal, are not to name people or be argumentative. She objected to Councilmember Fraley-Monillas identifying what each Councilmember has said and arguing that point. Mayor Earling ruled that Councilmember Fraley-Monillas may continue her testimony, however, she was not to bring up individuals' names. Councilmember Fraley-Monillas said some Councilmembers are passionate about making this change. She believed citizens needed to have a voice, and not the costly voice of appealing to court. She questioned whether all Councilmembers fully understood the original reason the Council moved into the quasi-judicial role. There is passion behind allowing citizens the ability to come to Council for a decision. She did not mean to offend any Councilmembers but wanted the facts to be clear. COUNCIL PRESIDENT JOHNSON MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO MOVE RESOLUTION 1367 TO THE CONSENT AGENDA, A RESOLUTION OF CITY COUNCIL CITY OF EDMONDS EXPRESSING INTENT TO REMOVE THE CITY COUNCIL AND OTHER VOLUNTEER CITIZEN BOARDS FROM QUASI-JUDICIAL PERMIT PROCESSING TO THE EXTENT ALLOWED BY LAW UPON ADOPTION OF THE REVISED EDMONDS COMMUNITY DEVELOPMENT CODE. Council President Johnson said this vote is just showing intent and the Council will have an opportunity to make a final decision in several months when the code is brought to the Council. Councilmember Nelson referred to Mr. Taraday's comment about crossing the line and the risk in these decisions. He asked if Mission Springs v. City of Spokane was a good example. Mr. Taraday answered yes. Councilmember Nelson asked Mr. Taraday to describe the Mission Springs case. Mr. Taraday explained Mission Springs involved a grading permit and the City Council disregarding legal advice given to them during a public meeting, advice that should have been given in executive session. That City Attorney said publicly something to the effect that the Council needed to approve the permit and Council did not and got sued. Councilmember Nelson read from the Supreme Court case, where a Councilmember asked "If we direct staff not to issue permits until the tunnels were improved, what would happen? The City Attorney responds, "What would happen is that would be the genesis for a cause of action by the developer against the city for unlawfully interfering with the issuance of a building permit and that is essentially the same basis that we're presently in federal court on, a civil rights violation." The City Attorney goes on to say "It's a charter violation, the Council has no administrative authority, the Council act through ordinances and sets policy and administrative staff is charged with following ordinances." The City Attorney clearly Edmonds City Council Approved Minutes August 9, 2016 Page 8 Packet Pg. 36 8.1.b tells the Council what they are doing is not right and the Council ignores his advice, a very clear, bright line. Mr. Taraday agreed it was a clear, bright line in that case; it is not always. Councilmember Nelson recalled WCIA has also routinely brought up Mission Springs as an example of what can go wrong. He clarified it was not something the Spokane Council did not understand or was surprised by, it was very clear what would happen. When talking about these kinds of risks, it was important to put it in context. Mr. Taraday said he would not give advice in a public meeting; if that situation ever arose, he would take the Council into executive session, advise of the consequences and the Council would need to take a vote in public without the public's knowledge of the City Attorney's advice. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TIBBOTT, TO AMEND THE MOTION TO TAKE A VOTE ON THIS TONIGHT. AMENDMENT CARRIED UNANIMOUSLY. Councilmember Buckshnis preferred to take a vote tonight as Councilmembers have stated their positions and it likely would be pulled from the Consent Agenda. UPON ROLL CALL, MAIN MOTION AS AMENDED CARRIED (4-3), COUNCIL PRESIDENT JOHNSON AND COUNCILMEMBERS MESAROS, TEITZEL AND TIBBOTT VOTING YES; AND COUNCILMEMBERS NELSON, FRALEY-MONILLAS AND BUCKSHNIS VOTING NO. Mayor Earling declared a brief recess. 3. CIVIC CENTER MASTER PLAN UPDATE Parks & Recreation Director Carrie Hite recalled a kick off meeting was held to launch the Master Plan process in early May. Since then there have been stakeholder interviews, an open house, a virtual open house, project advisory meetings and an update to the Planning Board two weeks ago (draft minutes are included in the packet). She introduced five members of the Project Advisory Committee (PAC) who were present including Council President Council President Johnson, Councilmember Teitzel, Pat Woodell, John McGibbon and Alex Witenberg. She recognized the PAC for their help. Chris Jones, Principal and Landscape Architect, Walker I Macy, said this update is not to present alternatives but to report on the public involvement process to date and what they have heard so far from the community related to the park program and existing uses on the site. He used the metaphor for this project, it's like removing a temporary tree. He reviewed existing Park Program (activities) • Events o Taste of Edmonds 0 4th of July Fireworks o Wenatchee Youth Circus (concluding operation 2016) o Sports tournaments o Arts Festival (parking) • Existing Structures o Boys & Girls Club (Field House) ■ Interested in remaining on site and expanding footprint to 18,000-25,000 square feet ■ Historic Preservation Committee pursuing listing of site and field house as historic o Grand Stand • Parking • Storage • Active Recreation o Soccer o Tennis Edmonds City Council Approved Minutes August 9, 2016 Page 9 Packet Pg. 37 City Council Agenda Item Meeting Date: 08/9/2016 City's Practice of Conducting Quasi -Judicial Land Use Hearings (30 min.) Staff Lead: Shane Hope Department: Development Services Preparer: Diane Cunningham Background/History During the 2016 City Council retreat, the question of whether to continue holding quasi-judicial hearings before the City Council was introduced. With the land use code update underway, it seemed timely to review the City's practice of sending certain applications and appeals to the City Council for a quasi- judicial hearing. The City Council discussed the process for Council quasi-judicial reviews at the May 10, 2016 Council meeting (May 10th agenda minutes excerpt included as Exhibit 1). At the May 10th Council meeting, the Council requested additional information on the history of the Council assuming a quasi- judicial role, recent past Council quasi-judicial decisions, and what other jurisdictions do with regard to quasi-judicial appeals. This information was brought forward and the City Council discussed it on June 7, 2016. (See attachments 2, 3, and 7, along with the Narrative part of this memo, for the information.) Minutes of the June 7 meeting are attached as Exhibit 4. Staff Recommendation Discuss issue and consider moving the draft Resolution to the next Consent Calendar. Narrative NEWEST INFORMATION Given the City Council's discussion on June 7, two new items have been prepared. One is a draft Resolution (Exhibit 5) that states an intent to not have quasi-judicial decisions be decided by the City Council or volunteer boards and for this intention to be reflected in a future Development Code revision that the Planning Board will recommend. The other new item is a memo by the City Attorney about qualified vs. Absolute immunity. (See Exhibit 7.) This was prepared in response to a City Council request from June 7. PRIOR INFORMATION The narrative below largely reflects information previously provided to the City Council to help explain the City's role in quasi-judicial decisions. Types of Council Quasi -Judicial Actions Currently, there are three ways a land use action can come before the City Council for a quasi-judicial decision under a closed record review: 1) site specific rezone, 2) public agency variance request, and 3) appeal of Type III-B decision. Site Specific Rezone Packet Pg. 38 8.1.b A site -specific rezone is where a property owner seeks to rezone a particular site from one zoning district to another. Site specific rezones are Type IV-B quasi-judicial decisions. Area -wide rezones (such as the recent West Gate Rezone) are Type V legislative actions. Under site -specific rezones, the Planning Board holds an open record public hearing to establish the record and forwards a recommendation to the City Council. The City Council holds a closed record review to consider the Planning Board's recommendation. Public Agency Variance Request Edmonds Community Development Code (ECDC) 17.00.030 - Application of regulations - provides: C. Public Structures and Uses. All public structures and uses built or altered by the city or any other public agency shall comply with this zoning ordinance. Where it is a public necessity to build, or alter, a structure or use in a location or in a manner not complying with this zoning ordinance, a variance may be considered. In this case, the action of the hearing examiner shall be a recommendation to the city council. Public agencies are required to comply with the zoning code as are private property owners. When a public agency seeks a variance from the zoning standards, the Hearing Examiner holds an open record public hearing to establish the record and forwards a recommendation to the City Council. The City Council holds a closed record review to consider the Hearing Examiner's recommendation. Appeal of Type III-B Decisions ECDC 20.01.003 lists a number of Type III-B permits which may be appealed to City Council including conditional use, variance, preliminary plats, and design review by the Architectural Design Board (ADB). Type III-B decisions may be made by the Hearing Examiner or the Architectural Design Board. For Type III-B decision the Hearing Examiner or the ADB holds an open record public hearing and issues a decision on the application. Any party of record may appeal a Type III-B decision to the City Council. ECDC 20.07.003 defines parties of record as: 1. The applicant; 2. Any person who testified at the open record public hearing on the application; 3. Any person who individually submits written comments concerning the application at the open record public hearing (or to staff if an appeal of a Type 11 decision). Persons who have only signed petitions are not parties of record; and/or 4. The City of Edmonds. When a Type III-B decision is appealed to the City Council, the Council holds a closed record hearing on the record established by the Hearing Examiner or the Architectural Design Board. ECDC 20.07.005.H describes the potential actions of the Council following a closed record appeal: The city council shall determine whether the decision by the hearing body/officer is clearly erroneous given the evidence in the record. The city council shall affirm, modify or reverse the decision of the hearing body/officer accordingly. Upon written agreement by the applicant to waive the requirement for a decision within the time periods set forth in RCW 36.708.080, as allowed by RCW 36.708.080(3), the city council may remand the decision with instructions to the hearing body for additional information. 2009/2010 Code Changes In 2009 under Ordinance 3736, the City of Edmonds established the Type I - Type V permit processes. Prior to the 2009 code update, the City's permit processes were established by the last major code update in the early 1980's which included Council quasi-judicial decisions on site specific rezones, public agency variances, and appeals of Hearing Examiner and ADB decisions. Prior to the 1980 update, quasi- judicial decisions were made by the Board of Adjustments and decisions were appealable to Superior Packet Pg. 39 8.1.b Court. Ordinance 3736 retained Council quasi-judicial decision on site specific rezones and public agency variances, but removed closed record appeals to Council on most decisions with the exceptions of Essential Public Facilities and Architectural Design Board decisions. There was considerable discussion at the Council meetings about removing the Council from the appeal process (see Council minutes from the following meetings 02-24-2009, 03-17-2009, 05-05-2009, 05-26- 2009, and 06-02-2009). At that time, Planning Manager Rob Chave consolidated the list of pros and cons from the Council's discussion of Council closed record appeals. The list is contained in Exhibit 3. Ordinance 3736 was adopted on June 2, 2009. On January 5, 2010, the City Council adopted Interim Ordinance 3775 which re-inserted closed appeals to the City Council. A second interim ordinance (Ordinance 3787) was adopted on February 2, 2010 which also moved preliminary Planned Residential Development. The Council held a public hearing on September 21, 2010 on the Planning Board's recommendation which included closed record appeals to the City Council. Ordinance 3817 was adopted on consent at the November 16, 2010 Council meeting creating the review processes in the code today. (There have been a couple of amendments since 2010 regarding innocent purchaser process and the new critical area contingent review process established with the CAO update, but no changes to closed record reviews before Council.) See Exhibit 6 for excerpts of the minutes from the above Council meetings. Summary of Council Quasi -Judicial Decisions since 2010 Below is a summary of all closed record quasi-judicial decisions made by the City Council since 2010 Site Specific Rezones PLN20110005 - Rezone of two parcels located at 9511 and 9513 Edmonds Way from RS-8 (Single-family Residential; 8,000 square foot minimum lot size) to RM-1.5 (Multi -family Residential; maximum density of one dwelling unit for every 1,500 square feet of lot area). Planning Board recommended approval of the rezone. City Council approved the rezone. PLN20120029 - Rezone of three parcels located at 8609/8611/8615 - 244th Street SW from RS-8 (Single- family Residential; 8,000 square foot minimum lot size) to RM-2.4 (Multi -family Residential; maximum density of one dwelling unit for every 2,400 square feet of lot area). Planning Board recommended approval of the rezone. Council approved the rezone. PLN20130008 - Rezone of parcel located at 22133 - 76th Avenue W from CG (General Commercial) to CG2 (General Commercial; difference in the two CG zones relate to allowable height) and rezone of parcel located at 22121 76th Avenue W from RM-2.4 (Multi -family Residential; maximum density of one dwelling unit for every 2,400 square feet of lot area) to CG2 (General Commercial). This was a City initiated site specific rezone to correct the zoning of a property that was inadvertently left out of an area wide rezone. Planning Board recommended approval of the rezone. Council approved the rezone. PLN20130030 - Rezone of property located at 403 and 405 - 3rd Avenue N from RM-3.0 (Multi -family Residential; maximum density of one dwelling unit for every 3,000 square feet of lot area) to RM-2.4 (Multi -family Residential; maximum density of one dwelling unit for every 2,400 square feet of lot area). Planning Board recommended approval. Rezone was not approved by Council. Council vote was tied 3- 3. Since the rezone did not receive a majority of votes, it was not approved and the site remained zoned RM-3.0. PLN20130074 - Rezone of parcel located at 7533 - 228th Street SW from RM-2.4 (Multi -family Residential; maximum density of one dwelling unit for every 2,400 square feet of lot area) to RM-1.5 (Multi -family Residential; maximum density of one dwelling unit for every 1,500 square feet of lot area). Planning board recommended approval. Council approved the rezone. PLN20150024 - Rezone of a portion of the property 21900 Highway 99 from a Contract Rezone of CG2 (General Commercial with specific contract rezone conditions) to CG2 (General Commercial without the Packet Pg. 40 8.1.b contract rezone conditions). Planning Board recommended approval. Council approved the rezone. PLN20150034 - Rezone of portions of the properties located at 16404 and 16414 - 751h Place West and 16420 - 76th Avenue West from RS-20 (Single-family Residential; 20,000 square foot minimum lot size) to RS-12 (Single-family Residential; 12,000 square foot minimum lot size). Planning Board recommended approval. Council approved the rezone. Public Agency Variance Requests PLN20100070 - PUD Fence Height Variance - Snohomish County PUD fence height variance request to construct an 8-foot fence around a substation located at 9005 - 244th Street SW. Hearing Examiner recommended approval of the fence height variance. Council approved the fence height variance. PLN20150017 - Firefighters of Local 1828 and Snohomish County Fire District No. 1911 Memorial setback variance request at 275 - 6th Avenue N. The property located at 275 - 6th Avenue N is zoned Public which requires a 20-foot street setback. The variance request was to place the 911 Memorial 15- feet from the street property line. The Hearing Examiner recommended approval of the setback variance. Council approved the setback variance. PLN20140065, PLN20140066, PLN20140067, PLN20150009, and PLN20150013 - Edmonds School District applications for field improvements at the Former Woodway High School located 23200 - 1001h Avenue West. This project application included design review, a conditional use permit, and three variance requests. All of the permits were consolidated under ECDC 20.01.002.B. When projects are consolidated under ECDC 20.01.002.13 all permits are heard by the highest decision maker. Since the City Council is the highest decision maker on variance requests by public agencies, the City Council held a closed record review on the requested applications. The Hearing Examiner's recommendations were as follows: PLN20140065 (Design Review) should be approved in its entirety. PLN20140066 (Height variance for ball control fencing in the RS-8 zone) should be approved. PLN20140067 (Conditional use permit for bleachers, playfield lighting, and ball control fencing height in the OS zone) should be approved for the bleachers and ball control fencing and denied for the field lighting. PLN20150009 (Height variance for light poles in the RS-8 zone) should be denied. PLN20150013 (Height variance for light poles in the OS zone) should be denied. The City Council made the following decisions with regard to the various permits: PLN20140065 (Design Review) is approved in its entirety, except to the extent that it contemplates field lighting. PLN20140066 (Height variance for ball control fencing in the RS-8 zone) is approved. PLN20140067 (Conditional use permit for bleachers, playfield lighting, and ball control fencing height in the OS zone) is approved for the bleachers and ball control fencing with the portion of the application related to field lighting having been withdrawn by the applicant prior to a final decision being rendered. PLN20150009 (Height variance for light poles in the RS-8 zone) was withdrawn by the applicant. PLN20150013 (Height variance for light poles in the OS zone) was withdrawn by the applicant. In addition the City Council added five conditions of approval to the Hearing Examiner's conditions of approval. This decision, which essentially upheld the Hearing Examiner's recommendation, was appealed to Superior Court and the City of Edmonds prevailed on all accounts. PLN20150042 - Swedish Medical Center and Snohomish County Public Utilities District #2 applied for a setback variance for a new sign at the Swedish Hospital Campus located at 21601 - 76th Avenue West. Packet Pg. 41 8.1.b The subject property is zoned MU (Medical Use) requires a 15-foot street setback. The variance request was to place a new sign 3 feet from the street property line. The Hearing Examiner recommended approval of the setback variance. Council approved the setback variance. Appeals of Type III-B Decisions P-2007-17 and PRD-2007-18 - Burnstead 27-Lot Formal Plat and Planned Residential Development located at 23700 -104th Avenue West. This was actually the second closed record appeal on the Burnstead Development. The City Council held a closed record appeal in 2007, which was ultimately appealed up to the appellate court level. The decision was remanded back to the City of Edmonds in 2011. The Hearing Examiner held an open record public hearing on the remand issues in early 2012 and granted approval of the 27-lot Formal Plat and Planned Residential Development. The City of Edmonds received four appeals of the Hearing Examiner's approval (APL20120001 - APL20120004). The City Council affirmed the Hearing Examiner's decision while modifying one of the Hearing Examiner's conditions of approval and adding one additional condition of approval. PLN20120033 - Hillman Critical Area Reasonable Use Variance and setback variance requests to construct a new single-family residence on the property located at 1139 Sierra Place. Development on the property is limited by the presence of a wetland, stream and steep slopes. The proposed 2,623 square foot house would have had a structural footprint of 2,174 square feet. The proposed development would have impacted 1,790 square feet of wetland and 3,920 square feet of wetland buffer. The onsite stream is an Np (non -fish perennial stream) which requires a 50 foot buffer. The proposal would have reduced the stream buffer to 25 feet. The proposal also included a request to reduce the street setback from 25 feet to 12 feet and the side setback from 10 feet to 3 feet in an effort to minimize impacts to the critical area. The Hearing Examiner approved the setback and critical area reasonable use variance requests with conditions. The City of Edmonds received one appeal (APL20130001) of the Hearing Examiner's approval. The Council reversed the Hearing Examiner's decision and denied the critical area reasonable use variance. The City Council reversal was due largely because the Council found that it had not been adequately determined that the proposed residence was the minimum necessary (one of the critical area reasonable use variance criteria). PLN20130022 - Design review application of the Point Edwards Building 10 located at 50 Pine Street. This application was for the last of the residential buildings in the Point Edwards master plan development. The applicant had proposed an 85 unit multifamily building that would have a different design than the rest of the buildings at the Point Edwards development. Given the change in design, a public hearing was required before the Architectural Design Board. The ADB approved the revised design of Building 10. Three appeals were received (APL20130002 - APL20130004). The City Council remanded the decision back to the ADB for the ADB to issue Findings of Fact and Conclusions to support the ADB's decision. The ADB issued Findings, Conclusions and Decision approving the proposed Building 10. The City of Edmonds received four appeals (APL20130005 - APL20130008) of the revised ADB decision. The City Council reversed the Architectural Design Board's decision and denied the application. The City Council found the portions of the ADB's decision clearly erroneous (design review criteria; codes and comprehensive plan elements/polices regarding bulk, mass and scale; integration of the building into the sloping site; height; and buffering of incompatible uses.) The City Councils decision was appealed to Superior Court. Settlement agreements were reached between a neighborhood group and the Town of Woodway before the Superior Court issued a decision. PLN20130039 - Willowdale fence height variance request for the property located at 20734 - 76th Avenue West. The property owner had constructed a 6-foot tall fence on top of a retaining wall that is Packet Pg. 42 approximately four feet in height. ECDC 17.30.00O.D provides that when a fence is constructed on top of a retaining wall that is three feet in height or greater, the fence can be no greater than four feet in height. The variance request was to be able to retain the 6-foot tall fence on top of the retaining wall. The Hearing Examiner denied the variance request because he found there are no special circumstances that necessitate the variance as required by ECDC 20.85.010.A.1.b. The City of Edmonds received one appeal (APL20130009). The Council upheld the Hearing Examiner's denial of the variance request. Other Jurisdictions' Quasi -Judicial Procedures Staff reviewed the codes of a number of other local jurisdictions to assess their council's role in quasi- judicial decision making. Other jurisdictions' councils handle quasi-judicial decisions in a variety of ways Most councils maintain quasi-judicial roles in site -specific rezones. Some councils maintain a quasi- judicial appeal role, while other jurisdictions only allow judicial appeals of hearing examiner decisions. (See Exhibit 2 for examples.) Attachments: Exhibit 1: City Council Minutes Exhibit 2: Quasi Judical Examples Exhibit 3: Council involvement in quasi judicial decisions - Pros and Cons (from 2009 Council discussions) Exh. 4: Quasi-Judical.Minutes.06.07.16 Exh. 5: Resolution re revision of quasi-judicial process Exhb. 6: Minutes 2009 Exhibit 7: Immunity research memo Packet Pg. 43 8.1.b session is for the Council to have confidential discussions. Taking minutes or notes may make a Councilmember uncomfortable speaking during an executive session. Councilmember Nelson questioned whether Resolution 853 was good policy. Although the City has been taking minutes of executive session for 20 years, he found it enlightening that a poll of 46 cities revealed none of them took minutes or notes. If one of the purposes was to be able to disclose minutes in the future, yet the nature of the topics will never be disclosed due to attorney -client privilege, it creates a false/misleading purpose. He summarized it does not make a lot of sense to be taking minutes in executive session. Mayor Pro Tern Johnson asked the next step if the Council chose to rescind the resolution. Mr. Taraday said he would prepare a resolution repealing Resolution 853 for Council consideration. Mayor Pro Tern Johnson suggested if that resolution was scheduled for Council consideration on May 24, the public would have an opportunity to provide input at the May 17 and 24 Council meetings. Councilmember Fraley-Monillas said two weeks would give the public an ample opportunity to speak to the Council with regard to Resolution 853. Councilmember Teitzel said he not oppose the notion of the public providing comment but he wanted to ensure the public understood that the rules as they currently exist under Resolution 853 create an illusion of openness. Councilmember Nelson referred to Mr. Passey's comment that the number of executive session has increased and asked whether the majority were attorney -client privilege topics. Mr. Passey answered it was a mixture of topics; there have been a lot of real estate matters, potential and pending litigation, a few related to discussing the qualifications of a candidate for public office, and collective bargaining. Mayor Pro Tem Johnson requested the City Attorney draft a resolution for further discussion on May 24 and action the following week, which will provide three weeks for public testimony before any action is taken. 7. DISCUSSION OF WHETHER TO CONTINUE CITY'S PRACTICE OF CONDUCTING QUASI-JUDICIAL LAND USE HEARINGS City Attorney Jeff Taraday recalled the Council briefly discussed this during their retreat. He explained quasi-judicial hearings are where the City Council sits in a judicial capacity, acting like judges. Most of time the Council acts as legislators; as legislators the Council has a great deal of discretion and are not bound by strict criteria or standards in making legislative decisions. The public looks to the Council as legislators; when the public appeals to the Council, they are looking to the Council as people they vote for that they want to represent them and reflect their values which is what a good legislator does. When the Council sits in a quasi-judicial capacity, the Council is forced to play a completely different role, acting like a judge. When the public comes to a courtroom, they expect a fair and impartial hearing. When Councilmembers sit in a quasi-judicial hearing, they are expected to act in a fair and impartial manner regardless of who may be in the audience asking for something. Sitting in a quasi-judicial capacity puts the Council in a very difficult position, giving the illusion the Council can make whatever decision is being requested. That is in fact an illusion because Councilmembers do not have the same discretion in a quasi-judicial matter that they have as legislators. Councilmembers have much less discretion in a quasi-judicial hearing because the decision must be made in a manner that is consistent with the previously adopted decision criteria and standards in the zoning code. If those codes do not directly address the issue before the Council or in a manner that allows the Council to grant the relief being requested, the Council may not be able to grant that relief. Edmonds City Council Approved Minutes May 10, 2016 Page 7 Packet Pg. 44 8.1.b Mr. Taraday provided a recent example, the crumb rubber issue, where some very concerned citizens asked the Council to deny a project based on their concerns about the infill material used on those fields. The infill was not one of the decisions before Council and ultimately a majority of the Council approved the project but many did so reluctantly because it did not feel right. Councilmembers knew they were doing the right thing as a judge to approve the project because it met the standards but many were unsure about the infill material and some spoke to that from the dais. Several months later as legislators the Council was able to adopt a temporary ban on crumb rubber. In considering whether the Council wants to continue in a quasi-judicial capacity, Mr. Taraday suggested they ask themselves if so, why? If it because they feel the Council can make better decisions than the Hearing Examiner, that they have more expertise than the Hearing Examiner, that is a valid reason to continue this practice so that the Council can correct the Hearing Examiner's errors. He explained there was another way to accomplish that, appealing the Hearing Examiner's decision under LUPA. For example, when the Hearing Examiner makes an unpopular decision or the City Council has concerns with the decision, the Council can vote to appeal the decision and direct the City Attorney to file a LUPA appeal in Superior Court. As a result, the City Attorney would argue on the Council's behalf to convince the court that the Hearing Examiner's decision wrong. Mr. Taraday explained there are benefits to that process from a risk management standpoint. If he goes to court and argues the Hearing Examiner's decision was wrong and and the judge upholds the Hearing Examiner's decision, no damage claim will be filed against the City. Conversely if an appeal comes before the Council acting as the decision maker and constituents are clamoring to overturn a Hearing Examiner decision and the Council does so when it shouldn't, the City could face a significant damage claim as a result of that action. He summarized from a risk management standpoint, much of the same thing can be accomplished by directing him to appeal Hearing Examiner decisions versus having the Council in the position of decision -maker. Councilmember Tibbott observed if the Council relinquishes the role of judicial reviews, the Council could be participants in a Hearing Examiner's review process and advocates for citizens. He found that a powerful position and a good role for Councilmembers. He asked if it would be possible for the Hearing Examiner to do quasi-judicial reviews on a City Council night. Mr. Taraday said the Hearing Examiner's regular meeting time is Thursday. If an issue was important enough, Councilmember Tibbott suggested holding the hearing on a City Council night when citizens are more attuned to participating. Another option would be to televise Hearing Examiner's meeting for important topics like crumb rubber. Mr. Taraday said Hearing Examiner meetings currently are not televised. They are held in Council Chambers and could be televised although there would be some additional cost. Scheduling Hearing Examiner meetings on Council nights could affect the time available for Council business meetings, which is another reason for not having Councilmembers participate in quasi-judicial hearings. When quasi-judicial hearings arise, they consume a significant amount of time. Mr. Taraday explained when there is a quasi-judicial before the Council, Councilmembers are not allowed to have any contact with proponents or opponents of that matter except for what is said at the microphone. Councilmembers are cut off from their constituents when sitting in a quasi-judicial capacity. If the City Council allowed the Hearing Examiner to hear quasi-judicial matters, Councilmembers could participate at the Hearing Examiner meeting as a member of the public but could also have unlimited contact with constituents on that issue and play a very different role than when sitting in a quasi-judicial capacity. Councilmember Fraley-Monillas was unsure she wanted Hearing Examiner hearings on Council nights; it is already difficult to consider all the items on the agenda. She was unsure how sitting through each other's meetings would benefit the Council or the Hearing Examiner. Her understanding the reason this Edmonds City Council Approved Minutes May 10, 2016 Page 8 Packet Pg. 45 8.1.b was done initially was to save appellant's money; there is no cost to appeal a Hearing Examiner decision to the City Council. Mr. Taraday clarified there is a $500 fee to appeal a Type IIIB Hearing Examiner decision to the City Council. He agreed there could be a cost savings for the appellant; for example, the Hearing Examiner makes a decision, several citizens contact the Council expressing their concern with the decision and the Council decides to appeal. That decision saves the citizens $500 because they do not pay the appeal fee to the Council and the Council directs the City Attorney to appeal the Hearing Examiner's decision on the City's behalf. Councilmember Fraley-Monillas asked the cost to appeal to court if the Council decided not to direct the City Attorney to appeal the Hearing Examiner's decision. Mr. Taraday answered the filing fee in court is less than $500 but the total cost depends on whether the appellant hires attorney or does it pro se. Councilmember Fraley-Monillas recalled prior to this decision, the average cost for bringing an appeal where the appellant was not representing themselves was $5,000 which is expensive for citizens. She recognized the current process does not take into consideration the cost of staff time, Council time, etc. She summarized the reason for having the Council hear quasi-judicial appeals was the result of citizens' requests because it was more economical. She agreed having the Council in a quasi-judicial role shuts the Council out of the process. She questioned why background regarding the change was not included in the agenda packet, recalling the change was made in 2010. She suggested having more information about why and when the change was made. Councilmember Teitzel said his concern was the quality of the decision. Only one Councilmember is an attorney and although he had full confidence in the intellect of Councilmembers, in some cases acting in a quasi-judicial role requires an understanding of the relationship between the local code and state law. Rather than having a citizen request the Council make the decision, it would be better and higher quality to have a judge make that decision. If the Council believes an error has been made, the Council has the ability to direct the City Attorney to file an appeal as well as provide testimony. He supported moving away from having Council involved in quasi-judicial appeals. Councilmember Nelson referred to the dictionary definition of quasi judicial, "seemingly, apparently but not really." He said that is fitting for the role the Council is asked to play, playing the role of a judge when Councilmembers are actually legislators. He recalled the one quasi-judicial hearing he was involved in was a very frustrating experience because he was unable to be a legislator and could not talk to anybody or consider all the information he wanted to review and was limited to a narrow focus. When this was first put in place, the intent was right, but in practice the result is not what was intended. He found it such a frustrating experience that he recommended the Council avoid being in a quasi-judicial role. Mayor Pro Tem Johnson asked how many of the quasi-judicial decisions the Council has made have been appealed. Mr. Taraday recalled the appeal of the decision on Building 10 was dismissed and the City prevailed in an appeal of the crumb rubber decision. Councilmember Buckshnis recalled a proposal to construct a house in critical area. Mr. Taraday said that did not go to court. Councilmember Buckshnis recalled in 2010 citizens wanted an opportunity to come to City Council. Mr. Taraday suggested it may be interesting to research how many times the Council has reversed the Hearing Examiner's decision in the last 5-6 years, suspecting it was a very rare if ever occurrence. If the point of this process in 2010 was to provide a low cost means of reversing the Hearing Examiner and in practice that has almost never happened because the Hearing Examiner generally does a good job, then that would be useful information to have. Mayor Pro Tem Johnson recalled in the case Councilmember Buckshnis mentioned, a 3rd party entered into a negotiation and purchased the property from the people who wanted to build in the critical area. Edmonds City Council Approved Minutes May 10, 2016 Page 9 Packet Pg. 46 8.1.b Councilmember Fraley-Monillas expressed interest in researching whether the Council has reversed any of the Hearing Examiner's decision. She recalled the Council has upheld nearly every Hearing Examiner decision; in one the Council may have upheld only part of his decision. Councilmember Buckshnis recalled another instance where a fence was lowered, perhaps that was the one the Council only supported a portion of the Hearing Examiner's decision. She noted the Council has only had 7-8 quasi-judicial in the past 6 years. She recalled when the Council was first taken out of the quasi- judicial role, citizens objected and the process was reversed. She recalled the reason was the monetary aspect. Mayor Pro Tem Johnson pointed out the Burnstead issue as another example. She referred to a Directors Report to the Planning Board from Development Services Director Shane Hope that described a Hearing Examiner decision. The Hearing Examiner considered a proposed critical area reasonable use variance on March 24; the Hearing Examiner's decision was made on April 7; the City filed a motion for reconsideration on April 12 but the Council was just learning about it this week. She asked when the LUPA appeal process expired and how would the Council know about it. Mr. Taraday agreed the current process is not set up to do what has been discussed tonight. If the City changed to a system where the City Council was no longer in a quasi-judicial capacity but wanted to be ready to file a LUPA appeal, a mechanism would need to be set up whereby the Council was informed of decisions in a timely manner. There are only 21 days to file a LUPA appeal. Mayor Pro Tem Johnson asked whether the Council's current quasi-judicial role precludes taking action to file a LUPA on the City's behalf. Mr. Taraday said it depends on whether there was an administrative appeal to the Council. Mayor Pro Tem Johnson observed in this instance there was not but she was unclear when the final decision was made and feared it may be too late to file an appeal. Mr. Taraday said if administrative appeals have been exhausted and the only remaining appeal is judicial, the only question is whether there is standing. He suggested if the Council was interested in discontinuing the current practice, the administrative appeal process would need to be revised to clearly articulate the possibility of the Council bringing appeals and how that process works. With regard to the decision Mayor Pro Tem Johnson was referencing, he was uncertain when a LUPA appeal would need to be filed and if the Council wanted to discuss it as potential litigation, he recommended that be done in executive session. Councilmember Fraley-Monillas raised a point of information, relaying she received an email that Councilmembers other than Mayor Pro Tem Johnson could not be heard on the television broadcast. Following a brief recess to address a technical issue, Mayor Pro Tem Johnson advised apparently not all Councilmembers could be heard on the television broadcast but minutes of the meeting will be available. As the online streaming was operational, the issue was likely with the cable channel. Development Services Director Shane Hope suggested following up with additional information such as the history regarding the Council assuming this role, the reversal rate of Hearing Examiner decisions, what other jurisdictions do with regard to quasi-judicial appeals, and if the Council chose not to be the decision maker, how to ensure the Council received information in timely manner to make a decision regarding an appeal. Mayor Pro Tem Johnson observed the Council is scheduled to discuss this again at the May 24 meeting. Mr. Taraday invited the Council to inform if there was any other information staff could provide to assist the Council in making an informed decision. 6. MAYOR'S COMMENTS Mayor Pro Tem Johnson relayed to Mayor Earling, everyone wishes they were in Hawaii with him. Edmonds City Council Approved Minutes May 10, 2016 Page 10 Packet Pg. 47 8.1.b Councilmember Mesaros referred to the map of options and asked for a description of the Admiral Way overpass and the merits of that location. Mr. Schaefer said although it may seem out of the way for emergency response, it is a distinct location and it is screened from view or back -dropped visually by hillside. It can drop into the Port property which may provide flexibility for a landing. It would follow the Unocal access road along the bottom of the hill, climb to an overpass structure, clear the to -be -relocated Willow Creek and the railroad and drop down into the edge of Port parking area. Councilmember Mesaros asked whether it would have pedestrian access. Mr. Schaefer said it would be routinely used for pedestrian and bicycle access and could accommodate an emergency vehicle when necessary. Councilmember Mesaros commented another benefit of that alternative is the ability to circumnavigate the marsh. Mr. Schaefer said the ability to tie it into the trails, through marina and Marina Beach Park was identified as a community amenity. Mr. Williams said the same could be said for the Edmonds Street alternative; it would be available for emergency vehicles to provide aid on the west side of the tracks as well as allow pedestrians and bicycles to access waterfront amenities. Councilmember Mesaros commented that alternative did not circumnavigate the marsh. Mr. Schaefer said the grades in all alternatives provide ADA access. Councilmember Teitzel asked if the Dayton Street Overpass would require Port property and demolition of existing buildings. Mr. Schaefer agreed it would require some property but would not require any demolition. It would launch from the north side of Dayton along the edge of the Salish Crossing property, climb over the parking area south of the rail station, diagonally over the intersection and drop into the Port property behind their sign. It would encroach into the yard area of new Jacobson Marine but would not impact their building. Council President Johnson commented one of the advantages of this presentation is it gives the public an opportunity to hear everything that has been considered to date, especially those not able to attend public meetings or visit the website. She asked where the Level 2 evaluation criteria were firm. Mr. Schaefer answered they were drafted and presented to the community at the last meeting. Some comments were received although fewer than at past meetings which is the reason the online open house was extended an additional week and another notice issued. Council President Johnson observed the language on the working draft page and the criteria were similar but not exactly the same. Mr. Schaefer advised the language on the working draft had to be more brief; the language on the working draft page is not the criteria, it is the purpose and need. He pointed out there are multiple components of each criterion. In Level 1 the consultant team did the first assessment against the criteria which was then validated by the Task Force. In Level 2 the consultant team is providing information and the Task Force is taking the first cut at the rating. Council President Johnson offered to provide Mr. Schaefer send her notes. She recalled an operational issue that has been discussed intermittently over the last 10 years was having a ferry reservation system on the Edmonds -Kingston route. She suggested that be considered in this effort. Councilmember Nelson (Co -Chair of the Task Force) recognized how hard the Task Force and and Mr. Schaefer have been working. Mayor Earling declared a brief recess. 2. DISCUSSION OF WHETHER TO CONTINUE CITY'S PRACTICE OF CONDUCTING OUASI-JUDICIAL LAND USE HEARINGS Senior Planner Kemen Lien said this topic was discussed at the retreat and the May 10 Council meeting. Currently, there are three ways a land use action can come before the City Council for a quasi-judicial Edmonds City Council Approved Minutes June 7, 2016 Page 17 Packet Pg. 48 8.1.b decision under a closed record review: 1) site specific rezone, 2) appeal of Type III-B decision (ADB or Hearing Examiner), and 3) public agency variance request. The Woodway Playfields quasi-judicial hearing was an appeal of a public agency variance request. The three issues the Council requested further information on included, 1) the history of quasi-judicial decisions before the Council, 2) recent decisions by the Council, and 3) what other jurisdictions are doing. With regard to the history, Mr. Lien explained the current code framework was established in 1980 and since then the City Council has been doing quasi-judicial hearings for appeals of Hearing Examiner, ADB and public agency variance requests. Prior to that time, the City had a Board of Adjustment, a 7-member board that heard variances, condition use permits, etc., things the Hearing Examiner now hears. Decisions of the Board of Adjustment went to Superior Court. In 2009 the City established the current process framework, Type I through V permits. At that time there was considerable discussion regarding the Council's involvement in the quasi-judicial decision process. Discussion was focused primarily on the Type III-B decisions by the Hearing Examiner and ADB. He referred to minutes from the 2009 update that were emailed to Council today. Also included in the packet, Exhibit 3, is a list of pros and cons prepared by Rob Chave in 2009 regarding Council involvement in quasi-judicial decisions. When the Title 20 update was passed in June 2009, Hearing Examiner and ADB appeals were taken out of the City Council and became appeals to Superior Court. At the first Council meeting in January 2010, an interim ordinance was passed that again inserted the Council into closed record appeals. The discussion at that time did not focus on rezones or public agency variances, only appeals and whether to have oral or written arguments to Council on appeals as it is easier to track whether something is in the record when the record is written versus oral. A permanent ordinance was passed in September 2010. Mr. Lien reviewed quasi-judicial decisions since 2010 in the 3 categories: • Seven site specific rezones o Planning Board makes recommendation to City Council o Council upheld 6 o One was denied on a 3-3 vote Four public agency variance requests Council approved most requests Woodway Playfields was more complex and included five permits o Hearing Examiner recommended denial of two o By the time it reached the Council, the School District withdrew those two o Council essentially upheld Hearing Examiner decision and added a few conditions of approval to the Hearing Examiner's recommendation Type III-B decisions o Four projects 0 5 appeals (Building 10 appealed to City Council twice) o 2 reversed o Regarding Building 10, the City Council reversed the ADB decision and a critical area variance request With regard to other jurisdictions' quasi-judicial procedures, Mr. Lien referred to Exhibit 4, explaining most jurisdictions have a quasi-judicial process for site specific rezones. Some include an appeal to City Council from the Hearing Examiner, others do not. Councilmember Mesaros asked how many times a City Council decision has been appealed to Superior Court. Mr. Lien answered in the last 10 years, Building 10 and Woodway Playfields were appealed to Edmonds City Council Approved Minutes June 7, 2016 Page 18 Packet Pg. 49 8.1.b Superior Court. There was a settlement agreement for Building 10 so no decision was issued and the City prevailed with regard to the Woodway Playfields. City Attorney Jeff Taraday explained the court never ruled on Building 10 decision so it was unknown whether the Council's decision would have been upheld had the court ruled. That project was of a magnitude that had the Council's decision not been upheld, there could have been real damages resulting from that application process. Councilmember Teitzel recalled the Council previously discussed the cost to appeal a decision to Superior Court versus to the City Council. Mr. Lien answered the fee for an appeal of a Type III-B decision to City Council is $500. Mr. Taraday said the filing fee for Superior Court is $250; the cost could be much more if the appellant hired an attorney. Councilmember Buckshnis recommended the Council read the 2009 minutes. She commended Mr. Lien for his research and for summarizing it for the public. Councilmember Mesaros commented there could also be attorney costs for an appeal to City Council if the appellant chose to hire an attorney. Councilmember Nelson thanked Lien for the summary. He recalled going through one public agency variance request and found the information regarding other decisions very comprehensive and helpful. Council President Johnson commented there is also a cost to the City Council for the more elaborate appeals that come to the City Council. For example, Burnstead and Building 10, the City engaged separate counsel for the City Council at a cost of approximately $5,000 per case. There is also the expense of time; they were not easy decisions and required many meetings. She said it makes sense for some quasi-judicial proceedings to come to the City Council, those that are quick and efficient. However, for the ones that seemingly take endless amounts of reading, study and evaluation, she preferred they go to Superior Court because they usually end up in Superior Court anyway. She asked if a distinction could be made in the Type III-B decisions between large and small application. She recalled two of the Type III-B decisions were very small involving one property and two were very large and required tremendous time and effort. Mr. Taraday said the City probably could distinguish; there would need to be criteria established in advance for distinguishing between them. For example, the current categories of decisions are not the universe of possible categories. One category the City Council is stuck with hearing is site specific rezones. Council President Johnson referred to the risk associated with Council serving in a quasi-judicial capacity; if the City lost in an appeal to Superior Court, the City would be responsible for much more than just the filing fee. Mr. Taraday explained the City could be required to pay damages if the City Council's decision was found to be arbitrary and capricious. In extreme cases Councilmembers as individuals can be held personally liable for decisions made when serving in a quasi-judicial capacity. In its legislative capacity, the Council has nearly absolute personally immunity. In a quasi-judicial capacity, there is the theoretical possibility of a personal liability lawsuit because the immunity is only qualified not absolute. For example, in the Mission Springs in Spokane Councilmembers were found not to be immune from the personal suit filed against them. Councilmember Tibbott thanked staff for the synopsis the Council received this afternoon and suggested it be included in a future packet. Development Services Director Shane Hope agreed it would. Councilmember Tibbott recalled the Planning Board heard four quasi-judicial cases, three were straightforward and the questions Planning Board Members asked provided material for the City Council. One was more complex and the Planning Board needed more preparation to process it adequately. If the Council continued to hear site specific rezones, he asked if they would still go to Planning Board for a recommendation to City Council. Ms. Hope answered yes, the process would stay the same. Edmonds City Council Approved Minutes June 7, 2016 Page 19 Packet Pg. 50 8.1.b Councilmember Tibbott recommended providing Planning Board enough notice regarding upcoming hearings so they do not engage with a project before it comes to Planning Board to avoid tainting the process. He discussed this with two former Planning Board Members, one was in favor of the Council moving away from quasi-judicial reviews and the other was in favor of retain the Council in that role so he was able to see benefits on both sides, especially with rezones. If the Council continued to hear site specific rezones, he recommended identifying ways to improve the process; for example, inform the Council in advance so they do not engage with proponents or opponents. Councilmember Tibbott preferred the Council not hear more extensive appeals. While on the Planning Board, he felt members were asked to provide input regarding topics they were not trained for. There was one lawyer on the Planning Board who was able to look at the issue from a legal perspective but other Planning Board Members were not. There are benefits from a diversity of views looking at a project and offers insight; however, on complex appeals that require a great deal of study, he preferred to delegate them to the Hearing Examiner or other body. Ms. Hope agreed the Planning Board needed to have the proper training; staff has been more proactively recently in helping the Planning Board understand their role and legal requirements. Staff will consider how to distinguish between small and large projects for example according to the value of the project, property size, etc. With regard to whether the Planning Board would continue to make recommendations to the City Council regarding rezone, Mr. Taraday said they could but they do not have to; it could be done by the Hearing Examiner. Quoting Councilmember Councilmember Nelson, Councilmember Mesaros said citizens elected Councilmember to primarily be legislators, not judges. The skill set Councilmembers bring to the Council is for pondering legislative opportunities and making choices for citizens; serving in a quasi-judicial role puts the Council in a difficult position, a role they not be as equipped for. Councilmember Nelson asked Mr. Taraday to explain qualified immunity versus absolute immunity, pointing out if Councilmembers are making decisions for which they are personally liable, they need to know what that entails. Mr. Taraday offered to provide a more in-depth analysis in writing. With qualified immunity, a Councilmember is not as fully protected personally from a suit; although there is a decent chance of having a suit dismissed, in extreme case a Councilmember could have personal liability. The prospect of a Councilmember being sued is not just a theoretically possibility; a Councilmember was named in the Building 10 lawsuit. Councilmember Teitzel said he was also concerned about the Council's skill set to serve judges. It gives him pause personally to act in quasi-judicial fashion, reviewing the record to determine whether an Administrative Law Judge or Hearing Examiner made a legal error. He felt ill equipped to make that decision as he was not an attorney and wanted to avoid being in that role in the future. He agreed the Council could be involved in site specific rezones. 3. TITLE 19 BUILDING AND FIRE CODE UPDATES Development Services Director Shane Hope introduced Building Official Leif Bjorback and Fire Marshal Kevin Zweber. She referred to a pile of books that represented thousands of pages; the ordinance summarizes key changes made to the code based on State requirements. Following the presentation and Q&A, she requested the ordinance be forwarded to the Consent Agenda. Mr. Bjorback explained every three years the International Building Code (IBC) is updated and republished by the International Code Council. The IBC is a family of codes including commercial, residential fire, plumbing, energy, etc. that are used in most areas of the country including the State of Edmonds City Council Approved Minutes June 7, 2016 Page 20 Packet Pg. 51 8.1.b Date: To: From: Subject: MEMORANDUM June 1 ", 2016 Shane Hope, Development Services Director Brad Shipley, Associate Planner Variances and Quasi-judicial Decisions This is in response to your inquiry regarding who makes decisions on variances and quasi-judicial decisions in mid -size cities in the Puget Sound region. Below is a summary of who handles variances and quasi-judicial decisions for jurisdictions that I reviewed. Generally, variances and conditional use permits are handled through a hearing examiner as quasi-judicial matters, although a number are handled administratively. Zoning map amendments for individual properties are usually decided by the city council following a recommendation from the hearing examiner, although there are a couple exceptions as noted below. [Note: Different jurisdictions use different terminology for permit review classifications. Each type below is explained to help compare it to Edmonds' classifications.] BREMERTON Quasi-judicial decisions: Type III - Quasi-judicial decision made by Hearing Examiner • Examples of Type III permits include non -administrative conditional use permits, preliminary formal subdivisions, variances, etc. • Appealable to Kitsap County Superior Court. Type IV - Quasi-judicial decision made by City Council • Examples of Type IV permits include site -specific rezones, final formal subdivisions, development agreements, vacation of subdivisions, etc. • Appealable to Kitsap County Superior Court. Variances: A variance application is processed as a Type III Hearing Examiner decision. If the variation would not exceed ten (10) percent of the required dimensional standard from which relief is being sought, the Director may approve the variance as a Type II Director decision. BURIEN Quasi-judicial decisions: Page 1 of 4 Packet Pg. 52 8.1.b Type 2 - Quasi-judicial decision made by Hearing Examiner • Recommendation by Director following open record hearing. • Appealable to City Council. Type 3 - Quasi-judicial decision made by City Council • Examples of Type 3 permits include site -specific map amendments and plat approvals. • Based on public hearing and recommendation by Director and Hearing Examiner. • Appealable to King County Superior Court. Variances: Administrative decision made by the Director. EVERETT Quasi-judicial decisions: Type III-B - Quasi-judicial decision made by City Council • After an open record hearing, the Hearing Examiner shall make recommendation. • Appealable to Snohomish County Superior Court. Variances: A variance application is processed as a Hearing Examiner decision. ISSAQUAH Quasi-judicial decisions: Level 3 - Quasi-judicial decision made by Development Commission • Examples of Level 3 permits include: Level 3 site development permits (SDP); Level 1 and 2 administrative site development permits (ASDP) >_ 3 acres and/or on major streets; major amendments to approved site development permits; and others as determined by Planning Director/Manager. • Appealable to Hearing Examiner. • Appeal of the Hearing Examiner decision is directed to King County Superior Court. Variances: A variance application is processed as a Level 4 Hearing Examiner decision. Page 2 of 4 Packet Pg. 53 8.1.b KENMORE Quasi-judicial decisions: Type 3- Type 4 - Quasi-judicial decision made by Hearing Examiner • Examples of Type 3 permits include: preliminary subdivision; plat alteration; preliminary subdivision revision; special use. • Following an open record hearing. • Appealable to King County Superior Court. Quasi-judicial decision made by City Council Examples of Type 4 permits include: zone reclassification not related to a site -specific comprehensive plan land use map amendment; shoreline environment redesignation; plat vacation; short plat vacation; site plan review for uses not allowed by zone pursuant to Chapter 18.105 KMC; master plans other than those required in order to obtain a comprehensive plan amendment or related zoning map or text amendment. • Based on the record established by the Hearing Examiner. • Appealable to King County Superior Court. Variances: A variance application is processed as a Type 1 (street standards) or Type 2 (zoning, shoreline, and variances requiring studies) City Manager decision. Type 1 variance applications are not appealable. Type 2 variances are appealable to the Hearing Examiner. KIRKLAND Quasi-judicial decisions: Process II -A - Quasi-judicial decision made by Hearing Examiner • Appealable to City Council. Process II-B - Quasi-judicial decision made by City Council • Examples of Process II-B permits include: zone reclassification. • Recommendation from Hearing Examiner following an open record hearing. • Appealable to King County Superior Court. Variances: The City will use Process II -A to review an application for variance except for properties located within a RS, RSA, or RSX zone or for a detached dwelling unit in any zone. For variance applications for properties within a RS, RSA, or RSX zone or for a detached dwelling unit in any zone, the City will use Process I. Process I is a Planning Official decision, appealable to Hearing Examiner. Process II -A is a Hearing Examiner decision, appealable to City Council. SHORELINE Quasi-judicial decisions: Type C - Quasi-judicial decision made by Hearing Examiner Page 3 of 4 Packet Pg. 54 8.1.b Examples of Type C permits include: special use permits, critical areas special use permits, critical areas reasonable use permits, SCTF special use permit, and master development plans. Type C - Quasi-judicial decision made by City Council • Examples of Type C permits include: preliminary formal subdivisions, rezones, and final formal plat. • Recommendation from Hearing Examiner following an open record hearing. Final formal plats are reviewed by the Director. 0 Appealable to King County Superior Court. Variances: A variance application is processed as a Hearing Examiner decision. Page 4 of 4 Packet Pg. 55 8.1.b Why have the Council involved in quasi-judicial decision -making 1. The City Council is representative. As elected officials, City Councilmembers are theoretically representative of their citizens' views and are best able to carry out their citizens' wishes. 2. The City Council is elected. If the Council makes poor decisions, the citizens can ultimately have a direct impact on who their representatives are — or are not. 3. The City Council is the highest local authority. Decisions affecting land use and property should be made by those with a "stake" in the town — i.e. by someone who lives there. City Councilmembers all live in Edmonds. 4. The City Council can better monitor and understand how city regulations and policies interact with specific land use decisions if they are able to see "first hand" what the issues are. 5. For an appeal, going to court is not an adequate substitute for going to the City Council. Going to court costs more time and money (e.g. hiring an attorney) than going to a City Council meeting, and this setting is more intimidating and less understandable to the average citizen. This would make the appeal process less accessible to the average citizen. Why the Council should not be involved 1. The actual latitude afforded a decision -maker is very limited. Quasi-judicial decisions must be made according to adopted policies and regulations. Councilmembers can only make decisions that are supported by the same rules that others would apply. 2. Freedom to discuss issues with citizens. If the Council is taken out of the quasi-judicial decision process, individual citizens can discuss their concerns over a specific project or development proposal with Councilmembers. Currently, that can only happen after -the -fact (after all decisions and appeals have been exhausted), which limits accessibility of citizens to their elected officials. 3. Freedom to get involved in the details of public design projects. Currently, the City Council must be careful how it gets involved in public projects, since these can end up on a Council agenda as an appealed quasi-judicial decision (e.g. ADB decisions on the design of public buildings). 4. Quasi-judicial decisions must be decided professionally. Elected officials must be educated in and understand the limits of their decision -making power and be careful to follow adopted rules and regulations, not react to citizen wishes. The number of people on one side or the other of the issue is irrelevant, contrary to the rules that may apply in a political process. It can be difficult to explain this to a constituent who believes that their elected representative should decide according to how the "majority" of the neighborhood feels. 5. Liability is a serious concern. The courts have increasingly come down hard on decision -makers who do not properly make quasi-judicial decisions. City Councilmembers can be held personally liable for their quasi-judicial decisions. Quasi-judicial decisions are best made by those professionally trained to make them — according to existing rules. 6. The political process is complex and responds to different influences than are available — or are relevant — in a quasi-judicial process. Political processes are most appropriate for dealing with goals, policies, and regulations that can be developed and discussed in an open legislative forum. 7. Taking the City Council out of the appeal process for quasi-judicial decisions removes only one intermediate step in the appeal process; going to court has always been available to a citizen as an option. In many instances (especially the most controversial), attorneys are already involved in the dispute, and having one less appeal hearing to attend could actually reduce attorney time (and fees). Removing Council from the process does not reduce citizen involvement; public hearings are still held — only the Council's limited, non -discretionary, on -the -record review is removed. Packet Pg. 56 8.1.b Councilmember Mesaros referred to the map of options and asked for a description of the Admiral Way ►.6pass and the merits of that location. Mr. Schaefer said although it may seem out of the way for er ergency response, it is a distinct location and it is screened from view or back -dropped viSUally by hill ' e. It can drop into the Port property which may provide flexibility for a landing. It would [low the Unocakaccess road along the bottom of the hill, climb to an overpass structure, clear the to -be -relocated WillowCreek and the railroad and drop down into the edge of Port parking area. Councilnieniber Mesaros asked whether it would have pedestrian access. Mr. Schaefer said it would be routinely used for pedestrian an' bicycle access and could accommodate an emergency vehicle when necessary. Councilmember esaros commented another benefit of that alternative is thp'ability to circumnavigate the marsh. Mr. SclihVfer said the ability to tie it into the trails, through marina and Marina Beach Park was identified as a comnl inity amenity. Mr. Williams said the same could be said for the Edmonds Street alternative; it would W\\ vailable for emergency vehicles to provide aid on the west side of the tracks as well as allow pedeslria�s and bicycles to access waterfront 4inenities. Councilmember Mesaros commented that alternative did not circumnavigate the marsh i�Ir. Schaefer said the grades in all alternatives provide ADA ac� ss. Councilmember Teitzel asked e Dayton Street Over as ould require Port property and demolition Y P q P P Y of existing buildings. Mr. Scliaef agreed it would requ' e some property but would not require any demolition. It would launch from the orth side of Dayton. along the edge of the Salish Crossing property, climb over the parking area south of t Yoe agottally over the intersection and drop into the Port property behind their sign. It wouldthe yard area of new Jacobson Marine but would not impact their building. Council President Johnson commented otages of this presentation is it gives the public an opportunity to hear everything that has bto date, especially those not able to attend public meetings or visit the website. She asked here ih Level 2 evaluation criteria were firm. Mr. Schaefer answered they were drafted and presen d to the con munity at the last meeting. Some comments were received although fewer than at past i etings which i\hk ason the online open house was extended an additional week and another notice ' stied. Council President Johnson ob rved the language on tr ing draft page and the criteria were similar but not exactly the same. .. Schaefer advised the lae o the working draft had to be more brief, the language on the work' g draft page is not the crites th urpose and need. He pointed out there are multiple comporter of each criterion. In Level l nsuitan team did the first assessment against the criteria which w s�iltert validated by the Task FIn Level the consultant team is providing information and tl Task Force is taking the first cut ating.Council Presi ni Johnson offered to provide Mr. Scsend her notes. lie recalled an operational issue that h .been discussed intermittently over the lyears was having ferry reservation system on the Ed onds-Kingston route. She suggested that bedered in this effort. iernber Nelson (Co -Chair of the Task Force) recognized how hard the Task�[orce and and Mr. have been working. Earl ing declared a brief recess. 2. DISCUSSION OF WHETHER TO CONTINUE CITY'S PRACTICE OF CONDUCTING QUASI-JUDICIAL LAND USE HEARINGS Senior Planner Kernen Lien said this topic was discussed at the retreat and the May 10 Council meeting. Currently, there are three ways a land use action can come before the City Council for a quasi-judicial Edmonds City Council Approved Minutes June 7, 2016 Page 17 Packet Pg. 57 8.1.b decision under a closed record review: 1) site specific rezone, 2) appeal of Type III-B decision (ADB or Hearing Examiner), and 3) public agency variance request. The Woodway Playfields quasi-judicial hearing was an appeal of a public agency variance request. The three issues the Council requested further information on included, 1) the history of quasi-judicial decisions before the Council, 2) recent decisions by the Council, and 3) what other jurisdictions are doing. With regard to the history, Mr. Lien explained the current code framework was established in 1980 and since then the City Council has been doing quasi-judicial hearings for appeals of Hearing Examiner, ADB and public agency variance requests. Prior to that time, the City had a Board of Adjustment, a 7-member board that heard variances, condition use permits, etc., things the Hearing Examiner now hears. Decisions of the Board of Adjustment went to Superior Court. In 2009 the City established the current process framework, Type I through V permits. At that time there was considerable discussion regarding the Council's involvement in the quasi-judicial decision process. Discussion was focused primarily on the Type III-B decisions by the Hearing Examiner and ADB. He referred to minutes from the 2009 update that were emailed to Council today. Also included in the packet, Exhibit 3, is a list of pros and cons prepared by Rob Chave in 2009 regarding Council involvement in quasi-judicial decisions. When the Title 20 update was passed in June 2009, Hearing Examiner and ADB appeals were taken out of the City Council and became appeals to Superior Court. At the first Council meeting in January 2010, an interim ordinance was passed that again inserted the Council into closed record appeals. The discussion at that time did not focus on rezones or public agency variances, only appeals and whether to have oral or written arguments to Council on appeals as it is easier to track whether something is in the record when the record is written versus oral. A permanent ordinance was passed in September 2010. Mr. Lien reviewed quasi-judicial decisions since 2010 in the 3 categories: • Seven site specific rezones o Planning Board makes recommendation to City Council o Council upheld 6 o One was denied on a 3-3 vote Four public agency variance requests Council approved most requests • Woodway Playfields was more complex and included five permits o Hearing Examiner recommended denial of two o By the time it reached the Council, the School District withdrew those two o Council essentially upheld Hearing Examiner decision and added a few conditions of approval to the Hearing Examiner's recommendation • Type III-B decisions o Four projects 0 5 appeals (Building 10 appealed to City Council twice) o 2 reversed o Regarding Building 10, the City Council reversed the ADB decision and a critical area variance request With regard to other jurisdictions' quasi-judicial procedures, Mr. Lien referred to Exhibit 4, explaining most jurisdictions have a quasi-judicial process for site specific rezones. Some include an appeal to City Council from the Hearing Examiner, others do not. Councilmember Mesaros asked how many times a City Council decision has been appealed to Superior Court. Mr. Lien answered in the last 10 years, Building 10 and Woodway Playfields were appealed to Edmonds City Council Approved Minutes June 7, 2016 Page 18 Packet Pg. 58 8.1.b Superior Court. There was a settlement agreement for Building 10 so no decision was issued and the City prevailed with regard to the Woodway Playfields. City Attorney Jeff Taraday explained the court never ruled on Building 10 decision so it was unknown whether the Council's decision would have been upheld had the court ruled. That project was of a magnitude that had the Council's decision not been upheld, there could have been real damages resulting from that application process. Councilmmember Teitzel recalled the Council previously discussed the cost to appeal a decision to Superior Court versus to the City Council. Mr. Lien answered the fee for an appeal of a Type Ill-B decision to City Council is $500. Mr. Taraday said the filing fee for Superior Court is $250; the cost could be much more if the appellant hired an attorney. Councilmember Buckshnis recommended the Council read the 2009 minutes. She commended Mr. Lien for his research and for summarizing it for the public. Councilmember Mesaros commented there could also be attorney costs for an appeal to City Council if the appellant chose to hire an attorney. Councilmember Nelson thanked Lien for the summary. He recalled going through one public agency variance request and found the information regarding other decisions very comprehensive and helpful. Council President Johnson commented there is also a cost to the City Council for the more elaborate appeals that come to the City Council. For example, Burnstead and Building 10, the City engaged separate counsel for the City Council at a cost of approximately $5,000 per case. There is also the expense of time; they were not easy decisions and required many meetings. She said it makes sense for some quasi-judicial proceedings to come to the City Council, those that are quick and efficient. However, for the ones that seemingly take endless amounts of reading, study and evaluation, she preferred they go to Superior Court because they usually end up in Superior Court anyway. She asked if a distinction could be made in the Type III-B decisions between large and small application. She recalled two of the Type III-B decisions were very small involving one property and two were very large and required tremendous time and effort. Mr. Taraday said the City probably could distinguish; there would need to be criteria established in advance for distinguishing between them. For example, the current categories of decisions are not the universe of possible categories. One category the City Council is stuck with hearing is site specific rezones. Council President Johnson referred to the risk associated with Council serving in a quasi-judicial capacity; if the City lost in an appeal to Superior Court, the City would be responsible for much more than just the filing fee. Mr. Taraday explained the City could be required to pay damages if the City Council's decision was found to be arbitrary and capricious. In extreme cases Councilmembers as individuals can be held personally liable for decisions made when serving in a quasi-judicial capacity. In its legislative capacity, the Council has nearly absolute personally immunity. In a quasi-judicial capacity, there is the theoretical possibility of a personal liability lawsuit because the immunity is only qualified not absolute. For example, in the Mission Springs in Spokane Councilmembers were found not to be immune from the personal suit filed against them. Councilmember Tibbott thanked staff for the synopsis the Council received this afternoon and suggested it be included in a future packet. Development Services Director Shane Hope agreed it would. Councilmember Tibbott recalled the Planning Board heard four quasi-judicial cases, three were straightforward and the questions Planning Board Members asked provided material for the City Council. One was more complex and the Planning Board needed more preparation to process it adequately. If the Council continued to hear site specific rezones, he asked if they would still go to Planning Board for a recommendation to City Council. Ms. Hope answered yes, the process would stay the same. Edmonds City Council Approved Minutes .tune 7, 2016 Page 19 Packet Pg. 59 8.1.b Councilmember Tibbott recommended providing Planning Board enough notice regarding upcoming hearings so they do not engage with a project before it comes to Planning Board to avoid tainting the process. He discussed this with two former Planning Board Members, one was in favor of the Council moving away from quasi-judicial reviews and the other was in favor of retain the Council in that role so he was able to see benefits on both sides, especially with rezones. If the Council continued to hear site specific rezones, he recommended identifying ways to improve the process; for example, inform the Council in advance so they do not engage with proponents or opponents. Councilmember Tibbott preferred the Council not hear more extensive appeals. While on the Planning Board, he felt members were asked to provide input regarding topics they were not trained for. There was one lawyer on the Planning Board who was able to look at the issue from a legal perspective but other Planning Board Members were not. There are benefits from a diversity of views looking at a project and offers insight; however, on complex appeals that require a great deal of study, he preferred to delegate them to the Hearing Examiner or other body. Ms. Hope agreed the Planning Board needed to have the proper training; staff has been more proactively recently in helping the Planning Board understand their role and legal requirements. Staff will consider how to distinguish between small and large projects for example according to the value of the project, property size, etc. With regard to whether the Planning Board would continue to make recommendations to the City Council regarding rezone, Mr. Taraday said they could but they do not have to; it could be done by the Hearing Examiner. Quoting Councilmember Councilmember Nelson, Councilmember Mesaros said citizens elected Councilmember to primarily be legislators, not judges. The skill set Councilmembers bring to the Council is for pondering legislative opportunities and making choices for citizens; serving in a quasi-judicial role puts the Council in a difficult position, a role they not be as equipped for. Councilmember Nelson asked Mr. Taraday to explain qualified immunity versus absolute immunity, pointing out if Councilmembers are making decisions for which they are personally liable, they need to know what that entails. Mr. Taraday offered to provide a more in-depth analysis in writing. With qualified immunity, a Councilmember is not as fully protected personally from a suit; although there is a decent chance of having a suit dismissed, in extreme case a Councilmember could have personal liability. The prospect of a Councilmember being sued is not just a theoretically possibility; a Councilmember was named in the Building 10 lawsuit. Councihnember Teitzel said he was also concerned about the Council's skill set to serve judges. It gives him pause personally to act in quasi-judicial fashion, reviewing the record to determine whether an Administrative Law Judge or Hearing Examiner made a legal error. He felt ill equipped to make that decision as he was not an attorney and wanted to avoid being in that role in the future. He agreed the Council could be involved in site specific rezones. i1 3. TITLE 19 B ,DINC AND FIRE CODE UPDATES Development Ser/ges tor Shane Hope introduced Buildin Official Leif Bjorback and F re Marshal Kevin Zweber. Sd to a pile of books that repr ented thousands of pages; t e ordinance summarizes key cde to the code based on State,�equirements. Following the pr entation and Q&A, she requestnance be forwarded to the Cyr sent Agenda. Mr. Bjorbac explained every three years the International Building Code (IBC) is updated and republished/by the International Code Council. ie IBC is a family of codes incl ding commercial, residentia fire, plumbing, energy, etc. that are ed in most areas of the country inc uding the State of Edmonds City Council Approved Minutes June 7, 2016 Page 20 Packet Pg. 60 8.1.b RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, EXPRESSING INTENT TO REMOVE THE CITY COUNCIL AND OTHER VOLUNTEER CITIZEN BOARDS FROM QUASI- JUDICIAL PERMIT PROCESSING TO THE EXTENT ALLOWED BY LAW UPON ADOPTION OF THE REVISED EDMONDS COMMUNITY DEVELOPMENT CODE. WHEREAS, the city has undertaken a comprehensive review of the city's land use permit processing regulations; and WHEREAS, the city council has played a quasi-judicial role in certain land use permits for many years; and WHEREAS, the city council has been deliberating whether to continue serving in that role; and WHEREAS, the city council understands that many citizens want the city council to serve in a quasi- judicial role, believing that the council would be more responsive to the desires of the public than a hearing examiner who is not elected; and WHEREAS, that desire of some of the public underscores one of the main difficulties with the council serving in that role, namely, that the council may be pressured to make a decision that may be contrary to the standards that the council has adopted to govern such decision -making; and WHEREAS, that difficulty also increases the legal risk to both city and to the councilmembers themselves; and WHEREAS, council engagement in quasi-judicial decision -making also prevents the city council from being able to freely discuss pending land use matters with constituents and suggests that councilmembers should not testify before the hearing examiner out of concern that they might later need to recuse themselves in the event of an appeal to the city council; and WHEREAS, the city council believes that it can adopt additional procedures that will ensure that the city council stays abreast of pending land use applications and that the public interest in access to justice is adequately addressed; now therefore THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The city council intends to adopt revisions to the Edmonds Community Development Code that will remove quasi-judicial decision -making responsibility from the city council and other volunteer citizen boards to the extent allowed by state law. Packet Pg. 61 Section 2. The city council hereby requests that city staff and the planning board prepare and forward to the city council revisions to the Edmonds Community Development Code that are consistent with this resolution. RESOLVED this day of August, 2016. CITY OF EDMONDS MAYOR, DAVE EARLING ATTEST: CITY CLERK, SCOTT PASSEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. 4851-5533-3898, v. 1 Packet Pg. 62 8.1.b natural soil layer or soil amendment for any major land redevelopment. Preservation or creation of that type of soil characteristic could be included as a way of mitigating stormwater runoff impacts. Council President Wilson suggested coordinating the requirement for a thatched covering on exposed soil with Development Services. He learned recently that an 18" diameter tree holds 100 gallons of water and therefore removing trees impacts the capacity of a site to retain water. He asked how the City could incorporate retention of significant stands of trees into this Plan. Mr. Eubank advised that could be included as a policy objective in the Stormwater Comprehensive Plan. Council President Wilson commented he was specifically interested in preserving large stands of trees. Mr. Shuster recalled staff recently discussed the possibility of allowing stormwater credits as an incentive for retaining or adding certain size trees on a site. Councilmember Orvis asked if Development Service fees could be used to cover the cost of DOE's unfunded mandates. Mr. Bowman answered yes. Mr. Shuster advised approximately $50,000 of the Stormwater Program update was funded via a grant from DOE. With regard to tree preservation, Mr. Miller commented it was problematic to save trees that were uplifting sidewalks. He noted any trees that were removed were replanted. Mayor Haakenson declared a brief recess. 10. WORK SESSION ON RECOMMENDED AMENDMENTS TO CHAPTER 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE RELATING TO ESTABLISHING PERMIT TYPES PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA, OPEN RECORD HEARING PROCEDURES, CLOSED RECORD APPEALS, AND DEVELOPMENT AGREEMENTS. Development Services Director Duane Bowman explained the purpose of tonight's presentation was to provide the Council an overview of the draft regulations, address any questions the Council may have and set March 17, 2009 for a public hearing on the proposed changes. He explained objectives of the rewrite were to, 1) provide clear standards for permit processing, 2) reduce potential liability, and 3) address Hearing Examiner procedural concerns. He identified the major proposed changes: • Establishing permit types. • Tables identifying the different permit types and the decision -making process. • Submission requirements and procedures. • Public notice requirements establishing the responsibility for the permit applicant to provide the notice. • Establishing SEPA consistency regulations. • Establishing open and closed record hearing procedures. • Creating a new section dealing with Development Agreements. With regard to the fonnat, he envisioned Title 20 would be reformatted to place the process and procedures section at the start of the chapter with a subsection for specific permit review criteria. The process and procedures section would have seven subsections: • Chapter 20.01 - types of development project permit types • Chapter 20.02 - type I -IV development project permit applications • Chapter 20.03 - public notice • Chapter 20.04 - consistency with development regulations and SEPA Edmonds City Council Approved Minutes February 24, 2009 Page 13 Packet Pg. 63 8.1.b Chapter 20.06 - open record public hearings Chapter 20.07 - closed record appeals Chapter 20.08 - development agreements Mr. Bowman displayed the development project permit application framework for decisions found in Chapter 20.01. He explained this was not in the current code and a person would need to search the code to find this information. The table defines the different permit types and the table in Chapter 20.02 identifies who makes a recommendation, who makes the final decision, whether a notice of application. was required, whether there was an open record public hearing or open record appeal of a final decision, whether there was a closed record review and judicial appeal. Mr. Bowman reviewed the public notice requirement in Chapter 20.03, explaining the biggest change in this section was the requirement for the applicant/appellant to provide all public notice. Staff will prepare the notice content and give it to the permit applicant/appellant to post and mail. Affidavits for posting and mailing are required prior to any public hearing. Failure to provide proper notice will result in the project not going to public hearing or the appeal being dismissed. Mayor Haakenson asked how public notice was currently provided. Mr. Bowman answered the applicant/appellant submitted the mailing list and staff prepared and mailed the notice and posted the property. He advised some of the cost of the current process was passed on to the applicant. Councilmember Plunkett asked the standard used to determine if mailing was accomplished, recalling there have been instances when residents have claimed not to have received notification. Mr. Bowman answered along with the affidavit of mailing and posting, the applicant/appellant submitted their mailing list. Staff would also drive by the site to ensure posting was accomplished. Councilmember Plunkett asked how many other cities had the applicant do the public notice. Mr. Bowman answered he knew Bothell did but would research that for the March 17 public hearing. City Attorney Bio Park advised the affidavit was submitted under penalty of perjury. Mr. Bowman explained Chapter 20.06, open record public hearings, establishes clear procedures for conducting open record hearings, addresses the issues raised by the Hearing Examiner regarding the processing of reconsideration requests, and establishes the burden of proof (in a permit applicant, the burden of proof is on the applicant; in an appeal the burden of proof is on the appellant/proponent). Mr. Bowman explained Chapter 20.04, consistency with development regulations and SEPA, formalized what staff already does in preparing staff reports and adds planned actions which are not currently covered. Councilmember Bernheim commented on the difficulty of evaluating the new code without reference to the existing code. Mr. Bowman explained the reason for the changes was to bring the code in line with the Regulatory Reform Act, to make the code easier to understand and to streamline information. He offered to provide citations to the existing code by March 6 to allow the Council to track the changes that were made and how they relate to the existing code. Council President Wilson agreed with the suggestion regarding addressing half of the amendments on March 17 and the other half the first Tuesday in April. Mayor Haakenson encouraged the Council to complete this by March 17 because Mr. Bowman was retiring on March 31 and no one else on staff had his institutional knowledge. Mr. Bowman explained Chapter 20.07, closed record appeals, establishes procedures for closed record appeals, establishes consolidated appeals process, and establishes standing to initiate an administrative Edmonds City Council Approved Minutes February 24, 2009 Page 14 Packet Pg. 64 8.1.b appeal. Mr. Park commented there were a few substantive changes in this section including permitting parties of record to submit written arguments based on the record to the Council to avoid oral arguments that should not occur in a closed record appeal. Councilmember Plunkett commented that was a substantive change. Mr. Bowman offered to highlight that type of change in the code. He noted having argument submitted in writing made the Council's process much easier; the biggest problem with closed record reviews was the introduction of new information. Mayor Haakenson commented written argument also made it easier for the chair of the meeting, who must determine whether argument was on the record. Councilmember Plunkett stated there were some advantages but there were also disadvantages with not allowing oral argument. Mr. Bowman explained Chapter 20.08, establishes a new section dealing with development agreements, establishes processing procedures, and establishes an appeal process. He recalled the fee ordinance established fees for a development agreement to ensure the City Attorney and staff s time spent reviewing the development agreement were recovered. He explained development agreements required a public hearing before the City Council. Mr. Park explained a development agreement was an agreement in advance of development between the City and the proponent. The agreement establishes the standard of development and requirements that will apply to the development. He assured the regulations in place at the time the development agreement is established apply, there are no exceptions. Development agreements provide more consistency for a multi -stage development and provide ease of process. Councilmember Orvis recalled a development agreement case in Spokane where there were trades made between the City and the developer. Mr. Park answered the provisions of the development agreement must be consistent with the code at the time the agreement is established. He noted some codes allowed "trades" such as building height in exchange for open space, etc. Mr. Bowman encouraged Councilmembers to email him any questions prior to the public hearing. He agreed to provide the Council an annotated version of the ordinance that included citations to existing code sections and to identify substantive changes. Councilmember Orvis referred to the table in 20.01, types of development project permit types, and clarified preliminary plats, general variances and conditional use were moved from Type III-B to Type III -A. Mr. Bowman agreed, commenting there is currently a bifurcated process whereby a preliminary plat goes to the Council but the Planned Residential Development (PRD) goes to the Hearing Examiner. Because a developer typically does a preliminary plat at the time of a PRD, both should be in the same category. Mr. Bowman advised a site plan, shoreline substantial development variances and plat vacations were heard by the Hearing Examiner. The Council retains its authority over Architectural Design Board as the Hearing Examiner is not design -oriented. He advised the Planning Board conducted the open record hearing on site specific/contract rezones (Type IV-B) and the Council conducts the closed record appeal. He offered to also highlight changes made to the table. Councilmember Plunkett referred to page 30 and the statement that applicants may submit written or oral argument. Mr. Bowman stated an appellant could submit oral argument, and suggested Council consider requiring argument be submitted in writing in advance of the hearing to ensure the record maintained its integrity. Judicial appeals considered whether the integrity of the hearing process was maintained. It was the consensus of the Council to schedule this on the March 17 agenda for a public hearing. Mr. Bowman offered to email responses to a Councilmember's questions to all Councilmembers and to provide a list of questions/answers at the public hearing. Edmonds City Council Approved Minutes February 24, 2009 Page 15 Packet Pg. 65 8.1.b Councilmember Bernheim recalled he submitted his application to the Group of 33 eight hours after the deadline and was not invited to participate. He favored including anyone who was interested on the Committee. Councilmember Wambolt commented deadlines should be adhered to unless there were extenuating reasons. He pointed out the Committee had been advertised for three weeks and there were already 53 members, an adequate representation from the community. He did not support accepting any additional applications. Councilmember Plunkett commented additional applicants should be welcomed and was in the spirit of openness and transparency. In view of the Council's support for accepting additional members, Council President Wilson advised he would support the motion. He noted Councilmember Wambolt and he had been meeting as the revenue work groups since November and encouraged other Councilmembers to participate in this process. Councilmember Wambolt asked how long applications would be accepted. Council President Wilson clarified the motion was to accept any application until 6:00 p.m. on Monday, March 23. MOTION CARRIED UNANIMOUSLY. Council President Wilson advised the Committee meetings would be advertised as special meetings in the event four or more Councilmembers attended. 5. PUBLIC HEARING ON RECOMMENDED AMENDMENTS TO CHAPTER 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE RELATING TO ESTABLISHING PERMIT TYPES, PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA OPEN RECORD HEARING PROCEDURES CLOSED RECORD APPEALS AND DEVELOPMENT AGREEMENTS. Development Services Director Duane Bowman recalled the Council had a work session on these amendments on February 24 and had been provided additional information prior to tonight at their request. The objectives of the rewrite are to, 1) provide clear standards for permit processing, 2) reduce potential liability, and 3) address Hearing Examiner procedural concerns. He identified the major proposed changes: • Establishing permit types. • Creating tables that identify the different permit types and decision -making processes. • Submission requirements and procedures. • Change the public notice requirements to establish the responsibility for the permit applicant to provide the notice. • Establishing SEPA consistency regulations. • Establishing open and closed record hearing procedures. • Creating a new section regarding Development Agreements. With regard to the format, Title 20 will be reformatted to replace the process and procedures section at the start of the chapter with a subsection for specific permit review criteria. The process and procedures section will have the following seven subsections: • Chapter 20.01 — Types of development project permit types • Chapter 20.02 — Type I -IV development project permit applications • Chapter 20.03 — Public notice requirements • Chapter 20.04 — Consistency with development regulations and SEPA Edmonds City Council Approved Minutes March 17, 2009 Page 7 Packet Pg. 66 8.1.b • Chapter 20.06 —Open record public hearings • Chapter 20.07 — Closed record appeals • Chapter 20.08 — Development Agreements He reviewed the table in Chapter 20.01 establishing the type for various permits and a second table in Chapter 20.01 that identified the decision process for all permit applications that addressed recommendation, final decision, notice of application, open record public hearing or open record appeal of a final decision, closed record review and judicial appeal. Mr. Bowman reviewed the public notice requirement in Chapter 20.03, explaining the biggest change in this section was the requirement for the applicant/appellant to provide all public notice. Staff will prepare the notice and give it to the permit applicant/appellant to post and mail. Affidavits for posting and mailing are required prior to any public hearing. Failure to provide proper notice will result in beginning the process again. Mr. Bowman explained Chapter 20.04 requires consistency with development regulations and SEPA. This chapter formalized what staff already does in preparing staff reports and adds planned actions which are not currently addressed in the code. Chapter 20.06, open record public hearings, establishes clear procedures for conducting open record hearings, addresses the issues raised by the Hearing Examiner regarding the processing of reconsideration requests, and establishes the burden of proof. Chapter 20.07, closed record appeals, establishes procedures for closed record appeals, establishes consolidated appeals process, and establishes standing to initiate an administrative appeal. Mr. Bowman explained Chapter 20.08, development agreements, is a new section that addresses development agreements, establishes the processing procedures, and establishes an appeal process. Councilmember Plunkett asked for an approximation of how many permit types the proposed changes would remove the City Council from considering in a quasi judicial hearing. Mr. Bowman estimated 5-6 and offered to identify specifically which ones. Councilmember Bernheim recalled he requested a transition table. Mr. Bowman answered that was sent to the Council on March 6. He provided a comparison of the proposed amendment to the existing code: • Types of project permit applications — proposed Chapter 20.01, compared to staff review in 20.95 and 21.00 under Hearing Examiner, Planning Board and City Council review. • Development project permit applications — proposed Chapter 20.02, compared to 20.95 Application and Review • Public Notice — proposed Chapter 20.03, compared to Chapter 20.91 Public hearings and Notice • Consistency with development regulations and SEPA; new, therefore there is no comparison • Open record public hearings — proposed Chapter 20.06, compared to 21.00 Hearing Examiner, Planning Board and City Council review • Closed record appeals proposed Chapter 20.07, compared to 21.05 Appeals and Court Review • Development Agreements 20.08, new, therefore no comparison. Mr. Snyder pointed out this was a complete rewrite/restructure, therefore it was difficult to make comparisons between the existing code and the new code. He explained the City's original code provisions date from 1980. Since then, SEPA, Shoreline Management Act, Growth Management Act, and other state imposed changes have been added to the code, making it very unwieldy, particularly the appeal process. Mayor Haakenson opened the public participation portion of the public hearing. Edmonds City Council Approved Minutes March 17, 2009 Page 8 Packet Pg. 67 8.1.b Rich Senderoff, Edmonds, acknowledged this issue was complex. He questioned whether the proposed changes reduced public oversight and transparency to land use decisions. He viewed the Council as a check and balance in decisions. He recalled comments by residents during a neighborhood meeting at Seaview Elementary that most had day jobs and did not have time to invest reviewing development proposals versus developers for whom that was their day job. This placed residents at a disadvantage and they relied on the Council to provide the check and balance. He urged the Council to consider how checks and balances and oversight were provided in the process. Betty Larman, Edmonds, commented the recommended amendments to Chapter 20, particularly to Chapter 20.06, made it extremely difficult and onerous for citizens to appeal decisions of the ADB, etc. by adding many hurdles and costs to the process. She noted the filing process was very cumbersome and she questioned the deadline for filing appeals, at 12:00 p.m. rather than the end of the business day. She also preferred appeals be directly to the City Council rather than the Hearing Examiner or a higher court. She noted elected officials knew the rules and were just as smart as the Hearing Examiner. She commented decisions by the Hearing Examiner that result in higher court trials were an unnecessary expense to the City. She urged the Council to reconsider the amendments in Chapter 20.06, fording most unnecessary, burdensome and expensive. Diane Buckshnis, Edmonds, expressed interest in transparency for the public. She referred to Planning Board Member Reed's request for a spreadsheet in January 2008 that identified the City's current review process, advising that information was not available to the public. She acknowledged the code had been rewritten but the public should have access to the same information the Council was provided. She urged the Council to reject the amendments because the process had not been transparent. Roger Hertrich, Edmonds, pointed out this was a huge document and required supervision via the appeal process. Rather than appeals going to Superior Court, he preferred they be to the City Council. Via the appeal process, the Council had the opportunity to learn about problems with new regulations. He disagreed with the change in the notice/posting requirement, commenting the City was experienced with that process whereas it would be new to an applicant and there was potential for error. He suggested the deadline for submitting appeals be consistent such as 5:00 p.m. He referred to the appeal regarding the PRD on the former Woodway Elementary site, commenting if the Council had been able to make a decision on perimeter, the City, the applicant and the appellant could have saved a great deal of money and a decision could have been made much sooner. He suggested since the document was so voluminous and contained so many new procedures, the Council hold a second public hearing. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. Mr. Snyder agreed with the suggestion to make the submission deadline consistent. Next, he explained the GMA and the Regulatory Reform Act put citizens at a disadvantage and developers at an advantage in establishing a record with regard to land use decisions. The Regulatory Reform Act attempted to shift what the legislature saw as inappropriate political intrusion into the process by imposing very tight guidelines regarding what could be heard and when it could be heard. He noted 95% of the document was boilerplate and reflected either case law or Regulatory Reform. He explained there was no way for the Council to make a situation right and be a judge; in a quasi judicial decision, the Council must follow the law and could not make a legislative decision. He emphasized regardless of who held the hearing, there must be a complete record and basic due process requirements and rules of evidence must be observed. With regard to the Burnstead appeal referenced by Mr. Hertrich, Mr. Snyder questioned whether the City had 16-20 hours to hear an appeal. One of the reasons a Hearing Examiner was used to hold that type of hearing was to establish a clear record developed by a professional that could now be reviewed on appeal. Edmonds City Council Approved Minutes March 17, 2009 Page 9 Packet Pg. 68 8.1.b With regard to the public's comments regarding the unnecessary expense of Superior Court review, Mr. Snyder pointed out that was a requirement of the Land Use Petition Act (LUPA); land use permit decisions were appealable to Superior Court. He explained when staff began this rewrite approximately 18 months ago, the intent was to place the legal requirements on the City Council and Hearing Examiner in one place in a straightforward manner. If the Council held a second public hearing, he suggested focusing on the policy decision changes. He offered to provide a citation from the GMA, LUPA, Regulatory Reform, etc. whenever the City was obligated to do things in a certain manner. He summarized most of the decision making process was not discretionary; what the Council hears and whether it goes to the Council or Hearing Examiner is a policy decision, other issues such as burden of proof are dictated by case law or statute. Mr. Bowman commented if the Council chose to hold a second public hearing one of the key policy issues was shifting the responsibility for public notice to the applicant. He noted as staff was reduced, it was appropriate to shift that responsibility. With regard to where the Council would be removed from quasi judicial hearings, he confinned under the proposed amendments that would occur in five incidences: conditional use permit; variances; preliminary plat and major amendments to a plat; shoreline substantial development permits and variances; and draft EIS/SEPA. Contrary to Ms. Larman's comment, the Council would retain the appeal on ADB decisions on major design appeals. Mr. Snyder advised the City currently had a provision that violated state law; a wide open permit review procedure. In accordance with case law, only conditional use permits with a specific condition can be reviewed; all other permits, once final, cannot be revoked. The City's current ordinance allows reopening of an approved permit. Councilmember Orvis observed the Planning Board recommended the City Council be removed from quasi judicial hearings and asked whether the Planning Board had considered decisions made by the City Council versus decisions made by the Hearing Examiner. Mr. Bowman answered no. Councilmember Orvis asked whether the Planning Board reviewed any case law. Mr. Bowman answered Mr. Park and Mr. Snyder provided legal advice during discussions. Mr. Snyder advised removing the Council from quasi judicial decisions was the recommendation of Washington Cities Insurance Authority (WCIA) because the pressure for Councils to make things right in a political sense was the biggest source of liability statewide. He reminded of the Hotel Group application which if appealed the City likely would have lost. Mr. Bowman recalled the Planning Board discussed Nycrum v Chelan County and Mission Springs v Spokane during their deliberations. Mr. Snyder observed Councilmember Orvis' point was if done right, the Council was no more liable than a Hearing Examiner. Councilmember Orvis asked whether the court cases where the Council agreed with the Hearing Examiner versus disagreed with the Hearing Examiner had been reviewed. He recalled three decisions in which the City was overturned where the City Council agreed with the Hearing Examiner. He referred to Lutheran Daycare v Snohomish County, a Hearing Examiner decision to deny a conditional use permit that the Council agreed with and then received an arbitrary and capricious ruling. He concluded using the Hearing Examiner to make decisions did not prevent arbitrary and capricious rulings. Mr. Bowman agreed, pointing out the odds were reduced significantly. He noted the City's current Hearing Examiners were all attorneys and very good at what they did. Mr. Snyder expressed his preference not to discuss the Burnstead case until the order was in. Councilmember Plunkett asked whether the Council could speak to the judge's opinion on the Burnstead case. Mr. Snyder noted there were 43 grounds for appeal, the judge overturned 40 and 3 were upheld but the order regarding the remedy, whether remanded to the City or cleared up by the order, has not yet been determined. Councilmember Plunkett asked whether he could speak to the judge's published opinion in Edmonds City Council Approved Minutes March 17, 2009 Page 10 Packet Pg. 69 8.1.b the Burnstead case. Mr. Snyder explained the opinion was not final and was appealable. If the Council wished to discuss it, he preferred to recess to Executive Session. Councilmember Plunkett observed there were other policy issues in the proposed amendments in addition to the public notice and quasi judicial public hearing such as the requirement for argument to be in writing and development agreements. Mr. Bowman viewed the development agreement as a regulation rather than a policy question. He agreed the requirement for argument to be in writing was a policy decision. If the Council chose to retain its position as the arbitrator before appealing to court, he highly recommended argument be in writing. Councilmember Plunkett asked whether a development agreement could be a policy decision. Mr. Snyder explained the ability for a development agreement is provided for by state statute. The purpose of including it in the code was to address an issue a citizen raised regarding where development agreements were addressed in the code. Mr. Snyder advised these amendments also clarify written appeal requirements which he viewed as a due process requirement. He agreed the requirement for written submissions rather than oral presentation to the Council on appeal was a policy decision for the Council. Councilmember Plunkett questioned whether the City had to allow development agreements. Mr. Snyder advised they were provided for in State law and an applicant could apply for one; the City had the option of saying no. In response to Ms. Larman's comments regarding the Council being as smart as the Hearing Examiner, Councilmember Wambolt disagreed, pointing out the Hearing Examiners are very competent and more experienced than he is in land use matters. He preferred the Hearing Examiner remain involved in decisions. With regard to Mr. Senderoff's preference for the Council to be involved in decisions, he acknowledged citizens wanted the Council involved because they were elected. He noted the WCIA preferred the Hearing Examiner make decisions rather than the City Council. Mr. Snyder relayed the WCIA recommended the Hearing Examiner be used as much as possible. He recommended hearings be held by a Hearing Examiner regardless of whether the Council retained the decision -making authority on appeal, recognizing the difficulty for elected officials to say no to evidence that was not on the record. Councilmember Wambolt agreed with Mr. Hertrich regarding the notice requirement, observing it would be difficult for someone not skilled in that process. He asked whether the recommendation to shift the responsibility for the notice/posting was in anticipation of a reduction in staff. Mr. Bowman acknowledged it was likely there would be a reduction in staff and if the responsibility were not shifted, it would be one more thing for the reduced staff to do. He assured having the applicant do the noticing worked; he was involved in making that change in Bothell and received only one complaint regarding notice requirements in six years. Councilmember Bernheim asked how late the city offices were open. Mr. Bowman answered 4:30 p.m. Councilmember Bernheim suggested the 5:00 p.m. deadline be changed to 4:30 p.m. He agreed it should be consistent throughout the document and suggested "close of business hours." Councilmember Bernheim asked whether there had been any other cases decided by the Hearing Examiner and appealed to Superior Court that were reversed/modified. Neither Mr. Bowman nor Mr. Snyder could recall any other than the Burnstead case. Councilmember Bernheim was in favor of having the applicant post/mail notice, commenting in most instances the applications would be submitted by experienced developers. Mr. Bowman agreed that would be the case in the vast majority of instances. Councilmember Bernheim asked what type of case a citizen would be required to provide notice. Mr. Bowman answered it would most likely be an appeal. Councilmember Bernheim observed the City could provide notice for citizen appeals. Edmonds City Council Approved Minutes March 17, 2009 Page 11 Packet Pg. 70 8.1.b COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO DIRECT THE CITY ATTORNEY TO PREPARE THE NECESSARY ORDINANCE TO IMPLEMENT THE PROPOSED CHANGES TO CHAPTER 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE REGARDING PERMIT PROCESSING AND PROCEDURES. It was the consensus of the Council to change 5:00 p.m. in the code to 4:30 p.m. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO AMEND THE MOTION TO MAKE DECISIONS WHERE THE CITY COUNCIL WAS EXCLUDED FROM THE QUASI JUDICIAL PROCESS, TO REVERT THOSE DECISIONS SO THAT THE CITY COUNCIL CONTINUED TO BE INVOLVED IN THAT PROCESS. For Councilmember Wambolt, Mr. Bowman explained under Type III -A the Council would not be reviewing preliminary plats, general variances, sign permit variances, and conditional use, shoreline substantial development and variances and plat vacations and alterations. With the amendment proposed by Councilmember Orvis, those would become Type III-B. UPON ROLL CALL, MOTION FAILED (3-4), COUNCILMEMBERS BERNHEIM, ORVIS AND PLUNKETT IN FAVOR; COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS PETERSON, WAMBOLT AND OLSON OPPOSED. UPON ROLL CALL, MAIN MOTION AS AMENDED CARRIED (4-3), COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT IN FAVOR; COUNCILMEMBERS ORVIS, BERNHEIM, AND PLUNKETT OPPOSED. Mayor Haakenson declared a brief recess. 6. AUDIENCE COMMENTS Mitchell Stern, Edmonds, thanked the Council for their time and service to the community. He recognized the closure of Yost Pool was about dollars, noting it was also about part-time jobs for high school and college students, physical and mental health for adults and children, increased demand due to the projected closure of the Lynnwood pool for the summer 2010 and possibly 2011, obesity related health issues, the uniqueness of this facility, and the revenue potential from residents inside and outside Edmonds. He recommended review and refinement of all aspects of revenues and expenditures associated with Yost Pool to ensure its operation was self-sustaining. He recommended a Yost Pool Committee be created to do an in-depth review of the issues and return with a full recommendation regarding projected operation for the summer 2009 and beyond. He expressed his willingness to participate on the committee. Janis Freeman, Edmonds, announced the next meeting of Sustainable Edmonds on Saturday, March 21 at the Port of Edmonds Conference Room from 2:00 — 4:00 p.m. The topic will be "The Edible Garden, Growing Food in Our Own Yards" and three expert gardeners will share their knowledge. She advised everyone was welcome and there was no charge although donations were welcome. Diane Buckshnis, Edmonds, commented on her involvement in the dog park community and the art community. She relayed three friends received a letter on the Mayor's stationary that appealed for participation on the Citizens Levy Review Committee, and stating the levy committee would be formed to discuss the City's future and determine what services were important to the citizens of Edmonds. It further stated severe cuts would begin immediately without citizen input on services and named several such as Yost Pool and the Discovery Program. The letter was followed by the Mayor's press release on Friday stating these cuts had already been made. With these cuts already in place, it appeared the citizens Edmonds City Council Approved Minutes March 17, 2009 Page 12 Packet Pg. 71 8.1.b pursuing studies in musical theater. Elizabeth Melnikas is a talented musician who plays the flute and the saxophone and plans a performing and teaching career in the arts. And, Ingrid Porter is a dancer with a promising career in the art of dance. 7. PUBLIC COMMENT ON DRAFT LEVY PROPOSAL AND DRAFT RESOLUTION REGARDING 2009 PROPERTY TAX LEVY. Mayor Haakenson explained the draft levy proposal and resolution were developed by Council President Wilson and neither staff nor the Council had the opportunity to provide input yet. Al Rutledge, Edmonds, asked whether the funds from the levy would be sufficient for the future. Roger Hertrich, Edmonds, reiterated his concern with specifying certain uses for the levy funds because residents would expect the funds be used for those purposes; however, staff had the ability to transfer money via Interfund Transfers that was only approved by the Council after the fact. He recommended changing the process to require Council approval of Interfund Transfers before they occurred. In response to Mr. Rutledge's question whether this was the final levy, Council President Pro Tern Wambolt answered this would be the last levy until the next one, anticipating this would not be the Last levy in the City's history. If the levy passed, he was hopeful there would be enough revenue growth during those years and that the legislature would allow cities to raise property taxes by an amount greater than I %. In response to Mr. Hertrich's comments, Council President Pro Tern Wambolt pointed out if the levy passed, none of the City's services would be enhanced and there would be additional cuts if the levy did not pass. The levy was required to maintain the status quo with the exception of the cuts made by Mayor Haakenson in March. 8. PUBLIC HEARING ON ORDINANCE AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE CHAPTER 20 RELATING TO ESTABLISHING PERMIT TYPES PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA, OPEN RECORD HEARING PROCEDURES CLOSED RECORD APPEALS AND DEVELOPMENT AGREEMENTS. Planning Manager Rob Chave explained this was the second public hearing on amendments to Title 20 of the Edmonds Community Development Code; the first hearing was held in March. He explained this was part of the overall code rewrite; the objectives of the code rewrite were to, 1) provide clear standards for permit processing, 2) reduce potential for legal liability, and 3) address the Hearing Examiner's procedural concerns. He identified the major proposed changes: • Establishing permit types. • Creating tables that identify the different permit types and decision -making processes. • Submission requirements and procedures. • Change public notice requirements and procedures to require the permit applicant to provide the notice. • Establishing SEPA consistency regulations. • Establishing open and closed record hearing procedures. • Creating a new section regarding Development Agreements. Edmonds City Council Approved Minutes May 5, 2009 Page 4 Packet Pg. 72 8.1.b With regard to the format, Title 20 will be reformatted to place the process and procedures section at the start of the chapter with a subsection for specific permit review criteria. The process and procedures section will have the following seven subsections: • Chapter 20.01 — Types of development project permit types • Chapter 20.02 — Type I -IV development project permit applications • Chapter 20.03 — Public notice requirements • Chapter 20.04 — Consistency with development regulations and SEPA • Chapter 20.06 —Open record public hearings • Chapter 20.07 — Closed record appeals • Chapter 20.08 — Development Agreements He reviewed a matrix in Chapter 20.01 that identified the permit type and decision process. He reviewed a second matrix that identified the procedures for Type I — V permits that addressed recommendation, final decision, notice of application, open record public hearing or open record appeal of a final decision, closed record review and judicial appeal. Mr. Chave reviewed the public notice requirement in Chapter 20.03, explaining the biggest change in this section was the requirement for the applicant/appellant to provide all public notice. Staff will prepare the notice and give it to the permit applicant/appellant to post and mail. The code contains requirements regarding when and where notice must be provided. Failure to provide proper notice will result in beginning the process again. He noted this change would also reduce administrative costs to the City. Mr. Chave explained Chapter 20.04 requires consistency with development regulations and SEPA. This chapter codifies what staff already does in preparing staff reports and adds planned actions which are not currently addressed in the code. Chapter 20.06, Open Record Public Hearings, establishes clear procedures for conducting open record hearings, addresses the issues raised by the Hearing Examiner regarding processing reconsideration requests, and establishes the burden of proof. Chapter 20.07, Closed Record Appeals, establishes procedures for closed record appeals, establishes a consolidated appeals process, and establishes standing to initiate an administrative appeal. Mr. Chave recalled former Development Services Director Duane Bowman identified five areas where the Council would no longer be involved in appeals under the proposed regulations: 1) appeals of Conditional Use Permits 2) variances, 3) preliminary plat/major amendments to a plat, 4) shoreline substantial development variance permits and 4) appeals of Draft EIS or SEPA decisions. Mr. Chave explained Chapter 20.08, Development Agreements, is a new section that addresses development agreements, establishes the processing procedures, and establishes an appeal process. Mr. Chave identified the following reasons for having the Council involved in quasi judicial decisions: 1. Council is representative. 2. Council is elected. 3. Highest local authority. 4. Can better monitor and understand interaction between policy and decision. 5. Cost to go to court. Mr. Chave identified the following reasons for not having the Council involved in quasi judicial decisions: 1. Very limited latitude in quasi judicial matters. 2. Restricts ability to discuss with citizens. 3. Freedom to get involved in public design. Edmonds City Council Approved Minutes May 5, 2009 Page 5 Packet Pg. 73 8.1.b 4. Quasi judicial decisions must be decided professionally not legislatively. 5. Liability 6. Political process best for legislative matters. 7. Intermediate step — still have ability for court appeal. Mr. Chave clarified under the proposed ordinance, the Council retains the ability for a quasi judicial appeal on major ADB projects. He recommended the City regularly update the code rather than waiting for a major code rewrite such as was occurring now. With regard to shoreline appeals, he clarified the Council did not currently make a decision, they only ruled on the appeal. The final decision was made by the Shoreline Hearings Board. With regard to substantial development permits, the decision was made at the Hearing Examiner level but it was reviewed by the State. With regard to CUPs, preliminary plat decisions, the Council would be removed from the appeal process. However, in his experience, attorneys were usually involved at the appeal level under the current process. Councilmember Plunkett noted another significant change was in a closed record appeal, the applicant, appellant and parties of records must submit materials in writing. Mr. Chave explained the code currently allowed parties to make argument based on the record at the closed record appeal but they were not allowed to introduce new factual information. Under the proposed rules, verbal argument would not be allowed and argument was confined to written statements. He explained with verbal argument, it was virtually impossible during a hearing to determine whether or not information was new. However, having the information provided in writing would allow a determination to be made whether the information was part of the record and not new information that could potentially prejudice the appeal hearing. Councilmember Plunkett asked who would redact the written statements submitted for a closed record appeal and if the information were redacted, how would the Council be informed. City Attorney Scott Snyder answered he disliked interrupting speakers during a closed record appeal when it appeared their commentary was outside the record. He envisioned it would be up to the other party to object to anything in the written materials submitted for the closed record appeal; staff and he would prefer not to redact any materials. He summarized staff would review the materials submitted but it would be up to a party to object if they believed information was being injected into the record. Councilmember Plunkett anticipated the Council would then receive two or more opinions on what materials should be redacted, from the applicant and appellant and possibly other parties of record. Mr. Snyder envisioned a rule would be established to allow written objection to anything in the record and the Council would make an initial determination before beginning its deliberations to dispose of any procedural objections. Mr. Snyder commented this would also provide a discussion on the record and an indication regarding what material was considered. Councilmember Bernheim asked how the Hearing Examiner was selected and appointed. Mayor Haakenson advised Council representatives participated in the interview process; Council President Pro Tern Wambolt and Councilmember Orvis participated in the interview and selection of the current Hearing Examiner. Mr. Chave summarized the Council's involvement was via the interview process and approving the Hearing Examiner's contract. Councilmember Bernheim referred to the five decisions the Council would no longer participate in, CUP, general variances and sign permit variances, preliminary plats, shoreline development and draft EIS and asked what discretion there was in approving/denying an appeal. Mr. Chave answered the rules were quite strict; there were specific criteria in the code with regard to variances and the Hearing Examiner has been very strict about applying them. CUPs also have specific criteria. Shoreline permits, whether a shoreline substantial development permit or a variance, must comply with the Shoreline Master Program which is the reason the State retains authority over the shoreline pen -nits. Local jurisdictions when Edmonds City Council Approved Minutes May 5, 2009 Page 6 Packet Pg. 74 8.1.b enacting and enforcing a Shoreline Master Program are acting as the State's agent. Preliminary plat is a ministerial decision, applying the criteria, and there is very little discretion. With regard to SEPA, Mr. Chave clarified it was not a decision on an EIS but a threshold determination, whether additional study was needed. It was often difficult to explain to the public that if they were interested in the project, they needed to participate in the hearing about the project because design issues, etc. were not environmental impacts that would be addressed by SEPA. He summarized SEPA was a very technical analysis and did not lend itself to discretionary decision. Mr. Snyder commented the difficulty was applying the Substantial and Competent Evidence Doctrine. He acknowledged the process was inherently skewed in favor of the developer who will retain experts and give a series of expert opinions or address facts in the record. The difficulty for citizens was they often raised questions but seldom provided evidence. Councilmember Bernheim asked whether it was possible for the Council and Hearing Examiner to reach different conclusions when reviewing the same record. Mr. Snyder agreed decisions were often close. He noted Washington Cities Insurance Authority's (WCIA) concern about liability was based on their experience with City Councils being susceptible to argument to make something right. Councilmember Orvis referred to Councilmembers being personally liable, noting in the Spokane case the Council injected themselves into a ministerial decision, they were acting outside what State law allowed and their attorney advised them not to. He summarized for a Councilmember to be personally liable they would have to do something really unwise. Council President Pro Tem Wambolt pointed out the list of reasons why to have the Council involved in quasi judicial decision -making and why not to have the Council involved, Exhibit 5, was added since the March 17 hearing. All the other information was the same. Mayor Haakenson advised the Council would take comment tonight and deliberate on May 19. He opened the public participation portion of the public hearing John Reed, Edmonds, a member of the Planning Board, advised the Planning Board held 7 meetings on revisions to Chapter 20 from mid-2007 to March 2008. He was opposed to some of the proposed changes, pointing out citizens directly affected by land use decisions began the process at a disadvantage because staff and developers understand the process. Citizens do not understand the process and often come into the process late and are not aware how to proceed. He pointed out many issues are discussed and decided by the Planning Board with little or no public input because citizens know they can present their case to the Council. He requested the Council make two changes to Chapter 20, 1) restore the Council's role as quasi judicial authority from which they were proposed to be removed, and 2) restore verbal argument to the quasi judicial appeal process; Councilmembers needed to hear citizens' emotions. The Planning Board spent 10 months and 7 meetings developing the proposed amendment; the Council should take the necessary time before taking action on these important changes. He urged the Council to increase citizens' opportunity for land use participation as well as increase the Council's role in these decisions. He disagreed with the Council effectively telling citizens if they disagreed with something happening next door, their only option was to hire an attorney and go to court; many could not afford to do so and would not take that step. He urged the Council before voting on these changes to explain to the citizen why they were voting in the manner they did. Dr. Rich Senderoff, Edmonds, commented it was ironic while Americans were demanding more oversight and transparency in government, the Council was considering this legislation. He recalled his earlier comments regarding how the Council would provide checks and balances regarding land use issues when they would no longer be the highest decision maker. He disagreed that the Council did not have an Edmonds City Council Approved Minutes May 5, 2009 Page 7 Packet Pg. 75 8.1.b oversight responsibility, pointing out the U.S. Congress was a legislative branch that had oversight responsibility. He disagreed with staffs indication that Council would have more oversight via the ability to discuss citizens concerns on specific projects because they will not be involved in quasi judicial hearings. He pointed out the difficulty for citizens to keep abreast of issues before Council as well as before the Hearing Examiner and assumed even the Council may not be aware of permits before the Hearing Examiner. He understood quasi judicial cases were challenging for the Council because they must follow the law, pointing out true leaders accept the responsibility of explaining the requirements to constituents. He questioned how Councilmembers could position themselves as environmental proponents while voting to reduce public oversight and transparency over shoreline substantial development and shoreline variances. Diane Buckshnis, Edmonds, commented the first time she spoke regarding Chapter 20 was in regard to the lack of transparency to the public when they were not provided the matrixes. She received the matrixes 10 days later and found them very insightful, illustrating that the Council would be removed from decisions on substantial shoreline variances. She stressed the Council should be responsible for hearing citizens and responsible for reviewing development on the Edmonds shoreline. Betty Larman, Edmonds, recalled her appeal of a building permit to the Council on which the Council agreed. She thanked Council President Pro Tem Wambolt for removing this item from the Consent Agenda. She expressed concern with how quickly four Councilmembers passed the amendment, commenting they had reneged their responsibility by agreeing to allow the Hearing Examiner to hear appeals. She disputed the argument that the Hearing Examiner was more knowledgeable, pointing out several decisions have been lost on appeal. She observed staff wanted the Council to remove themselves from difficult decisions which she viewed as weakening the City as it did not allow citizens to have their voice heard without going to court. She urged the Council to uphold citizens' rights to come to their elected representatives and for the Council to hear, not read, their comments regarding important issues. She summarized the Council should be the final authority on all appeals and urged the Council to reject the ordinance as written. Roger Hertrich, Edmonds, commented when he was on the Council, he considered it the highest honor to act as a judge in quasi judicial matters. Removing the Council from that role diminishes their ability to represent the community. He referred to the matrixes and suggested adding descriptions about the permit types and who was responsible for each decision. He asserted by removing themselves from final authority on final plats, the Council was in violation of its responsibility. He urged the Council to take as much time as the Planning Board to review and make a decision on the proposed amendments. Al Rutledge, Edmonds, commented he attends many Planning Board, Architectural Design Board and Hearing Examiner meetings. He pointed out at Hearing Examiner meetings, the Hearing Examiner will often ask for comments in writing to ensure clarity. He asked City Attorney Scott Snyder to comment on the lengthy Burnstead court case. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing In response to Mr. Rutledge's comment, Mr. Snyder responded the Burnstead appeal was very atypical in the length of time, the level of briefing, and the number of hours and was hopefully an anomaly. He commented the belief that having the Council in the process would affect appeals one way or another was erroneous. Whether a citizen or developer, it was likely a close decision would be appealed and the LUPA process was typically fairly quick. He did not anticipate having the Council involved in the process would change the number of appeals that occurred. Edmonds City Council Approved Minutes May 5, 2009 Page 8 Packet Pg. 76 8.1.b picked up Sunday morning. She applauded the City's Parks & Recreation Department employees for their hard work. She reiterated the suggestion she made at the Citizen Levy Review Committee meetings to install a parking fee kiosk at Marina Beach Park as a pilot project. She reported on the popularity of the dog park; they use 12,000 bags a month in the winter/spring months and 24,000 bags in the summer. She relayed dog park and Marina Park users' willingness to pay for parking, remarking the fees collected could fund 1-2 City employees. She noted 27% of the State's park budget was from user fees. Rich Senderoff, Edmonds, described his visit to the new ACE Hardware and his inability to find the entrance or a sign directing him to the entrance. He was told by the store manager who he encountered on. the street that the City would not allow him to put up better entrance signage. He assumed for a business to be successful, customers must be able to find the entrance and recommended the City proactively work with a new business before they opened particularly in an unfinished building. He summarized the Council talked about economic development but did not seem to recognize how to help ensure new businesses get off to a good start let alone create a vision that finds synergy between residents, businesses, property management companies and developers. Al Rutledge, Edmonds, referred to Councilmember Wambolt's report regarding meetings with Fire District 1 and relayed residents' concern with the source of the money and the cost to the Edmonds taxpayer. Next, he advised the Sno-Isle Library was considering asking voters for an increase and suggested the Council state their position with regard to a Sno-Isle Library levy. He also informed that the Edmonds School District planned to place a capital levy on the 2010 ballot. Roger Hertrich, Edmonds, encouraged the public to speak at the June 2 public hearing regarding the utility tax increase on water. Next, he encouraged the Council to discontinue their discussion regarding a plastic bag ban, finding that effort a waste of time. He noted citizens were more concerned about the economy, the budget, etc. and the Council should be discussing how to reduce salaries and realign staff. Susan Paine, Edmonds, encouraged the Council not to cut the street trees downtown. She understood they disrupted the sidewalk but encouraged the Council to consider other ways to address that issue such as grates. She explained the trees downtown offer a human scale in an urban environment. She preferred the larger trees that contributed to ambiance of the City's quaint older style to the recently planted small trees that do not contribute to the visual environment. In response to Mr. Rutledge's comment regarding Fire District 1, Councilmember Wambolt clarified the City did not need to come up with any money; Fire District 1 needed to identify the funds to purchase the Fire Department's capital equipment. The $l million per year he referred to at the last meeting was the savings to the City's General Fund if the proposal with Fire District I were finalized. 6. CONSIDERATION OF AND POTENTIAL ACTION ON THE ORDINANCE AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE CHAPTER 20 RELATING TO ESTABLISHING PERMIT TYPES, PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA, OPEN RECORD HEARING PROCEDURES, CLOSED RECORD APPEALS, AND DEVELOPMENT AGREEMENT. After listening to public comment at several hearings and during public comment, City Attorney Scott Snyder indicated there were three issues that needed to be addressed, 1) the perception that the changes in Title 20 would limit communications between the public and the Council, 2) a belief that having matters come to the Council will give citizens "home field advantage," and 3) a confusion of the issue of legal cause with legal liability. Regardless of whether the Council stays in the quasi judicial role or not, citizens' expectations of how the Council would act in a quasi judicial capacity must be reasonable. He recalled a comment at the last Council meeting praising the way the hearing regarding short term rentals Edmonds City Council Approved Minutes May 26, 2009 Page 5 Packet Pg. 77 8.1.b was conducted. He pointed out when the Council sat as a legislative body, people could say anything, the Council could consider any facts and talk to anyone; there were few limits on what the Council could consider. Conversely, when the Council sat in a quasi judicial capacity, there were strict rules regarding communications with the public and what the Council could consider. The Appearance of Fairness Doctrine requires the Council not have contact with any of the parties or their constituents regarding pending matters. The Council cannot engage in comment with the public on matters going through the design process if they come to the Council and all the Council can consider is the record created at the initial proceeding which the Council does not conduct. Mr. Snyder commented there was a perception at the public hearing that if the Council remained involved in appeals, citizens have a home field advantage. He agreed there were close cases and if the Council was the decision -maker, they could decide those close cases. One of the difficulties and the reason WCIA was concerned was as elected politicians, the Council was used to trying to satisfy the public's will. He quoted from Washington cases that community displeasure cannot be the basis for permit denial. He noted one of the reasons City Council decisions were "tagged" more often than Hearing Examiner decisions with liability claims and large awards was the process was not as controlled and things tend to be said to Councilmembers that create a record that gives rise to liability. He provided another quote, while community sentiment can be instrumental in the development of zoning requirements in the planning process, it cannot alone form the basis of the zoning decision. He pointed out if the Council retains the role of a quasi judicial body, it must apply the criteria in the code in the same manner the Hearing Examiner does. He acknowledged WCIA was concerned with liability for Councilmember decisions versus Hearing Examiner decisions. It was not necessarily that Hearing Examiner decisions were overturned more or less than City Councils, but City Council decisions more often gave rise to large liability awards than Hearing Examiners do because of the surrounding circumstances. He referred to Councilmember Orvis' reference to the Mission Springs case where the Spokane City Council got involved in a permit they should not have. He noted a more relevant case was the West Mark City of Burien case that resulted in a $10.7 million award for delays in the issuance of the SEPA permit. In that instance, the 216-unit apartment building on the waterfront in Burien was extremely unpopular in the community. Councilmember Orvis asked whether the Edmonds Hearing Examiner did SEPA appeals now. Mr. Snyder responded SEPA appeals were one of the items proposed to be removed. Mr. Snyder explained one of the reasons liability was a concern to City Attorneys, City Councils and the WCIA was due to the way the rules have been established. Under the Land Use Petition Act (LUPA) each party bears its own costs in Superior Court. If the case is appealed, the loser pays which is the reason most LUPA cases are resolved at the Superior Court level. During the course of Regulatory Reform, the legislature created incentives/penalties for City Council to stay as neutral as possible. Chapter 64.40 of the WAC establishes damages, attorney fees and costs for any delay in the permit process beyond 120 days. If a decision is found to be arbitrary and capricious the City is subject under constitutional law and state statute for delay damages and takings claims. RCW 82.02.020 creates liability for the City monetarily, attorney fees and damages if excessive development fees are required. He summarized it was not that the City Council could not do it right, he assured they could. But citizens should understand regardless of whether they go to the Hearing Examiner or the City Council, what they say will be limited, how they say it will be limited, what the Council can consider is limited and community displeasure cannot play any role in the decision -making process. At the legislative level, public sentiment is an important factor. Edmonds City Council Approved Minutes May 26, 2009 Page 6 Packet Pg. 78 8.1.b Councilmember Orvis agreed if a Hearing Examiner or a City Council decided to impose arbitrary and capricious standards on an applicant, they could be tagged for damages. And if the Council in order to avoid being arbitrary and capricious began to ignore law, they would encounter a problem with WCIA such as in Ridack v. Gunderson. Mr. Snyder commented Ridack v. Gunderson was an isolated situation and the remedy today would be a LUPA appeal. He emphasized the Council or the Hearing Examiner must enforce the code the way it is written and it did not matter if that was unpopular. Councilmember Orvis referred to a Seattle case where the mayor waived fire codes to allow the homeless to continue to occupy a building. The building subsequently burned and the city took liability. Seattle has also been tagged for being arbitrary and capricious. He commented the Council was protected in both those situations if they fairly and objectively argued code. Mr. Snyder explained the public appeared to have a perception that the rules would be more favorable by retaining the Council as the decision -maker. He emphasized the rules must be the same regardless of where the appeal takes place. With regard to the Council's role in shoreline decisions, Planning Manager Rob Chave explained shoreline regulations originated with the federal government via the Coastal Zone Management Act and the federal government allowed states to develop a method of regulating the shorelines. In turn, the state basically delegates to local governments the ability to regulate shorelines by adopting the Shoreline Master Program (SMP) which is approved by the state; essentially the city is acting as an agent of the state. Exempt activities under shorelines are identified in the WAC and the city has no control over whether they are exempt or not. Shoreline substantial development permits go to the Hearing Examiner and are potentially appealable to the City Council. Once the local decision is made, it is sent to the state where there is a waiting period during which the state assesses the decision to determine whether they want to challenge it. Shoreline Conditional Use Permits (CUP) and variances are approved by the state. Mr. Chave reviewed an example of the ability to appeal: In 2003 Washington State Ferries (WSF) asked for a CUP under shorelines for the overhead loading; they had allowed a previous CUP to lapse. The permit went to the Hearing Examiner and conditions were imposed setting a timeframe for the overhead loading to be in that location and at the expiration of that time period it needed to be moved or the state needed to apply for another CUP. The state did not appeal the Hearing Examiner's decision to the City Council. The local decision was finalized and sent to the State Department of Ecology (DOE) for approval, denial or imposition of different conditions on the CUP. DOE agreed with the Hearing Examiner and formalized the decision. WSF appealed DOE's decision to the Shoreline Hearings Board. The Hearings Board agreed with DOE and the Hearing Examiner and imposed the same conditions. WSF eventually appealed to Superior Court where the shoreline decision was nullified on the basis the overhead loading was an essential public facility which overrides the local decision -making authority. He summarized even with the Council's ability to act as an appellate in shoreline cases, the Council's decision could be completely ignored. Councilmember Wambolt recalled a citizen stated if this change were made, staff could allow developers to waive shoreline environmental regulations, reduce setbacks or allow taller buildings and these issues could not be appealed to elected officials. He asked whether building heights could be changed without the approval of the City Council. Mr. Chave answered no, advising those requirements were in the zoning code or the SMP. Councilmember Orvis recalled the Hearing Examiner had approved at least two height limit variances for PFDs. Mr. Chave responded height variances are occasionally heard by the Hearing Examiner and are very narrowly decided. Shoreline variances were different. Councilmember Orvis asked whether the Hearing Examiner had considered setback variances. Mr. Chave agreed there could be and have been decisions by the Hearing Examiner on setbacks. Edmonds City Council Approved Minutes May 26, 2009 Page 7 Packet Pg. 79 8.1.b COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, FOR APPROVAL OF THE ORDINANCE AMENDING ECDC CHAPTER 20. Councilmember Wambolt commented he was sensitive to concerns that staff could do things that the Council was not aware of. He recalled this occurred with several condominium projects that received ADB approval, yet what was constructed was not what was approved due to changes approved by staff. However, he questioned whether all of a developer's minor changes should be presented to the Council. He was satisfied with the amendments to Chapter 20 and appreciated the tutorial provided by Mr. Snyder. If these amendments created a great deal of problems, they could be changed. Councilmember Plunkett agreed the Council was capable of sitting as quasi judicial members because the City has one of the most experienced mayors in the state who has demonstrated the ability to fairly and judiciously mediate quasi judicial hearings. The City has the best municipal attorney in the state. The City Council had proven numerous times in quasi judicial hearings that they are judicious and thoughtful. He did not support moving more land use decisions to attorneys, judges, Hearing Examiner and staff and reducing public hearings at the Council level. He did not support the proposed motion. Councilmember Orvis was opposed to the motion because it limited the public's ability to communicate with the Council by not allowing oral argument. He recalled Betty Larman's presentation to the Council regarding Old Mill Town was legal, addressed the code, did not stray from the record and cited examples that showed how the application did not meet the code. That type of argument would no longer be allowed; only written argument would be allowed. Second, he did support an ordinance that would allow staff or the Hearing Examiner to change and waive codes via a variance. He stressed changing code was the Council's job and the Council should hear all variances with a recommendation to the Council by the Hearing Examiner. He noted variances could be made for height limits, setbacks and for the environment. With regard to liability protection, he noted the Planning Board did not cite any Council actions that had exposed the City to liability. This Council has a great quasi judicial record and have been overturned only twice recently, both times when the Council agreed with the Hearing Examiner. Councilmember Orvis commented the WCIA's statewide recommendation was due to other Councils' mistakes; the Edmonds Council has not been overturned for disagreeing with the Hearing Examiner. Recently a Hearing Examiner made a decision that was not appealable to the Council but the Council became involved when the City was sued. He referred to a Snohomish County case versus a Lutheran Church where the County agreed with the Hearing Examiner decision on a CUP and was tagged for being arbitrary and capricious. He summarized arbitrary and capricious decisions could be made by a Council or a Hearing Examiner and allowing the Hearing Examiner to make a final decision did not protect the City from liability. Councilmember Wambolt noted Councilmember Orvis' comments about the Council's record were likely correct; fortunately quasi judicial hearings were not common occurrences. He noted although the current City Council had a good record, that may not be the case for future Councils. Councilmember Bernheim spoke in favor of retaining City Council review because it kept the Council directly involved. For appeals of the Hearing Examiner's decision, the Council can defer to the Hearing Examiner's review. In cases when the right decision could be either way he wanted the City Council to make those decisions. He agreed these appeals did not occur very often and therefore it was not a burden on the Council. It would keep the Council involved and when there was room for discretion, it allowed the Council to exercise it. Council President Wilson recalled he made the original motion to direct staff to prepare the ordinance. Since then he has wavered in his decision. He recalled when the issue arose in regard to a PRD, he did Edmonds City Council Approved Minutes May 26, 2009 Page 8 Packet Pg. 80 8.1.b not support sending PRDs to the Hearing Examiner. He referred to Councilmember Orvis' comment that the Hearing Examiner could approve variances for setback and heights, a situation he was not comfortable with. He was uncertain how the Council could separate the issue of appeal to the City Council and adopt the other amendments to Chapter 20. Councilmember Orvis suggested amending the table on page 3 of Exhibit A COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT TO INSTRUCT STAFF TO RESTORE THE TABLE TO THE COUNCIL'S EXISTING AUTHORITY AND TO RESTORE ORAL ARGUMENT. Council President Wilson preferred to require written argument to prevent any new information from entering the record. He suggested amending the motion to require written argument. Councilmember Orvis advised he would not support the motion without oral argument. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DIRECT STAFF TO RESTORE THE COUNCIL'S EXISTING AUTHORITY REGARDING DECISIONS. Mr. Snyder clarified staff would revise the table in 20.01.030.0 to reflect the Council's current decision - making authority. For Councilmember Bernheim, Mr. Snyder offered to return with an ordinance in a legislative format and to highlight the changes made to the table. Mr. Snyder suggested Councilmember Orvis reword the amendment to instruct staff to return with a revised ordinance. COUNCILMEMBER ORVIS WITHDREW THE AMENDMENT WITH THE AGREEMENT OF THE SECOND. UPON ROLL CALL, MAIN MOTION FAILED (3-4); COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT IN FAVOR; AND COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS ORVIS, BERNHEIM AND PLUNKETT OPPOSED. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO DIRECT STAFF TO BRING BACK A REVISED ORDINANCE IN WHICH TABLE C IS REVISED TO REFLECT THE COUNCIL'S CURRENT AUTHORITY. MOTION CARRIED (6- 1), COUNCILMEMBER WAMBOLT VOTING NO. Mayor Haakenson commented although he appreciated Councilmember Plunkett's comments about his ability to run a closed record review, he viewed them as the single worst thing the legislature had given City Councils. He noted the anguish on citizens' faces in the audience when they are unable to speak to the Council about the subject matter in a closed record review. Second, both sides have attempted to get new information into a closed record review which was not allowed. He summarized it was very difficult for staff and him to determine what was new information and as a result it may get into the record and the Council may make their decision on information that should not have been provided. He concluded closed record reviews were a bad deal for citizens and he urged the Council if nothing else to require written information to avoid new information being inserted into the record. Edmonds City Council Approved Minutes May 26, 2009 Page 9 Packet Pg. 81 8.1.b For Council President Wilson, Mr. Snyder advised Sections 20.07.005.0 and D required written argument. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO ALLOW ORAL ARGUMENT. Councilmember Bernheim commented although information may be entered into the record by allowing oral argument, whether the new information became part of the findings of fact and became a basis for the Council's decision -making was more important than what was actually said. He did not object to continuing to allow oral argument, finding it helped clarify the issue for the decision -maker. Councilmember Plunkett commented in all past quasi judicial decisions, the oral argument was very important and his ability to adjudicate would be diminished without hearing oral argument. He pointed out Mayor Haakenson and Mr. Snyder did an excellent job monitoring the proceedings. UPON ROLL CALL, MOTION FAILED (3-4), COUNCILMEMBERS ORVIS, PLUNKETT AND BERNHEIM IN FAVOR; AND COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT OPPOSED. 7. REPORT REGARDING THE STREET TREE PLAN AND REMOVAL AND REPLANTING OF STREET TREES AT 5TH & DAYTON. Parks & Recreation Director Brian McIntosh recalled on April 22 Council President Wilson scheduled a review of the Street Tree Plan in advance of the removal and replacement of trees at 51h & Dayton. He explained the Street Tree Plan was Appendix F of the revised 2006 Streetscape Plan adopted by Council, making it part of the Comprehensive Plan. He read the vision of the Street Tree Plan, stating it exists to benefit the local community and business climate through enhancement of the identity and character of the downtown, gateways, neighborhoods and primary roads of travel. Street trees provide seasonal interest, summer shade and a transition between the street and adjacent buildings and properties. The Plan recommends species which provide these benefits, be hardy, relatively easy to maintain and tolerant of urban conditions. The City may modify and amend these tree species selections in the future. He recalled concern were raised that the tree caliper of recently planted trees did not match the recommended size of 3" caliper. He explained it was important to understand why entire intersections or row of trees were planted at the same time. He identified areas in the Plan where the caliper discrepancy and the need to replant as parcels were addressed: • Species Selection — there are 14 criteria in this section with the final criteria being "Appropriate mature size and form for their location." • Terms of Maintenance — current mature trees have no root barriers to encourage downward roots. • Implementation — when possible plant entire blocks or series of blocks in the same time sidewalks are reconstructed which will provide uniformity in size and fonn. • Downtown Plan — specific street trees are identified for planting on particular stretches in the downtown. All trees shown on the map shall be a minimum 3" caliper unless otherwise approved. • Tree Planting Procedures — planting procedure recommendations address avoiding conflict of roots with underground utilities and pavement. Installation size and branching height should be chosen to maximize the tree's survival rate. In retail, commercial and mixed use areas, install minimum 3" caliper with minimum 7-foot branching height unless otherwise approved by the City. Edmonds City Council Approved Minutes May 26, 2009 Page 10 Packet Pg. 82 8.1.b COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, TO AMEND SECTION 6.80.020 TO ADD, "THE CITY OF EDMONDS SHALL WORK WITH RETAILERS, RETAIL ASSOCIATIONS, UNIONS AND OTHER ORGANIZATIONS TO CREATE EDUCATIONAL ELEMENTS ABOUT THE BENEFITS OF REUSABLE BAGS. THIS MAY INCLUDE SIGNAGE AT STORE LOCATIONS AND INFORMATION LITERATURE AND EMPLOYEE TRAINING AND WILL TAKE PLACE BEFORE AND AFTER THE OPERATIVE DATE. Councilmember Peterson commented as a result of conversations with retailers, retail associations, unions and other organizations, he wanted to ensure the implementation of the ordinance was as smooth as possible. He acknowledged the ordinance was asking consumers to change their behavior and an education process would assist with that effort. It would allow smaller retailers who may have stocks of single -use plastic bags an opportunity to use those bags, give larger retailers time to train their employees and remind consumers to bring their bags into the store. THE VOTE ON THE AMENDMENT CARRIED UNANIMOUSLY. Council President Wilson commented he considered himself to be fairly green, a former trustee of Washington Conservation Voters and a current trustee of the Cascade Land Conservancy. He recognized Councilmember Peterson for moving the conversation forward in a very progressive manner. He referred to the six tasks on the Council's Sustainability Agenda that all Councilmembers were assisting with. He was proud that Edmonds was having this conversation. To those who suggest the Council should be focusing on the economy, he assured the Council was focused on the economy, doing whatever possible to ensure the City remained on stable footing. Council President Wilson recalled one of the reasons the Council chose sustainability as its focus was it had little to no financial impact and could also be an economic driver. He was supportive of a ban on plastic in concept and was open to exploring it. He pointed out the Council's sustainability agenda stated the Council would consider a plastic bag ban. The Council was considering three ordinances to ban plastic bags and Councilmember Bernheim proposed an ordinance that would institute a per bag fee. Seattle chose not to ban plastic bags because it would significantly increase CO2 emissions. He commented in economics there were situations where the price did not adequately reflect the cost. A free bag did not reflect the cost to the grocery store and to the environment. He preferred to have a fee on plastic bags but the City did not have adequate code enforcement staff and he agreed it may be uncomfortable for retailers. Council President Wilson agreed with Councilmember Wambolt that this had been a useful exercise but it had run its course. He preferred to wait to see the outcome of Seattle's vote. He commented although. San Francisco voted to ban plastic bags, one representative indicated if he were to vote today, he would not vote to approve a ban. UPON ROLL CALL, MOTION CARRIED (4-2), COUNCILMEMBERS ORVIS, PLUNKETT, PETERSON AND OLSON IN FAVOR; AND COUNCIL PRESIDENT WILSON AND COUNCILMEMBER WAMBOLT OPPOSED. 6A. CONSENT AGENDA ITEM G: ORDINANCE ADOPTING NEW CHAPTERS AND REPEALING CERTAIN CHAPTERS IN TITLE 20 ECDC RELATING TO PROCEDURES FOR APPROVING LAND USE DEVELOPMENT PERMITS; AMENDING VARIOUS ECDC SECTIONS THAT REFERENCE SECTIONS IN REPEALED CHAPTERS IN TITLE 20 ECDC. COUNCIL PRESIDENT WILSON MOVED FOR APPROVAL OF THE PROPOSED ORDINANCE. MOTION DIED FOR LACK OF A SECOND. Council President Wilson inquired about the votes regarding the ordinance at last week's meeting. Planning Manager Rob Chave recalled there were two 4-3 votes, the first to return the Council to quasi Edmonds City Council Approved Minutes June 2, 2009 Page 10 Packet Pg. 83 8.1.b judicial matters as is done today, and the second to allow written comment only for quasi judicial closed record reviews. This ordinance incorporates both of those items. Councilmember Orvis commented there appeared to be a 3-way split among Councilmembers with regard to, 1) closed record review with oral comments, 2) closed record review with written comment, and 3) not having the Council involved in quasi judicial reviews. Council President Wilson commented this version of the ordinance reflects the direction the Council gave to staff to retain the Council in closed record reviews. Councilmember Plunkett commented some Councilmembers did not support requiring written argument at the close record review and he recalled an amendment made to last week to allow oral argument failed. Mayor Haakenson asked the outcome if the Council did not approve the ordinance. Mr. Chave answered the current code would continue to be followed. Council President Wilson asked how long staff had been working on the changes to Title 20. Mr. Snyder answered staff began the revision the process in October 2008. Councilmember Plunkett observed there were other aspects of the rewrite in addition to quasi judicial review and oral versus written comment. Mr. Snyder agreed there was a great deal more than that; it was an attempt to synthesize four chapters in the code. Council President Wilson read from last week's minutes: Councilmember Orvis moved, seconded by Councilmember Plunkett, to direct staff to bring back a revised ordinance in which Table C is revised to reflect the Council's current authority. Motion carried 6-1, Councilmember Wambolt voting no. Councilmember Orvis pointed out last week's minutes also reflect his statement that he would not support the ordinance unless it allowed oral public comment. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO AMEND TO REQUIRE ALL ARGUMENT IN A CLOSED RECORD REVIEW BEFORE COUNCIL BE WRITTEN. Council President Wilson commented the vote on this motion last week was 4-3, with Councilmembers Wambolt, Olson, Peterson and himself in the majority and Councilmembers Orvis, Plunkett and Bernheim in the minority. UPON ROLL CALL, THE AMENDMENT CARRIED (4-2), COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT IN FAVOR; AND COUNCILMEMBERS ORVIS AND PLUNKETT OPPOSED. UPON ROLL CALL, THE MAIN MOTION TIED (3-3), COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON AND PETERSON IN FAVOR; AND COUNCILMEMBERS WAMBOLT, ORVIS AND PLUNKETT OPPOSED. Council President Wilson asked Councilmember Wambolt what he would like changed. Councilmember Wambolt advised he preferred to have the quasi judicial hearing before the Hearing Examiner. If quasi Edmonds City Council Approved Minutes June 2, 2009 Page 11 Packet Pg. 84 8.1.b judicial closed record reviews were before the Council, he wanted the argument in writing rather than oral. Council President Wilson asked Councilmember Orvis and Councilmember Plunkett what they wanted changed. Councilmember Orvis answered he wanted the Council involved in closed record appeals and to allow oral comment. Mr. Snyder clarified only parties of record were allowed to speak during a closed record review. He explained neither Mayor Haakenson nor he liked to interrupt speakers during a closed record review to object to testimony. He suggested including language that would allow parities of record to make brief oral presentations to the Council and place the burden of objecting to matters outside the record on the parties. Council President Wilson commented he did not find oral testimony appropriate because it placed the Council as well as the petitioners in jeopardy because no new information could be introduced at the closed record review. He suggested the only way to achieve four votes may be to return to the original motion that required hearings be held before the Hearing Examiner. He summarized that would not be the best policy in his opinion but may be the only policy that the Council could agree to. COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO ADOPT THE ORDINANCE PRESENTED LAST WEEK THAT MOVED THESE ISSUES TO THE HEARING EXAMINER AND EXCLUDED THE COUNCIL ENTIRELY. Council President Wilson clarified he only made this motion because he did not believe it was possible to get four votes any other way. Councilmember Orvis commented although he read the written records, the oral comments provided a different perspective. He accused Councilmember Wambolt of taking a stand that required the Council to do what he wanted or he would not approve the ordinance. He emphasized the public wanted the Council to be involved in the closed record review. Councilmember Wambolt commented he simply agreed with the Planning Board's recommendation. Councilmember Orvis responded the Planning Board did not cite any Council cases; they simply followed WCIA's recommendation. He concluded the best way to get four votes was to allow oral comment and for the Council to hear quasi judicial reviews. For the audience, Council President Wilson explained land use decisions were quasi judicial and it was the recommendation of the professionals that they be decided by a Hearing Examiner. There was a perception that the Council's opinion could be swayed by campaign contributions, thus the threat the Council could jeopardize the decision -making process. He emphasized there was no public hearing when. closed record reviews were before the Council; in that process the two litigants present their case to the Council and there is no opportunity for comment from anyone other than parties of record. The question before the Council was whether argument to the Council should be in writing or oral. He summarized the role of the parties of record did not change; the only change was their comments would be in writing. Councilmember Orvis asserted passage of this ordinance would allow a developer who did not want to obey the rules to apply for a variance. The appellant could then make their case to the Hearing Examiner and under the existing regulations; the Hearing Examiner's decision could be appealed to the Council. The proposed ordinance did not allow appeals to the Council; they would be to Superior Court which could cost the appellant $20,000. Without oral argument the public was shut out and their public officials were inaccessible. He commented the reason appeal courts hear oral argument was because oral argument provided a different perspective. He summarized when oral argument was lost, the Council lost the ability to make a good decision. Edmonds City Council Approved Minutes June 2, 2009 Page 12 Packet Pg. 85 8.1.b Councilmember Plunkett commented land use decisions were the most difficult but most important decisions in a community. Placing more land use decisions in the hands of judges, hearing examiners, staff and attorneys was not what the citizens of Edmonds want. The citizens of Edmonds want land use decisions heard by the City Council. He agreed oral testimony added flavor and context that was not provided via written comments which is the reason judges hear oral argument. He commended the Planning Board for doing a thorough job examining information provided by AWC, pointing out they did not examine any Council decisions. The Planning Board also made several inflammatory comments about quasi judicial decisions by Council but none related to cases heard by this Council. He concluded the Council had been judicious and effective in their quasi judicial hearings, oral arguments were exceedingly important, and the public preferred to have the Council hear land use decisions. Council President Wilson commented everyone needed compromise; he was willing to be the fourth vote to have the Council hear quasi judicial appeals or to take the Council out of that process. Unless the Council was willing to compromise, this ordinance would at least be a step forward. UPON ROLL CALL, MOTION CARRIED 4-2, COUNCIL PRESIDENT WILSON, AND COUNCILMEMBERS PETERSON, WAMBOLT AND OLSON IN FAVOR; AND COUNCILMEMBERS ORVIS AND PLUNKETT OPPOSED. 613. AUDIENCE COMMENTS George Murray, Edmonds, commented by their action the Council had cut the public out of the hearing before the City Council. He agreed with Mr. Snyder's recommendation to take this issue out of Title 20 and continue discussing it. He urged Councilmember Peterson to state his position before votes were taken. Next, he referred to the presentation of the Transportation Plan to the Planning Board. The Plan has funding requirements of $106 million and potential revenue of $36 million. The Planning Board asked staff to prioritize projects within available funds. Also at that Planning Board meeting, a consultant reported on improvements that could be made to Yost Park. He expressed his disappointment in the Council's action, concluding it was the wrong decision on an important issue. Adrienne Fraley-Monillas, Edmonds, commented on the passion many citizens have for issues. As a Board Member of the South County Senior Center, she announced two fundraising events on June 13, a Red Hot Patio Sale where the public could purchase gently used items between 9:00 and 2:00 and an Italian dinner with a view and silent auction. She invited the public to attend and/or volunteer at both events. Donations can also be mailed to the South Sound Senior Center or online at SCSCEdm.org. Dave Page, Edmonds, assured he did not favor additional government, he preferred limited government, noting the City's government was enough. He suggested forming a Sunset/Scrub Committee to purge the code of laws that no longer served their purpose. As an example of how complex government has become, he explained 30 years ago he could provide the Planning Department with a legal description and have a survey done and have a dividable lot created within three weeks. This is now a five -step process that takes an average of a year and costs thousands. He recalled a project that required a second ADB review due to a change in the plant materials. Al Rutledge, Edmonds, provided the Council a 10-page development package given to the Parks & Recreation Department in 2002 and suggested $440,000 be added to the proposed levy. He referred to Seattle's "Parks for All," a 10-year $198 million levy. With regard to land use decisions, he preferred the Council remain in the process. Edmonds City Council Approved Minutes June 2, 2009 Page 13 Packet Pg. 86 8.1.b — CONFIDENTIAL — ATTORNEY -CLIENT PRIVILEGED MEMORANDUM Date: August 4, 2016 To: Edmonds City Council From: Beth Ford and Jeff Taraday, City Attorney's Office Re: Absolute and qualified immunity for city council members Intrndmetinn The subject of immunity arose recently in the context of deliberating the city council's future role in land use decision - making. The following is a summary of the types of immunity granted to city council members acting in their different capacities for the city. Councilmembers are granted absolute immunity for legislative actions, while they receive qualified immunity for administrative actions. Where most city council action regarding land use is administrative, most acts will be subject to qualified immunity. Affirmative defense to § 1983 claims City councilmembers may be the subject of lawsuits for any of its many different types of actions. One type of lawsuit brought against city councilmembers in their individual capacities are actions brought under 42 U.S.C. § 1983.1 Under § 1983, a plaintiff can recover for violations of constitutional or federal statutory rights, but not for wrongs arising out of ordinary tort law. Some types of § 1983 claims include takings and denial of due process. But city councilmembers have two potential affirmative defenses to a § 1983 action, either absolute or qualified immunity from suit in their individual capacities. Whether absolute or qualified immunity applies depends on what type of action the city councilmember is taking. 142 U.S.C. § 1983: "Every person who, under color of any statute, ordinance, regulation, N1100 Dexter Ave N Suite 100 Seattle WA98109 I P 206.273.7440 I F 206.273.7401 I www.lighthouselawgroup.com Packet Pg. 87 8.1.b 2 1 P a g e Different Types of Immunity Absolute immunity City councilmembers have the affirmative defense of absolute immunity in a § 1983 suit in two instances: when the councilmembers are engaging in legislative action or actions regarding rezones. Legislative actions Councilmembers have absolute immunity for legislative actions. Absolute immunity for legislative action is long -held in federal and state law. Art. I, section 6 of the U.S. Constitution provides: "...for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place." Art. II, section 17 of the Washington State Constitution contains a similar provision: "No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate." In Bogan v. Scott -Harris, 523 U.S. 44, 1185 S. Ct. 966, 140 L. Ed.2d 79 (1998), the Supreme Court held that local legislators are entitled to absolute immunity from liability under 42 U.S.C. § 1983. Therefore a councilmember may not be sued under § 1983 for a legislative action taken by the council. It is important to note: Not all votes of city councilmembers are considered legislative action. "The Supreme Court has generally been quite sparing in its recognition of claims to absolute official immunity."z "Although a local legislator may vote on an issue, that alone does not necessarily determine that he or she was acting in a legislative capacity. Rather, whether actions are, in law and fact, an exercise of legislative power depends not on their form but upon whether they contain matter which is properly to be regarded as legislative in its character and effect."3 Therefore, a court will look to the nature of the action, not solely to the identity of who performed the action, to determine if legislative absolute immunity applies. In general, "[a]ctions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative."4 Another test of whether an action is legislative is whether or not the action creates a new law or executes a law already in place: "The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 969, 954 P.2d 250, 260 (1998) (citations omitted). 3 Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 954 P.2d 250 (1998) (citations omitted). 4 Durocher v. King Cty., 80 Wn.2d 139, 152-53, 492 P.2d 547, 555 (1972). Packet Pg. 88 8.1.b 3 1 P a g e For example, a city council can vote on the issuance of a permit, and because the vote is directed at a single entity, the action will be considered administrative and not legislative.6 Rezone actions City councilmembers may also receive absolute immunity for rezone actions. This type of action appears to be a mix between a legislative, administrative and adjudicatory action, in that a council must pass an ordinance in a rezone action but where the rezone is directed at a particular area subsequent to general comprehensive planning.7 Washington courts have held that a City Council has absolute immunity from tort liability when making a rezone decision.8 As such, in this limited circumstance, the Council is likely shielded from tort liability. ' Durocher v. King Cty., 80 Wn.2d 139, 152-53, 492 P.2d 547, 555 (1972). 6 See, e.g., Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 954 P.2d 250 (1998) ("The motion passed by the Spokane City Council was not legislation generally applicable to the entire community but rather an act directed specifically at Mission. It was administrative or executive in nature, not legislative, and therefore legislative immunity is not available here...."); Durocher v. King Cty., 80 Wn.2d 139, 153, 492 P.2d 547, 555 (1972); Kaahumanu v. Cty. of Maui, 315 F.3d 1215, 1224 (9th Cir. 2003) ("The Maui County Council's decision to deny the CUP was ad hoc, affected only the plaintiffs and did not bear all the hallmarks of traditional legislation. Despite its formally legislative character, the decision was administrative and the individual members of the Maui County Council are therefore not entitled to legislative immunity."); Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988) (denying legislative immunity for city council members who had refused to issue plaintiff a building permit or approve a minor plat). 7 Parkridge v. City of Seattle, 89 Wn.2d 454, 463, 573 P.2d 359, 365 (1978) ("The process by which [rezones] are made, subsequent to the adoption of a comprehensive plan and a zoning code, is basically adjudicatory."). 8 See, e.g., Pleas v. City of Seattle, 112 Wn.2d 794, 805, 774 P.2d 1158, 1164 (1989) ("A rezone action is quasi-judicial in nature and the City Council has judicial immunity from tort liability when making a rezone decision."); Parkridge v. City of Seattle, 89 Wn.2d 454, 460, 573 P.2d 359, 363 (1978) (holding that a rezone action is adjudicatory in nature, as opposed to a comprehensive zoning action by the city council which is legislative in nature); see also Buckles v. King Cty., 191 F.3d 1127, 1136 (9th Cir. 1999) (holding that the Washington Growth Management Hearings Board was subject to absolute immunity with regard to its ruling on a rezone decisions). Packet Pg. 89 8.1.b 4 1 P a g e Qualified immunity Where a city councilmember is engaging in administrative action, she has a lesser level of immunity from suit called qualified immunity. Most of the city council's actions with regard to land use decisions is likely considered administrative, such as making decisions regarding specific permits. Government officials who are performing discretionary functions enjoy qualified immunity to the extent that their conduct does not violate clearly established statutory or constitutional rights that would be known by a reasonable person.9 Even if the plaintiffs rights are in fact violated, no liability accrues if the right was not clearly established or if the official could have reasonably believed that his or her conduct was lawful.10 The standard for qualified immunity can be divided into three questions: (1) identification of the right that the plaintiff alleges to have been deprived of; (2) determination of whether the right was "clearly established" at the time of the deprivation so as to require the reasonable officer to be aware of its application to the facts of the case;" and (3) whether a reasonable officer could have believed that his conduct was lawful. The standard for an official seeking the shield of the qualified immunity defense is an objective standard. The plaintiff need not prove that the individual defendant had a specific intent to cause a deprivation of civil rights. Similarly, it is no defense to a section 1983 action that a defendant ' Robinson v. City of Seattle, 119 Wn.2d 34, 64-65, 830 P.2d 318, 336 (1992) ("Government officials performing discretionary functions... cannot be held personally liable for damages under section 1983 of the federal civil rights statute unless their conduct violates clearly established federal constitutional or statutory rights; such persons are entitled to qualified immunity from a claim under section 1983 if their conduct is objectively reasonable when measured against clearly established law."); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 25, 829 P.2d 765, 778 (1992) (holding that government officials performing discretionary functions are shielded from all liability for civil damages if their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."). 10 See, e.g., Feis v. King County Sheriffs Dept., 165 Wn. App. 525, 267 P.3d 1022 (Div. 12011), review denied, 173 Wn.2d 1036, 277 P.3d 669 (2012). 11 In determining whether a right was "clearly established," the court must consider prior court decisions as well as similar laws: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 635, 107 S. Ct. 3034, 3037, 97 L. Ed. 2d 523 (1987) (citations omitted). Packet Pg. 90 8.1.b 5 1 P a g e had no specific intent to cause a deprivation of civil rights. Instead, the burden is on the plaintiff to show that the defendant's conduct violates clearly established statutory or constitutional rights of which a reasonable person should have known.12 In sum, city councilmembers should be aware that, for other than legislative or rezone actions, their immunity is qualified. Qualified immunity is declined, and city councilmembers can be sued in their personal capacities, for violations of § 1983 if their conduct violates clearly established statutory or constitutional rights that would be known by a reasonable person.13 Conclusion Councilmembers should be aware that different actions may result in different types of immunity from suit. Not all actions of the council are covered by absolute immunity; those administrative actions that are not legislative or rezone actions only receive qualified immunity. City council actions regard land use decisions other than rezones would likely be considered administrative and therefore subject to only qualified immunity. 12 Robinson v. City of Seattle, 119 Wn.2d 34, 65, 830 P.2d 318, 336 (1992). 13 Sintra v. Seattle, 119 Wn.2d 1, 25, 829 P.2d 765 (1992). Packet Pg. 91 Chapter 10.05 ARCHITECTURAL DESIGN BOARD Page I of 3 8.1.c Chapter 10.05 ARCHITECTURAL DESIGN BOARD Sections: 10.05.010 Board created —Membership. 10.05.020 Terms of membership. 10.05.030 Officers of board — Meetings — Quorum. 10.05.040 Powers and duties. 10.05.010 Board created — Membership. A. There is created an architectural design board consisting of seven members. The membership of said board shall be composed of one architect and/or building designer, one landscaper and/or landscape architect, one builder or developer, one educated or having practical experience in planning, one person trained or having practical experience in any of the aforementioned categories or any related design science and two lay persons. The lay members shall reside within the city limits of the city of Edmonds. B. Voting members of said board shall be appointed by the mayor, subject to confirmation by the city council. Members shall be selected without respect to political affiliation and they shall serve without compensation. C. No person shall be appointed to serve more than two full terms on the board. An appointment to fill a vacancy for less than two years shall not constitute a full term for the purposes of this section. D. All references in the Edmonds City Code to "City Amenities Design Board," "Amenities Design Board" or "ADB" shall be deemed to refer to the architectural design board. [Ord. 2281 § 1, 1982; Ord. 2040 § 1, 1978; Ord. 1846 § 1, 1976; Ord. 1683 § 1, 1973]. 10.05.020 Terms of membership. ......... ......... ...... ..................... ......... ......... ......... ......... ......... In order to ensure that the fewest terms will expire in any one year, the terms of the appointed positions by position number shall expire on December 31 st of the year set opposite said position number as follows: Position No. 1 — 1991 Position No. 2 — 1988 Position No. 3 — 1989 Position No. 4 — 1990 Position No. 5 — 1990 Position No. 6 — 1991 Position No. 7 — 1988 Packet Pg. 92 https://www.codepublishing.com/WA/Edmonds/html/Edmonds 10/Edmonds 1005.html 9/26/2018 Chapter 10.05 ARCHITECTURAL DESIGN BOARD Page 2 of 3 8.1.c Thereafter, the terms of membership for the members of the board shall be four years. No person shall serve more than two full consecutive terms; an appointment to fill a portion of an unexpired term less than two years in length shall not be considered a full term. Vacancies occurring otherwise than upon the expiration of terms may be filled for the unexpired terms. Members may be removed by the mayor following a public hearing, with the approval of the city council, for inefficiency, neglect of duty, or misfeasance in office. Members shall be removed for failure to maintain attendance as required by the provisions of the Edmonds City Code. [Ord. 2656 § 1, 1988; Ord. 2040 § 2, 1978; Ord. 1846 § 2, 1976; Ord. 1683 § 1, 1973]. 10.05.030 Officers of board — Meetings — Quorum. Members of the board shall meet and organize by electing from the members of the board a chairman and a vice-chairman, and such other officers as may be determined by the board. It shall be the duty of the chairman to preside at all meetings. The vice-chairman shall perform this duty in the absence of the chairman. A majority of the board shall constitute a quorum for the transaction of business. A majority of a quorum may transact any particular business of the board. The regular public meeting of the board shall be held on the first Wednesday of each respective month commencing at 7:00 p.m. at the Edmonds Civic Center; provided, however, that regular meetings may be held at such time or place as may be designated by the chairman or the majority of the members of the board. [Ord. 2529, 1985; Ord. 1980, 1978; Ord. 1763 § 2, 1975; Ord. 1683 § 1, 1973]. 10.05.040 Powers and duties. The board is empowered to advise and make recommendations to the mayor, city council, planning commission and the planning department on matters hereinafter enumerated and on such matters as may be specifically referred to the board by the mayor, city council, planning commission or the planning department: A. To study and prepare a recommendation for a comprehensive architectural design plan including the recommendation of establishment of specific design districts which shall be a part of the comprehensive plan. B. To review and study land use within the city of Edmonds from a design standpoint. C. To establish goals, objectives and policies for design districts. D. To recommend legislation to effectuate the implementation of the comprehensive architectural design plan and the goals, objectives and policies for each established design district. E. And for such other matters as shall be referred to the board for review and recommendation by the mayor, city council, planning commission or the planning department. [Ord. 1683 § 1, 1973]. The Edmonds City Code and Community Development Code are current through Ordinance 4125, passed August 21, 2018. fl:....1..:.......... TL... /"�: L.. /'�I....I. i.. ll K:.... M.... LL... .. K:..:..I .............. ..i LL... ^. https://www.codepublishing.com/WA/Edmonds/html/Edmonds 10/Edmonds 1005.html Packet Pg. 93 9/26/2018 Chapter 20.10 DESIGN REVIEW Page 1 of 3 8.1.d Chapter 20.10 DESIGN REVIEW Sections: 20.10.000 Purposes. 20.10.010 Types of design review. 20.10.020 Scope. 20.10.030 Approval required. 20.10.040 Optional pre -application. 20.10.045 Augmented architectural design review applications. 20.10.000 Purposes. In addition to the general purposes of the comprehensive plan and the zoning ordinance, this chapter is included in the community development code for the following purposes: A. To encourage the realization and conservation of a desirable and aesthetic environment in the city of Edmonds; B. To encourage and promote development which features amenities and excellence in the form of variations of siting, types of structures and adaptation to and conservation of topography and other natural features; C. To encourage creative approaches to the use of land and related physical developments; D. To encourage the enhancement and preservation of land or building of unique or outstanding scenic or historical significance; E. To minimize incompatible and unsightly surroundings and visual blight which prevent orderly community development and reduce community property values. [Ord. 3636 § 1, 2007]. 20.10.010 Types of design review. A. There are two types of design review: (1) general design review subject to the provisions of Chapter 20.11 ECDC, and (2) district -based design review subject to the provisions of Chapter 20.12 ECDC. District -based design review is applicable when an area or district has adopted design guidelines or design standards that apply specifically within that area or district. General design review applies to areas or properties that do not have specifically adopted design guidelines or standards. Projects may undergo either district -based design review or general design review, but not both. B. District -based design review applies to the following areas or districts: The downtown Edmonds business districts (BD zones) located within the downtown/waterfront activity center as shown on the city of Edmonds comprehensive plan map. 2. The general commercial (CG and CG2) zones located within the medical/Highway 99 activity center or the Highway 99 corridor as shown on the city of Edmonds comprehensive plan map. Packet Pg. 94 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2010.html 9/26/2018 Chapter 20.10 DESIGN REVIEW Page 2 of 3 8.1.d C. General design review applies to all areas of the city not specifically designated for district -based design review under subsection (B) of this section. D. The exemptions established pursuant to subsection (B) of this section shall apply to all types and phases of design review under this chapter and Chapters 20.11 and 20.12 ECDC. [Ord. 3636 § 1, 2007]. 20.10.020 Scope. A. Design review is intended to apply to all development, except for those developments specifically exempted from review under subsection (B) of this section. "Development" includes any improvement to real property open to exterior view, including but not limited to buildings, structures, fixtures, landscaping, site screening, signs, parking lots, lighting, pedestrian facilities, street furniture, use of open areas (including parks, junk yards, riding academies, kennels and recreational facilities), mobile home and trailer parks, whether all or any are publicly or privately sponsored. B. Exempt Development. The following types of development are exempt from design review: 1. Parks developed under a master plan approved by the Edmonds city council. 2. Permitted primary and secondary uses in IRS — single-family residential districts. 3. Detached single-family homes or duplexes in RM — multiple residential districts. 4. Additions or modifications to structures or sites on the Edmonds register of historic places which require a certificate of appropriateness from the Edmonds historic preservation commission. 5. Fences that do not require a separate development permit. 6. Signs that meet all of the standards contained in Chapter 20.60 ECDC. 7. Underground utilities. [Ord. 3636 § 1, 20071. 20.10.030 Approval required. ................................................................................................................................................................................................................................................................................................ A. Development. Unless exempted under ECDC 20.10.020(B), no city permit or approval shall be issued for, and no person shall start, any development, or substantially change any development, until the development has received design review approval. B. Bond. The city may require that a bond be posted under Chapter 17.10 ECDC to ensure the satisfactory installation of site improvements. [Ord. 3636 § 1, 2007]. 20.10.040 Optional pre -application. The applicant may submit plans required under ECDC 20.02.002 as part of the complete application in preliminary or sketch form, so that the comments and advice of the architectural design board may be incorporated into the final plans submitted for application. [Ord. 3736 § 38, 2009; Ord. 3636 § 1, 2007]. Packet Pg. 95 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2010.html 9/26/2018 Chapter 20.10 DESIGN REVIEW Page 3 of 3 8.1.d 20.10.045 Augmented architectural design review applications. At the option of the applicant, an augmented ADB application to vest rights under the provisions of ECDC 19.00.025 may be submitted. Such applications may not be submitted in conjunction with the concept review provided for by ECDC 20.10.040. The application shall be processed in all respects as a regular application for review, but vesting rights shall be determined under the provisions of ECDC 19.00.025. The architectural design board shall not be required to, and shall not, consider the application of vesting rights or the interpretation of ECDC 19.00.025 and any appeal with respect thereto shall be taken only as provided in that section. [Ord. 3636 § 1, 2007]. The Edmonds City Code and Community Development Code are current through Ordinance 4125, passed August 21, 2018. Disclaimer: The City Clerk's Office has the official version of the Edmonds City Code and Community Development Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the ordinance cited above. Packet Pg. 96 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2010.html 9/26/2018 Chapter 20.11 GENERAL DESIGN REVIEW Page 1 of 4 8.1.e Chapter 20.11 GENERAL DESIGN REVIEW Sections: 20.11.010 Review procedure — General design review. 20.11.020 Findings. 20.11.030 Criteria. 20.11.040 Appeals. 20.11.050 Lapse of approval. 20.11.010 Review procedure — General design review. A. Review. The architectural design board (ADB) shall review all proposed developments that require a threshold determination under the State Environmental Policy Act (SEPA). All other developments may be approved by staff as a Type I decision. When design review is required by the ADB, proposed development shall be processed as a Type III-B decision. The role of the ADB shall be dependent upon the nature of the application as follows: 1. The ADB shall conduct a public hearing for the following types of applications: a. Applications that are not consolidated as set forth in ECDC 20.01.002(B). b. Applications that are consolidated as set forth in ECDC 20.01.002(B) but in which the ADB serves as the sole decision -making authority. c. Applications that are consolidated as set forth in ECDC 20.01.002(B) but in which all decision -making authority is exercised both by staff, pursuant to this chapter and Chapter 20.13 ECDC, and by the ADB. The ADB shall act in the place of the staff for these types of applications. 2. The ADB shall review proposed developments at public meetings without a public hearing and make recommendations to the hearing examiner to approve, conditionally approve, or deny proposals for developments that, although consolidated as set forth in ECDC 20.01.002(B), are not subject to a public hearing by the ADB under subsection (A)(1) of this section. The hearing examiner shall subsequently hold a public hearing on the proposal. 3. The ADB under subsection (A)(1) of this section and the hearing examiner under subsection (A)(2) of this section shall approve, conditionally approve, or deny the proposal. The ADB or hearing examiner may continue its public hearing on the proposal to allow changes to the proposal, or to obtain information needed to properly review the proposal. See ECC 3.13.090 regarding exemptions from review required by this chapter. 4. Notwithstanding any contrary requirement, for a development in which the city is the applicant, the action of the ADB under subsection (A)(1) of this section and the hearing examiner under subsection (A)(2) of this section shall be a recommendation to the city council. B. Notice. Public notice by mail, posting or newspaper publication shall only be required for applications that are subject to environmental review under Chapter 43.21 C RCW, in which case Packet Pg. 97 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2011.html 9/26/2018 Chapter 20.11 GENERAL DESIGN REVIEW Page 2 of 4 8.1.e notice of the hearing shall be provided in accordance with Chapter 20.03 ECDC. [Ord. 3736 § 39, 2009; Ord. 3636 § 2, 2007]. 20.11.020 Findings. ............................................................................................................................................................................................................................................................ The board shall make the following findings before approving the proposed development: A. Criteria and Comprehensive Plan. The proposal is consistent with the criteria listed in ECDC 20.11.030 in accordance with the techniques and objectives contained in the urban design chapter of the community culture and urban design element of the comprehensive plan. The city has the obligation to provide specific direction and guidance to applicants. The urban design chapter has been adopted to fulfill the city's obligations under Washington State case law. The urban design chapter shall be used to determine if an application meets the general criteria set forth in this chapter. In the event of ambiguity or conflict, the specific provisions of the urban design chapter shall control. B. Zoning Ordinance. The proposal meets the bulk and use requirements of the zoning ordinance, or a variance or modification has been approved under the terms of this code for any duration. The finding of the staff that a proposal meets the bulk and use requirements of the zoning ordinance shall be given substantial deference and may be overcome only by clear and convincing evidence. [Ord. 3636 § 2, 2007]. 20.11.030 Criteria. .............................................................. A. Building Design. No one architectural style is required. The building shall be designed to comply with the purposes of this chapter and to avoid conflict with the existing and planned character of the nearby area. All elements of building design shall form an integrated development, harmonious in scale, line and mass. The following are included as elements of building design: 1. All exterior building components, including windows, doors, eaves, and parapets; 2. Colors, which should avoid excessive brilliance or brightness except where that would enhance the character of the area; 3. Mechanical equipment or other utility hardware on the roof, grounds or buildings should be screened from view from the street level; 4. Long, massive, unbroken or monotonous buildings shall be avoided in order to comply with the purposes of this chapter and the design objectives of the comprehensive plan. This criterion is meant to describe the entire building. All elements of the design of a building including the massing, building forms, architectural details and finish materials contribute to whether or not a building is found to be long, massive, unbroken or monotonous. a. In multifamily (RM) or commercial zones, selections from among the following or similar features are appropriate for dealing with this criterion: i. Windows with architectural fenestration; ii. Multiple rooflines or forms; iii. Architecturally detailed entries; Packet Pg. 98 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2O l 1.htm1 9/26/2018 Chapter 20.11 GENERAL DESIGN REVIEW Page 3 of 4 8.1.e iv. Appropriate landscaping; v. The use of multiple materials; 5. All signs should conform to the general design theme of the development. B. Site Treatment. The existing character of the site and the nearby area should be the starting point for the design of the building and all site treatment. The following are elements of site treatment: 1. Grading, vegetation removal and other changes to the site shall be minimized to protect natural resources, limit disturbance of native soils, and encourage low impact development. 2. Landscape treatment shall be provided to enhance the building design and other site improvements. 3. Landscape treatment shall be provided to buffer the development from surrounding property where conflict may result, such as parking facilities near yard spaces, streets or residential units, and different building heights, design or color. 4. Landscaping that could be damaged by pedestrians or vehicles should be protected by curbing or similar devices. 5. Service yards, and other areas where trash or litter may accumulate, shall be screened with planting or fences or walls which are compatible with natural materials. 6. All screening should be effective in the winter as well as the summer. 7. Materials such as wood, brick, stone and gravel (as opposed to asphalt or concrete) may be substituted for planting in areas unsuitable for plant growth. 8. Exterior lighting shall be the minimum necessary for safety and security. Excessive brightness shall be avoided. All lighting shall be low-rise and directed downward onto the site. Lighting standards and patterns shall be compatible with the overall design theme. C. Other Criteria. 1. Community facilities and public or quasi -public improvements should not conflict with the existing and planned character of the nearby area. 2. Street furniture (including but not limited to benches, light standards, utility poles, newspaper stands, bus shelters, planters, traffic signs and signals, guardrails, rockeries, walls, mail boxes, fire hydrants and garbage cans) should be compatible with the existing and planned character of the nearby area. [Ord. 4085 § 9 (Exh. A), 2017; Ord. 3636 § 2, 2007]. 20.11.040 Appeals. All design review decisions of the hearing examiner or the ADB are appealable to the city council as provided in Chapter 20.07 ECDC. [Ord. 3736 § 40, 2009; Ord. 3636 § 2, 2007]. 20.11.050 Lapse of approval. ............................................................................................................................................................................................................................ ................ Packet Pg. 99 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds20 l 1.htm1 9/26/2018 Chapter 20.11 GENERAL DESIGN REVIEW Page 4 of 4 8.1.e A. Time Limit. Unless the owner submits a fully completed building permit application necessary to bring about the approved alterations, or, if no building permit application is required, substantially commences the use allowed within 18 months from the date of approval, ADB or hearing examiner approval shall expire and be null and void, unless the owner files a fully completed application for an extension of time prior to the expiration date. For the purposes of this section the date of approval shall be the date on which the ADB's or hearing examiner's minutes or other method of conveying the final written decision of the ADB or hearing examiner as adopted are mailed to the applicant. In the event of appeal, the date of approval shall be the date on which a final decision is entered by the city council or court of competent jurisdiction. B. Time Extension. 1. Application. The applicant may apply for a one-time extension of up to one year by submitting a letter, prior to the date that approval lapses, to the planning division along with any other supplemental documentation which the planning manager may require, which demonstrates that he/she is making substantial progress relative to the conditions adopted by the ADB or hearing examiner and that circumstances are beyond his/her control preventing timely compliance. In the event of an appeal, the one-year extension shall commence from the date a final decision is entered in favor of such extension. 2. Fee. The applicant shall include with the letter of request such fee as is established by ordinance. No application shall be complete unless accompanied by the required fee. 3. Review of Extension Application. An application for an extension shall be reviewed by the planning official as a Type I decision (Staff decision — No notice required). [Ord. 3736 § 41, 2009; Ord. 3636 § 2, 2007]. The Edmonds City Code and Community Development Code are current through Ordinance 4125, passed August 21, 2018. Disclaimer: The City Clerk's Office has the official version of the Edmonds City Code and Community Development Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the ordinance cited above. https://www.codepublishing.com/WA/Edmonds/html/Edmonds20/Edmonds2Ol Lhtm1 Packet Pg. 100 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 1 of 7 8.1.f Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Sections: 20.12.005 Outline of process and statement of intent. 20.12.010 Applicability. 20.12.020 Design review by the architectural design board. 20.12.030 Design review by city staff. 20.12.070 Design guidelines, criteria and checklist. 20.12.080 Appeals. 20.12.090 Lapse of approval. 20.12.005 Outline of process and statement of intent. The architectural design board (ADB) process has been developed in order to provide for public and design professional input prior to the expense incurred by a developer in preparation of detailed design. In combination, Chapter 20.10 ECDC and this chapter are intended to permit public and ADB input at an early point in the process while providing greater assurance to a developer that his general project design has been approved before the final significant expense of detailed project design is incurred. In general, the process is as follows: A. Public Hearing (Phase 1). The applicant shall submit a preliminary conceptual design to the city. Staff shall schedule the first phase of the ADB hearing within 30 days of staff's determination that the application is complete. Upon receipt, staff shall provide full notice of a public hearing, noting that the public hearing shall be conducted in two phases. The entire single public hearing on the conceptual design shall be on the record. At the initial phase, the applicant shall present facts which describe in detail the tract of land to be developed noting all significant characteristics. The ADB shall make factual findings regarding the particular characteristics of the property and shall prioritize the design guideline checklist based upon these facts, the provisions of the city's design guideline elements of the comprehensive plan and the Edmonds Community Development Code. Following establishment of the design guideline checklist, the public hearing shall be continued to a date certain requested by the applicant, not to exceed 120 days from the meeting date. The 120-day city review period required by RCW 36.7013.080 commences with the application for Phase 1 of the public hearing. The 120-day time period is suspended, however, while the applicant further develops their application for Phase 2 of the public hearing. This suspension is based upon the finding of the city council, pursuant to RCW 36.7013.080, that additional time is required to process this project type. The city has no control over the length of time needed or taken by an applicant to complete its application. B. Continued Public Hearing (Public Hearing, Phase 2). The purpose of the continuance is to permit the applicant to design or redesign his initial conceptual design to address the input of the public and the ADB by complying with the prioritized design guideline checklist criteria. When the applicant has completed his design or redesign, he shall submit that design for final review. The matter shall be set for the next available regular ADB meeting date. If the applicant fails to submit his or her design within 180 days, the staff shall report the matter to the ADB who shall note that the applicant has failed to comply with the requirements of the code and find that the original design checklist criteria approval is Packet Pg. 101 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2O l 2.html 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 2 of 7 8.1.f void. The applicant may reapply at any time. Such reapplication shall establish a new 120-day review period and establish a new vesting date. C. After completing the hearing process, the final detailed design shall be presented to the city in conjunction with the applicable building permit application. The city staff's decision on the building permit shall be a ministerial act applying the specific conditions or requirements set forth in the ADB's approval, but only those requirements. A staff decision on the building permit shall be final and appealable only as provided in the Land Use Petition Act. No other internal appeal of the staff's ministerial decisions on the building permit is allowed. D. The process is schematically represented by the following flow chart: Design Review for Major Projects Proposed Now Review Process scft Rq"rtFrr M9PUhlcibni i+.-.In um" wY DOE ��p +WpaM'� i—} ,. A.-J J i�'bK/�i F'h1141� YnRM�2 � +M1wil DVria 1*0 Des+ + I I DOW ������ I Imo!! ,tom, Y� - — —— -- — — — - d I I � I___________________ hge[t Prow EtryO +r4P�[wUd [Ord. 3636 § 3, 2007]. 20.12.010 Applicability. The architectural design board (ADB) shall review all proposed developments that require a threshold determination under the State Environmental Policy Act (SEPA) using the process set forth in ECDC 20.12.020. All other developments may be approved by staff as a Type I decision using the process set forth in ECDC 20.12.030. When design review is required by the ADB under ECDC 20.12.020, the application shall be processed as a Type III-B decision. [Ord. 3736 § 42, 2009; Ord. 3636 § 3, 2007]. 20.12.020 Design review by the architectural design board. A. Public Hearing — Phase 1. Phase 1 of the public hearing shall be scheduled with the architectural design board (ADB) as a public meeting. Notice of the meeting shall be provided according to the requirements of ECDC 20.03.003. This notice may be combined with the formal notice of application required under ECDC 20.03.002, as appropriate. 1. The purpose of Phase 1 of the public hearing is for the ADB to identify the relative importance of design criteria that will apply to the project proposal during the subsequent design review. The Packet Pg. 102 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2O l 2.html 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 3 of 7 8.1.f basic criteria to be evaluated are listed on the design guidelines checklist contained within the design guidelines and this chapter. The ADB shall utilize the urban design guidelines and standards contained in the relevant city zoning classification(s), any relevant district -specific design objectives contained in the comprehensive plan, and the relevant portions of this chapter and Chapter 20.13 ECDC, to identify the relative importance of design criteria; no new, additional criteria shall be incorporated, whether proposed in light of the specific characteristics of a particular tract of land or on an ad hoc basis. 2. Prior to scheduling Phase 1 of the public hearing, the applicant shall submit information necessary to identify the scope and context of the proposed development, including any site plans, diagrams, and/or elevations sufficient to summarize the character of the project, its site, and neighboring property information. At a minimum, an applicant shall submit the following information for consideration during Phase 1 of the public hearing: a. Vicinity plan showing all significant physical structures and environmentally critical areas within a 200-foot radius of the site including, but not limited to, surrounding building outlines, streets, driveways, sidewalks, bus stops, and land use. Aerial photographs may be used to develop this information. b. Conceptual site plan(s) showing topography (minimum two -foot intervals), general location of building(s), areas devoted to parking, streets and access, existing open space and vegetation. All concepts being considered for the property should be submitted to assist the ADB in defining all pertinent issues applicable to the site. c. Three-dimensional sketches, photo simulations, or elevations that depict the volume of the proposed structure in relation to the surrounding buildings and improvements. 3. During Phase 1 of the public hearing, the applicant shall be afforded an opportunity to present information on the proposed project. The public shall also be invited to address which design guidelines checklist criteria from ECDC 20.12.070 they feel are pertinent to the project. The Phase 1 meeting shall be considered to be a public hearing and information presented or discussed during the meeting shall be recorded as part of the hearing record. 4. Prior to the close of Phase 1 of the public hearing, the ADB shall identify the specific design guidelines checklist criteria — and their relative importance — that will be applied to the project during the project's subsequent design review. In submitting an application for design review approval under this chapter, the applicant shall be responsible for identifying how the proposed project meets the specific criteria identified by the ADB during Phase 1 of the public hearing. 5. Following establishment of the design guidelines checklist, the public hearing shall be continued to a date certain, not exceeding 120 days from the date of Phase 1 of the public hearing. The continuance is intended to provide the applicant with sufficient time to prepare the material required for Phase 1 of the public hearing, including any design or redesign needed to address the input of the public and ADB during Phase 1 of the public hearing by complying with the prioritized checklist. Packet Pg. 103 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2O l 2.html 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 4 of 7 8.1.f 6. Because Phase 1 of the public hearing is only the first part of a two-part public hearing, there can be no appeal of the design decision until Phase 2 of the public hearing has been completed and a final decision rendered. B. Continued Public Hearing — Phase 2. 1. An applicant for Phase 2 design review shall submit information sufficient to evaluate how the project meets the criteria identified by the ADB during Phase 1 of the public hearing described in subsection (A) of this section. At a minimum, an applicant shall submit the following information for consideration during Phase 2 of the public hearing: a. Conceptual site plan showing topography (minimum two -foot intervals), general layout of building, parking, streets and access, and proposed open space. b. Conceptual landscape plan, showing locations of planting areas identifying landscape types, including general plant species and characteristics. c. Conceptual utility plan, showing access to and areas reserved for water, sewer, storm, electrical power, and fire connections and/or hydrants. d. Conceptual building elevations for all building faces illustrating building massing and openings, materials and colors, and roof forms. A three-dimensional model may be substituted for the building elevation(s). e. If more than one development concept is being considered for the property, the submissions should be developed to clearly identify the development options being considered. f. An annotated checklist demonstrating how the project complies with the specific criteria identified by the ADB. g. Optional: generalized building floor plans may be provided. 2. Staff shall prepare a report summarizing the project and providing any comments or recommendations regarding the annotated checklist provided by the applicant under subsection (13)(1)(f) of this section, as appropriate. The report shall be mailed to the applicant and ADB at least one week prior to the public hearing. 3. Phase 2 of the public hearing shall be conducted by the ADB as a continuation of the Phase 1 public hearing. Notice of the meeting shall be provided according to the requirements of Chapter 20.03 ECDC. During Phase 2 of the public hearing, the ADB shall review the application and identify any conditions that the proposal must meet prior to the issuance of any permit or approval by the city. When conducting this review, the ADB shall enter the following findings prior to issuing its decision on the proposal: a. Zoning Ordinance. The proposal meets the bulk and use requirements of the zoning ordinance, or a variance or modification has been approved under the terms of this code for any duration. The finding of the staff that a proposal meets the bulk and use requirements of Packet Pg. 104 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds20 l 2.html 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 5 of 7 8.1.f the zoning ordinance shall be given substantial deference and may be overcome by clear and convincing evidence. Design Objectives. The proposal meets the relevant district -specific design objectives contained in the comprehensive plan. c. Design Criteria. The proposal satisfies the specific checklist criteria identified by the ADB during Phase 1 of the public hearing under subsection (A) of this section. When conducting its review, the ADB shall not add or impose conditions based on new, additional criteria proposed in light of the specific characteristics of a particular tract of land or on an ad hoc basis. 4. Project Consolidation. Projects may be consolidated in accordance with RCW 36.70B.110 and the terms of the Edmonds Community Development Code. C. Effect of the Decision of the ADB. The decision of the ADB described in subsection (B) of this section shall be used by staff to determine if a project complies with the requirements of these chapters during staff review of any subsequent applications for permits or approvals. The staff's determination shall be purely ministerial in nature and no discretion is granted to deviate from the requirements imposed by the ADB and the Edmonds Community Development Code. The staff process shall be akin to and administered in conjunction with building permit approval, as applicable Written notice shall be provided to any party of record (as developed in Phases 1 and 2 of the public hearing) who formally requests notice as to: 1. Receipt of plans in a building permit application or application for property development as defined in ECDC 20.10.020, and 2. Approval, conditioned approval or denial by staff of the building permit or development approval. [Ord. 3817 § 10, 2010; Ord. 3736 §§ 43, 44, 2009; Ord. 3636 § 3, 2007]. 20.12.030 Design review by city staff. A. Optional Pre -Application Meeting. At the option of the applicant, a pre -application meeting may be scheduled with city staff. The purpose of the meeting is to provide preliminary staff comments on a proposed development to assist the applicant in preparing an application for development approval. Submission requirements and rules of procedure for this optional pre -application meeting shall be adopted by city staff consistent with the purposes of this chapter. B. Application and Staff Decision. 1. An applicant for design review shall submit information sufficient to evaluate how the project meets the criteria applicable to the project. Staff shall develop a checklist of submission requirements and review criteria necessary to support this intent. When design review is intended to accompany and be part of an application for another permit or approval, such as a building permit, the submission requirements and design review may be completed as part of the associated permit process. Packet Pg. 105 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2O l 2.html 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 6 of 7 8.1.f 2. In reviewing an application for design review, staff shall review the project checklist and evaluate whether the project has addressed each of the applicable design criteria. Staff shall enter the following findings prior to issuing a decision on the proposal: a. Zoning Ordinance. That the proposal meets the bulk and use requirements of the zoning ordinance, including the guidelines and standards contained in the relevant zoning classification(s). b. Design Guidelines. That the proposal meets the relevant district -specific design objectives contained in the comprehensive plan. When conducting its review, city staff shall not add or impose conditions based on new, additional criteria proposed in light of the specific characteristics of a particular tract of land or on an ad hoc basis. [Ord. 3636 § 3, 2007]. 20.12.070 Design guidelines, criteria and checklist. ................................................................................................................................................................................................................................................................................................ A. In conducting its review, the ADB shall use the design guidelines and design review checklist as contemporaneously adopted in the design guidelines. B. Additional Criteria. Design review shall reference the specific criteria adopted for each area or district. 1. Criteria to be used in design review for the downtown Edmonds business districts (BD zones) located within the downtown/waterfront activity center as shown on the city of Edmonds comprehensive plan map include the following: a. Design objectives for the downtown waterfront activity center contained in the Edmonds comprehensive plan. b. (Reserved). 2. Criteria to be used in design review for the general commercial (CG and CG2) zones located within the medical/Highway 99 activity center or the Highway 99 corridor as shown on the city of Edmonds comprehensive plan map include the following: a. Design standards contained in Chapter 16.60 ECDC for the general commercial zones. b. Policies contained in the specific section of the comprehensive plan addressing the medical/Highway 99 activity center and Highway 99 corridor. [Ord. 3636 § 3, 2007]. 20.12.080 Appeals. ............................................................................................................................................................................................................................................................................................... . A. Design review decisions by the ADB pursuant to ECDC 20.12.020(B) are appealable to the city council as provided in Chapter 20.07 ECDC. These are the only decisions by the ADB in this chapter that are appealable. B. All design review decisions of the hearing examiner are appealable to the city council as provided in Chapter 20.07 ECDC. Packet Pg. 106 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds20 l 2.html 9/26/2018 Chapter 20.12 DISTRICT -BASED DESIGN REVIEW Page 7 of 7 8.1.f C. Design review decisions by staff under the provisions of ECDC 20.12.030 are only appealable to the extent that the applicable building permit or development approval is an appealable decision under the provisions of the ECDC. Design review by staff is not in itself an appealable decision. [Ord. 3736 § 45, 2009; Ord. 3636 § 3, 2007]. 20.12.090 Lapse of approval. A. Time Limit. Unless the owner submits a fully completed building permit application necessary to bring about the approved alterations, or, if no building permit application is required, substantially commences the use allowed within 18 months from the date of approval, ADB or hearing examiner approval shall expire and be null and void, unless the owner files a fully completed application for an extension of time prior to the expiration date. For the purposes of this section, the date of approval shall be the date on which the ADB's or hearing examiner's minutes or other method of conveying the final written decision of the ADB or hearing examiner as adopted are mailed to the applicant. In the event of appeal, the date of approval shall be the date on which a final decision is entered by the city council or court of competent jurisdiction. B. Time Extension. 1. Application. The applicant may apply for a one-time extension of up to one year by submitting a letter, prior to the date that approval lapses, to the planning division along with any other supplemental documentation which the planning manager may require, which demonstrates that he/she is making substantial progress relative to the conditions adopted by the ADB or hearing examiner and that circumstances are beyond his/her control preventing timely compliance. In the event of an appeal, the one-year extension shall commence from the date a final decision is entered in favor of such extension. 2. Fee. The applicant shall include with the letter of request such fee as is established by ordinance. No application shall be complete unless accompanied by the required fee. 3. Review of Extension Application. An application for an extension shall be reviewed by the planning official as a Type I decision (Staff decision — No notice required). [Ord. 3736 § 46, 2009; Ord. 3636 § 3, 2007]. The Edmonds City Code and Community Development Code are current through Ordinance 4125, passed August 21, 2018. Disclaimer: The City Clerk's Office has the official version of the Edmonds City Code and Community Development Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the ordinance cited above. Packet Pg. 107 https://www. codepublishing. com/WA/Edmonds/html/Edmonds20/Edmonds2O l 2.html 9/26/2018