2017-12-13 Planning Board Packet�1 o� NJI Agenda
Edmonds Planning Board
"" Ixyo COUNCIL CHAMBERS
250 5TH AVE NORTH, EDMONDS, WA 98020
1. CALL TO ORDER
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DECEMBER 13, 2017, 7:00 PM
APPROVAL OF MINUTES
A. Approval of Draft Minutes of November 8, 2017
ANNOUNCEMENT OF AGENDA
AUDIENCE COMMENTS
ADMINISTRATIVE REPORTS
A. Development Services Director Report
B. Election of 2018 Officers
C. Vote on Recommendation for Student Representative for the Planning Board
PUBLIC HEARINGS
UNFINISHED BUSINESS
NEW BUSINESS
A. Joint Meeting with the Architectural Design Board
PLANNING BOARD EXTENDED AGENDA
A. Planning Board Extended Agenda
PLANNING BOARD CHAIR COMMENTS
PLANNING BOARD MEMBER COMMENTS
ADJOURNMENT
Edmonds Planning Board Agenda
December 13, 2017
Page 1
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Planning Board Agenda Item
Meeting Date: 12/13/2017
Approval of Draft Minutes of November 8, 2017
Staff Lead: N/A
Department: Planning Division
Prepared By: Diane Cunningham
Background/History
N/A
Staff Recommendation
Review and approve draft minutes.
Narrative
Draft minutes are attached.
Attachments:
PB171108d
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CITY OF EDMONDS
PLANNING BOARD MINUTES
November 8, 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 — 5"b Avenue North.
BOARD MEMBERS PRESENT
Chair Rubenkonig
Matthew Cheung
Todd Cloutier
Alicia Crank
Phil Lovell
Mike Rosen
BOARD MEMBERS ABSENT
Nathan Monroe, Vice Chair (excused)
Daniel Robles (excused)
READING/APPROVAL OF MINUTES
STAFF PRESENT
Rob Chave, Planning Division Manager
Carrie Hite, Parks, Recreation and Cultural Services Director
Brad Shipley, Planner
Jerrie Bevington, Video Recorder
Karin Noyes, Recorder
BOARD MEMBER LOVELL MOVED THAT THE MINUTES OF OCTOBER 25, 2017 BE APPROVED AS
CORRECTED. BOARD MEMBER CLOUTIER 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
There was no discussion regarding the written report.
PUBLIC HEARING ON 2017 COMPREHENSIVE PLAN AMENDMENTS
Mr. Chave reviewed that the Capital Facilities Plan, the Water Comprehensive Plan and a private application for a plan
designation change for a specific property. These have all been forwarded to the City Council for action. The remaining
2017 Comprehensive Plan amendments were presented to the Board on September 13th. He referred to Attachment 1, which
provides a summary of the minor amendments that are proposed for 2017. They include:
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• Minor amendments were made to the Parks, Recreation and Open Space (PROS) Plan to acknowledge the Veteran's
Plaza as a park and the Civic Master Plan by reference.
• References and descriptions were added to the discussion of the Highway 99 Activity Center to align it with the
approved Highway 99 Subarea Plan.
• The completion dates for plan actions for certain elements were updated. For example, completion of the Urban
Forest Management Plan and the Street Tree Plan was moved to 2018. While both plans are underway, they won't
be completed until 2018.
• The City has been working to acknowledge a number of level of service standards, and that effort will be completed
in 2019 as opposed to the original thinking that it would be done by the end of 2017.
Board Member Lovell referred to the proposed change to Goal B.2 in the Highway 99 Corridor Element, which talks about
design standards for each of the districts. He asked if this change is related to the Architectural Design Board's request for a
joint meeting to discuss how its role can be expanded to focus more on design standards. Mr. Chave said his understanding is
that the Architectural Design Board would like to focus on the designs standards in the code, with the goal of providing more
guidance to developers. When they see projects, the design work is nearly finished, and it is difficult for them to provide
input to improve the design at that late stage, especially if there are no design standards to back them up.
Board Member Crank pointed out that, as described in Goal B.3 of the Highway 99 Corridor Element, the Health Care
District is located between SW 208th Street and SW 220th Street, and the International District is located between SW 224th
Street and SW 238t' Street. That means that the area between SW 2201h Street and SW 224t' Street is not assigned to either
district. Mr. Chave said the descriptions came directly from the Highway 99 Subarea Plan. He noted that the Gateway
District is located between SW 2341h Street and the SR-104 interchange north of SW 205t' Street, which means it overlaps
with the International District.
Megan Joplin, Edmonds, said she moved to Edmonds in November of 2016 when she purchased her home on 2401h Street
SW. The day she closed, there was a public hearing about the Highway 99 Subarea Plan, but she was not aware of it. She
took exception to the proposed amendment to the Introductory Statement in the Highway 99 Corridor Element, which states
that there was an extensive public participation process. The information she received said there would be land use changes
to Highway 99, but it did not mention zoning changes on outlying streets that connect with Highway 99. The narrative did
not identify these additional zoning changes, either. In addition, the map was difficult to read, as the street names were not
identified. She learned about the proposed zoning change from a real estate listing for a nearby property. Changing the
zoning from multi -family to commercial is detrimental to her neighborhood, her quality of life, her children's quality of life,
and the resale value of her home. As currently drafted, her property is near the Gateway District, and the two lots next to her
were rezoned to General Commercial (CG). She understands that provisions have been put in place to consider mitigating
factors, but the fact remains that the properties can now be developed to a height of 75 feet as opposed to the previous limit
of 25 feet. This is upsetting to her, as a homeowner, that buildings of that nature can be put within 300 feet of her home.
Mr. Chave said problems with notification may be related to when the change in ownership happened. The Highway 99
Subarea Plan process took place over a 1.5-year time period, and multiple notices were sent out at different times. It is quite
possible that Ms. Joplin's property changed ownership after a lot of the public process had happened. At this point, it is not
possible to make changes to the Highway 99 Subarea Plan without going through a lengthy planning process. Chair
Rubenkonig agreed that Ms. Joplin's concerns cannot be addressed as part of the Board's discussion relative to the 2017
Comprehensive Plan amendments. Mr. Chave recalled that, as part of the Development Code changes made to implement
the Highway 99 Subarea Plan, all zoning within the subarea was changed to General Commercial (CG), with the
understanding that it is a mixed -use designation and not strictly for commercial uses. For example, multi -family residential
development is allowed in the CG zone along the corridor, and there are also provisions for step backs, setbacks, etc. that
push some of the higher buildings away from the edges of the district.
Board Member Lovell pointed out that the Highway 99 Subarea Plan emphasizes that multi -family residential development
would be allowed without a commercial component. Mr. Chave agreed and commented that, most likely, there will be more
multi -family type development as you move away from the actual frontage on Highway 99. Generally, most developers will
want to cluster the commercial portions of mixed -use development where the traffic is as opposed to the backend of the
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property, which will tend to be more residential oriented. The intent of consolidating the zoning was to remove situations
where properties had split zoning of commercial and multi -family residential.
Chair Rubenkonig pointed out that other neighborhoods along the Highway 99 Corridor were also rezoned to CG. Mr. Chave
agreed that other properties along the corridor that were located between the single-family residential neighborhoods and the
commercial zoned properties were also rezoned to CG. While the zoning is CG, it is intended to be a mixed -use zone.
Previously, properties along the corridor were limited to commercial uses only, but the new CG zone is much more focused
on a mixture of uses. The intent is to encourage more housing along the corridor as opposed to just 1-story commercial
development. Chair Rubenkonig pointed out that the CG zone was consistently applied along the entire corridor. It is not a
deep zone. Mr. Chave said he is not sure of the actual width of the CG zone, but he agreed that it is more shallow than deep.
Chair Rubenkonig observed that the Highway 99 Subarea Plan represents a bigger approach to looking at the overall
redevelopment of the corridor. The CG zone does still include multi -family residential uses. Mr. Chave said that providing
more housing opportunities along the corridor was one of the City Council's goals. The intent as to have more housing along
the corridor where there are already improved transit opportunities for people to take advantage of. As more housing is
developed and more people move to the area, there could be a shift in the types of businesses along the corridor to serve the
residential community better.
Chair Rubenkonig said the Highway 99 Subarea Plan is intended to illustrate the City's commitment to making the Highway
99 Corridor a stronger community. Having more people living in the area will benefit everyone, as the corridor has so much
to offer. She summarized that the City tries to do an equitable job of notifying the public and allowing them an opportunity
to participate in the process, and encouraged Ms. Joplin to approach the City Council with her concerns.
Again, Ms. Joplin voiced concern that the public notices related to the Highway 99 Subarea Plan only included a map, and
the map did not identify exactly which streets would be changed. She said she is a public servant and has dealt with public
notices for the past 10 years. The fact that no street names were included on the map is problematic. Even though her
neighbors received notices, most did not understand the proposal to rezone properties right next to their residential homes.
Chair Rubenkonig said she is also a proponent of having maps and other illustrations clearly labeled so the community has a
clear understanding of what is being proposed.
Chair Rubenkonig closed the public portion of the hearing, and returned to the Board for deliberation.
Board Member Lovell referred to Table 2.5, which lists the parks and identifies their current condition and capacity. He
recalled that at a previous meeting, Ms. Hite indicated that there was erosion at Haines Wharf He questioned if this would
cause the "condition" of the park to be downgraded. Ms. Hite said the erosion is actually occurring at Hickman Park and not
Haines Wharf. There is erosion at the end of the trail, and repairs are currently underway. She concluded that the situation is
a maintenance issue that would not require that the condition of the park be downgraded. The erosion has not impacted the
program elements within the park.
BOARD MEMBER LOVELL MOVED THAT THE BOARD FORWARD THE PROPOSED 2017
COMPREHENSIVE PLAN AMENDMENTS TO THE CITY COUNCIL, AS PRESENTED IN THE STAFF
REPORT, WITH A RECOMMENDATION OF APPROVAL. BOARD MEMBER CLOUTIER SECONDED THE
MOTION, WHICH CARRIED UNANIMOUSLY.
DRAFT URBAN FOREST MANAGEMENT PLAN (UFMP
Mr. Shipley said the purpose of his presentation is to review the results of a survey that was conducted by the Davey
Resources Group, the consultant hired by the City to assist with the plan. Chair Rubenkonig asked if the Tree Board has been
asked to comment relative to the survey results. Mr. Shipley said the Tree Board has not provided comments related to the
survey.
Mr. Shipley advised that, currently, staff is waiting for the draft plan from the consultant. Once available, staff will review
the draft plan and forward comments to the consultant. The plan will then be revised in preparation for presenting it to the
Planning Board and City Council. He noted that the plan is three weeks behind schedule, and staff s goal is to have the
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document reviewed and back to the consultant for revisions so the public process can start in the first quarter of 2018. He
reviewed that the initial public outreach included meetings with the Tree Board and Planning Board, press releases, a public
open house and an on-line survey. Future public outreach will include an additional open house, as well as public hearings
before the Planning Board and City Council.
Board Member Lovell pointed out that the survey refers to the UFMP as a "program," yet the City calls it a plan. He asked
what is the correct term. Mr. Shipley clarified that the correct term is Urban Forest Management Plan.
Board Member Lovell voiced concern that only 175 citizens responded to the survey, which was available on line for more
than three months. When comparing this survey to the survey that was done in conjunction with the Parks, Recreation and
Open Space (PROS) Plan, which had 1,350 respondents, the tree survey did not get a lot of attention. While some people feel
strongly about trees, it does not appear to be a large number. It is hard to take the survey too serious when there were only
175 respondents. Mr. Shipley agreed that the response was low. It was advertised in the newspaper, as well as a weblink.
Public notices were put out via press release, as well, and the survey was available via the City's Facebook page. Aside from
sending out notices to each property owner, the City used as many avenues as possible to generate responses. He concluded
that the survey responses will be helpful, but they should not be considered definitive.
Mr. Shipley reviewed the results as follows:
Questions 1 — Trees are important to the quality of life in Edmonds. Most people who took the survey felt that trees are
important to the quality of life in Edmonds.
Question 2 — Trees are known to provide benefits to the environment. Understanding which benefits are most
appreciated by residents can help guide long-term management strategies? Most respondents placed a higher value on
the tangible benefits to the environment (improved air quality, protection of water quality, and wildlife habitat) than on the
less tangible benefits (energy savings and carbon storage).
Question 3 — Trees provide less tangible benefits to society. Understanding which of these benefits are most
appreciated by residents can help guide long-term management strategies. Most of the respondents placed more value
on beauty/aesthetics, as well as shade for trails and sidewalks and less value on shaded parking and retail areas.
Question 4 — Use this space to provide additional comments on the benefits of Edmonds' public trees. About 60 people
provided additional comments, which are listed separately at the end of the Staff Report.
Question 5 — What is your current awareness of the City's urban forest program? While most respondents indicated
they had read a newspaper article that discussed public trees and/or Edmonds' urban forest, many indicated they were not
aware that the City had an urban forest program.
Question 6 — Trees can grow to obstruct streets and sidewalks. How often to you encounter this issue with trees in the
public rights -of -way? Most of the respondents indicated they have encountered trees that obstruct the right-of-way, but
most indicated that it only occurred occasionally.
Question 7 — Trees can become damaged or develop structural weakness over time. These issues may be risks for
injury to persons or property. How often do you encounter this issue with public trees? Nearly half indicated that they
never encounter these issues, and about 40% indicated they encounter the issues several times a year.
Question 8 — Trees can appear sick and unhealthy from damage by insects, diseases, or simply poor tree care regimes.
How often do you observe this issue with public trees? About 43% of the respondents indicated they encounter these
situations several times a year, but about 43% also said they never encounter these problems.
Question 9 — In general, I am satisfied with the current level of maintenance provided for Edmonds' public trees. The
majority of the respondents indicated they agree or strongly agree with the City's current level of maintenance.
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Question 10 — What level of maintenance would you prefer for public trees? Respondents indicated a strong desire for
the City to take care of hazardous trees, and they were in favor of holistic plant care approach. However, some respondents
indicated a desire for the trees to remain natural.
Question 11 — Edmonds needs more public trees. Most people agreed or strongly agreed that Edmonds needs more public
trees.
Question 12 — Where would you like to see more public trees planted? Most respondents indicated a desire for more
public trees in parks, open spaces and streetscapes. They also indicated a preference for more trees in the downtown and
along trails and bike paths.
Question 13 — What types of education and public outreach would you like to see offered by the urban forestry
program? Most respondents indicated a strong desire for more interpretive trails and displays, more website resources, and
more guided tree/nature walks.
Question 14 — Please use this space for additional comments about the care of public trees.
Question 15 — What is/are your biggest concern for trees in Edmonds? While some respondents indicated concern about
trees blocking view, most were more concerned about healthy mature trees being removed during development and about the
loss of wildlife habitat and tree canopy.
Question 16 — What are your experiences with trees on nearby properties around you? Most respondents indicated that
trees near their properties were both beautiful and healthy. About 30% voiced concern that the trees blocked views and about
25% indicated they wanted more trees near their properties.
Question 17 — When private properties are developed or improved, trees on the property can be impacted. Should the
City be involved with protecting trees on private property during construction? Most respondents indicated a desire for
the City to require property owners to preserve trees on private parcels where reasonably possible. However, about 28% felt
the issue was complicated and more information was needed.
Question 18 — In your opinion, what are the best ways to encourage tree planting and preservation on private
property? Most respondents indicated that education and outreach was the best approach.
Question 19 — Please use this space for any additional comments about trees on private property.
Question 20 — Which gender do you identify with? About 60% of the respondents indicated they were female.
Question 21— Which age group are you representing? About 62% of the respondents indicated they were 55 or older, and
only about 5% of the respondents were under 35.
Question 22 — Where do you live in Edmonds? About 41 % of the respondents live in the downtownibowl area.
Question 23 — What is your relationship with Edmonds urban forest. Most people indicated they were residents of
Edmonds, and most also said they appreciate public trees.
Question 24 — Please provide any additional comments or feedback?
Board Member Rosen asked if the consultant provided an analysis of the survey results. Ms. Hite answered that the analysis
would be incorporated into the recommended Urban Forest Management Plan. Staff is currently working with the consultant
to clean up the draft plan and prepare it for presentation and public hearings. The survey results will be incorporated into the
document before it is presented to the Planning Board.
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Board Member Rosen encouraged the consultant to do crosstabs to show the relationship between the survey questions. He
also asked if the survey results would be weighted given the profile of the majority of the survey participants. Ms. Hite
agreed that crosstabs and consideration of respondent profiles are both important.
Chair Rubenkonig asked if the survey was pitched to the public as being tree neutral. Ms. Hite said it is often difficult to
capture a diverse audience for online surveys. In addition to the survey results, the consultant has also received feedback
from a public open house. Another open house will also be held after the draft plan is available for review. Board Member
Rosen said this is something that crosstabs would help expose.
Board Member Lovell referred to the list of comments provided in response to Question 4, which seem to better reflect the
current trend in public opinion related to trees. He said he hopes that more of these types of comments come out as the
public process continues. The statistics provided in the survey do not give a clear picture of what should be included in the
plan.
Chair Rubenkonig commented that the responses to Question 15, indicating that people were most concern about healthy
trees being removed during development and about the loss of wildlife habitat and tree canopy is consistent with what she has
heard from the community that people treasure trees and are concerned about the environment. She recalled that, at the open
house, most people were concerned about the environment and did not want Edmonds to become a place of solely views.
This key area resonates with what she thinks matters to Edmonds residents.
Board Member Lovell voiced concern that the survey does not provide a realistic sense of what the City's residents want.
The majority of the respondents were retirees in the downtown/bowl area who seemed to focus more on issues such as
restricting tree removal for new development and preventing trees from creating obstacles in the sidewalk. However, the
consensus of the total residency is probably along the point made by Chair Rubenkonig. Most people are concerned about
protecting the environment, maintaining existing trees, etc. Board Member Rosen agreed and said that is why it is important
to weight the statistics to make sure no one group is over -represented. He is hoping that crosstabs and clustering will identify
these patterns.
Board Member Cheung suggested it would have been better if the questions had been presented as part of a larger, more
comprehensive survey rather than focusing specifically on trees. This would have allowed them to get responses from a
broader audience. The survey missed a huge demographic that might have been captured by a general survey. Ms. Hite
explained that the consultant was hired to do a UFMP, so that was the focus of the survey. However, she agreed that a more
general survey would likely have captured a more diverse audience.
Board Member Crank commented that the survey is what it is. Some people can be really passionate about one topic, but not
so interested in another. Looking at the number of people who answered the survey questions, she noted that the responses
dropped off after Question 4, which invited people to share comments on the benefits of public trees. It seemed as though the
tone of the responses changed after people were invited to share comments. After they wrote their comments, many seemed
to check out from the rest of the survey.
Board Member Crank agreed with Board Member Cheung that a more general survey would have drawn a larger audience.
However, for the purpose of the UFMP, the consultant needed to focus on trees. This adds to the larger issue of letting
people know, not only of the UFMP, but also about other City programs they may be interested in.
Board Member Rosen commented that there is no context, given the nature of the survey. If the survey had asked people to
identify their most important concern, trees might not have even made it in the top 20 responses. The survey asked certain
questions and the public responded. However, it is important to recognize that trees might not be their number one concern.
It is important to give context to the survey in terms of what is important to the individual who lives, work and play in
Edmonds. In terms of representing the community, he commented that there is a lot of self-selection going on in the survey.
In the future, he encouraged the City to explore other options for gathering public input, such as panels, to ensure they are
getting a valid representation of the community and not self-selection. The nature of surveying has to change and the use of
tools like panels will allow the city to avoid the concerns the Board has discussed.
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Ms. Hite agreed to present the Board's concerns to the consultant for consideration when drafting the plan. She noted the
following concerns:
• There was only a small number of respondents given that the survey was available online for three months.
• How was the survey designed to be tree neutral?
• Analyze the data with crosstabs to better understand the answers given and how they are connected to the
demographics of the people who responded.
• The demographics of the survey respondents is not a good representation of the citizenry.
PARKS, RECREATION AND CULTURAL SERVICES UPDATE
Ms. Hite reported on the following items:
• Civic Field. The City purchased Civic Field in 2016 and a master plan was approved following a robust public
process. Demolition of the grandstand will go out to bid in the next few weeks, and the intent is to move forward
with the project in 2018. Some survey and geotech work has been done, and the City is working on scoping for
Walker Macey to proceed with design work in 2018. Staff is working to put together funding for implementation of
the plan and will share ideas at the next park update. The goal is to begin construction in 2019 or 2020, and the
Mayor has set aside $2 million in the 2018 budget for this purpose.
• City Park Spray Pad. The spray pad continues to be popular. To address concerns raised by adjacent property
owners, additional foliage and trees were planted for noise mitigation. The buffer works well and looks great.
• Dayton Street Plaza. This project was completed in 2017, and a ribbon cutting was held in March.
• Fishing Pier. As reported at the Board's last meeting, there were some issues with some of the repairs. The
contractor is back on site, ejecting epoxy into the center joints to resolve the problems. If successful with the first
joint, the approach will be used to fix the remaining joints.
• Edmonds Marsh. This is an ongoing project. The adopted master plan for Marina Beach Park calls for correcting
flow in and out of the marsh, but the actual project is still three to five years out. The City has hired a consultant to
help with grant applications to keep the project moving forward, and the design is nearing 90% completion. Water
quality and soils tests have been done, as well as some monitoring of the creek. The estimated cost of construction
is between $8 and $10 million.
• Critical Areas Report for Edmonds Parks. In response to recent updates to the City's Critical Areas Ordinance
(CAO), the City is now required to complete a Critical Areas Report (CAR) for all parks where maintenance and
restoration activities are expected to be conducted within critical areas during the next five years. The City was
issued a CAR for the Edmonds Marsh, and it is currently working to obtain a CAR that covers the City's remaining
parks where critical areas exist.
• Parklet Development. This project is in process and will likely be completed in 2018.
• Outdoor Fitness Zones. The City is still awaiting a grant from the Verdant Health Commission to help fund the
three proposed fitness zones in City parks.
• Meadowdale Playfields. These fields are currently under construction, and it is anticipated completion will occur
in January 2018. The City is planning to offer the field for adult softball leagues.
• City Storage Building. The original intent was to purchase a pre -fabricated building, but it was no longer available.
The new plan is for the City to design its own building in house in 2017. Because the building will exceed the 21000
square foot threshold, stormwater issues must be addressed. The intent is to construct a raingarden as an educational
piece for the citizens.
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• Community Garden. The City is currently working with Snohomish County to draft an Interlocal Agreement for
use of Esperance Park for a community garden. There is plenty of parking, as well as water and electricity available.
The project has been presented to the City Council for initial discussion, and they are very close to finalizing the
interlocal agreement.
• Veteran's Plaza. The plaza was dedicated with a ribbon cutting ceremony in May, and the drinking fountain and
K-9 dog statue have been installed. They are currently working to finish up electrical work. Board Member Lovell
asked if the water feature requires electricity, and Ms. Hite answered affirmatively. She noted that the water feature
has been successfully operated by using a generator for previous special events at the plaza.
• Waterfront Development and Walkway Completion. The City has been working parallel to the Senior Center's
efforts to rebuild the center. The City's interest is to pull back the creosote pier from the Sound and introduce a
filtration system from the parking lot to the Sound. In addition, the intent is to complete the walkway south of the
Senior Center, using a city -owned easement in front of the Ebbtide Condominiums. However, they have run into
challenges with the condominium owners and the issue is currently in court.
• Student Conservation Association. The City has collaborated with the Student Conservation Association to bring
youth work/education program to the City to help in the parks over the summer. This program has been very
successful, and this year 12 students participated. The program helps teach young people to be good environmental
stewards.
• Willow Creek Fish Hatchery. After Trout Unlimited announced it would retire from operating the hatchery,
Sound Salmon Solutions, a non-profit organization and regional leader in salmon conservation, agreed to take over
its management. The plan it to expand education programming and outreach activities at the site. They have started
off with a cooperative relationship with the City, and they have a lot of great ideas and energy.
• Urban Forest Management Plan. This project was discussed earlier in the Board's meeting.
• Cultural Arts Programs. The City is in the process of completing a study of the Economic Impact of Arts and
Culture, which includes a public survey. The results should be ready to present to the Planning Board soon. They
are also working to update and create a public art walking tour brochure. They had a very successful season of
music throughout the City from the Hazel Miller Plaza to City Park, as well as monthly performances at the library.
The City continues to build and sustain the reputation of the Write on the Sound Conference. This year's event
attracted people from 15 states and two other countries and sold out in one week.
• Signage and Informational Panels. Two informational panels will be in place by the end of the year, one at the
end of Bell Street and the other at Yost Park.
• Recreation. This year, the City decided to take a tennis court at Yost Park off line and convert it into four
permanent pickleball courts. There is now one tennis court and four pickleball courts. The permanent tennis court
was also striped for four pickleball courts with nets, which enables the City to host tournaments that draw 100 to 125
participants. The pickleball courts have been very popular, as there is a very active pickleball club in Edmonds.
Chair Rubenkonig asked if it is possible to compare what is done in Edmonds to other cities of comparable size. She
suggested that the City of Edmonds' park programs would likely be near the top. Ms. Hite said the City has a robust parks
and recreation program because there is a lot of community support. Other communities may not get this same level of
support. The City has made this a priority and provided funding that can be leveraged with grant opportunities to bring more
assets to Edmonds. Compared to other cities, Edmonds has a lean staff, but the staff works very hard to provide parks and
recreational opportunities to the citizens of Edmonds. Chair Rubenkonig observed that the City is able to serve a large
demographic, particularly given the educational opportunities offered at the Frances Anderson Center. Ms. Hite agreed and
said she would bring a brochure outlining all the activities offered by the City when she provides her next update. She said
she could also provide demographical information on the people who register for the programs.
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Ms. Hite thanked the Board for its support and encouraged them to forward questions, concerns and comments to her.
REVIEW OF EXTENDED AGENDA
Mr. Chave advised that the main item on the Board's December 13th meeting is a joint discussion with the Architectural
Design Board about roles and responsibilities. The other two items (Housing Strategies Update and Five Corners Feasibility
Study) are tentative and will only take a short amount of time.
PLANNING BOARD CHAIR COMMENTS
Chair Rubenkonig reported that staff is in the process of recruiting a student representative. One application has been
received, and staff is following up with two other potential candidates. She suggested that she and Board Member Lovell
interview the candidate(s) in preparation for the Board making a final decision at their December 13th meeting.
Chair Rubenkonig reminded the Board that they would elect new officers for 2018 at their December 13th meeting. She
recalled that, typically, the vice chair has become the chair.
PLANNING BOARD MEMBER COMMENTS
Board Member Lovell referred to an updated roster of Planning Board Members, noting that terms expire at the end of 2017
for Board Members Robles and Cloutier. Mr. Chave invited them to contact staff if they desire reappointment.
ADJOURNMENT
The Board meeting was adjourned at 8:38 p.m.
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Planning Board Agenda Item
Meeting Date: 12/13/2017
Development Services Director Report
Staff Lead: Shane Hope, Director
Department: Planning Division
Prepared By: Diane Cunningham
Background/History
N/A
Staff Recommendation
Review and discuss
Narrative
Report is attached
Attachments:
Director. Report. 12.08.17
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MEMORANDUM
Date: December 8, 2017
To: Planning Board
From: Shane Hope, Development Services Director
Subject: Director Report
"Winter is the time for comfort, for good food and warmth, for the touch of a
friendly hand and for a talk beside the fire: it is the time for home."
-Edith Sitwell
Next Planning Board Meeting
The next meeting will be held December 13 at 7:00 pm in the Council Chambers. It will feature
a joint discussion of the Planning Board and Architectural Design Board.
REGIONAL NEWS
Snohomish County Tomorrow (SCT)
o The SCT Steering Committee, which is mainly comprised of elected officials from our
region, met on November 29, with an agenda that featured:
o Proposed amendment to Countywide Planning Policies to allow land indifferent
urban growth areas to be "swapped" with each other. The Planning Advisory
Committee had recommended that swaps only be allowed with approval of the
affected cities (not just a county decision).
o Discussion of proposed SCT comments to updating VISION 2040 (i.e., is the four -
county regional plan for growth management)
Temporary Shelter Program Forum
A presentation about Snohomish County's Temporary Shelter Program will be featured at a
breakfast forum, starting at 7:30 a.m., on December 14 in Everett. The event is sponsored by
the Housing Consortium of Everett and Snohomish County. For more information or
registration, go to: http://housingsnohomish.org/.
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LOCAL NEWS
Celebration of Lights
In the spirit of giving, light a light this holiday season for someone you love, something you wish
for, or in remembrance of a loved one. Each light you light is a donation to the City of Edmonds
Youth Scholarship Fund that enables Edmonds' children to participate in Edmonds Parks,
Recreation and Cultural Services programs who wouldn't otherwise have the opportunity. A
living fir tree is strung with lights and placed at the entrance of the Frances Anderson Center.
Donate $5 per light and we'll note your donation on the main floor bulletin board of the
Frances Anderson Center. The living fir tree will be lit the week of Thanksgiving through
January 2. After the holidays, this tree will be planted in the interior of one of our parks. Each
year the City of Edmonds Parks, Recreation and Cultural Services Department receives
numerous requests for assistance. To light a light, call 425-771-0268 to donate over the phone
or to request a form. Forms can be downloaded HERE. New this year, you can donate online at
www.RecZone.org search Celebration of Lights and add it to your cart. Please note there is a
$10 minimum on credit card purchases.
Student Rep for Planning Board
Applications for a student representative to serve on the Planning Board are being reviewed.
The selected student, who may be in either high school or college, will serve as a non -voting
Board member for the remainder of the school year and possibility into the summer.
Marsh Study
Two consultant teams made presentations to the City Council as part of the final process to
select a consultant to prepare a science -based study of the Edmonds Marsh. The City Council
selected one of the teams, Windward, to begin negotiation of a contract for the project. A final
contract is expected for the Council's approval in January.
Architectural Design Board (ADB)
No ADB meetings are scheduled for December. However, ADB members will join the Planning
Board on December 12, 7:00 pm, to discuss common issues and processes.
Climate Protection Committee
The Committee met last on November 2 and discussed:
o "Taming Bigfoot Edmonds" event
o Outreach on greenhouse gas reduction (this was mostly postponed until next time)
o Resolution # 1389 on renewable energy
o Climate Action Plan update
o Gas -powered leaf blowers (this was mostly postponed until later)
o Subcommittee reports on Zero Waste, Community Outreach, and Green Businesses.
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Diversity Commission
The Diversity Commission met December 6. Its agenda included:
o Discussion of noose incident
0 2017 Work Plan review
o Ideas for 2018 Work Plan
o Edmonds Center for the Arts presentation.
Economic Impact of Arts and Culture Study
Last spring the City of Edmonds Parks Department, Arts Commission and Economic
Development Department contracted with BERK Consulting and AdvisArts to learn more about
the economic impacts of the arts and culture sector in the Edmonds community. This project
was identified as a key strategy in the 2014 Community Cultural Plan. Data collection began in
June with participant/attendee surveys at a wide variety of events and through various
outreach avenues. BERK collected organizational surveys from both nonprofit arts and culture
organizations and for profit arts businesses. The work is now in the data analysis phase and the
consultants will be meeting with the 13 member advisory group (including a PB member) and
staff in early December to discuss preliminary findings and recommendations. The final study
will be presented at City Council followed by a later community informational event held in the
winter/spring of 2018.
Economic Development Commission (EDC)
The EDC's next meeting will be on December 20. An agenda will be posted online when
available.
Hearing Examiner
The next Hearing Examiner meeting is scheduled for December 14. The focus will be on a
preliminary unit lot plat known as Hyde Park Townhomes, located at 7238 212t" St. SW. The
project is already constructed in a General Commercial zone. However, the subdivision process
will allow parcel lines to be established so that each home can be individually owned.
Historic Preservation Commission (HPC)
The 2018 Edmonds historical photo calendar, featuring Edmonds through the 1950s, is available
at no charge in several locations, including City Hall, the Frances Anderson Center, and the
History Museum. The HPC has worked hard this past year on its 2018 historic calendar. The
HPC meets next on January 11. An agenda will be posted online when available.
Housing Strategy Task Force
The Housing Strategy Task Force has a new website: http://www.edmondshousingstrategy.org.
The website has information about the Housing Strategy that is being developed. Information
about Task Force meetings is included. Interested persons can also sign up on the website for
email notices.
The Task Force's November 30 meeting introduced the consultant team assisting with the
project. The group's next meeting will be in January and is expected to focus on tools for
increasing affordable housing and possibly, housing for special needs.
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Tree Board
The Tree Board met December 7, with a focus on:
❑ Update on development of Urban Forest Management Plan
❑ Tree Board pamphlet
❑ Tree Board logo
❑ Tree City USA application (renewal)
❑ Tree memorial plaque and living holiday tree planting —potential coordination with
Parks Dept.
❑ Planning for 2018 events
City Council
The December 5 City Council meeting included:
❑ Certain board & commission reappointments for 2018
❑ Presentation of SolSmart Award to Edmonds by U.S. Dept. of Energy
❑ Edmonds Downtown Alliance Work Plan and Budget
❑ Public hearing on 2017 Comprehensive Plan amendments
❑ Adoption of 2018 Budget (with various amendments by the City Council)
❑ Code amendment related to election of Council officers
❑ Election of Mike Nelson as Council President and Diane Buckshnis as Council President
Pro Tempore for 2018
❑ Authorization to sign professional services agreement for designing Waterfront
Connector Project
❑ Woodway Police Services contract extension
❑ Approval of Capital Facilities Plan (with minor amendments)
❑ Adoption of Comprehensive Plan amendments (including the amended CFP)
❑ Adoption of 6-Year Capital Improvement Program
COMMUNITY CALENDAR
• December 8 — 23: Edmonds Holidays, click here for more information
• December 8: Free Movie Night, sponsored by Cline Jewelers, Edmonds Movie Theatre,
4pm
• December 9: Edmonds Holiday Market, Downtown Edmonds, 10 am — 3pm
• December 9: Free Holiday Trolley, 11 am — 6 pm
• December 13: Christmas Ships, Edmonds Marina 7pm, Richmond Beach Saltwater Park
8:20 pm
• December 16: Edmonds Holiday Market, Downtown Edmonds, 10 am — 3pm
• December 21: Edmonds Art Walk
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Planning Board Agenda Item
Meeting Date: 12/13/2017
Election of 2018 Officers
Staff Lead: N/A
Department: Planning Division
Prepared By: Diane Cunningham
Background/History
At the end of the current year PB elects a Chairman and Vice Chair for the upcoming year.
Staff Recommendation
Elect the officers.
Narrative
N/A
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Planning Board Agenda Item
Meeting Date: 12/13/2017
Vote on Recommendation for Student Representative for the Planning Board
Staff Lead: Carreen Nordling Rubenkonig
Department: Planning Board
Prepared By: Diane Cunningham
Background/History
Staff Recommendation
Vote for Student Representative
Narrative
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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
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Attachment 4: City Council agenda packet 2016-08-09
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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
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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.
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November 2, 2016
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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
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,
generally, they do not.
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
and objective. In their quasi-judicial role, the Board Members are acting more like judges than policy makers and a
certain process must be followed. He emphasized that the Appearance of Fairness Doctrine is not used for legislative
actions, but it does apply to quasi-judicial actions in which the Board is determining the legal rights of a parties in a
hearing. He provided a list of application types that are and are not subject to the Appearance of Fairness Doctrine.
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
substance of the communication, providing a public announcement of the content of the communication and allowing
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
City Attorney Tarraday answered that anytime the Board is being asked to decide a permit of any kind, it should be
assumed to be a quasi-judicial decision and the script should be read. He agreed that there are some actions when the
requirement is unclear. When there is doubt, it is better to go through the script.
Board Member Strauss asked if the Board must read the script and formally disclose ex-parte communications even
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
Board from seeking specific information or data from such parties, if both the request and the results are part of the
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
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November 2, 2016
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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
Board Members are required to step down, the Doctrine of Necessity Rule prohibits the Appearance of Fairness Doctrine
from destroying the quorum. Board Members would be allowed to participate notwithstanding the ex-parte
communication or bias. These situations are extremely rare.
Aside from having the appearance of being unfair, City Attorney Tarraday explained that ex-parte communications
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
makes its way into the proceedings, it can be potentially challenging upon review. The staff report should provide
enough photographs to orient the Board and provide a sense of what is going on in the surrounding area. If not, it is okay
for the Board to request more information. The Board is not bound to make a decision the same night as the initial
hearing. They can continue the hearing and request additional information.
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
effort to walk a site. If the information would be helpful, perhaps staff could shoot a video of the surrounding area and
enter it into the record. That same video would follow the record throughout the process, and everyone would have an
opportunity to make a decision based on the same set of facts. Chair Guenther said the Board could also have a special
meeting and visit the site as a group. City Attorney Tarraday said that would work from an Open Public Meetings
standpoint, but the site visit would need to be recorded and added to the record.
To provide further clarification, City Attorney Tanaday advised that having familiarity with the site does not call for
recusal. For example, in the previous hearing, Board Member Broadway converted her familiarity into a few sentences
that are now part of the record for anyone to read. Anyone who disagrees with her statement could provide a rebuttal.
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.
Board Member Borofka asked if it would be reasonable for a Board Member to request staff take video or pictures prior
to the hearing if they are familiar with a site and believe that the Staff Report missed important information. City
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.
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
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November 2, 2016
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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
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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.
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
vague as it pertains to colors and finish materials. City Attorney Tarraday said the City could adopt an approved color
pallet, which could end up being very limiting. However, the Board cannot condition approval based on color alone,
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
from that kind of specific review. He summarized his understanding that it is within the Board's purview to talk about
colors, but they should not become the "color police." City Attorney Tarraday said there is nothing wrong with having
very specific conditions of approval, as long as they give clear guidance to both the applicant and staff.
Chair Guenther said the Board often has questions about how specific their conditions of approval can be and still fall
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
summarized that, based on the City's Attorney's presentation, Board Member comments must be well considered and
well delivered. The onus is upon the Board Members to backup their opinions with good substance and fair judgment.
With regard to color, City Attorney Tarraday said there is less risk in telling an applicant what color to paint a building
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
the purpose of the ADB if they are not allowed to respond to a hideous color. The ADB does not have purview over the
code provisions, but it is responsible for addressing the aesthetic aspects of development. While the ADB should not
necessarily mandate a specific color, it could give a general opinion about what looks good in a certain context.
City Attorney Tarraday said the Board has been tasked with a number of quasi-judicial responsibilities and not a lot of
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
know if that is their sentiment, since it could influence the direction of the code rewrite.
Board Member Herr noted that no permit is required when a building is repainted. Even if the Board approves a specific
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 z
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 a
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. 26
8.A.a
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. 27
8.A.b
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. 28
8.A.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. 29
8.A.c
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.
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August 9, 2016
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8.A.c
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
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Packet Pg. 31
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
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8.A.c
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
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August 9, 2016
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Packet Pg. 33
8.A.c
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
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Packet Pg. 34
8.A.d
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. 35
8.A.d
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. 36
8.A.d
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
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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.
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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
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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
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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.
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May 10, 2016
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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
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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.
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May 10, 2016
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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.
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May 10, 2016
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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
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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
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8.A.d
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. 47
8.A.d
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. 48
8.A.d
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:
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Packet Pg. 49
8.A.d
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. 50
8.A.d
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
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Packet Pg. 51
8.A.d
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. 52
8.A.d
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. 53
8.A.d
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. 54
8.A.d
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. 55
8.A.d
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. 56
8.A.d
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
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8.A.d
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. 58
8.A.d
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. 59
8.A.d
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
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February 24, 2009
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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
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February 24, 2009
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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.
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February 24, 2009
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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
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March 17, 2009
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• 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.
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March 17, 2009
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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.
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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
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March 17, 2009
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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.
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March 17, 2009
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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
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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.
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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.
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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
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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
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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.
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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 1 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
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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.
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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.
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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
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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.
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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.
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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
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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
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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.
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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.
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— 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
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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).
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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).
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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).
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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).
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9.A
Planning Board Agenda Item
Meeting Date: 12/13/2017
Planning Board Extended Agenda
Staff Lead: N/A
Department: Planning Division
Prepared By: Diane Cunningham
Background/History
N/A
Staff Recommendation
N/A
Narrative
The Board's current extended agenda is attached.
Attachments:
01-10-2018 PB Extended Agenda
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9.A.a
Items and Dates are subject to change
pAMM BOARD
Extended Agenda
"n, 790
January 10, 2018
Meeting Item
JANUARY 2018
Jan. 10 1. Critical Area — Select Vegetation Removal
2. Housing Strategy Update (#2)
Jan. 24 1. Five Corners Area — Development Feasibility Analysis —Final report
FEBRUARY 2018
Feb. 14 1. Urban Forest Management Plan Review and Discussion
Feb. 28 1. Public Hearing on the Urban Forest Management Plan
2. Discussion on Code Update to Permit Decision Making ECDC
20.01.003A
MARCH 2O18
March 14
March 28
APRIL 2018
April 11
April 25
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9.A.a
Items and Dates are subject to change
Pending 1. Community Development Code Re -Organization
2018 2. Neighborhood Center Plans and zoning implementation, including:
✓ Five Corners
3. Further Highway 99 Implementation, including:
✓ Potential for "urban center" or transit -oriented design/development
strategies
✓ Parking standards
4. Exploration of incentive zoning and incentives for sustainable
development
Current Priorities
1. Neighborhood Center Plans & implementation.
2. Highway 99 Implementation.
Recurring 1. Annual Adult Entertainment Report (January -February as necessary)
Topics 2. Election of Officers (VY meeting in December)
3. Parks & Recreation Department Quarterly Report (January, April, July,
October)
4. Quarterly report on wireless facilities code updates (as necessary)
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