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2019-09-25 Planning Board MinutesCITY OF EDMONDS PLANNING BOARD Minutes of Meeting September 25, 2019 Chair Cheung called the meeting of the Edmonds Planning Board to order at 7:00 p.m. in the Council Chambers, Public Safety Complex, 250 — 51 Avenue North. LAND ACKNOWLEDGEMENT FOR INDIGENOUS PEOPLES We acknowledge the original inhabitants of this place, the Sdohobsh (Snohomish) people and their successors the Tulalip Tribes, who since time immemorial have hunted, fished, gathered, and taken care of these lands. We respect their sovereignty, their right to self-determination, and we honor their sacred spiritual connection with the land and water. BOARD MEMBERS PRESENT Matthew Cheung, Chair Daniel Robles, Vice Chair Alicia Crank (left at 7:50 p.m.) Nathan Monroe Roger Pence Mike Rosen Conner Bryan, Student Representative BOARD MEMBERS ABSENT Todd Cloutier (excused) Carreen Nordling Rubenkonig (excused) READING/APPROVAL OF MINUTES STAFF PRESENT Rob Chave, Planning Manager Kernen Lien, Environmental Program Manager Jeanie McConnell, Engineering Program Manager Jeff Taraday, City Attorney Jerrie Bevington, Video Recorder Karin Noyes, Recorder BOARD MEMBER MONROE MOVED THAT THE MINUTES OF SEPTEMBER 11, 2019 BE APPROVED AS PRESENTED. BOARD MEMBER CRANK SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ANNOUNCEMENT OF AGENDA BOARD MEMBER ROSEN MOVED TO AMEND THE AGENDA TO ADD A REVIEW OF THE JOINT CITY COUNCIL/PLANNING BOARD MEETING. BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. The remainder of the agenda was accepted as presented. AUDIENCE COMMENTS Ken Reidy, Edmonds, advised that Page 37 of the Planning Board's meeting packet discusses Ordinance No. 3729, which is the main reason he is so interested in the proposed street vacation amendments. He referred to the comment section at the bottom of Page 37, which states that a temporary construction easement was reserved for the construction of a retaining wall that was a private improvement built on private property to the north of the easement and had nothing to do with public utilities or any public use whatsoever. In fact, the City had no need to construct, repair or maintain anything, yet the City Council reserved a temporary construction easement. At the August 14r' meeting, the City Attorney stated that the City may decide to give only some of the sticks back and hold onto others for some type of public use, but that was not his experience. In his case, the temporary construction easement on his property was reserved specifically for a private developer. The City Council never passed a Resolution of Intent to Vacate, and the temporary construction easement was not a condition to the street vacation. There were no conditions and the easement was forced on him against his will. He never granted the easement, and no easement was recorded at Snohomish County. The City Council even tied the life of the easement to the private developer's preliminary plat approval (5 years). Mr. Reidy said he has researched the issue for over 10 years and is very confident that Edmonds is the only City in the history of the United States to ever perform the act of establishing a public temporary construction easement solely for a private developer's use. The private developer never even used the easement. Despite this, City staff issued multiple code enforcement orders requiring him to remove portions of his building so that it was setback 5 feet from the temporary construction easement. Although temporary construction easements have nothing to do with where setbacks are measured from, the City did it anyway. Mr. Reidy said the situation got even worse. During the City's code enforcement efforts, staff discussed an ordinance that could have grandfathered his setbacks. They knew that under Ordinance No 3696, specific to his actual building, "Setbacks will be grandfathered by Planning if, at minimum, a letter from neighbor states it was there prior to 1981. " (Note: Mr. Reidy will submit a copy of the related staff notes when he emails a copy of his public comments to the City staff) He commented that City staff chose not to tell him or the Hearing Examiner that Ordinance No. 3696 applied to his building. He said that a neighbor signed a statement under penalty of perjury that he had seen his building in 1968, but even that didn't stop the City. He now has a 12.5-foot setback where only a 5-foot setback is normally required. In his case, no setback at all was required because his setbacks were grandfathered. Mr. Reidy said he is trying to do everything possible to prevent something like what happened to his family from happening to another Edmonds property owner in the future. His hope is that the horrible treatment he experienced can lead to something good —a better appreciation of servient estate rights and consideration of such rights in City code. He asked that the Board use care when reviewing the street vacation amendments initiated by the City Attorney, who made it very clear that he believes his responsibility is to advance the interest of the City and not individual property owners. He questioned why the City Attorney and staff was allowed more than a year to work on the proposed amendments before the public was allowed to see what they were doing. He expressed his belief that everyone's motivation should be to have a Street Vacation Code that is fair and works well for the City and property owners —a code that allows the City to provide a high level of service to the public. He said he believes the current Street Vacation Code is far better than much of City code, but he agreed it would be better if the appraisal requirement was moved to a later stage in the process. Mr. Reidy suggested it would be wise to specifically prohibit conditions that require property owners to grant easements to third parties. This should not be necessary because State Law only allows the City to retain, but he raises the issue because of the City's past behavior. He explained that a principle that underlies the use of all easements is that the owner of the easement cannot materially increase the burden of the servient estate or impose thereon a new and additional burden. He expressed his belief that this principle is the main reason RCW 35.79.030 uses the word "retain." As it relates to utilities, he suggested it is best to do what the code allows, which is to reserve for the City any easements or rights needed for the construction, repair and maintenance of public utilities and services. He questioned why third -party utility companies should be granted rights superior to what they have under their franchise contracts. Mr. Reidy observed that the proposed provision for a 25-year step up to full market value compensation is a great example of an arbitrary law. He questioned what 25 years has to do with anything related to unopened easements. He said it doesn't make sense that compensation for the vacation of an unopened easement should double overnight at the 25-year mark. He emphasized that there is a clear need to consider whether the Street Vacation Code should be different for opened versus unopened easements. Mr. Reidy commented that State Law allows compensation for easements, but such is permissive. That means it is option, not required. Because Edmonds is a Home Rule Code City, the broad powers afforded it allows the City Council to adopt a policy that it will not sell or bargain legislation as a means of obtaining revenue. He asked the Board to appreciate that no Planning Board Minutes September 25, 2019 Page 2 sticks are transferred back to the fee title owner when an easement is vacated. What the City gets is an easement, and a fee title owner does not need that easement transferred back to him because he doesn't need an easement to use his own land. Mr. Reidy suggested the City Council adopt policy that the City does not charge compensation when streets and alleys that are no longer needed for public use are vacated. He noted that compensation has not been required on many occasions in the past, and the City should adopt a policy that makes that precedent the consistent standard practice. After all, the City never paid a penny for the easements when they were dedicated. He noted that the general public often has no legal standing when it comes to street vacations. He questioned why those with no legal standing should benefit from the City demanding and receiving payment for its legislative act. If that is too big a step, he suggested the City Council could simply use its broad powers to leave the either/or policy in place as it has been for many years. At least property owners required to grant utility easements to the City would not have to also pay compensation. DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD Chair Cheung referred the Board to the Development Services Director's Report that was provided in the packet. There were no comments or questions from the Board. AMENDMENTS TO EDMONDS COMMUNITY DEVELOPMENT CODE (ECDC) 20.70 (NEW 18.55) — STREET VACATIONS Ms. McConnell reviewed that the proposed amendments were presented to the Board previously, once as an introduction and again as a public hearing. She explained that the proposed amendments are intended to address the following: • Reorganize and clarify various code sections and add a definition section to make the process and requirements clearer. • Revise the appraisal process and the timing for appraisal submittals. • Revise the applicability of the monetary compensation piece of the code. • Revise the timeframe to satisfy the conditions placed on the Resolution of Intent to Vacate. • Move the Street Vacation Code from Title 20 to Title 18, which is the Public Works section of the code. Ms. McConnell reviewed that, at the public hearing, different aspects of the code were discussed in detail, and the Board asked staff to come back with optional code language related to five specific items. She advised that the Staff Report includes both a red -lined and clean version of the proposed amendments. It also includes a table that lists each of the items and outlines the existing code language, a summary of the issue, staffs recommendation and optional language for the Board to consider. Board Member Monroe asked how the Board's recommendation would be presented to the City Council. Would all of the options considered (staff recommendation and all Planning Board options) be presented? Ms. McConnell answered that both the staff recommendation and Planning Board recommendation would be presented to the City Council. Mr. Chave added that the full record of the Board's discussions, including staffs recommendations, is always attached to recommendations that are forwarded to the City Council. Ms. McConnell presented each of the items to the Board. The Board discussed each one and took action as follows: Item 1— Monetary Compensation and/or Easement. The existing code allows the City to either accept monetary compensation or an easement. Revised Code of Washington (RCW) 35.79.030 allows the City to receive compensation and retain an easement or the right to exercise and grant easements in respect to the vacated land. Staff is proposing a right to reserve easements and the ability to accept monetary compensation. In addition, language was added to the proposed code that states that "the appraisal shall take into account any reduction in fair market value associated with the conditions imposed on the Resolution of Intent to Vacate. " For example, if an easement is reserved, it could bring lesser value to the property. Option 1 would be consistent with the existing code and limit conditions to either monetary compensation or a grant of an easement to the City in exchange for the vacated easement. Option 2 would also be consistent with the existing code and limit conditions to either monetary Planning Board Minutes September 25, 2019 Page 3 compensation or a grant of easement to the City or a third party in exchange for the vacated easement, provided that any grant of an easement to a third party must be for access or utility purposes. Board Member Pence asked the rationale and public policy purpose behind the current either/or provision. While it provides a lot of compensation potential in some respects, compensation would be zero if there is any type of utility on the ground. City Attorney Taraday said he does not know the rationale behind the provision. He said it doesn't make sense that any retained easement would zero out the value of the property being vacated. That is why staff is recommending that the either/or provision be changed. Board Member Monroe questioned why a property owner should be required to compensate the City for an easement that it no longer has a purpose for. The land belongs to the property owner, first and foremost, and the City needs to prove a use for it. If it cannot prove that use, the easement should default back to the property owner and the City wouldn't be damaged at all. Vice Chair Robles asked what the term "utility purposes" encompasses. Ms. McConnell responded that when a utility easement is retained in a street vacation it is because there is an existing utility. The City does not reserve easements for future utilities to be there. In the vacation process, the City chooses not to ignore the fact that there are other utilities that exist within the area, whether they be City utilities or third -party utilities. In practice, the City has required easements to be retained for specific utilities as a condition of the Resolution of the Intent to Vacate. Vice Chair Robles asked what recourse a property owner would have if something new happens within an easement that he/she doesn't approve of or want. Ms. McConnell clarified that the City would not retain easements for something in the future, and the underlying property owner should already know what exists on the property well in advance of a street vacation application going before the City Council. When a property owner comes forward with a potential street vacation application, staff discusses the existing conditions on the site and requires them to contact utility companies for more specific information about existing utilities within the easement. Board Member Monroe clarified that easements would only be reserved for existing utilities and not proposed utilities. Ms. McConnell agreed, but with some exceptions. For example, the City might have a capital project that requires the future use of a right-of-way. These things are looked at early in the review of a street vacation application to determine if a street vacation would make sense from a public perspective. If it is deemed feasible, the City would then identify the types of easements needed to uphold public needs for that land. Board Member Crank asked if Edmonds is the only jurisdiction statewide that has an either/or provision for street vacations. Ms. McConnell responded that a review was done of a handful of local jurisdictions, which found that the City of Edmonds is the only one that has an either/or provision. Staff did not review all jurisdictions within the State. Board Member Crank observed that, sometimes, being the only one isn't necessarily bad. She asked staff to explain how the proposed amendment to require both compensation and the reservation of easements would be better. Ms. McConnell responded that State Law allows for reservation of easements and monetary compensation, and the proposed amendment would be consistent with State Law. The either/or provision limits the City's ability with regard to public lands. Chair Cheung asked if staff's review looked at whether or not the other jurisdictions previously had either/or clauses but then changed them at some point. City Attorney Taraday answered that they looked at current street vacation codes from several cities that were considered relevant comparisons, but they didn't go back to previous versions. Chair Cheung asked if any jurisdictions have switched from requiring both compensation and reservation of easements to an either/or provision. City Attorney Taraday said he does not know of any, and he hasn't seen any indication that this would be a potential trend. In his opinion, the absence of other cities' company suggests that the either/or clause is an oddity in the City's code that could be dispensed with. However, he acknowledged there are instances where the City does things its own way. Vice Chair Robles voiced concern that there seems to be a roadblock that nothing new can happen in the City unless it has been done somewhere else first. City Attorney Taraday noted that there are other aspects of the proposed amendments that, if approved, would be outliers. He cautioned against taking the position that the City can't ever be Planning Board Minutes September 25, 2019 Page 4 an outlier. However, if the City is going to be an outlier, it should be able to articulate reasons for it. In this case, he is unable to do so. Board Member Monroe said he sees Edmonds as being primarily built out, and all of the necessary easements have already been identified. He suggested that it is time to give unnecessary easements back to the land owners. They should make it easier for property owners to regain ownership and get the land back on the taxable roles. The either/or language would be the easiest way to do that, and it would allow the City to get out of the business of holding a bunch of unopened rights -of -way. City Attorney Taraday agreed this is a fair policy question, and the Board should feel free to disagree with his opinion on the matter. The City could adopt a blanket rule that it is no longer going to accept compensation for street vacations, period. If they don't need them, they will give them away for free. However, he is not recommending this policy choice because he believes it is important for the City to maximize its resources so the value can be spent on other goods and services that benefit the public. City Attorney Taraday said that, in his opinion, the either/or language unfairly treats one street vacation applicant from another. For example, one applicant, by virtue of the fact that the City needs to retain an easement, would get his/her property for free, and another applicant, by virtue of the fact that the City doesn't need an easement, would have to pay. That seems unfair to him. One of the goals of the proposal is to treat all street vacation applicants fairly. The City Council could adopt a policy that all of the unnecessary street vacations would be given away for free, and that would treat all applications fairly. However, the either/or language would not accomplish this goal. Vice Chair Robles asked City Attorney Taraday to explain maximizing social value versus optimizing social value. City Attorney Taraday said that, from his perspective, easements are valuable property rights that are controlled by the City. The City doesn't ordinarily give things away for free. If the City requires fair market value for these valuable rights, the money can be used for other transportation -related purposes that benefit the public. Board Member Crank said she would support Planning Board Option 1. She observed that staff s recommendation to require both monetary compensation and the reservation of easement is prompting a lot of unnecessary questions and confusion. Board Member Monroe voiced support for the either/or language (Option 1). It hasn't been a problem in the past, and he doesn't see a reason to change it. The role of the City is to serve its citizens and not to optimize its value from citizens. The price of land continues to increase, and it does not behoove the City to make street vacations too difficult. As long as the City can retain its rights and there is an encumbrance on the land that allows for the City's needs, both the City and the property owner should be made whole. Board Member Pence said he can't see where one pipe in the ground should zero out the City's ability to require compensation. The City Council outlined the inequities that would exist between two equivalent property acquirers. The one with the pipe in the ground would get the property for free and the one without the pipe in the ground would pay the full amount. That is a fundamental unfairness. He suggested that the value of the retained easement could be and would be accommodated in the appraisal process. Appraisers are trained to examine properties and come up with a monetary value, and that would be the fair way to go, setting aside the issue of more or less revenue to the City. He said he supports the staff recommendation. Chair Cheung said he understands the argument for capitalizing on the monetary value of the rights -of -way. On the other hand, if the City doesn't have a need for a particular right-of-way, perhaps the policy should be to use it or give it away. Board Member Rosen commented that all land has value, regardless of how it was acquired. He is having a hard time with the idea of simply giving City land away without compensation. In some cases, rights -of -way have significant value. Board Member Robles agreed that the land has value, but the appraisal and assessment components included in the draft amendment help address the concerns. He doesn't believe it is absolutely necessary to change the language, and he would be inclined to stick with the current either/or policy. Planning Board Minutes September 25, 2019 Page 5 Board Member Pence suggested that the Board is mixing up the issues. The question is not whether or not a proposed vacation involves a value to the City. The question is, does that value, whatever it is, suddenly turn to zero just because there is a pipe left in the ground and the City retains an easement to maintain that pipe. You can argue how big the compensation should be based on an appraisal, but he hasn't heard an adequate explanation that would allow him to get from whatever that number is to zero merely because there's a pipe in the ground. Board Member Monroe suggested the Board recommend Option 1, which would leave both options on the table for City Council discussion. If they simply go with the staff recommendation, then the alternative option may not even be considered by the City Council. Chair Cheung commented that the City Council would see both options, whether the Board recommends Option 1 or the staff recommendation. He said he doesn't have a strong inclination to support either option at this time. Vice Chair Robles agreed and said he would fall back on what has been tried and experienced by the citizens the Board represents. Again, Board Member Monroe expressed his belief that the either/or language is the right way to go. If the City is damaged, they should be compensated. If they can retain the necessary easements and setbacks, they shouldn't be able to collect compensation money, as well. Board Member Pence reminded him that the value of any easement would be accounted for in the appraisal. Board Member Monroe commented that the either/or provision has worked well for a number of years, and he can't see a reason to change it now. VICE CHAIR ROBLES MOVED THAT THE BOARD RECOMMEND OPTION 1 FOR ITEM 1. BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED 3-1-1, WITH BOARD MEMBER PENCE VOTING IN OPPOSITION AND CHAIR CHEUNG ABSTAINING. Item 2 — Monetary Compensation — Fair Market Value/Dollar Amount. The existing code requires that monetary compensation be paid to the City "in the amount of up to one-half the fair market value for the street, alley, or part thereof to be vacated unless acquired at `public expense" then full appraised value shall be paid. " To be consistent with State Law, staff is proposing the following language, "Payment to the City, prior to the effective date of the ordinance, in an amount of up to one-half the fair market value for the subject property unless the subject property was acquired at `public expense" or has been part of a dedicated public right-of-way for 25 years or more, in which case full fair market value shall be paid. " She advised that the Planning Board did not request staff to provide alternative language for this item. Board Member Monroe asked staff to explain why they are proposing the change. Mr. Lien responded that when the City's Street Vacation Ordinance No. 2493 was originally passed in 1985, it was consistent with the State Law in place at the time. The legislature later amended State Law in 2001 to add the language related to property that is acquired at public expense or dedicated public right-of-way for 25 years or more, and subsequent updates of the City code failed to bring this section into concurrence with the updated State Law. City Attorney Taraday said the intent of this amendment is to conform City code to State Law. Board Member Monroe commented that it would be helpful to understand why the State Law was changed. City Attorney Taraday responded that he doesn't know why the State Law was changed. Board Member Monroe suggested that perhaps the reasoning was that if the City purchases a piece of property at full public expense, it should get full price when it is sold back. City Attorney Taraday agreed that might have been the reasoning behind the phrase, "unless the subject property was acquired at `public expense. " However, the language, "or has been part of a dedicated public right-of-way for 25 years or more, " could apply to a case where the City didn't pay anything. Board Member Monroe suggested that the phrase, "or has been part of a dedicated public right-of-way for 25 years or more should be deleted from the staff's recommended language. Board Member Pence observed that the purpose of the public expense caveat is to distinguish between rights -of -way that were dedicated to the City when subdivisions were platted and rights -of -way the City had to pay to acquire in order to build a street. In the case of subdivisions, the rights -of -way were gifted to the City as part of an approved subdivision. The City didn't pay anything for them. However, when the City needed to acquire rights -of -way to build streets, it had to condemn properties and pay full market value, and that's a public expense. City Attorney Planning Board Minutes September 25, 2019 Page 6 Taraday agreed with this distinction, but said it is still not clear why State Law treats public expense acquisitions the same as dedications of 25 years or more. City Attorney Taraday said that, when preparing the proposed amendment, he didn't focus on the "why" part because his perspective isn't to delve too deeply into why that particular law was changed by the legislature. His responsibility is to maximize the public's value. Board Member Pence commented that, having worked for the legislature earlier in his life, the 25-year provision has the look and feel of a number plucked out of the air or some handshake between interests. At some point, he would like to make a distinction between unopened alleys and public rights -of -way that have been improved and put into use to provide public access. He took issue with the City requiring compensation for vacating unopened alleys that have never provided any public access or benefit. Vice Chair Robles voiced concern about applying fair market value, and questioned if a market of two could ever be fair. Unless anyone can bid on the easement property, it won't be possible to identify fair market. He suggested the best way to resolve this concern would be to specify the appraiser as being a licensed appraiser, and hopefully, a market will be created for appraisers that specialize in easements. He would like to see fair market articulated in either the selection of the appraisers or the way the process flows. Board Member Rosen asked if the current language would lock street vacations to just adjacent property owners. City Attorney Taraday explained that for each proposed vacation, there is an underlying fee owner that is a known person or entity. The title, upon vacation, will always go to the underlying fee owner. When dealing with appraisals, the question isn't whether one person can outbid another person. The question is, how much, if anything, the underlying fee owner should pay to have those valuable property rights titled in their name. Board Member Rosen asked what happens if the City decides to vacate an easement, but none of the adjacent property owners want to pay for the land. City Attorney Taraday answered that, if it was a City -initiated vacation with the finding that the public benefit accruing from the vacation alone is sufficient, no compensation would be required. He said council -initiated street vacations are rare, and he would assume the City Council would only do so if it would provide a public benefit. If a petitioner initiates a vacation, it is presumed the petitioner is interested in the value of the property. Chair Cheung asked if staff has a rough estimate of what the fair market value of an easement might be. Mr. Lien provided a history of past vacation ordinances approved by the City (See Attachment 5 of the Staff Report): o Ordinance No. 3188 was initiated by the City in 1998. The City Council found that the public benefit be derived from the vacation outweighed the need for requiring compensation. o Ordinance No. 3189 was initiated by the City in 1998. The vacated right-of-way was adjacent to the cemetery and was vacated to support the construction of the columbarium. o Ordinance Nos. 3197 through 3208 were initiated by the City in 1998 at the urging of the City Engineer. They were all located in the Meadowdale area and most contained slopes in excess of 40%. No compensation was required for any the vacations due to the public benefits derived. The easements were rights -of -way the City did not want and had no plans to develop into streets. o Ordinance No. 3255 was privately initiated in 1999. The vacation would have allowed one additional building lot with a value ranging from $30,000 to $65,000. However, the abutting property owners agreed to waive the subdivision rights created by the vacation via a covenant recorded with the ordinance. The City Council reduced the required value to $3,562. o Ordinance No. 3260 was privately initiated in 1999, and the City received compensation equal to half of the appraised value. o Ordinance No. 3463 was initiated by both the City and a private citizen in 2003. It appeared to be a cleanup of a past vacation that should have happened with a subdivision in 1987. The City Council considered three compensation options: 1) using the current (2003) land valuation for a total of $31,050, 2) using the 1993 assessed valuation (when the current property owner purchased the property for a total of $18,468; or 3) using the original 1987 calculation for a total of $5,454. Since it appeared to be a City oversight that the vacation did not occur, the Council chose the 1987 valuation. Planning Board Minutes September 25, 2019 Page 7 o Ordinance No. 3470 was initiated by the City in 2003. The City had sold the adjacent property at 805 Bowdoin Way as surplus. As part of the sale, the City indicated it would vacate the right-of-way. It was determined that adequate compensation was received from the sale of the property and no additional compensation was required for the right-of-way. o Ordinance No. 3520 was initiated by the City in 2004. This vacation appeared to be a cleanup of some license agreement from 1973. One-half of the appraised value would have been $8,000, but the City Council accepted the reduced payment because the subject property was burdened with access rights, the prior property owner refused to purchase the site, returning the property to the tax rolls would compensate the City through additional tax revenue, and the owners would occur additional costs. o Ordinance No. 3543 was initiated by a private citizen in 2005. The City received half of the appraised value ($3,750) for the right-of-way that was vacated. o Ordinance No. 3551 was initiated by a private citizen in 2005. The City received half of the appraised value ($62,500) for the right-of-way that was vacated. o Ordinance No. 3565 was initiated by a private citizen in 2005. The City received half of the appraised value ($67,731) for the right-of-way that was vacated. o Ordinance No. 3647 was initiated by a private citizen in 2007. The fair market value of the property was appraised at $22,500. The City Council reduced the compensation below 50% to reflect the costs associated with obtaining an appraisal and the other associated costs of the vacation process, as well as the required lot line adjustment and the cost of tree removal. A compensation of $7,500 was required. o Ordinance No. 3662 was privately initiated in 2007. A compensation of $1,400 was required, which was more than half of the appraised value that was submitted with the application. Two appraisals were submitted. The first had an assumed value of $1,350 and another appraisal was for $1,620. The appraisals were based on the differential values of similarly -sized and valued properties. The City Council did not feel that the appraisals appropriately reflected the value of the property. The applicant had offered to pay the City $1,400 for the vacated right-of-way, and the City Council accepted that offer as adequate compensation. o Ordinance No. 3729 was initiated by the City Council in 2008. This is the vacation referred to by Mr. Reidy during his comments. o Ordinance No. 4028 was initiated by the City Council in 2016 after the City acquired Civic Field from the school district. Because the City was the property owner, no compensation or easements were required as part of the vacation. o Ordinance No. 4061 was privately initiated in 2017. The City received compensation of $92,610, which was half of the appraised value. The property was zoned multifamily, and the vacated property would give the owner more square footage to develop more units. o Ordinance No. 4114 was privately initiated in 2018. The required compensation was $28,800 or half of the appraised value. o Ordinance No. 4143 was privately initiated in 2019 and no compensation was required because the City retained easements. Mr. Lien summarized that the value of the appraisal and required compensation depends on the size of the property, the zone it is located in, and other circumstances that vary site -by -site. Vice Chair Robles said it makes sense that negotiations happen between the City and private parties. If a developer needs additional land in order to increase the number of units, the City should be compensated appropriately. He said a fair market is defined as something where both sides have the same information and there is no asymmetric information. The minute the City places constraints on who can do an appraisal, the results are stacked in favor of one side or the other and the appraisal can no longer be considered fair market. He asked if it is too expensive to continue the City's current process or is the amendment intended to streamline the negotiation process and make it more uniform. City Attorney Taraday said the idea behind wanting to limit which appraisers can be used is to create some uniformity and fairness between one street vacation petitioner and another. Historically, applicants have simply submitted an appraisal as part of the vacation application. Sometimes the appraisals are straight up and fair, but other times applicants present appraisals that appear result -oriented and low. He is concerned that some parties will take advantage if the City leaves it completely to the discretion of the applicant to select the appraiser. There will be some disparity in how fairly street vacation applicants are treated. The optional language provided by staff would Planning Board Minutes September 25, 2019 Page 8 allow the City to provide an extensive list of appraisers. This would provide some quality control and also allow the applicant some input on who does the appraisal. He explained that an appraiser's primary job is to determine fair market value, and fair market value is defined as the price that a willing but not obligated buyer would pay and a willing but not obligated seller would sell. The most common way is via a comparable sales approach. Appraisers are trained to render an opinion as to what fair market value is, and the City wants to make sure it is dealing with appraisers who do it in a way that is above board. Appraisers are licensed by a Board and have different qualification designations. The main thing the City would look at when compiling the list would be whether or not an appraiser has experience with street vacation appraisals. Board Member Rosen said he leans towards Option 1, which calls for an approved list of appraisers that meet all of the qualifications. The market will decide if there is any pious going on. A frequency of certain appraisers generating more appeals than others will provide another safety net. Chair Cheung concurred and suggested that having a larger list would be better. The Board discussed that the list should include at least six appraisers. Board Member Robles asked if the compensation required would be the same for a developer who will gain enormously from a street vacation as opposed to a homeowner who just needs a corner for a detached accessory dwelling unit. City Attorney Taraday said his general understanding is that most appraisers doing this kind of work would take into account the highest and best use of the property before and after the street vacation. If a street vacation results in additional lots or units, the additional development potential would be reflected in the fair market value. Board Member Monroe asked that the phrase, "or has been part of a dedicated public right-of-way for 25 years or more" be eliminated from the proposed amendment. Since Edmonds was primarily platted and built in the 1950s and 1960s, the provision would include almost all right-of-way. He said he cannot think of a logical reason why an applicant would be required to pay double the price after the 251 year. Chair Cheung said it appears that the provision was added to be consistent with State Law, but there is no clear explanation as to where the number came from. Mr. Lien explained that, when the State legislature adopted the provision, they didn't specifically spell out the intent. However, the testimony that was given by the City of Tacoma and the Association of Washington Cities was that allowing cities to sell vacated streets and alleys for their appraised value allows more responsible management of public access and avoids the potential gift of public lands. The law was voted out of the house 93-0 and out of the senate 40-6. City Attorney Taraday commented that Edmonds is so old that the vast majority of the streets will fall in the 25- year-and-over category. The real policy choice is whether you want to maximize market value or sell the rights -of - way for half price. The Board discussed that, if the 25-year provision is not eliminated, the majority of the City's rights -of -way would be subject to full market value upon vacation. Board Member Monroe suggested that, at the very least, the Board should make the Council aware that accepting the staff s recommendation would basically double the price of all street vacations. BOARD MEMBER MONROE MOVED TO RECOMMEND THE STAFF'S RECOMMENDATION FOR ITEM 2, WITH ONE MODIFICATION TO REMOVE THE PHRASE, "OR HAS BEEN PART OF A DEDICATED PUBLIC RIGHT-OF-WAY FOR 25 YEARS OR MORE." BOARD MEMBER ROBLES SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY Item 3 — Appraisals — Applicability and Waiver. The existing code requires an appraisal to be submitted upfront with the application, and staff is proposing clarifying language that an appraisal is not required if a utility easement only is proposed to be vacated. In response to Planning Board feedback at the last meeting, the staff recommendation was updated to include applicability and waiver sections. The applicability section states, "where the Resolution of Intent to Vacate includes a compensation requirement, an independent appraisal shall be required. " With regard to the appraisal fee, some additional language was added to state that, `for street vacations initiated by City Council, the City shall be responsible for any associated appraisal fees. " A waiver section was added that states, "the requirement for an appraisal and subsequent monetary compensation will be waived if a Planning Board Minutes September 25, 2019 Page 9 street vacation initiated by City Council by resolution includes a finding that the public benefit accruing from the vacation alone is sufficient to justify the vacation without monetary compensation to the City. " If the Planning Board determines the granting of an easement and/or substitute right-of-way negates the ability to collect monetary compensation and therefore the appraisal becomes unnecessary, then Option 1 would amend the waiver section to allow for the appraisal and monetary compensation requirement to be waived if, "a) the resolution for a City Council initiated street vacation includes a finding that the public benefit accruing from the vacation alone is sufficient to justify the vacation without any monetary compensation to the City, " and "b) the resolution conditions the street vacation upon the reservation and/or granting of a public easement or substitute public right-of-way to the City of Edmonds (or a third party). " Board Member Robles said he likes the concept of waivers. If the City is going to maximize its benefit, the public should have the rights and tools available to maximize their own benefit, as well, through a negotiation process. Board Member Monroe requested clarification of the term "third party." Does it refer only to utilities or can private developers obtain third -party rights. Ms. McConnell said a reference was made to a recent street vacation where the school district had a storm utility pipe that ran through the property. An easement was retained for the school district as a condition of approval. The condition was placed on the vacation to address an existing utility. Board Member Monroe requested additional information about Ordinance No. 3729, which was a temporary construction easement for a street vacated for approval of a 3-lot short plat. Ms. McConnell said she wasn't involved with this street vacation, which involved a short plat adjacent to the alley. In the process of vacating the alley, the City acknowledge that the development of the short plat was intending to utilize the alley for access to their construction project. A temporary construction easement was retained in that case for the developer to complete the improvements. Other than the circumstances surrounding Ordinance No. 3729, Board Member Monroe asked if "third party" refers to existing utilities or if the City would maintain a corridor for future utility installations. Ms. McConnell said the intention is not for third party future use, but there may be City future uses considered. Chair Cheung said he supports recommending the additional language outlined in Option 1 if the City Council adopts the Board's recommendation to retain the either/or language (Item 1). CHAIR CHEUNG MOVED THAT THE BOAD RECOMMEND OPTION 1, WITH THE UNDERSTANDING THAT IT WOULD ONLY APPLY IF THE CITY COUNCIL ADOPTS THE PLANNING BOARDS RECOMMENDATION OF OPTION 1 FOR ITEM 1. BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. City Attorney Taraday clarified that the Board's recommendation for Item 3 would follow suit for whatever results with Item 1. If the City Council takes a different action on Item 1, then Option 1 for Item 3 would no longer apply. Item 4 — Selecting an Appraiser. The existing code requires an appraisal at the time of application, and the applicant pays for and provides his/her own appraisal. The City has no regulations beyond the language that requires a qualified land appraiser with an MAI designation. Staffs proposal states, `If the City Council adopts a Resolution of intent to Vacate the subject property, the director shall be authorized to obtain an appraisal of the fair market value of the subject property from a qualified appraiser, taking into account any reduction in fair market value associated with the conditions imposed in the Resolution of Intent, including but not limited to a condition requiring the dedication of an alternative right-of-way. " As a Planning Board Option 1, the words, `from a qualified appraiser" could be eliminated and language could be added that states, "the appraiser will be selected by the applicant from a city -approved list. " Chair Cheung asked how the City would define the term "qualified appraiser.". Ms. McConnell said the intent is for the City to have a contract in place with an appraiser consulting firm. The process of selecting a specific consultant would involve a review of qualifications to confirm applicability and experience related to street vacations. Board Member Rosen clarified that the difference between the staff s recommendation and Option 1 is a sole source versus Planning Board Minutes September 25, 2019 Page 10 a roster. Chair Cheung summarized that, as per the staff s recommendation, there would only be one qualified appraiser. Under Option 1, the City would provide a list of qualified appraisers for applicants to choose from. Board Member Monroe recalled that, at the last meeting, the Board agreed that the appraisal should be moved to the end of the street vacation process rather than requiring an appraisal at the time of application. Ms. McConnell said this change was included in the proposed code amendments, but was not listed on the table because the Board was in agreement that it should be moved to a later point in the process. This change will be pointed out when the amendments are presented to the City Council. BOARD MEMBER ROSEN MOVED THAT BOARD RECOMMEND OPTION 1 FOR ITEM 4, WITH THE ADDITIONAL LANGUAGE, "NO FEWER THAN SIX." BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. • Item 5 — Challenging a Condition. There is no existing code language that details how an applicant may appeal a condition. Language with regard to challenging conditions imposed in the Resolution of Intent to Vacate would provide the applicant clarity on the appeal process where none is provided in the State code. It would also provide certainty to the City that the ordinance passed by the City Council would not be challenged once the vacation becomes effective. The staff recommendation includes language providing a 30-day appeal period, which is longer than the usual 21-day appeal period for land -use decisions. If the Board feels that a longer appeal period is necessary, Option 1 would add a clause to make sure that the street vacation is dealt with appropriately, depending on when an appeal comes in. The majority of the Board indicated support for an appeal period longer than 39 days, and most felt that 60 days would be a more appropriate option. BOARD MEMBR ROSEN MOVED THAT THE BOARD RECOMMEND OPTION 1 FOR ITEM 5. BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. At the request of City Attorney Taraday, the Board confirmed that the motion includes the red text provided in the table for Item 5. REVIEW OF THE JOINT CITY COUNCIL/PLANNING BOARD MEETING Board Member Rosen reviewed the City Council's suggestions for items the Board should add to its extended agenda. The list included: o Implementation of code update for the Urban Forest Management Plan (UFMP) o Implementation of code update for the climate goals o Implementation of code update for the Washington State Roadmap o Low -impact development code review o Five Corners code update o Sustainable construction code review o Stormwater handling code review o Identifying nonconforming buildings and areas under performing o Subdivision code review Board Member Rosen said he sensed some frustration by City Council Members who felt they had been asking for subdivision code review for several years. He suggested that the listed items should be added to the Board's agenda, with some parameters around scheduling. The Board acknowledged that available staff time would need to be considered when scheduling the items on the extended agenda. Mr. Chave explained that some of the items will be longer term, and others shorter term. There are also pending items on the Board's agenda that weren't mentioned at the joint meeting. Planning Board Minutes September 25, 2019 Page 11 The Board asked staff to identify a target date for each of the items to come before the Board. Mr. Chave said staff would do their best to estimate a timeline for each of the items, but it won't be possible to identify specific dates for all of them. He said there have been a couple of different drafts of the subdivision code, and it may be ready to present to the Board soon. Board Member Rosen said the second part of the joint meeting was focused on how the Board communicates with the City Council. The following menu of options was created: 1. The Council can review the meeting minutes or watch the video recording of the meeting. 2. A report on Planning Board activities could be included in the Development Services Director's Report. 3. Staff can provide feedback and updates to the Council on Planning Board activities. 4. Board Members can attend City Council meetings and participate during the citizen comment period. 5. The Board can request time on the City Council's agenda to present recommendations and/or thoughts. 6. The Council President and Planning Board Chair could meet regularly. 7. The Board could present a quarterly report to the City Council. 8. In an effort to stay informed of the housing discussions, the Council President, Planning Board Chair, Architectural Design Board Chair and Housing Commission Chair could meet regularly to collaborate. 9. Establish an ongoing method for tracking Planning Board recommendations to the City Council and actions that are taken. This would not only allow the Board to monitor its effectiveness and/or things that need feedback, but the City Council could also provide specific responses to actions that were counter to the Board's recommendations. Board Member Rosen reviewed that it was suggested that, at the end of every meeting, the Board could identify which options they would like to use to convey the results of their discussions and actions to the City Council. He suggested that the Board start taking advantage of this opportunity as soon as possible, recognizing that Option 9 would take some time to implement. Student Representative Bryan said he doesn't have a specific recommendation, but he could imagine the City Council would be frustrated if the Planning Board communicates in a different manner after each meeting. He suggested that consistency is important to consider. Board Member Monroe suggested that consistency should be mixed with understanding the importance of each topic. If the topic is mundane, the meeting minutes can serve that purpose. But some issues may warrant the use of some of the other options. REVIEW OF EXTENDED AGENDA Chair Cheung reviewed that the October 91 meeting agenda will include a joint discussion with the Architectural Design Board regarding their role in design review, an update on the Vision 2050 Multicounty Planning Policies, and a presentation on the 2020 — 2025 Capital Improvement and Capital Facilities Plans. The October 23rd agenda will include an update from the Housing Commission and a public hearing on the 2020 — 2025 Capital Improvement and Capital Facilities Plans. Mr. Chave announced that, at the request of the Economic Development Commission, the November 13t1i meeting will include a discussion about potentially adding a provision to the Commercial Waterfront Zone that allows lodging and/or hotels. Chair Cheung asked for an update about parking. Mr. Chave responded that the City Council opted not to go forward with the parking study, so it is on hold at this point. Mr. Chave agreed to work with the Parks, Recreation and Cultural Services Director to schedule a report on a future Planning Board agenda. PLANNING BOARD CHAIR COMMENTS Chair Cheung commented that the Board had a good discussion, and it was a good exercise on how to forward their thoughts to the City Council in the most effective manner. Planning Board Minutes September 25, 2019 Page 12 PLANNING BOARD MEMBER COMMENTS Board Member Monroe agreed that the Board's discussion regarding the street vacation amendments was good. Vice Chair Robles commented that the City Council watches the video recordings of their meetings and reads their minutes. This invigorates him and gives the Board license to be creative. The joint meetings with the City Council are productive and helps them get to the core of the issues quickly and accurately. Board Member Pence said anything the Board can do to increase the visibility of their work is to their advantage. He said he supports having some mechanism to report to the City Council in a more visible way beyond just relying on them to read the minutes. ADJOURNMENT The Board meeting was adjourned at 9:05 p.m. Planning Board Minutes September 25, 2019 Page 13