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Cm130618EDMONDS CITY COUNCIL APPROVED MINUTES June 18, 2013 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Earling in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Dave Earling, Mayor Lora Petso, Council President Strom Peterson, Councilmember Frank Yamamoto, Councilmember Joan Bloom, Councilmember Kristiana Johnson, Councilmember Adrienne Fraley-Monillas, Councilmember Diane Buckshnis, Councilmember ALSO PRESENT Walker Kasinadhuni, Student Representative 1. ROLL CALL STAFF PRESENT Stephen Clifton, Community Services/Economic Development Director Phil Williams, Public Works Director Roger Neumaier, Finance Director Carrie Hite, Parks & Recreation Director Kernen Lien, Senior Planner Rob English, City Engineer Jeanie McConnell, Engineering Program Mgr. 1 Leif Bjorback, Building Official Bertrand Hauss, Transportation Engineer Jennifer Lambert, Engineering Technician Jeff Taraday, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder City Clerk Sandy Chase called the roll. All elected officials were present. 2. APPROVAL OF AGENDA Council President Petso relayed the City Attorney has advised that Agenda Items 12 and 13 are not necessary and may be removed from the agenda. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE THE AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. 3. APPROVAL OF CONSENT AGENDA ITEMS Councilmember Bloom requested Item B be removed from the Consent Agenda and Councilmember Peterson requested Item E be removed. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. APPROVAL OF CITY COUNCIL MEETING MINUTES OF JUNE 11, 2013. C. APPROVAL OF 2013 TAXICAB OPERATOR'S LICENSE FOR NORTH END TAXI. Edmonds City Council Approved Minutes June 18, 2013 Page 1 D. APRIL 2013 MONTHLY FINANCIAL REPORT. F. AUTHORIZATION TO CONTRACT WITH JAMES G. MURPHY TO SELL SURPLUS CITY VEHICLES. G. CONTRACT AWARD FOR THE FAC ACCESSIBILITY UPGRADES PROJECT. H. AUTHORIZATION FOR MAYOR TO SIGN SUPPLEMENTAL AGREEMENT #2 WITH PERTEET, INC. FOR THE 228TH ST. SW CORRIDOR IMPROVEMENT PROJECT. I. AUTHORIZATION FOR MAYOR TO SIGN SUPPLEMENTAL AGREEMENT #7 WITH DAVID EVANS & ASSOCIATES FOR THE FIVE CORNERS ROUNDABOUT PROJECT. J. AUTHORIZATION FOR MAYOR TO APPROVE ACCEPTANCE OF RIGHT OF WAY AND EASEMENTS FROM THE CAVALRY CHAPEL PROPERTY FOR THE FIVE CORNERS ROUNDABOUT PROJECT. K. AUTHORIZATION FOR MAYOR TO SIGN ACCEPTANCE OF ADDITIONAL COORDINATED PREVENTION GRANT FUNDING. L. AUTHORIZATION TO CONTRACT WITH SUMMIT LAW GROUP TO PROVIDE LEGAL SERVICES RELATED TO A UNION GRIEVANCE. M. AUTHORIZATION TO CONTRACT WITH CAROL MORRIS TO PROVIDE LEGAL SERVICES RELATED TO THE POINT EDWARDS BUILDING 10 CLOSED RECORD APPEAL. N. RESOLUTION NO. 1292 THANKING WALKER KASINADHUNI FOR HIS SERVICE AS A STUDENT REPRESENTATIVE. O. ORDINANCE NO. 3926 — ADOPTING 2012 INTERNATIONAL BUILDING AND FIRE CODES. ITEM B: APPROVAL OF CLAIM CHECKS #202585 THROUGH #202721 DATED JUNE 13.2013 FOR $1,006,525.45. Councilmember Bloom inquired about Voucher #202678 to Pt. Edwards for $26,427.15 for traffic mitigation. Finance Director Roger Neumaier explained it is a reimbursement of a traffic mitigation payment paid to the City in 2004. Mitigation payments can only be held by the City for a limited amount of time. The funds were programmed for a project that has since been canceled and once the time limit passes, the City is required to return the funds to the party that paid it. He assured the due diligence was followed with regard to refunding the mitigation payment. Councilmember Bloom asked the time period the funds must be used. Mr. Neumaier answered it is a six year timeframe from receipt. City Attorney Jeff Taraday explained it is six years for traffic impact fees but this refund is a SEPA mitigation fee which is a five year period. Councilmember Bloom observed it expired some time ago. Mr. Neumaier agreed. Councilmember Bloom noted this is a significant amount of money for traffic mitigation and asked whether the reimbursement could have been prevented. Public Works Director Phil Williams assured he had searched for a way to avoid returning the funds. This payment was a contribution to a signalized intersection at Pine Street. At the time the Pt. Edwards condominiums were being developed, the Edmonds Crossing project was also developed; both would have contributed to an increase in traffic movements at Pine & SR 104 and together those traffic movements would have justified the signal. With Edmonds Crossing being delayed to the point it is not on any near term planning horizon, the Pt. Edwards Edmonds City Council Approved Minutes June 18, 2013 Page 2 condominiums were not sufficient to trigger that improvement. The signalized intersection is not on the City's CIP in the near term because it is not necessary for the condominium project. Pt. Edwards contributed their share of the improvement, $22,000 at the time. The SEPA paperwork was very clear that the funds were for the signal at Pine and not just generalized traffic mitigation. Councilmember Bloom questioned whether there was a way to prevent this from happening in the future. Mr. Williams believed there was, explaining this pre -dates himself and current staff. With any future SEPA payments, staff will pay close attention to the five year timeframe. He explained it was difficult to predict that a project the size of Edmonds Crossing, $250 million plus, would be completed in five years. If funds are contributed under that premise and the project is not completed in five years, the funds must be returned along with interest. There is approximately $4,000 in interest, dating back to 2004. He agreed it was not an ideal circumstance; staff tried to justify retaining the funds but was unable to. COUNCILMEMBER BLOOM MOVED, SECONDED BY COUNCIL PRESIDENT PETSO, TO APPROVE CONSENT AGENDA ITEM B. MOTION CARRIED UNANIMOUSLY. ITEM E: SPECIAL EVENT CONTRACT FOR BASTILLE DAY Councilmember Peterson explained the Edmonds Petanque Club is hosting a Bastille Day celebration. The Petanque Club and his business are working together to provide food for the event; therefore, he will abstain from the vote on this item to avoid any conflict of interest. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER YAMAMOTO, TO APPROVE CONSENT AGENDA ITEM E. MOTION CARRIED (6-0-1), COUNCILMEMBER PETERSON ABSTAINING. 4. AUDIENCE COMMENTS Michelle Martin, President, Edmonds Petanque Club, announced the Bastille Day celebration on July 14 from 9:00 a.m to 5:00 p.m. will include food, wine, raffle tickets and a petanque tournament. The Bastille Day event is no longer held in Seattle as it was in the past. She wanted to have Bastille Day in Edmonds with a petanque tournament because petanque is a French game. Edmonds merchants are supportive of having Bastille Day in Edmonds. She encouraged the Council and the public to come. Dick Van Hollebeke commented Bastille Day is a way to stimulate the economy for Edmonds merchants, many of whom have contributed prizes. The Edmonds Petanque Club merchants also purchased a certificate from merchants who donated a certificate. Bastille Day in Edmonds will be a one day event; in Seattle it was a 2-3 day event at the Seattle Center. There is a big French community in the Puget Sound area. The cost to participate in the petanque tournament is $5. The Edmonds Petanque Club has existed for over two years and during that time, by holding two tournaments, donated $4,700 in money and merchandise to the Edmonds Food Bank. Their goal this year is to raise another $4,000 for the Edmonds Food Bank. He recognized the merchant sponsors who help pay the costs and donate prizes. He encouraged everyone to attend Bastille Day, 9:00 a.m. to 5:00 p.m. on July 14; there is no charge for admission, there is a $5 cost to participate in the tournament, and participants will be matched. Roger Hertrich spoke regarding the Six Year Transportation Improvement Program, advising he will not be present for the public hearing later on the agenda. He referred to the annual street preservation program that includes grinding, overlaying and chip seal, expressing concern that no specific street was identified to be chip sealed. He suggested the Council ask Public Works to present 1-2 streets that are good possibilities for chip seal. Chip sealing saves money, is cheaper than an overlay and saves streets. Next, he relayed the State's indication they were not interested in a study of SR 104. He suggested the $25,000 for a study be increased due to the number of businesses in the bowl that depend on visitors from out of town. He envisioned visitors who have to deal with the traffic jam from I-5 to Hwy. 99 and down Edmonds City Council Approved Minutes June 18, 2013 Page 3 Edmonds Way would be unlikely to return to shop in Edmonds. He suggested a coordinated effort with King County who borders Edmonds Way as investing more money in the study to show the State that Edmonds is interested in improving the roadway to provide economic benefits to downtown Edmonds. Next, he was glad consideration was being given to improvements other than a traffic light at SR 524/88th Avenue. 5. PRESENTATION OF RESOLUTION AND PLAQUE TO WALKER KASINADHUNI, STUDENT REPRESENTATIVE. Council President Petso read Resolution 1292 commending Student Representative Walter Kasinadhuni for his service as student representative from March 12 to June 18, 2013. Student Representative Kasinadhuni commented that he appreciated the opportunity to serve. 6. CLOSED RECORD REVIEW OF AN APPEAL (FILE NO. APL20130001) OF THE HEARING EXAMINER'S FINAL DECISION ON TOM AND LIN HILLMAN'S CRITICAL AREAS AND SETBACK VARIANCES (FILE NO. PLN20120033) FOR A NEW RESIDENCE TO BE LOCATED AT 1139 SIERRA PLACE. APPELLANTS: STEPHEN SCHROEDER, CHERYL BEIGHLE, TODD BROWN. & CANDY BROWN Mayor Earling explained the purpose of the closed record review is for the City Council to address an appeal of the Hearing Examiner's final decision on reconsideration on a street setback variance, side yard variance and two critical areas reasonable use variance requests to construct a single family home at 1139 Sierra Place. He opened the closed record hearing. Mayor Earling explained the hearing is not open to public testimony; this is a hearing on the appeal of Stephen Schroeder, Cheryl Beighle, Todd Brown and Candy Brown. It is not an open record hearing and there will be no opportunity during the closed record appeal hearing for public testimony. Oral argument will be allowed from the applicant and parties of record. The parties of record include the applicant, any person who testified at the open record public hearing on the application and any person who individually submitted written comments concerning the application at the open record public hearing. Mayor Earling explained the Appearance of Fairness Doctrine requires this hearing be fair in form, substance and appearance. The hearing must not only be fair, it must also appear to be fair. He asked whether any member of the decision -making body had engaged in communication with opponents or proponents regarding the issues in the appeal outside of the public hearing process. Councilmembers Buckshnis, Johnson, Yamamoto, Peterson, Bloom, and Fraley-Monillas, Council President Petso and Mayor Earling stated they had not. Mayor Earling asked if any member of the Council had a conflict of interest or believed they could not consider and hear the application in a fair and objective manner. Councilmembers Fraley-Monillas, Peterson, Bloom, Yamamoto, Johnson, and Buckshnis and Council President Petso stated they had no conflicts and could hear the matter in a fair and objective manner. Mayor Earling asked whether any audience member objected to the Council's or his participation as a decision -maker in the hearing. There were no objections voiced. Mayor Earling described the procedures for presentation of oral argument: staff will be allowed 15 minutes for its presentation and the applicant and appellants will be allowed 20 minutes each to address the Council. The 20 minutes may be used by any combination of parties of record who wish to testify, a total of 20 minutes for each side. The Council was agreeable to the described procedures. Edmonds City Council Approved Minutes June 18, 2013 Page 4 Mayor Earling explained the Council's jurisdiction in the closed record appeal hearing is to determine whether the decision by the Hearing Examiner was clearly erroneous under the evidence in the record. The City Council shall affirm, modify, or reverse the decision of the Hearing Examiner accordingly. Staff Presentation Senior Planner Kernen Lien explained Jeri Machuga was the Project Planner for this application but was unable to attend tonight's meeting. He shares an office with Ms. Machuga and is very familiar with the project. He explained the subject site is located at 1139 Sierra Place within the single family residential zone RS-12. The site is currently a vacant lot and the property owners, Tom and Lin Hillman, propose to construct a new single family residence on the site. He displayed a map prepared by Wetland Resources, page 189 of the record, explaining the site is incredibly limited by the existing critical areas. A Category 3 wetland is located across the middle portion of the property and the 50-foot buffer for a Category 3 wetland extends into the eastern portion of the property and encompasses the entire western portion of the site. A non -fish bearing perennial stream, Type Np, is located on the northern side of the western half of the property. The minimum required 50-foot stream buffer overlaps with the wetland buffer and covers much of the northern portion of the site. Additionally, an erosion hazard area is located on the eastern portion of the site. Erosion hazards are 15-40% slopes; he was uncertain of the exact slope on this property but it was on the higher end of the erosion hazard. Due to the presence of critical areas and associated buffers throughout much of the site, development on the site is impossible without some impact to the critical areas and/or buffers. ECDC contains a provision for a critical areas reasonable use variance when a site is so encumbered by critical areas and their associated buffers that it is not possible to develop the site in such a way that fully complies with the City's critical area code requirements. A critical area reasonable use variance allows for exceptions to the requirements of the critical areas code in order to allow for development of the site in such a way that has the least possible impact on existing critical areas and buffers while still allowing reasonable economic use of the property. Mr. Lien explained the Hillmans requested a critical area reasonable use variance because they felt strict application of the City's critical area regulations would deny all reasonable economic use of the property. The City's code defines reasonable economic uses as the minimum use to which a property owner is entitled under applicable state, federal, constitutional provisions in order to avoid a taking and/or violation of substantive due process. Reasonable economic use shall be liberally construed to protect the constitutional property rights of the applicant. For example, minimum reasonable use of a residential lot that meets or exceeds the minimum bulk requirements is use for one single family residential structure. Determination of reasonable economic use shall not include consideration of factors personal to the owner such as the desire to make more profitable use of the site. In addition to the requested critical areas variance, the Hillmans also requested a setback variance to reduce the minimum required street setback from 25 feet to 12 for the residence and 3 feet for a retaining wall and to reduce the minimum required western setback from 10 feet to 3 feet. Mr. Lien displayed a site plan of the property (page 109 of the record) identifying the 12 foot setback variance, a 3 foot street setback and a 3 foot side setback for the retaining wall. He identified where the house and the retaining wall intrude into the wetland. He identified the wetland buffer and stream buffer. He explained the variance reduces the 50-foot stream buffer to 25 feet. The residence would be located in the southwestern corner of the property. The building footprint is proposed to be 2,174 square feet which includes a 578 square foot garage and 1,596 square feet of living space on the first floor, and 1,027 square feet of living space on the second floor. Both variance requests, consolidated in one application, were reviewed by the Hearing Examiner as a Type III-B decision. Following a public hearing on March 14, 2013, the Hearing Examiner issued an Edmonds City Council Approved Minutes June 18, 2013 Page 5 initial decision on March 28, 2013. Both the City and the applicant requested reconsideration of his decision. Following an order of reconsideration issued by the Hearing Examiner on April 16, 2013 and receipt of comments from parties of record, the Hearing Examiner issued a Final Decision on Reconsideration on April 24, 2013 which was mailed to all parties of record on April 25, 2013. The Hearing Examiner's April 24, 2013 decision includes Findings of Fact and Conclusions of Law in support of the requested setback variances as well as in support of the requested encroachment into the stream and wetland buffers. However, the decision specifically states there is insufficient evidence in the record to determine if the proposal has been designed to minimize wetland encroachment as required by the variance criteria. The decision states further information is needed to determine whether direct encroachment of the proposal can be avoided. The Hearing Examiner included a condition of approval, Condition 1, requiring that the applicant submit additional information to staff in order to determine the wetland encroachment can occur. An appeal of the Hearing Examiner's final decision was submitted by Stephen Schroeder, Cheryl Beighle, Todd Brown and Candy Brown on May 8, 2013. As required by ECDC 20.07.005.13, the appellants, applicant and parties of record submitted written arguments, responses and rebuttals which are included as attachments to the Council's agenda packet. The applicant's final surrebuttal was received after the agenda memo was published and was mailed to the City Council, applicants and posted on the website developed specifically for this closed record appeal. The Council's decision options on the subject closed record appeal are set forth in ECDC 20.07.005.H and are outlined in a memo from Lighthouse Law Group, included as Attachment G to the agenda packet. The Council may choose to affirm, modify, reverse or remand the Hearing Examiner's decision. Appellant Presentation Steve Schroeder, 1142 Vista Place, explained he and his wife, Cheryl Beighle, live one property adjacent and directly north of the subject property. He pointed out the structure, yard and driveway will be located entirely in the wetland and its buffers which are all environmentally critical areas. He displayed the Critical Areas Study Map and Wetland Mitigation Plan (page 189 of the record) and identified the location of the buffers. He displayed a blowup of the same map, highlighting the footprint of the proposed structure including the garage, the oversized driveway and the wetland boundary. He noted the garage, a portion of the house and two-thirds of the driveway would be located within the wetland. Mr. Schroeder stated this is a beautiful urban oasis that should be preserved and not degraded. He displayed an aerial photograph of the property and identified the approximate property boundaries, his house, the Brown's house, Sierra Place and the location of the proposed structure. He provided a blowup of the aerial photograph, identifying his and the Brown's houses, the wetland occupying two-thirds of the property, and the buffer. He contends the applicant has not met their burden of proof; the code requires the proposed impact on the critical area be the minimum necessary to achieve a reasonable economic use of the property. The Hearing Examiner found in both his original order and order on reconsideration that the encroachment into the wetland could be avoided by limiting the footprint of the house. The original design has a footprint close to a 4,000 square foot house; however, the total square footage was reduced due to the vaulted ceilings. The Hearing Examiner found the footprint was larger than necessary to achieve reasonable economic use. As the City Attorney pointed out in their memo, this appears to be a finding of fact by the Hearing Examiner and that some parts of his order are consistent with that finding. Mr. Schroeder noted the Hearing Examiner pointed out the only reason for not using the second floor for living space was an aesthetic preference for a ground floor structure and to avoid a boxy looking house. The Hearing Examiner also found these were not sufficient reasons to push the footprint into the wetland. Mr. Schroeder made reference to a preference to avoid a "snout" house, a garage where the bays look like the snout of an animal. Edmonds City Council Approved Minutes June 18, 2013 Page 6 Mr. Schroeder explained the Hillmans have proposed what appears to be a compromise — adopt the Hearing Examiner's language to limit the footprint of the house to the structure without the garage, approximately a 1600 square foot footprint. In their proposed compromise, the Hillmans remove the driveway provision and include the driveway as they designed it and the retaining walls and add language that the building driveway shall be placed no further eastward than the squared off line than is necessary to meet draining requirements and in no case further than the original proposal. He summarized that took back all concessions related to the driveway and would once again appear to place the discretion to make this decision in the hands of the experts the Hillmans have hired. He opposed that compromise. Mr. Schroeder referred to the Hearing Examiner's language that the Hillmans have not justified putting the footprint of the house or the driveway into the wetland. He pointed out there is no evidence in the record to justify the oversized driveway, two-thirds of which would be located in the wetland. Mr. Schroeder explained the Council has the option of modifying the Hearing Examiner's decision. If the Council does so, he urged the Council to adopt the language Mr. Taraday suggested that there be no encroachment into or variance to use the wetland itself and the footprint of the structure inclusive of the garage not exceed 1600 square feet. He urged the Council to reverse the Hearing Examiner's decision and deny the variance because they had not met their burden of proof that this is the minimum necessary for a reasonable economic return on the property. Mr. Schroeder noted Edmonds is a beautiful place and it is a gift to live here; livability is of the essence of the community. The Council has been instrumental in achieving a proper balance between development and livability. In Edmonds, livability trumps runaway development. Regulation of environmentally critical areas necessarily would determine that some parcels are not suitable for development. He referenced the Lucas case that refers to regulatory takings, where regulations take all economic use of a property. Background principles of law that include reasonable land use regulation are an exception under the Lucas case to the regulatory takings analogy. If it is created, there is no takings even if economic use of the property is restricted or taken away. Mr. Schroeder explained the City is familiar with this concept. There are developers who argue that the height limits in the commercial zone make commercial building economically infeasible, yet the City has steadfastly held the line in favor of livability and against runaway development. All land use regulations put constraints on land and do so for the common good, to promote the general welfare and happiness of the citizenry. Variances give relief to people in unique situations where a strict application of the law would result in an unjust outcome. Because other properties are subject to wetland regulations, this situation is not unique and does not justify a variance. Mr. Schroeder referred to 23.40.320 that defines reasonable use as a single family residence on a lot that meets the bulk requirements. The Hearing Examiner and staff take this out of context to mean it trumps all other provisions of the code. The legislative intent of the Council is to protect wetland and other critical areas when the critical areas ordinance was enacted in 2004. The inclusion of the definition in 2004, which he envisioned was in response to the Lucas case, complicated the process. He did not believe the Council's intent via adoption of this definition was to redefine takings law. The code also states if any provisions conflict with that title, that which provides the most protection of the critical area shall prevail. Taking this definition out of context and treating it as if it trumps case law and the rest of the code is an incorrect interpretation of the law. Mr. Schroeder referred to the Hillman's point in their rebuttal document that if the definition were taken by itself, they could put three houses on their lot and meet the 1200 square foot requirement. He pointed out that would require the stream be placed in a culvert, the wetland filled and the buffers eliminated and degrade the habitat beyond recognition. If the Council accepts that the definition of reasonable economic Edmonds City Council Approved Minutes June 18, 2013 Page 7 use implies a single family residence, the Council would be helpless in preventing that result and could not stop destructive development anywhere in the City. Mr. Schroeder explained the Hillmans lack a reasonable investment expectation. Critical area regulations were in place at the time they purchased the property. The Hillmans needed a variance to build a single family residence. They paid $75,000 for a nearly 1 acre lot where adjacent properties sold for upward of $500,000. This property has remained undeveloped for 100 years; everything around it has been developed. If the Hillmans wanted to build a 4,000 square foot house with most of the living space on the first floor and an oversized driveway, they could do so on an unrestricted lot and likely would have to pay a reasonable market value for the lot. Mr. Schroeder urged the Council to reverse the Hearing Examiner's decision that grants the variance. The Council enacted ordinances governing sensitive areas; he urged the Council to certify that all provisions are important and should be construed together in a manner that protects sensitive areas. If on occasion that means a property cannot be developed, that is the price of maintaining a livable community. Todd Brown, 1135 Sierra Place, explained he lives northwest of the Hillman Family Trust property. The area is very wet year round and prone to flooding. Even the City acknowledged what a number of downstream neighbors have stated in the record; development in the larger area has exceeded the stormwater drainage capacity. On page 24 of the record, the City engineering staff states that this stream receives stormwater runoff from an area of at least 16 acres encompassing 40+ lots and City right-of-way that were developed largely before stormwater management was required. Staff also states it is problematic to verify that the proposed development will prevent any increase in the stormwater discharge to neighboring properties. The development seems at odds with the City ordinance that stated development cannot be materially detrimental to properties in the City. Mr. Brown played the Zehner Video 1 from the record that illustrates water flow from the Hillman Trust property entering the wetland on the eastern side of the 1111 property, through an open ditch during a typical rainstorm. Mr. Brown summarized they have been described as having a no growth attitude. Although true to some extent, he questioned who wouldn't in their position and the history of this property and the inconsistencies in the story. He would like to believe the Hillman Family Trust intends to simply build one or more houses and sell them, but as Ronald Reagan said, trust yet verify. That aside, their other pertinent and justified concerns have to do with the drainage problem on the property and the shortcomings of the stormwater plan. He agreed with Sheri Zehner's statement in one of her opposition letters, "don't use us and our downstream neighbors as drainage guinea pigs." He also paraphrased Councilmember Bloom, "Edmonds is indeed a gift, we should show our appreciation by not allowing these extreme variances." A member of the audience asked to speak as a party of record. Mayor Earling advised parties of record should have been included with the appelant's or applicant's presentation. The 20 minute timeframe for each party was to include statements from all parties. Applicant Presentation Tom Hillman, 15915 741' Place West, explained his wife, Lin, and he are the applicants. He noted the open questions that have no final answer, nor should they have, are what is the minimum necessary or the minimum variance. To clearly define them would prevent someone from building or allow them to build too much. By necessity, the minimum necessary or the minimum variance are not clearly defined. In his introduction, the Hearing Examiner uses the term, encroachment, when actually the term impact is more appropriate. He quoted from the Hearing Examiner's introduction, if the proposal has been designed to minimize wetland encroachments as required by the variance criteria, but minimizing impacts is different Edmonds City Council Approved Minutes June 18, 2013 Page 8 than minimizing encroachments. The standard is no net loss of wetland functions, and that is the minimum impact. Mr. Hillman referred to the Hearing Examiner's statements in his documents, on the one hand this and on the other hand that. He disagreed with the Hearing Examiner's statement that the purpose of the variance is to maximize the distance of the proposal from the Category 3 wetland; the purpose of the variance is to allow the owner the rights enjoyed by other properties in the vicinity with the same zoning. The Hearing Examiner then states, on the other hand, although a priority for building within buffers over wetlands themselves is a reasonable inference to make, this priority is not expressly imposed in the City's wetland regulations and there is no scientific evidence in the record to support this priority. Mr. Hillman summarized the Hearing Examiner is stating on one hand building needs to stay away from the wetland, and on the other hand this priority is not expressly opposed and not required by the City or supported by scientific evidence. The Hearing Examiner acknowledges there is no mandate to prefer the wetland versus the buffer. The Hearing Examiner further states it is possible that encroachment into the stream buffer would cause more environmental damage than wetland filling. Mr. Hillman referred to the criteria; no other reasonable economic use of the property has less impact on the critical area, stating the Hearing Examiner acknowledges that reasonable economic use is defined as a single family home. The Hearing Examiner then wonders if other reasonable economic use might include redesign. The code does not specify design criteria to meet reasonable economic use of the property; how would it be determined whether a redesign met the criteria. Mr. Hillman referred to minimum; the RS-12 requires a minimum lot width of 80 feet. Two 10-foot setbacks would allow a 60-foot wide house. The RS-6 zone has a 60 foot minimum lot width and side setbacks of 5 feet which would allow a 50 foot wide house. The Hearing Examiner's condition limits the house to approximately 52 feet and because of the setback due to drainage, the house will only be 36 feet wide. He questioned a 36-foot wide house in an RS-12 zone where the neighbors enjoy a minimum 80 foot lot width. Mr. Hillman referred to the wetland report that states the wetland is sloped, has no ability to retain water, contains blackberry bushes and is not very high functioning. The area of their proposed encroachment is approximately 1800 square feet; they are proposing to enhance over 15,000 feet of the wetland, the entire wetland. Their wetland biologist concluded they will achieve a net gain of the wetland function. With regard to statements that the amount they paid for the lot should limit their variance, the code explicitly states reasonable economic use shall not include considerations of factors personal to the owner, such as how much they paid for the lot. The appellant stated and the Hearing Examiner repeated, if the lot were not encumbered by a critical area, it would have cost $500,000. The 35% maximum coverage and setback would allow a 14,000 square foot house to be built on a lot this size that was unencumbered by critical areas. They paid $75,000 for the lot; 15% of $500,000; 15% of 14,000 is approximately 2,100 square feet, approximately what they are proposing. He concluded proportionately they are not demanding the maximum that could be built, only what is reasonable and what others would be able to build. Conversely 1,600 square feet is only 11 % of the 14,000. He calculated if they are limited to 1,600 square feet, the land is only worth $56,000 and they paid $75,000. Mr. Hillman explained when they purchased the property it had an active, approved variance that they could have used to build. The previous variance was for a structure upslope with the driveway through the wetland, affecting 3,000 square feet of wetland. They decided not to do that. The house next door applied for and received a similar variance to build their house within 10 feet of the stream with access to their house over the stream. When they purchased the property, they had a reasonable expectation they would also be able to obtain a variance due to the existing variance and their proposal was less than the existing variance. He did not feel Condition 1 was necessary because no net loss is no net loss and building in the buffer exclusively is not required over building in a critical area to achieve that no net loss. He referred to their wetland biologist report that states, it is generally impractical to disturb forested habitat for the sake Edmonds City Council Approved Minutes June 18, 2013 Page 9 of wetland mitigation if ultimate mitigation measures can be achieved. The forested habitat is the mature trees near the stream buffer. The stream buffer and those trees are more important than the sloped, blackberry infested area they are encroaching into and mitigation improves the situation. He explained they pulled their project forward to preserve a tree in the stream buffer that is 30 inches in diameter. The Hearing Examiner reached his conclusion applying an interpretation of the code; the Council may reach a different conclusion. To that end they proposed a modification. They tried to use the Hearing Examiner's language, striking his request for more information. Mr. Hillman explained the driveway is 25 feet from the property line as required by the City, disagreeing it was a massive, oversized driveway. The driveway and the house must be higher than the stream. If the house is moved downslope as suggested by the Hearing Examiner, the drainage system will not function. They have 74 feet of detention but only 58 feet depth on the west side. There is currently an L shape that utilizes the front yard and side yard. The City found the drainage system required the retaining wall on the west side to provide coverage; a variance is required because the retaining wall is in the setback. Mr. Hillman explained their modified proposal strikes the driveway language because it removes a corner of the driveway. They would propose moving the driveway only in the event it does not work technically. He suggested the modification was not reasonable, 52 feet at its widest is minimal in Edmonds and an arbitrary square footage limit of 1,600 does not seem appropriate because it does not address the critical area encroachment issue. By way of rebuttal of the appellant's testimony, Mr. Hillman said they do not have an oversized driveway and are not trying to get the driveway as big as possible. The driveway is as wide as it needs to be for the garage and includes some of the sidewalk area. With regard to this being an urban oasis, Mr. Hillman explained they would like to enhance the wetland, improve its function and be stewards of the wetland by building a house nearby. He was unsure what the appellant meant by his reference to 4,000 square feet, their footprint is 2,174. He concluded the City's code is not on trial, they do not want the Council to change the laws but rather work with them and recognize their rights as property owners. He noted the code states reasonable economic use shall be liberally construed to protect the constitutional property rights of the applicant; that is their request. Donna Breske, civil engineer assisting the Hillmans with storm drainage design, provided rebuttal to the appellant's comment regarding increased storm drainage from the site. She explained a detention system will be installed. A detention system is above and beyond what would be required by the Washington State Department of Ecology Manual. The manual requires stormwater detention systems be installed if a project creates 5,000 square feet or more. The manual provides jurisdictions the ability to be more stringent; Edmonds' code requires detention systems for more than 2,500 square feet and less than 5,000 square feet. Mr. Hillman referred to Condition 1, limiting the wetland encroachment to the line defined by the Hearing Examiner. Their intent is to abide by the Hearing Examiner's language. He urged the Council to remove Condition 1 and if not, modify it as they have requested. Although it would limit their building footprint, they are seeking clarity and finality in this process. Council Questions Mayor Earling cautioned the Council to limit their requests to information contained in the record. He suggested there had been some extraneous information provided and requested Councilmembers focus on the issues of appeal of final decision on reconsideration related to a street setback variance, side yard variance and two critical areas reasonable use variances. Councilmember Buckshnis asked about the proposed wetland mitigation included in the report from the wetland specialist and who would monitor it. Andrea Bachman, Senior Ecologist, Wetland Resources, Edmonds City Council Approved Minutes June 18, 2013 Page 10 responded the Hillmans have the opportunity to contract with Wetland Resources to do annual monitoring. They would visit the site, evaluate plant materials, recommend maintenance and produce a monitoring report that would be submitted to the City. Councilmember Buckshnis observed Wetland Resources opined they did not see a problem with filling the wetland because the remaining wetland would be improved. Ms. Bachman answered the Hillmans would enhance the wetlands at an 8:1 ratio which is beyond the minimum requirement. Mr. Schroeder pointed out the wetland report prepared by Ms. Bachman identifies $5,000 to purchase plants for mitigation. He noted anyone landscaping property knows that a small front yard cannot be landscaped for $5,000. There is nothing in the report for labor, removing invasive, non-native species or planting; the report is grossly inadequate. He referred to Ms. Bachman's statement that the Hillmans have the opportunity to hire Wetland Resources to oversee monitoring, noting there does not appear to be a contract in place. Mr. Lien stated the wetland report (page 163 of the record) includes a monitoring program. Standards for monitoring include 100% survival in year 1, no greater than 20% coverage of invasive species; 40% aerial coverage of native species in year 2, no greater than 20% coverage of invasive species; and 70% aerial coverage of native species by year 3, no greater than 20% invasive species. The monitoring plan includes a performance bond to ensure these criteria are met. The Hillmans would typically hire a wetland consultant to do the monitoring and submit monitoring plans to the City to show that the criteria are being met. Councilmember Bloom referred to page 282 of the record, David Thorpe's letter, which states a Category 3 wetland requires a replacement ratio of 2:1. Mr. Lien referred to ECDC 23.50.0501 that explains mitigation ratios for wetland. A Category 3 wetland has a mitigation ratio for replacement of 2:1; for every square foot impacted, 2 square feet would need to be replaced. The applicant's proposal is for enhancement. ECDC 23.50.050.G, wetland enhancement mitigation, states the mitigation ratios in F are doubled. Therefore, wetland enhancement for a Category 3 wetland would be 4:1. The wetland report proposes enhancement of 8:1 which is more than twice what the critical area code requires. Councilmember Bloom said Mr. Thorpe was referring to replacement of the lost wetland at a 2:1 ratio. She asked whether the code requirement was for the 1800 square feet of lost wetland to be replaced at double that amount. Mr. Lien responded there are a number of ways to mitigate; replacement is one way, enhancement is another way. If the proposal were to replace wetland, the ratio would be 2:1. The mitigation proposed is enhancement which is double the replacement ratio or 4:1. The wetland report proposes an 8:1 ratio, double what is required by the City's code. Councilmember Bloom asked if the mitigation was for the 1800 square feet and how that was calculated. Mr. Lien referred to page 12 of the record, explaining the applicant is proposing to enhance 15,560 square feet for the wetland impact. There is also an impact to the buffer which they are proposing to mitigate at a ratio of 0.5:1. The critical area code does not specify mitigation ratios for impacts to buffers. For Councilmember Bloom, Mr. Lien explained for a mitigation ratio of 2:1, for every square foot impacted, 2 square feet would be created. Councilmember Bloom asked whether the mitigation would be done in an area beyond the wetland. Mr. Lien answered yes if a wetland were being created, enhancement is an allowed mitigation. The proposal is to enhance the wetland on the site. Councilmember Bloom referred to no net loss. Mr. Brown's letter references the removal of 29-30 trees which she assumed were in the 1800 square foot wetland and that some of the trees were 30-40 inches in diameter. She asked whether the mitigation would replace those at an 8:1 ratio. She questioned how there would be no net loss. Mr. Brown clarified those trees were in the buffer and in the wetland. Edmonds City Council Approved Minutes June 18, 2013 Page 11 Mr. Brown referred to the closed record appeal procedures that state objections to information outside the administrative record shall be brought before the City Council before the City Council begins deliberations. He asked whether the Council was in deliberation or asking questions. Mayor Earling responded the Council was asking questions. Mr. Brown referred to the appeal procedures that state if information outside the administrative record is offered by a party of record, it shall be the responsibility of other parties of record opposing the same to timely object and provide justification supporting the objection. He referred to the applicant's reference to alternative driveway plans. Mayor Earling suggested that be addressed after the current question. Councilmember Bloom asked how mitigation will result in no net loss if 29-30 trees are removed from the wetland and buffer. Mr. Lien referred to pages 160-161 of the record that address the proposed enhancement plantings. Ms. Bachman explained the enhancement plantings for both the wetland and the buffer add about 700 plantings to the site, a significant net increase in native vegetation coverage. They will replace invasive blackberries and ivy with native trees and shrubs, planting a total of almost 40 native trees including conifers. Council President Petso referred to one party's reference to the driveway as oversized and Mr. Hillman's indication it was the minimum depth required by the City. She asked whether the driveway was the minimum width to access and exit the garage. Mr. Hillman answered the code does not specify a minimum width. Council President Petso asked if it was the minimum practical width needed to get a car in and out of the garage. Mr. Hillman answered there is a turnaround issue; one of the reasons for the shape is to allow vehicles to back out and turn around to avoid backing out into the street. He noted this is the first anyone has said the driveway was oversized. Council President Petso relayed her understanding of the criteria was that it be the minimum necessary impact on the critical area. Mr. Hillman answered the impact of the driveway, yard, sidewalk, planting strip, etc. will be mitigated. The wetland report states on -site creation of a new wetland is impossible on the property; they chose to double the required mitigation. Council President Petso responded she understands mitigation; the minimum necessary is different than mitigating the impact. Mr. Hillman responded that goes to the term encroachment versus impact. City Attorney Jeff Taraday, representing staff, explained there is a distinction between what minimum necessary standards require and what the functions and values of the wetland are and how they may/may not be mitigated by the applicant's mitigation plan. The applicant may be required to satisfy both, but merely providing mitigation for impact does not get one over the hurdle of minimum necessary or minimum reasonable use; those are two separate prongs of analysis. Councilmember Buckshnis asked Mr. Taraday to define minimum reasonable use. Mr. Taraday answered the code states reasonable economic use means the minimum use to which a property owner is entitled under applicable state and federal constitutional provisions in order to avoid a taking and/or violation of subsequent due process. He noted if the code stopped there, tonight's discussion would be very different. The code goes on to state that reasonable economic use shall be liberally construed to protect the constitutional property rights of the applicant. The critical sentence in his opinion in the definition is, for example, the minimum residential use for a residential lot which meets or exceeds the minimum bulk requirements is the use for one single family residential structure. A determination for reasonable economic use shall not include consideration of factors personal to the owner such as a desire to make a more profitable use of the site. Mr. Taraday explained the inclusion of the example in the City's definition of reasonable use makes it difficult to tell the owner of a single family lot that conforms to the City's minimum dimensional standards that under no circumstances can they ever build a single family home on the single family lot because of the wetland. One could say the City's code makes it possible for a property owner to build a single family home; that is a very different question than making it possible to build the single family home of your desire because the code states it is the minimum use. Considering Edmonds City Council Approved Minutes June 18, 2013 Page 12 this definition in the context of the variance criteria, there is an obligation by the property owner to propose the minimum single family home. He acknowledged reasonable minds can differ what is the minimum single family home. Mr. Taraday paraphrased one of the applicant's comments in their brief or made at the Hearing Examiner meeting: they are not required to build the minimum single family home; they get to build a reasonable single family home and get the minimum variance possible to build our reasonable single family home. He disagreed with that analysis; he believed the applicant was required to build the minimum single family home. Councilmember Buckshnis asked if a detention system was similar to a dry well. Ms. Breske answered it is a piped detention system that detains stormwater from the new hardscape and releases it at a slow rate over 24-36 hours to the stream that runs adjacent to the northern part of the site to prevent a gush of water into the stream. Mr. Brown commented the applicant has assured all the stormwater from impervious surfaces will drain into the detention pipe system, designed to hold water from an infrequent 10-year storm. This does not address the water from the footing drains, the house foundation and the 135 feet of retaining garden walls that will drain directly into the outfall pipe and flow uncontrolled into the stream. He referred to page 114 of the record, explaining this will direct water away from its normal drainage pattern, thereby increasing flow. The current plan does not minimize net loss of wetland function. He referred to the applicant's wetland ecologist's description of a better plan (page 204 of the record) as it avoids dumping any stormwater into the creek to the north and directs it along its natural drainage path based on topography to the southwest drain culvert. The wetland ecologist states this plan is the least impactful to the hydrological conditions of the surrounding critical areas. This plan also eliminates the impact of the drainage outflow pipe on the streamside 42-inch cedar which the applicant's wetland ecologist states is more important to the site than even the wetland into which the building is encroaching (page 55 of the record). The plan also saves another valuable tree, an 18-inch cedar. Mayor Earling cautioned trees were not the subject of the appeal. Mr. Brown referred to an inconsistency; the applicant says the plan is a non -starter because the southwest culvert has been buried, is non-functional and not on the City's stormwater map. Mr. Hillman stated at the hearing that they used an electronic device to show where this culvert was buried. He later learned the diagnostic approach was a shovel digging in the wrong place and a flimsy steel tape that could not be pushed all the way through a 25-foot long conduit (page 52 of the record). He has routinely witnessed water flowing through this culvert and knows it works. The fact that this was inadvertently left off the City's stormwater map in the 1970s seems easy to remedy by clearing blackberries from the outlet, putting it on the map and using it. Mr. Brown referred to page 248 of the record; the City required permission from the 1111 property owners downstream to discharge water from the Hillman Trust property into the southwest culvert before a variance could be granted and that an easement would be required during the building permit process. He referred to page 114 of the record, stating the entrance to the north culvert is outside the City's drainage easement and thus creates the same situation. The entrances to both culverts on the Hillman Trust property are not in the City's drainage easement and deliver stormwater to the 1111 wetland. Written permission from the property owners should be required before the variance is granted. The 1111 property owners have not indicated their approval. Councilmember Buckshnis clarified Mr. Brown did not believe the detention system will address the runoff. Mr. Brown agreed, advising the flows as described by the wetland ecologist are called sheet flow, which will come down the hill, hit the retaining walls and be directed to the north to the stream that is Edmonds City Council Approved Minutes June 18, 2013 Page 13 often obstructed and overflows, flooding the lane. The southwest culvert would normalize that flow and was the initial plan supported by the applicant's wetland ecologist. Ms. Breske responded to Mr. Brown's comments. She identified Mr. Brown's property and his driveway and access lane and wetland on the adjacent properties. She commented Mr. Brown's driveway included a large earthen berm with a culvert underneath. If the City wanted minimum impact on the Brown's property, they would have required a bridge on piers to preserve the wetland underneath. Attorney Carol Morris, representing the City Council, suggested this information was outside the record. Ms. Breske explained the footings from the retaining wall will release to the stream and flow through the culvert. She identified the direction of existing surface and subsurface flows on the site that charge the wetland and stream. There is nothing in the City's drainage manual that states all existing drainage flows on the site must be maintained. She concluded the footing drains will not change the point of discharge or the existing flow to the stream and the hydrology already occurring. The final design has not been completed. With regard to drainage concerns, Engineering Technician Jennifer Lambert explained on October 10, 2012 the City received a letter from the Hillmans (page 204 of the record) stating they would like to use the southwest culvert for drainage. The City responded (page 247 of the record) asking them to provide documentation showing the natural flows on site; preservation of drainage systems is one of the City's minimum requirements #4. Staff received a map from Andrea Bachman showing the natural drainage flows (page 168 of the record) into the northwest culvert and natural flows of the site, when it overflows, uses a natural drainage that drains to the southwest culvert. Per Ms. Bachman, they are preserving the current site drainage. Councilmember Bloom referred to page 88 of the record, the 6 items that must be met; #5 Not Detrimental, which states: As discussed above, the purpose of the requested street and side setback variances is to minimize impact to the existing critical areas on the site. Additionally due to the topography of the surrounding area, it does not appear that the proposed residence would significantly impact existing views of Puget Sound. The proposed residence should not be detrimental to the public health, safety and welfare or injurious to the property or improvements in the vicinity. She pointed out "should not be detrimental" was not a finding of fact. Ms. Morris responded the appeal is not in regard to that variance section. The appeal is related to the subsection that the proposal minimizes loss of critical area functions and values consistent with best available science. The appeal claims that this section of the critical areas ordinance has not been satisfied because the Hearing Examiner states further investigation is required. Ms. Morris stated it appears the Hearing Examiner's decision itself is internally inconsistent because even as he says additional investigation is needed to determine whether this criterion has been satisfied, he also states there is no evidence in the record to support the criterion in 23.40.210.2.F, the proposal minimizes the critical area. Ms. Morris relayed the Hearing Examiner states on the first page of his Decision on Reconsideration that additional investigation is needed. And then on page 14 of his decision, the Hearing Examiner states a significant complicating factor in the application is it appears the encroachment into the wetland itself could be avoided entirely if the home is redesigned to replace the vaulted ceiling space with additional living space. The only reason for not utilizing second floor living space presented by the applicant is a preference for first floor living space as they grow older and avoiding a boxy appearance. The Hearing Examiner's decision goes on to state Andrea Bachman was not able to provide any reason why the home couldn't be redesigned to avoid encroachment into the wetland. These are not sufficient reasons to justify encroachment into the wetland. Ms. Morris summarized the Hearing Examiner was saying more investigation was needed to determine whether the criterion had been met but also states the evidence in the record does not show the criterion has been met. She concluded that is a significant problem tonight. Edmonds City Council Approved Minutes June 18, 2013 Page 14 Ms. Morris referred to the second appeal issue related to takings and read from a case where the court states to some extent the reasonable use of property depends on the expectations of the land owner at the time of purchase of the property. If existing land regulations limit the permissible use of the property at the time of acquisition, a purchaser usually cannot reasonably expect to use the land for the prohibited purposes. Although not necessarily determinative, courts may look to the zoning regulations in effect at the time of purchase as a factor to determine what is a reasonable use of land. Presumably regulations on use of land are reflected in the price a purchaser pays for a piece of property. The land owner knew when he purchased this lot that it did not satisfy either the minimum lot size or setback requirements of the code. Ms. Morris clarified she was reading from a case where a person purchased a waterfront lot that did not meet the minimum square footage requirement. The entire lot was only 8,500 square feet, there was a 10,000 square foot minimum lot requirement but most of the lot was underwater. In this case, the court said that a reasonable use of this property was as a recreational property even though it was single family zoned, meaning the owner could camp on it. Councilmember Bloom asked whether the Council should be discussing drainage issues. Ms. Morris responded the Council has two appeal issues before them. The Hearing Examiner said there is not enough evidence to support a decision on the criteria with regard to the critical areas ordinance. The applicant did not appeal that. The issue before the Council is whether there is evidence in the record to support the Hearing Examiner's decision, whether to reverse, affirm, or modify his decision. Ms. Morris felt the Hearing Examiner's decision was internally inconsistent, citing another part of the Hearing Examiner's decision that states there isn't evidence in the record, meaning they did not meet the criterion. Councilmember Bloom asked if Ms. Morris was saying because the significant critical areas include a wetland, stream and erosion hazard area, the property owners should not expect to be able to develop it. Ms. Morris responded the City's code describes what a reasonable use property is. She recommended the Council focus on the two parts of the appeal, 1) do the applicants meet all the criteria for approval of a reasonable use exception and 2) the takings issue. The Council may not need to consider the takings issue and can instead focus on the issue that the Hearing Examiner mentioned in his first page, that more investigation is needed and that not enough information is available to determine the applicant meets the critical areas reasonable use exception. If the Council agrees with the Hearing Examiner that there is not enough information in the record, it would seem that the Council should reverse the Hearing Examiner's decision. The applicant can submit another application with a modified proposal; the Council does not have to remand although the Council can if they wish. Councilmember Peterson asked Ms. Morris to address remand. Ms. Morris responded if the Council remanded, the applicant would first need to agree to the remand due to the legal limitations on the ability to hold more than one open record hearing and more than one closed record hearing as well as limitations on the time period for issuance of a final decision after a complete application has been submitted. If the applicant agreed and the Council remanded, it would go back to the Hearing Examiner and the additional evidence the Hearing Examiner says was missing would need to be submitted. Councilmember Peterson asked whether the applicant would need to submit the initial plan or could they alter the plan as part of the remand for example no longer encroaching into the wetland and instead only encroach into the buffer. Ms. Morris answered if the Council wants to remand, it would be for the applicant to submit evidence to demonstrate that criterion has been met. If the Council wants to reopen to allow the applicant to submit new information for a new proposal, the Council could deny and the applicant could submit a new application. Councilmember Yamamoto asked what the Council could modify. Ms. Morris did not recommend modification because someone would need to review all the variance criteria to ensure they were satisfied with regard to the modification which would be difficult to do at a Council meeting. Edmonds City Council Approved Minutes June 18, 2013 Page 15 Councilmember Bloom asked Ms. Morris to reference the exact verbiage in the Hearing Examiner's decision, relaying her understanding the Council had two options, reverse or remand, based on the inconsistencies. Ms. Morris referred to the Hearing Examiner's Final Decision Upon Reconsideration (page 1 of the record), where the Hearing Examiner states the conditions of approval require further staff investigation for authorization of the encroachment into the wetland itself. There is insufficient evidence in the record to determine if the proposal has been designed to minimize wetland encroachments as required by the variance criteria. Ms. Morris referred to the first paragraph on page 14 of the record: Almost [all] of the living space and the garage could be located within the footprint proposed outside of the wetland if the applicant fully built out the second story of the proposed home in lieu of vaulted ceilings. Ms. Morris referred to the third paragraph on page 14 of the record where the Hearing Examiner states a significant complicating factor in this application is that it appears that the encroachment into the wetland itself could be avoided entirely if the home is redesigned to replace the vaulted ceiling space with additional living space and the author of the wetland report, Andrea Bachman, was not able to provide any reason why the home couldn't be redesigned to avoid encroachment into the wetland. Ms. Morris referred to paragraph 9 on page 16 of the record, in which the Hearing Examiner states, the size of the home, which is referenced in the staff report under the analysis of the criterion quoted above, is irrelevant since any reduction in building size would not result in any reduction of the setback encroachment. She was uncertain what was meant by this statement. In response to the case that Ms. Morris cited regarding a property that was physically incapable of accommodating a house and the only use was recreational, Mr. Hillman explained the subject property can easily accommodate a house, the wetland is very low functioning and it is not the same situation. In the case Ms. Morris cited, the land was underwater and there was little that could be done to mitigate. He concluded that case did not apply to this situation. Lin Hillman commented if the Council remanded for redesign, the criteria is still minimum reasonable use of a minimum house. She questioned the definition of a minimum house, and whether another design would meet the criteria simply because it was smaller. She noted the plan they submitted was smaller than the plan that had previously been submitted. The Hearing Examiner allowed for the fact that everything had been considered by staff but was not in the record. The Hearing Examiner felt denial of the application was too harsh a penalty which was the reason he included the statement about checking with staff and the wetland biologist to confirm their proposal was environmentally sound. In their modification, they were willing to strike the language requiring further investigation by staff and the wetland biologist and living with the line the Hearing Examiner drew. Councilmember Peterson asked whether the applicant could be asked if they preferred remand over reversal. Ms. Morris answered the Council needed to make that determination based on the Hearing Examiner's decision. Councilmember Peterson asked how much time remained on the review clock. Staff responded zero. Ms. Morris reiterated the Council could ask the applicant to waive the legal requirements with regard to the time period for final decision and the prohibition on more than one open record hearing and one closed record appeal if the Council remanded the decision. Councilmember Peterson asked if the applicant would be willing to waive those requirements. Mr. Hillman responded he could not say without knowing how long the delay would be. They were not willing to rehash the entire thing again. The Hearing Examiner seems to have reached a conclusion that they met the criteria and if they could show the one little thing, they could have it all. They are willing not to show that and want to have finality regarding what they can build. Ms. Morris explained a remand would be limited to that one narrow issue that the Hearing Examiner pointed out, that there is not sufficient evidence in the record to demonstrate the proposed house is the minimum necessary and that there is insufficient reason to justify encroachment into the wetland. If the Edmonds City Council Approved Minutes June 18, 2013 Page 16 Council remanded the decision, she was uncertain there was information to satisfy that issue. The applicant could develop reasons why the proposal was the minimum necessary but the Hearing Examiner's decision appears to indicate it cannot be satisfied. She concluded the Hearing Examiner's decision is inherently inconsistent; he says more information is needed but his decision states it appears the encroachment into the wetland could be avoided entirely if the home is redesigned to replace the vaulted ceiling space with additional living space and no one has said why the house cannot be redesigned to move it out of the wetland. If the Council remanded the Hearing Examiner's decision, Councilmember Peterson asked whether the applicant could introduce a new witness such as an architect or building designer to explain why the home cannot be redesigned to avoid encroachment into the wetland. Ms. Morris answered they could. Mr. Schroeder asked if the appellants could introduce expert opinion testimony in opposition to the applicant's expert opinion. Ms. Morris said that was a future issue, depending on the Council's decision. Mr. Schroeder inquired about the scope of the remand. Ms. Morris explained if the Council remanded the decision, it would not be just the applicant submitting evidence. Ms. Hillman explained the Hearing Examiner recognized this was a complex multi -dimensional puzzle and that everything that went on between them and staff and the various designs that were proposed and eliminated for various reasons were not in the record. She referred to page 72 of the record, which states, "The examiner recognized that it is likely that staff has thoroughly considered the need to encroach into the wetland and has determined that the proposed encroachment results in the least overall impacts to the wetland while accommodating the right of the applicant to reasonable use. Unfortunately, this aspect of the staff s analysis did not make it into the record and the direct encroachment into a wetland is too serious an issue to authorize on the presumption that other options have been fully assessed. If staff has already in fact compared the impacts of building more in the second story of the home or further northward into the buffer in lieu of encroaching into the wetland, no further work on the condition imposed by the preceding paragraph is necessary." Council Deliberation Council President Petso commented despite the potential for remand, she had concerns with that action. She read the language to say the impact to the critical area must be the minimum necessary impact. She understood the applicant was mitigating the impact but that was different than the minimum necessary impact. She pointed out instead of a cutout on the driveway to minimize the amount of wetland covered by concrete, the proposal is to have a turn around. She did not find that the minimum necessary impact. If the decision is remanded to the Hearing Examiner, she did not anticipate he would redraw the proposal any more than the Council would. She favored reversing the Hearing Examiner's approval of the reasonable use variance. Councilmember Bloom referred to 24.50.040B which prohibits building on wetlands. The applicants are proposing to build on 1,790 square feet of wetland, a permanent wetland impact. The code regulates wetlands that are 250 square feet and above, the proposal is six times the minimum wetland that is regulated by the Edmonds critical areas ordinance. Referring to the buffer impact of 3,920 square feet, a permanent buffer impact, she noted the code requires a 50 foot buffer. She supported reversing the Hearing Examiner's decision, not only because it was not a reasonable use and the minimum damage to the wetland, but the Council would not be enforcing the code if they allowed building on wetlands. She found this a dangerous precedence to set in this instance or in the future. A property owner who purchases property with a wetland and a stream should expect to build a very small house in order to meet the setbacks and wetland criteria. Wetlands are disappearing and there are serious drainage issues throughout the City. Councilmember Buckshnis referred to the Shoreline Master Plan, no net loss and wetlands. She appreciated the amount of work everyone has done on this application. She agreed wetlands are very Edmonds City Council Approved Minutes June 18, 2013 Page 17 important and although the applicant proposed mitigation, their building would eliminate wetlands. She agreed there was insufficient information for the Hearing Examiner to answer questions regarding a smaller building. She supported reversing the Hearing Examiner's decision. Councilmember Peterson advised he also supported reversing the Hearing Examiner's decision but for different reasons. He found it frustrating that by sitting as a quasi-judicial rather than legislative body, the Council could not tweak things. He disagreed with Councilmember Bloom, pointing out mitigation was allowed by the code. His supporting reversing the Hearing Examiner's decision had less to do with the applicant or the appellants and more to do with the Hearing Examiner's decision. His decision is inconsistent, unclear and vague. Councilmember Johnson asked Ms. Morris to speak to the modification option. Ms. Morris explained the Council would be considering the language proposed in the surrebuttal, changes to Condition #1. She recommended the Council not modify tonight because it would require analyzing the modification under the criteria for the various variances which would require a significant amount of time. Councilmember Johnson observed the Council was given four choices, 1) affirm the Hearing Examiner's decision which it appeared the Council was not interested in, 2) modify which Ms. Morris did not recommend, 3) remand which would require the applicant's agreement, and 4) reverse. She noted the only viable option appeared to be reversal. Ms. Morris explained reversal would be a denial. It would not prohibit the applicant from submitting a revised application that demonstrates some of the things in the Hearing Examiner's decision, to show the proposal is the minimum under the criteria in the code. Councilmember Yamamoto asked about the applicant's options with a reversal. Ms. Morris answered if the Council reversed the Hearing Examiner's decision, the application would be denied. The applicant could submit a new application and using the Hearing Examiner's decision and what they have heard tonight to formulate something that better meets the criteria, to show the reasons for the size of the house and why it is the minimum required. She noted the applicant's indication that they want to keep the upstairs small because they want more living space on the first floor as they age is not something that is considered in a variance because it relates to the personal aspects of the applicant. Councilmember Fraley-Monillas recognized reversal was probably the better decision. She was disappointed in the Hearing Examiner's decision, finding the inconsistencies troubling in making a decision. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO REVERSE THE HEARING EXAMINER'S APPROVAL OF THE CRITICAL AREAS VARIANCE. MOTION CARRIED UNANIMOUSLY. Mayor Earling declared a brief recess. 7. PUBLIC HEARING ON THE SIX -YEAR TRANSPORTATION IMPROVEMENT PROGRAM (2014-2019). Transportation Engineer Bertrand Hauss provided an introduction to the Transportation Improvement Program (TIP): • Revised Code of Washington (RCW) requires that each city update their TIP prior to adoption of the budget • Document contains all regionally significant transportation projects that a city plans to undertake in the next six years • City of Edmonds policy: TIP is financially constrained the first three years • Federal and state grants and local funds are programmed as revenue source for TIP projects Edmonds City Council Approved Minutes June 18, 2013 Page 18 Mr. Hauss reviewed scheduled construction projects in 2014: N 4. 228th St. SW Corridor Improvements • Project Description o Corridor Safety Improvements for entire transportation system o Critical east -west connection ■ Restrict unsafe southbound left turn from Hwy. 99 onto 76th Av. W ■ Install traffic signal at Hwy. 99 @ 228th St. SW — Provide safe left turn for the southbound movement from Hwy. 99 to 76th Av. W — Create additional safe pedestrian crossing on Hwy. 99 between 238th and 224th St. SW ■ Overlay along 228th St. SW and Lakeview Dr. • Status / Schedule o Design/ROW: Complete in Spring 2014 o Construction: Summer 2014 — Spring 2015 • Funding o Estimated Total Project Cost $5,196,800 ■ Design: $ 679,000 ■ ROW: $ 328,800 ■ Construction: $4,189,000 o Funding sources ■ Federal grant secured: $4,769,000 ■ Local Funds: $ 427,800 Hwy. 99 Enhancement (Phase 3) • Project Description o Installation of luminaires along Hwy 99 from 220th St o Pedestrian / vehicular safety improvements Status / Schedule o Design/ROW: Summer 2013 — Spring 2014 o Construction: Summer 2014 — Spring 2015 Funding o Estimated Total Project Cost $684,000 ■ Design: $100,000 ■ Construction: $584,000 o Funding sources ■ 100% grant funded SW to 212th St. SW. ADA curb ramp upgrades along 3rd Ave. S • Project Description o Installation of ADA compliant curb ramps along 3rd Ave. S from Pine St. to Main St. Status / Schedule o Design/ROW: Summer 2013 — Spring 2014 o Construction: Summer 2014 — Fall 2014 • Funding o Estimated Total Project Cost $80,000 ■ Design: $30,000 (from Fund 112) ■ Construction: $50,000 (from secured grant) Sidewalk Projects secured through Safe Routes to School program 236th St. SW Walkwav from SR-104 to Madrona School 15th St. SW from SR-104 to 8th Ave. S 238th St. SW from 100th Ave. W to 104th Ave. W • Project Description Edmonds City Council Approved Minutes June 18, 2013 Page 19 o Addition of sidewalk on one side of the street o Installation of sharrows • Status / Schedule o Design/ROW: Summer 2013 — Spring 2014 o Construction: Summer 2014 — Fall 2014 • Funding o Design and construction phases: 100% grant funded Five Corners Roundabout • Project Description o Installation of a single lane roundabout Various Improvements — Intersection delay improvement — Non -motorized transportation safety improvements — Stornrwater / overhead utility conversion / water line replacement Status / Schedule o Design/ROW: Complete in December 2013 o Construction: Spring 2014 — Fall 2014 Funding o Estimated Total Project Cost ■ Design: ■ ROW ■ Construction o Funding sources ■ Federal grant secured: ■ Local funds $3,139,000 $ 419,000 $ 226,000 $2,494,000 $2,400,000 $ 739,000 (Funds 112, 421 and 422) Mr. Hauss reviewed scheduled projects in design (2014-2016): 1. 76th Ave. W k 212th St. SW Intersection Improvements • Project Description o Add left turn lane for both approaches of 76th Av. movement of 212th St. SW o Installation of bike lanes and wider sidewalk o Improve from LOS F to LOS D • Tentative Status / Schedule o Design/ROW: Fall 2011— End 2014 o Construction: TBD (pending grant funding) • Funding o Estimated Total Project Cost $2,615,000 ■ Design: $ 340,000 ■ ROW $ 975,000 ■ Construction: $1,300,000 o Funding sources ■ Federal grant secured: $ 940,000 — $294,000 for design — $646,000 for ROW ■ Local Funds $146,000 — $46,000 for design — $100,000 for ROW 2. Sunset Ave. from Bell St. to Caspers St. • Project Description W and right turn lane for WB Edmonds City Council Approved Minutes June 18, 2013 Page 20 o Install sidewalk / bike path on west side of Sunset Ave. from Bell St. to Caspers St. to provide more scenic non -motorized route o Parking stalls may need to be reconfigured • Status / Schedule o Design phase: Summer 2013 — Spring 2014 o Construction phase: TBD (pending grant funding) • Funding o Estimated Total Project Cost $866,000 o Design Funding Sources ■ Federal grant secured: $159,000 ■ Local Fund $ 25,000 3. SR-99 Gateway / Revitalization (New Project in 2014-2019 TIP) Project Description o Install gateway elements with access management improvements o Improve corridor safety for all modes of transportation • Status / Schedule o Design phase: 2014 (pending grant funding) o Construction phase: 2015-2016 (pending grant funding) • Funding 4. SR-104 Transportation Corridor Studv (New Proiect in 2014-2019 TIP) • Project Description o Improve vehicular and pedestrian safety throughout the corridor Status / Schedule o Preliminary Study: 2014 Funding o Pending grant funding for all phases once preliminary engineering is completed Mr. Hauss reviewed other projects: A) Preservation / Safety / Capacity projects • Annual Street Overlay ($1,500,000 / year from 2017 to 2019) • Main @ 0 Ave. / Walnut @ 9th Ave. (Interim Solutions / 2014) • Signal Upgrades: 0 238th St. SW @ 100th Ave. W (2017) o Puget Dr. @ OVD (2017 — 2018) o Main St. @ 3rd Ave. (2018 — 2019) • Intersection Improvements: 0 220th St. SW @ 76th Ave. W (2017) o Hwy. 99 @ 212th St. SW (2017 —2019) o Hwy. 99 @ 216th St. SW (2017 —2019) B) Non -Motorized Transportation Projects • 4th Ave. Corridor Enhancement Walkway (2014-2017) • SR-104 / Edmonds Way Pedestrian mid -block crossing north of Pine St. intersection (2014) • Sidewalk projects near schools: 0 80th Ave. W (2017 —2019) o Maplewood Dr. Walkway (2018 —2019) o Walnut St. Walkway (2017) • ADA Transition Plan (2017 —2019) • Bicycle loops and connections (2017 —2019) Mr. Hauss provided a summary of recently secured grants: Edmonds City Council Approved Minutes June 18, 2013 Page 21 Design Education Total Grant Phase Grant Construction Grant Project name Type Grant Amt Amt Grant Amt Amt ADA curb ramps along 3' Ave S Federal $ 50,000 $ 50,000 Sunset Ave. Walkway from Edmonds St to Caspers St Federal $159,000 $ 159,000 238t' St SW Walkway from 100tn Ave W to 104th Ave W State $115,000 $ 55,000 $ 421,000 $ 591,000 15t'' Ave W from SR-104 to 8t1' Ave W State $ 71,000 $ 55,000 $ 248,000 $ 374,000 236t' St SW from SR-104 to Madrona School Federal $ 76,000 $ 55,000 $ 363,000 $ 494,000 Total $421,000 $165,000 $1,082,000 $1,668,000 Mr. Hauss recommended the Council approve the 2014-2019 TIP. Council President Petso referred to the 228t' and Hwy. 99 project and asked if Mountlake Terrace was paying a portion of the project in their jurisdiction. Mr. Hauss replied Mountlake Terrace is paying for a portion. Councilmember Bloom referred to the 238t'' St. SW @ 100t'' Ave. W. and the description that states rebuild the signal system with video detection. Mr. Hauss answered the life cycle of signals is approximately 20-30 years; these signals are reaching 30+ years. The mast arms that support the signals need to be replaced. Traffic signals typically include loops in the pavement that detect a vehicle or video detection, cameras on the mast arms that detect a vehicle. The advantage of video detection over pavement loops is video detection works when there is snow on the ground. Councilmember Bloom noted the Sunset Avenue project is still in the planning stage. City Engineer Rob English explained a consultant selection process was recently completed and a consultant will be selected this week. Once the consultant is hired, there will be public outreach to develop a concept for the walkway/trail. Councilmember Bloom asked if there would be a bicycle access. Mr. English replied there will be. He referred to WSDOT's presentation at the Council's mini -retreat regarding Complete Streets, envisioning Sunset would be a perfect fit for a Complete Street that includes a walkway, bike sharrows and mixing all modes of travel. The width of the pavement will be reduced and a trail installed on the western edge of the roadway as well as sharrows for bicycles while still allowing for vehicular access. Councilmember Buckshnis commended staff on all the grants they have obtained. She asked about the timetable for the Five Corners roundabout. Mr. English recognized Mr. Hauss' efforts related to applying for grants. He then explained right-of-way is currently being acquired for the Five Corners roundabout; agreements have been reached with at least three of the five property owners and negotiations continue with two property owners. Rather than a late summer/fall start once the right-of-way is acquired, a decision was made to postpone construction until spring 2014 with the goal of completing construction in one season rather than starting in September/October and extending it into the next year to reduce the impacts on businesses. Councilmember Peterson asked for an update on the 5t'' Avenue overlay. Mr. English answered the project will be advertised mid -July with an early September start date. It will be a 5-6 week construction period with completion by mid -October. Edmonds City Council Approved Minutes June 18, 2013 Page 22 Councilmember Yamamoto asked how much total grant money was obtained compared to City funds. Mr. Hauss answered the total grant funds was approximately $1.7 million. There is no local match for the bottom three projects in the table; they are 100% grant funded. The first project has a $30,000 local match for the design phase and the second project has an approximately $25,000-$30,000 City match. For these five projects, City funds total approximately $60,000 and a total of $1.7 million in grant funds. Councilmember Bloom asked about the location of the SR 524 / 196t1i SW /88th Ave W guardrail. Mr. Hauss explained it is on the west side of the intersection where a curve with a rockery has a 12-foot drop. There is currently only a fence at that location. Mayor Earling opened the public participation portion of the public hearing. There were no members of the public present who wished to provide comment, and Mayor Earling closed the public hearing. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER JOHNSON, TO APPROVE THE SIX YEAR TRANSPORTATION IMPROVEMENT PROGRAM AND ADOPT RESOLUTION NO. 1293. MOTION CARRIED UNANIMOUSLY. ORDINANCE AMENDING EDMONDS CITY CODE CHAPTER 10.75 - CITIZENS ECONOMIC DEVELOPMENT COMMISSION. Council President Petso explained this ordinance has been reviewed by the Public Safety & Personnel Committee twice. The primary change is to allow a second Council representative on the Economic Development Commission. Councilmember Peterson has volunteered to be the second Council representative. COUNCILMEMBER YAMAMOTO MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE ORDINANCE NO. 3927, AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, RELATING TO THE CITIZENS ECONOMIC DEVELOPMENT COMMISSION AND AMENDING CHAPTER 10.75 ECC; PROVIDING FOR SEVERABILITY. MOTION CARRIED UNANIMOUSLY. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF JUNE 11.2013 Public Safety & Personnel Committee Councilmember Peterson reported the committee considered the following: • Possible action regarding draft Resolution adopting Robert's Rules of Order as the City Council's new Rules of Procedure — recommended the Resolution be forwarded to the full Council after the City Attorney finalizes the Resolution to include the four points referenced by Council President Petso at the May 7, 2013 City Council Meeting. • Proposed changes to Edmonds City Code Chapter 10.75 regarding the Citizens Economic Development Commission — approved on tonight's agenda. The Ordinance also included advertising EDC vacancies. • Code of Conduct for Council appointed commissions — Councilmember Peterson will work with staff. As a result of training at the Council mini -retreat, he will also add information regarding commissions' knowledge of public records. Finance Committee Councilmember Fraley-Monillas reported the committee considered the following: • Presentation by the Edmonds Downtown Business Improvement District Board — a presentation to full Council will be scheduled. • Authorization to Contract with James G. Murphy to Sell Surplus City Vehicles — approved on Consent Agenda. Edmonds City Council Approved Minutes June 18, 2013 Page 23 • Presentation of 2013 Sanitary Sewer Comprehensive Plan Update and Proposed Sewer Utility Rate Increases — will be scheduled for full Council following review by the Planning Board. • Adoption of Revenue bond Ordinance and Resolution — will be scheduled for presentation to full Council. • Discussion Regarding Future City Utility Rate Adjustments — staff will analyze the necessary rate increase and number of years versus borrowing. • Authorization for Mayor to Sign Acceptance of Additional Coordinated Prevention Grant Funding — approved on Consent Agenda. • April 2013 Monthly Financial Report — approved on Consent Agenda. • Park Impact Fee Study Direction — will be scheduled for full Council. • Public Comment from two citizens. Councilmember Fraley-Monillas explained as a result of heavily attended Finance Committee meetings, Council President Petso agreed to the members' request to move the Finance Committee meeting out of the Jury Meeting Room and into Council Chambers. Parks, Planning & Public Works Committee Councilmember Buckshnis reported the committee considered: • Special Event Contract for Bastille Day — approved on tonight's agenda. • Park Impact Fee Study Direction • Authorization for Mayor to sign Supplemental Agreement #2 with Perteet for channelization plan, right-of-way acquisition, and access management work on the 228' St. SW Corridor Improvement project — approved on Consent Agenda. • Briefing on Six -Year Transportation Improvement Program (2014-2019) — approved on tonight's agenda. • FAC Accessibility Upgrades Project Award — approved on Consent Agenda. • Presentation of 2013 Sanitary Sewer Comprehensive Plan Update and proposed sewer utility rate increases — a presentation will be made to the Council in July. • Adoption of revenue bond ordinance and resolution — will be scheduled for upcoming Council meeting. • Discussion regarding future city utility rate adjustments — staff will develop and present options. • Authorization for Mayor to sign Supplemental Agreement #7 with David Evans Associates for the Five Corners Roundabout Project — approved on Consent Agenda. 10. MAYOR'S COMMENTS Mayor Earling commented on the success of the Arts Festival last weekend. He attended two of the three days; there was a spectacular crowd and a lot of fun music, art and food. Mayor Earling commented on the grant from the Hazel Miller Foundation to the Edmonds Arts Festival for new art work display boards. Mayor Earling provided a reminder of the Arts Summit on Saturday, June 29 at Edmonds Center for the Arts, 8:30 a.m. to 3:00 p.m. Everyone is welcome to attend; approximately 200 people have indicated they plan to participate. 11. COUNCIL COMMENTS Councilmember Fraley-Monillas commented she attended the Arts Festival on Saturday and agreed it was very crowded. In the past, the weather is usually drizzly; this weekend's weather was spectacular. She commended the Arts Festival volunteers who organized the event. Edmonds City Council Approved Minutes June 18, 2013 Page 24 Councilmember Peterson echoed the commendations of the Arts Festival volunteers. He noted the people attending the Arts Festival were all over town; a great weekend for downtown businesses. Council President Petso advised typically the fourth Tuesday meetings are work sessions. She brought to the Council's attention that next Tuesday's meeting will include two public hearings on public markets and on park impact fees. Councilmember Buckshnis thanked all the Arts Festival Directors and volunteers. It is a fabulous festival every year and this year they had record dollar amounts. It is a great group of people and she was glad to be a part of it. 12. CONVENE IN EXECUTIVE SESSION REGARDING PENDING LITIGATION PER RCW 42.30.110(1)(i). This item was removed from the agenda via action under agenda item 2. 13. RECONVENE IN OPEN SESSION. POTENTIAL ACTION AS A RESULT OF MEETING IN EXECUTIVE SESSION. This item was removed from the agenda via action under agenda item 2. 14. ADJOURN With no further business, the Council meeting was adjourned at 10:05 p.m. Edmonds City Council Approved Minutes June 18, 2013 Page 25