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Cm130702EDMONDS CITY COUNCIL APPROVED MINUTES July 2, 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 ROLL CALL STAFF PRESENT Stephen Clifton, Community Services/Economic Development Director Roger Neumaier, Finance Director Rob Chave, Acting Development Services Dir. Doug Fair, Municipal Court Judge Kernen Lien, Senior Planner Jeanie McConnell, Engineering Program Mgr. 1 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 MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 3. APPROVAL OF CONSENT AGENDA ITEMS Council President Petso requested Item E be removed from the Consent Agenda and Councilmember Peterson requested Item F be removed. COUNCILMEMBER FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. APPROVAL OF CITY COUNCIL MINI RETREAT MINUTES OF JUNE 17, 2013. B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF JUNE 25, 2013. C. APPROVAL OF CLAIM CHECKS #202857 THROUGH #202961 DATED JUNE 27, 2013 FOR $634,507.11. APPROVAL OF PAYROLL REPLACEMENT CHECK #60276 FOR THE PERIOD JUNE 1, 2013 THROUGH JUNE 15, 2013 FOR $145.68. D. ACKNOWLEDGE RECEIPT OF A CLAIM FOR DAMAGES FROM GLENN A. SALMI (AMOUNT UNDETERMINED). Edmonds City Council Approved Minutes July 2, 2013 Page 1 ITEM E: RESOLUTION ADOPTING FINDINGS AND CONCLUSIONS OF THE JULY 18, 2013 CLOSED RECORD REVIEW OF THE HILLMAN VARIANCE APPEAL (APL20130001). Council President Petso relayed Special Land Use Attorney Carol Morris had an option to present and a clarification regarding the takings language in the Findings and Conclusions. Ms. Morris explained the draft Findings and Conclusions present an option to examine the zoning variances. She referred to the setback variances as zoning variances as they were approved by the Hearing Examiner under the zoning code. The Council did not discuss them during their last deliberation; if the Council wished to discuss and include the zoning variances, the language has been included and will require an additional vote. If the Council chooses not to discuss the zoning variances, the language could be eliminated. With regard to the takings language, Ms. Morris explained draft Findings and Conclusions can include more language than was discussed during Council deliberations. The draft Findings and Conclusions elaborate somewhat on the takings issue. The Council could choose to eliminate that language if they chose. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO ADOPT RESOLUTION NO. 1294, ADOPTING THE FINDINGS AND CONCLUSIONS, STRIKING THE LANGUAGE REGARDING THE ZONING VARIANCE. MOTION CARRIED UNANIMOUSLY. ITEM F: ORDINANCE AMENDING CERTAIN PENALTY PAYMENT PROVISIONS OF ECC 8.48 ("PARKING"); PROVIDING FOR SEVERABILITY; AND SETTING AN EFFECTIVE DATE. Councilmember Peterson explained this matter was discussed by the Public Safety & Personnel Committee. The Committee approved changing the 24 hour reduction for various reasons, most notably because the State Auditor was not comfortable with that provision in the parking code and Judge Fair indicated the late fee penalty of $100 was not only onerous but in fact probably illegal. On page 2 of the ordinance, Section C, in one draft of the ordinance the late fee was $100; it should be $20. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCIL PRESIDENT PETSO, TO APPROVE ORDINANCE NO. 3930, AMENDING SECTION 3, TO REPLACE $100 WITH $20. MOTION CARRIED UNANIMOUSLY. 4. AUDIENCE COMMENTS Alvin Rutledge, Edmonds, announced the July 13 Classic Car Show at Top Foods and Dick's Drive In from 8:00 a.m. to 4:00 p.m. The car show and raffle benefit those in need in the community. Next, he referred to the City's long range planning, pointing out there will be no space downtown for new construction in the next 10-12 years. Roger Hertrich, Edmonds, recalled the Council's recent split decision on building heights in downtown Edmonds, explaining three Councilmembers running for election this year, Councilmembers Johnson, Buckshnis and Peterson, voted to raise building heights by replacing the 25+5 building height to a 30-foot building height with no architectural requirements. He observed building heights are on everyone's mind tonight and there are a lot of citizens concerned about those issues. Mayor Earling noted Councilmember Buckshnis is not up for reelection. COMMUNITY SERVICE ANNOUNCEMENT - "WALK BACK IN TIME" GUIDED TOUR BY THE EDMONDS CEMETERY BOARD. Dale Hoggins, Edmonds Cemetery Board Member, on behalf of the Cemetery Board and Board Chair Lisa Palmatier, invited the public to the 23rd annual open house, Walk Back In Time, a guided tour of the Edmonds City Council Approved Minutes July 2, 2013 Page 2 Edmonds Memorial Cemetery, on Thursday, July 18 at 1:00 p.m. The City's cemetery was established in 1831 by the Independent Order of Odd Fellows. Edmonds Cemetery Board Members and friends dressed in period costumes acting as ghosts will give first person accounts, tell tales and stories regarding historic figures. Every tombstone, grave, niche and marker has a story to tell. He identified several people who will portray and tell stories about those buried at the Edmonds Memorial Cemetery. Mr. Hoggins explained the Edmonds Memorial Cemetery and Columbarium is an active cemetery; sites are available and burials are not restricted to Edmonds residents. Prices are based on lot size, site location and services rendered. Further information is available by contacting the Cemetery Sexton Cliff Edwards or the City's website. The Edmonds Cemetery Board is seeking an alternate board member as well as volunteers. He invited anyone interest in serving to contact the Mayor's office, Parks & Recreation Director Carrie Hite, or the City's website. Mr. Hoggins provided a self -guided tour of the cemetery brochure, a map of approximately 25 sites and a brief biography of the person buried in each site. 6. SOUND TRANSIT PRESENTATION Mayor Earling introduced Patrice Hardy, Government Relations for Snohomish County, Sound Transit, and Michelle Ginder, Project Manager, Lynnwood North Link, Sound Transit. Ms. Ginder explained the Lynnwood Link Extension is part of the ST2 package of transit improvements that were approved by voters in 2008. She displayed a map of the Lynnwood Link Extension, extending light rail from Northgate to Lynnwood. Ms. Ginder explained the project began in 2008 with an alternatives analysis that did the following: • Developed bus rapid transit (BRT) and light rail alternatives in multiple corridors • Shared alternatives analysis at 3 public meetings in October 2011 • Public and agency comments o Strong preference for light rail over bus o Strong support for more work on I-5 light rail alternatives o Limited support for more work on SR 99 alternatives She reviewed EIS alternatives development: • December 2011 o ST Board narrowed range of alternatives to I-5 light rail • Winter 2012 o ST analyzed multiple I-5 light rail alternatives • April 2012 o Board identified alternatives to advance in Draft Environmental Impact Statement (DEIS) • 2012-2013 o DEIS analysis and conceptual design of alternatives She displayed a map identifying the alignment between Northgate and Lynnwood and described the three DEIS segments alternatives: • Segment A (Northgate to Shoreline) 0 6 alternatives, all on east side of I-5, vary by: ■ Amount of elevated guideway ■ Stations o Station combinations Edmonds City Council Approved Minutes July 2, 2013 Page 3 ■ 145th + 185th ■ 130th + 155th + 185th ■ 130th + 145th + 185th Segment B (Shoreline to Mountlake Terrace) o 4 alternatives, all on east side of I-5, vary by: ■ Mountlake Terrace (MLT) station location — MLT TC on east side of I-5 — Reuse existing MLT freeway station in the center of the freeway ■ Alignment north of MLT Transit Center (TC) — Up freeway median — West side of I-5 (option for additional station at 220th Street SW) Segment C (Lynnwood) o 3 alternatives, all elevated with station options at: ■ 200th Street SW ■ Next to Lynnwood TC ■ South edge of Lynnwood Park & Ride Ms. Ginder described anticipated ridership: • 60,000-70,000 daily riders in 2035 • Up to 23,000 new riders (people switch from driving to riding light rail) • Station tradeoffs: o Adding 3rd Segment A station = 400 more daily boardings o Moving 145th station to 155th = 200 fewer o Reusing MLT freeway station = 1,000 fewer v. station at transit center o Adding 220th station = 200 more Ms. Ginder reviewed costs: 2008 Estimate Change Since 2013 TIP Lowest Cost Alt Highest Cost Alt Difference from TIP Difference from TIP $1,552 M ($230 M) $1,322 M $1,230 M �($92 $1,510 M M $188 M • Findings: o Segment A at -grade cheaper than elevating 0 3rd Segment A station adds—$30-$50 M o Retrofitting MLT freeway station saves—$20-$30 M v. new TC station o Segment B west side —$50 M > median; 220th station adds—$30-50 M • Vehicles, O&M facilities budgeted separately, system -wide • All alternatives add —$15 M annual O&M • Financial plan assumes $600 M YOE FTA New Starts grant Ms. Ginder provided a summary of the impact findings: • Acquisitions and displacements o Designs place as much infrastructure in WSDOT rights -of -way as possible o Still numerous property impacts along I-5 and Lynnwood o Have sent letters to all potentially impact properties Visual and Aesthetics o Elevated guideways & stations will be high visual change o Scale of station & garage structures in residential neighborhoods o Noise walls — many WSDOT walls to be relocated or added o Mature trees removed along I-5 Edmonds City Council Approved Minutes July 2, 2013 Page 4 o Mitigation includes guideway placement & design, landscaping, screening • Transportation o I-5 bridge rebuilds, local road relocations, hide & ride, MLT freeway station, construction impacts • Noise & vibration o Many impacts but all can be mitigated o New & relocated I-5 sound walls; guideway barriers, RSIP • Parks o Minor impacts to Ridgecrest Park & Shoreline Stadium in Shoreline o Lynnwood considering Scriber Creek Park impacts Ms. Ginder described the Lynnwood Link schedule: • July: Publish DEIS, 45-day public comment period begins • Late July/early August: DEIS public open houses and hearings • Fall 2013: ST Board identifies preferred alternative • 2014: Prepare and issue Final EIS • Early 2015: FTA issues record of decision (ROD), completing environmental review • Mid-2015: ST Board selects project to be built • 2015-2018: Final design, property acquisition • 2018 — 2023: Construction, testing • 2023: Light rail service to Lynnwood begins Ms. Ginder explained another project that may impact Snohomish County is the siting of the Light Rail Operations & Maintenance Satellite Facility (OMSF). To the question of why a second OMSF is needed, she explained: • System expansion to Lynnwood Transit Center, Bellevue/Overlake and Kent/Des Moines requires more storage area and greater maintenance capacity • The OMSF must be located to support efficient and reliable operations and deployment of vehicles to serve the entire Link system • Augments existing facility in Seattle She described OMSF site alternatives • Alternative 1: Site located in Lynnwood southwest of Lynnwood TC on existing Edmonds School District and other property plus storage track for 32 light rail vehicles (8 trains) in Bellevue • Alternative 2: Site located between the former BNSF right-of-way and 120th Avenue NE • Alternative 3: Site spans the former BNSF right-of-way • Alternative 4: Site located between SR520 and NE 20th St. between 130th Ave NE and 136th Ave NE Ms. Ginder provided the OMSF schedule: • Late 2013: Publish DEIS; comment period • Early 2014: Comment period ends and Capital Committee recommends preferred site to ST Board • 1st quarter 2014: ST Board identifies preferred alternative • Spring 2014: Begin FEIS & preliminary engineering • Early 2015: Publish FEIS; Record of Decision; ST Board selects preferred site • 2015-2020: Final design, property acquisition, construction, commissioning • 2020-21: OMSF in use Edmonds City Council Approved Minutes July 2, 2013 Page 5 Councilmember Buckshnis advised she grew up in Portland where light rail is king and she is looking forward to light rail in this area. She anticipated once it is built, ridership will increase. Mayor Earling explained the Sound Transit Board is beginning to look at ST3 which would extend light rail from Lynnwood to Everett. The planning process is just beginning; ST3 would be part of a ballot measure in 2016-2020. 7. CLOSED RECORD REVIEW OF THE ARCHITECTURAL DESIGN BOARD'S DESIGN APPROVAL OF POINT EDWARDS' BUILDING 10 TO BE LOCATED AT 50 PINE STREET UNDER FILE PLN20130022. APPEAL NUMBERS APL20130002 - APL20130004. Mayor Earling explained this is a closed record review; the purpose of the closed record review is for the City Council to address three appeals of the Architectural Design Board's (ADB) decision to conditionally approve revisions to Building 10 of the Pt. Edwards Development which includes a multi- family residential building and associated parking located at 50 Pine Street in Edmonds. He opened the closed record hearing. Mayor Earling described the procedures, explaining the City Clerk will make a recording of the proceedings. This is a hearing on the appeals of Christy Cufley, Town of Woodway, and David Inadomi. 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 appellants 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. The City Clerk has a list of people who meet the definition of a party of record. 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 has engaged in communication with opponents or proponents regarding the issues in the appeal outside of the public hearing process. Councilmembers Bloom, Yamamoto, and Buckshnis said they had not. Council President Petso said she had not had communication with proponents or opponents but had some other contacts. Ms. Morris advised the disclosures that needed to be made were with proponents or opponents of the project; staff members were not proponents or opponents. Council President Petso said she had not had communication with proponents or opponents. Councilmember Peterson stated he had not had any communication. Councilmember Fraley-Monillas disclosed she has received a number of emails during the past six months that are stored on her computer. She has not spoken to anyone connected with the project. Councilmember Johnson disclosed that she has received email petitions regarding the Pt. Edwards land use appeal. She has received 197 separate emails to her City Council email account that contained the 682 individuals who signed the petition. The emails were sent via an online petition at change.org. Some of the messages were sent one at a time; other messages were sent in batches of 25. Most of the batches were captured in the email quarantine and deleted from there without identifying the names of the senders. At first she opened and read the messages. She was then advised to delete the messages without reading them, which she did. However, she did recognize the names of some of the senders. She did not recall responding to any of the emails. She explained Ms. Morris advised her to make this disclosure and notify the Planning Department, which she did. Mayor Earling disclosed he received 1900-2000 petitions; in each case he quickly forwarded them to the City Clerk and did not read, study or react to any of them. Edmonds City Council Approved Minutes July 2, 2013 Page 6 Council President Petso stated she also received written correspondence and emails on this topic. She provided the City Clerk the written correspondence and the emails are in a file on her iPad titled "Do Not Read." Mayor Earling asked if any member of the Council has a conflict of interest or believes he/she cannot consider and hear the application in a fair and objective manner. Councilmembers Bloom and Yamamoto answered no. Councilmember Buckshnis answered no, noting she knows the attorney for the appellant, Christy Cufley, who is a fellow Rotarian and she knows Doug Purcell. Council President Petso stated she had no conflict but was acquainted with Mr. Purcell. Councilmember Peterson had no conflicts but was acquainted with Mr. Purcell. Councilmember Fraley-Monillas had no conflict but was acquainted with Mr. Purcell. Councilmember Johnson stated she had no conflict but was acquainted with Mr. Purcell. Mayor Earling stated he had no conflicts and also knew Mr. Purcell but has not talked to him about this matter. 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. Special Land Use Attorney Carol Morris pointed out at least two appeals have raised the issue about whether the ADB should have entered Findings of Fact and Conclusions. There are no Findings of Fact and Conclusions in the record. The City Council is required by the code to make a decision in a closed record appeal as to whether or not those Findings of Fact and Conclusions are clearly erroneous. Without Findings of Fact and Conclusions, the Council has an impossible task. There are also legal requirements for the entry of Findings of Fact and Conclusions by a decision -maker after an open record hearing. She recommended the Council vote to remand this back to the ADB for the entry of Findings of Fact and Conclusions, consistent with their vote. She recommended the Council take this step before they hear any testimony because the Council cannot give the ADB direction as far as what the Findings of Fact and Conclusions should say. This is basically trying to bring the City back to the point in time where it would have been after the open record hearing and the ADB vote so the ADB can enter Findings of Fact and Conclusions. All the members of the public can attend that hearing, and the appellants and parties of record can submit draft Findings of Fact and Conclusions to the ADB for their consideration. Appeals can then be filed of the Findings of Fact and Conclusions entered by the ADB. Ms. Morris explained if there is an appeal, the Council would then schedule another closed record hearing, bringing the Council to the same position it is in today. If the Council agrees with the procedure, the Council needs to ask the applicant if they will agree to this procedure. The applicant must be willing to sign a written statement stating they waive the deadline for issuance of a final decision in the code which is 120 days after a complete application is submitted. The applicant must also sign a written waiver of the one open record hearing and one closed record appeal proceeding. Mayor Earling asked whether the applicant would be willing to do that. Rick Gifford, attorney for the applicant, Edmonds Pine Street LLC, asked clarifying questions. He referred to Ms. Morris' statement that if the Council made a determination to remand this matter to the ADB for entry of Findings of Fact and Conclusions in support of their decision, anyone can present proposed findings at that hearing. It was his understanding the remand would not be to a public hearing but a meeting at which the ADB would consider and enter Findings of Fact and Conclusions. Ms. Morris answered that is correct; there would not be an opportunity for any additional public testimony, only for entry of Findings of Fact and Conclusions. The ADB has voted and the open record hearing is closed. Mr. Gifford stated with that clarification, the applicant would not oppose Ms. Morris' recommendation and would be willing to execute the necessary agreement regarding waiver of the timeline and multiple open and closed record hearings. He hoped the remand could proceed at the earliest possible time, recognizing that was subject to the ADB's availability. He was hopeful the ADB could proceed by early August and that the Council would issue clear direction to the ADB so that the ADB understands what it is being asked to do. Edmonds City Council Approved Minutes July 2, 2013 Page 7 Council President Petso explained she has had extensive discussion with Ms. Morris about this suggestion and she urged the Council not to do it. She felt she was being asked to make a decision on one issue in the appeal prior to having heard from the appellants which she considered it a violation of due process. The code states this hearing review shall commence with the resolution of Appearance of Fairness issues, if any, followed by the opportunity for oral presentations by the director and other parties of record including the appellants. She pointed out the Council has not yet heard from the appellants or parties of record but is already being asked to remand, merely on the consent of one party. She did not find this appropriate or a good process for the City on a due process basis. Council President Petso pointed out one of the appeal items is whether the Findings and Conclusions are adequate. The applicant has consistently argued that the Findings and Conclusions, while not in a detailed and formula -like outline, do exist and can be determined from the record. The attorney has advised they are not in a sufficient legal form and although the Council has not yet heard from the appellants, they argue the Findings and Conclusions are not adequate. The Council is supposed to make this decision without prejudgment and based on what they hear at the hearing, not just make a decision before the hearing has commenced. The code states the appellant shall bear the burden to demonstrate the decision is clearly erroneous given the record, not the Findings and Conclusions. Council President Petso recalled a comment in one brief that the purpose of Findings of Fact is to ensure the decision -maker has dealt fully and properly with all the issues in the case before it decides the case. However, she is being asked tonight to remand this for Findings of Fact that support a decision that has already been made. She was not comfortable with that because it defeats the purpose. If the matter is remanded and an ADB member agrees the ADB should have considered massing, she questioned how the ADB could enter that finding of fact now. She noted the ADB could not enter a finding that it was too massive because that would not be consistent with the ADB's prior vote. She concluded the process Ms. Morris suggested makes no sense and she encouraged the Council to proceed with the hearing. Ms. Morris responded at least two appellants have raised this as an issue in their appeal, that the ADB did not enter Findings of Fact and Conclusions. Therefore, they cannot complain if the Council remands for entry of Findings of Fact and Conclusions and correction of that error. This is a legal issue, not a factual issue. The Council does not need to take oral argument regarding whether Findings of Fact and Conclusions are required because as a matter of law, they are. In her experience working with cities on land use appeals for the past 20 years and working for an insurance pool doing nothing but land use damage actions, the Council needs to remand this to the ADB so they can enter Findings of Fact so the Council can proceed with the closed record hearing. Once those Findings of Fact and Conclusions have been entered, the Council can review them and determine whether they are clearly erroneous. Councilmember Peterson commented it pained him to go through this process again and send it back to the ADB but did not see any other choice. If the Council were to proceed with the closed record review and hear oral testimony tonight without the opportunity to compare it to Findings of Fact and Conclusions would create a bias for any Councilmember. He summarized the issue was the process had not been completed from the previous level, the ADB, and that must be fixed before the Council can proceed. He understood the frustration visible on the faces of the audience and implored the audience members not to contact the Council to talk about this issue because the Council cannot talk about it. He supported Ms. Morris' advice; she is one of the top land use attorneys in the state and ignoring her advice puts the City, the City Council and the entire process at risk. Councilmember Buckshnis echoed Councilmember Peterson's comments. She asked Ms. Morris if the City was vulnerable if the Council proceeded as Council President Petso proposed. Ms. Morris answered yes; there is a legal requirement that there be Findings of Fact and Conclusions from the decision -maker after an open record hearing. If the Council proceeded, it would be trying to make sense of a record that Edmonds City Council Approved Minutes July 2, 2013 Page 8 does not have entry of Findings and Conclusions. Councilmember Buckshnis said staff suggested the Council could review the ADB minutes. Ms. Morris recalled the draft Findings of Fact she prepared on the Hillman matter quoted a case, Weyerhaeuser v. King County, that described the court's description of what Findings of Fact and Conclusions need to include. The courts have stated Findings of Fact and Conclusions drawn up by an administrative body after the open record public hearing have to meet the same requirements as a trial court and it cannot be entry of minutes; it must be actual Findings of Fact that reveal the decision -maker's thought process and why the final decision was arrived at. Councilmember Bloom asked whether Findings of Fact and Conclusions would be based on the specifics of the ADB's decision or could it include issues such as mass and bulk that have been raised by the appellants. Ms. Morris answered the ADB needed to enter Findings of Fact and Conclusions that are consistent with their decision. This is the only direction the Council can give the ADB. If those issues were considered by the ADB, they could be included in the Findings of Fact and Conclusions. Councilmember Bloom relayed in her reading of the May 15, 2013 minutes, at least one member of the ADB felt the ADB was not to address the height and bulk/mass issue, as that had already been settled. She asked if that would be left out of the Findings of Fact and Conclusions. Ms. Morris suggested the Council not be concerned with that because whatever the ADB develops as their Findings of Fact and Conclusions, anyone with standing has an opportunity to raise that issue in an appeal. No one is prejudice at all by this procedure. She referred to the Invited Error Doctrine that would prevent any of the appellants who have alleged there was an error in not having Findings of Fact and Conclusions from claiming their due process rights were violated because this is an error they have claimed has occurred and the City is going back and correcting that error. Once the Findings of Fact and Conclusions are drafted and signed by the ADB, everyone can read them and decide what to base their appeals on; it may be different than the current appeals. Councilmember Bloom asked if there would then be new appeals filed. Ms. Morris answered there could be new appeals because they are currently appealing the basis for the ADB's vote which is unknown because the only thing in the record is the ADB's vote and the minutes. Councilmember Bloom asked whether that would give the Council a broader view rather than a narrower view. Ms. Morris responded it may also provide additional detail and explain the ADB's vote which may make it easier to resolve appeals at the closed record review. She assured this procedure does not prejudice anyone; the only party that it could possibly be prejudiced is the applicant and they have agreed to waive the codes and state laws that provide an impediment to the procedure. She relayed Council President Petso's indication today that perhaps the appellant would be prejudice in that they would have to pay an additional appeal fee. She suggested the Council could state anyone who has filed an appeal does not have to pay another appeal fee. Councilmember Bloom asked when the Council would state that. Ms. Morris answered that could be done tonight; the Council could state that after the ADB enters its Findings of Fact and Conclusions if any of the three appellants choose to file an additional appeal, they do not have to pay another appeal fee. Councilmember Bloom asked whether the current appellants would have to re -appeal if the Council remanded to the ADB. Ms. Morris answered yes. Council President Petso asked whether the appeal fees that have been paid could be refunded. Ms. Morris answered she did not see a problem with that. City Attorney Jeff Taraday explained the remand effectively grants relief to the appellants by providing for findings that previously were lacking. He was uncertain it made sense to refund the appeal fee but certainly it would be fair to waive a second appeal fee. Mayor Earling commented he had no problem with waiving a second appeal fee but he was not interested in refunding fees for appeals that staff has already been working on. Edmonds City Council Approved Minutes July 2, 2013 Page 9 Council President Petso commented no relief whatsoever had been provided to the appellants; the Council has refused to hear their appeal. That was the basis for her suggestion to refund the appeal fees. Councilmember Yamamoto commented it is a fairly simple process; the applicant and appellant have both agreed to sign the necessary waivers to remand to the ADB. He expressed support for remanding to the ADB for entry of Findings of Fact and Conclusions. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER YAMAMOTO, TO REMAND TO THE ARCHITECTURAL DESIGN BOARD FOR ENTRY OF FINDINGS OF FACT AND CONCLUSIONS CONSISTENT WITH THEIR VOTE AND TO WAIVE THE APPEAL FEE FOR CURRENT APPELLANTS. Councilmember Fraley-Monillas expressed concern that neither Councilmember Johnson nor she was allowed to comment before the motion was made. COUNCILMEMBER BUCKSHNIS WITHDREW THE MOTION WITH THE AGREEMENT OF THE SECOND. Councilmember Fraley-Monillas expressed support for remanding to the ADB for preparation of Findings of Fact and Conclusions. She wanted to be cautious with proceeding, noting many lives are being affected as evidenced by the stress in the audience members' faces. She wanted to proceed in a proper manner and according to the attorney, the best legal way. Council President Petso explained her concern with engaging in this process was it was not conveyed in writing until the last set of paperwork submitted by the applicant, not the appellants. She heard of it on Sunday afternoon in a telephone conversation with the lawyer. She was not allowed to contact the appellants to ask if this was acceptable to them; the appellants have not been allowed to speak and in fact have not had an opportunity to reply and none of them requested a limited remand in their appeal documents. The appellants requested relief via many solutions such as adopting the staff findings, deny, etc., but remand was not one of them. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER YAMAMOTO, TO REMAND THIS BACK TO THE ARCHITECTURAL DESIGN BOARD FOR ENTRY OF FINDINGS OF FACT AND CONCLUSIONS CONSISTENT WITH THE ARCHITECTURAL DESIGN BOARD'S PREVIOUS VOTE AND THAT IF AN APPELLANT NEEDS TO RE -APPEAL, THEY WILL NOT HAVE TO PAY AN APPEAL FEE. Councilmember Bloom wanted to ensure this action would not limit what could be brought up in an appeal to whatever the Findings of Fact and Conclusions include. Ms. Morris answered this action would not limit anything. There is no prejudice to the appellants by this action. All that will occur is this matter will go back to the ADB, the ADB will enter Findings of Fact and Conclusions consistent with the decision they have already reached and everyone with standing to file an appeal, can file an appeal. Those appeals will come back to the Council. Councilmember Johnson stated her belief that this is a procedural issue and the correct action for the Council to take would be to remand it back to the ADB. She hoped the Council had learned from this experience and would not have the same problem in the future. Mr. Taraday suggested the Council give clear direction to the ADB regarding the schedule for the hearing and the submission of proposed Findings of Fact and Conclusions. He relayed staff s proposed schedule: • City staff prepare the first draft of Findings of Fact and Conclusions and submit them to the applicant and all parties of record on July 23. Edmonds City Council Approved Minutes July 2, 2013 Page 10 The applicant and all parties of record have an opportunity to make red -line revisions to the proposed Findings of Fact and Conclusions. Red -line revisions would be submitted by July 30. All the red -line revisions would be provided to the ADB in a packet on July 31. The ADB would review red -line revisions and make a decision on August 7. Mr. Taraday explained the reason he proposed the above process was beginning with proposed Findings of Fact and Conclusions and red -line revisions would make it easier for the ADB to review and make a decision rather than attempt to synthesize several draft Findings of Fact and Conclusions. Mayor Earling suggested posting the above schedule on the City's website. Council President Petso relayed her understanding of Mr. Taraday's proposal was instead of asking the ADB the basis of their decision, everyone would submit to the ADB what they thought the basis of their decision might have been and the ADB will select one. Mr. Taraday answered that was his proposal, noting that was what was done in court when there was a trial to the bench. Council President Petso disagreed, commenting in court the judge gets to decide which way to rule. In this case the Council is telling the ADB to prepare Findings of Fact and Conclusions but to rule the same way they did before. Mr. Taraday disagreed with Council President Petso, explaining in his experience, when a trial is tried by the bench and the judge has rendered his decision, he will tell counsel for the parties to draft proposed Findings and Conclusions; typically the prevailing party will draft the first set of Findings and Conclusions, which are then reviewed and potentially revised by the non -prevailing party. The judge will then typically adopt some combination of the two based on his determination about which findings are the most reasonable and the most in tune with the judge's oral decision. He explained that was consistent with this situation; the ADB made an oral decision and the Council is now requesting they memorialize their oral decision in writing after giving everyone who participated in the hearing an opportunity to draft proposed Findings and Conclusions that are consistent with the vote that was already taken. Council President Petso commented if a judge is dissatisfied with what the parties submit, the judge simply red -lines and revises the order to state what he wants it to say regardless of what the parties submit. She asked whether the ADB would be given that opportunity. Mr. Taraday answered of course; this is only a starting point. Councilmember Buckshnis asked Ms. Morris to comment on Mr. Taraday's suggestion, noting she also found it unusual for staff to prepare draft Findings and Conclusions when it was remanded to the ADB. Ms. Morris responded she was 100% supportive of what Mr. Taraday described including his description of what courts do. It may be more difficult for the ADB to synthesize a bunch of different Findings of Fact and Conclusions; starting with one draft that everyone suggests revisions to would be easier. Councilmember Bloom asked whether in other cities that have ADBs staff typically drafts Findings of Fact and Conclusions. She recognized the ADB is a volunteer board. Ms. Morris responded in her experience, planning staff drafts Findings of Fact and Conclusions. Sometimes when a matter is complicated, staff will ask that it be done by the City Attorney. THE VOTEON THE MOTION CARRIED (6-1), COUNCIL PRESIDENT PETSO VOTING NO. Mayor Earling declared a brief recess. Council President Petso asked whether the Council's action ended the appeal and the Council was free to discuss the matter with the public or should the Council still refrain from conversation with proponents or opponents. Mr. Taraday answered there is still an application pending; there is still a proposed project and potentially proponents and opponents of the project. He recommended the Council continue not to have Edmonds City Council Approved Minutes July 2, 2013 Page 11 contact with proponents or opponents of the project to ensure they could participate in the event the matter returned to the Council on a subsequent appeal. ADOPTING AN INTERIM ZONING ORDINANCE TO AMEND THE CRITICAL AREAS ORDINANCE, SPECIFICALLY SECTIONS ECDC 23.40.210 AND 23.40.320, TO REPEAL THE DEFINITION OF REASONABLE ECONOMIC USE AND REFERENCES THERETO. City Attorney Jeff Taraday explained he was asked to prepare this ordinance. There are two versions of the ordinance, one in the packet and a version that was emailed to Councilmembers late this afternoon. The difference between the two is the version that was emailed is an emergency ordinance and takes effect immediately; the version in the packet is not an emergency ordinance although both are interim zoning ordinances. If the Council adopts the emergency version of the ordinance, it goes into effect tonight and prevents an application from being submitted tomorrow and thereafter that can utilize the current reasonable use exception, in particular the definition that has been determined to be outside the norm. If the Council wanted to allow for a small window of opportunity to allow property owners and applicants to submit applications under the current reasonable use exception, the Council would adopt the version of the ordinance in the packet. Council President Petso stated once discussion is finished, she is ready to move to adopt the emergency ordinance. At Councilmember Buckshnis' request, Mr. Taraday described how the emergency ordinance differs from the ordinance in the packet: • The title adds the language, "and declaring an emergency necessitating immediate adoption of this interim zoning ordinance." • In the third whereas clause, the word "urgent" is changed to "immediate." • A fourth whereas clause was added that reads, "WHEREAS, the city council has determined that the "reasonable economic use" regulations should be addressed and considered while the interim critical areas regulations below are in place, to prevent any property owners from submitting applications for development or re -development under the existing codes, which may not provide adequate protection to critical areas; and" • Section 4, Emergency Declaration was added. • Section 6, Effective Date, has been revised to state the ordinance takes effect immediately and to state approval requires a vote of a majority plus one. Councilmember Peterson expressed support for the interim zoning ordinance but was very uncomfortable with the emergency zoning ordinance, primarily because there was no mention of an emergency ordinance on the agenda. In fact, the Council did not receive the ordinance until late this afternoon. In the past the Council has been interested in properly notifying the public before taking certain votes. He recognized there were some emergency ordinances where notification would not be possible but did not think this ordinance was one of those. Councilmember Fraley-Monillas asked what the emergency was. Mr. Taraday assured he was not placing a judgment on the Council's decision to adopt the ordinance in one form or the other. The reason he did not include the emergency ordinance in the packet was that would have defeated the purpose. The purpose of an emergency ordinance is to ensure applications do not vest prior to adoption of the new regulations. If the public is informed the Council is planning to adopt an emergency ordinance, it does not work. While he was not prejudging or placing a value judgment on the Council whether they should or should not adopt the emergency ordinance, it was done that way purposefully to give the Council the option of adopting the regulation without public notice. This is an exception to the general rule of having public notice; interim zoning ordinances and moratoriums are the two exceptions to the GMA where the Council can take immediate action. The reason that immediate action would be taken was to prevent Edmonds City Council Approved Minutes July 2, 2013 Page 12 applications from vesting. He reiterated the emergency ordinance was presented in this manner by design, to preserve the ability of the Council to choose. Councilmember Fraley-Monillas asked the reason for the urgency. Mr. Taraday answered if the Council wanted to make it impossible for property owners to submit applications after tonight that utilize the critical areas variance language that the Council found problematic, that was a reason to adopt the emergency ordinance. If the Council wants to make it difficult but "leave the window open a crack" the Council would not adopt the emergency ordinance. If the Council wanted to give property owners six months to use the current regulations, the Council did not need to adopt an interim zoning ordinance and could just refer it to the Planning Board for consideration. Councilmember Bloom expressed support for the emergency ordinance because she felt strongly the confusion generated by the phrase in the code has been damaging and problematic for many people. This needs to be addressed immediately and a public hearing held afterward. She did not want there to be any more situations where a property owner believed they could apply for something they should not be offered. Councilmember Peterson commented Mr. Taraday's explanation furthered his resolve. He commented it sounds shifty, doing it at the last minute so nobody knows. He was supportive of the interim zoning ordinance but not with adopting it in a sketchy way that was not transparent. Councilmember Fraley-Monillas asked how the Council could hold a public hearing. Mr. Taraday answered regardless of whether the ordinance was adopted as an emergency or not, interim zoning ordinances require a public hearing be held within 60 days of adoption. In the meantime, he expected the Council or staff would ask the Planning Board to consider a permanent ordinance. The interim zoning ordinance only lasts six months. Councilmember Johnson asked if there have been any circumstances that precipitated the emergency ordinance. Mr. Taraday responded he was asked to prepare an emergency version of the ordinance by certain Councilmembers. He provided both an emergency and non -emergency version to give the Council the option to choose between them. Completely independent and not precipitating his drafting of the ordinance, the City has received an application for a critical areas variance since the Council voted on the Hillman variance. As far as he knew, that was completely coincidental. Councilmember Johnson asked if that application would be vested. Mr. Taraday answered assuming the application is a complete application it likely would have vested to the current regulations. He noted that was the reason for an emergency ordinance, to prevent vesting. Councilmember Johnson asked if a determination had been made that the application was complete. Mr. Taraday answered a determination has not been made. Council President Petso assured this is not an attempt to be sneaky but the language in the current ordinance is a problem. Mr. Taraday responded it is certainly an outlier and creates additional potential loss and degradation of critical areas in that it appears to grant the ability for property owners to seek something to which they are not constitutionally entitled. It arguably goes further than the constitution requires and to avoid that, he recommended the City's code conform to a more normal critical areas ordinance that leaves determinations about reasonable economic use to be made on a case by case basis without presuming that a single family lot is entitled to have a single family home on it regardless of the critical areas that may be present. Council President Petso concluded adoption of the ordinance better protects critical areas. Mr. Taraday answered that was his opinion. Council President Petso commented adoption of the emergency ordinance Edmonds City Council Approved Minutes July 2, 2013 Page 13 starts that protection tonight instead of when? Mr. Taraday answered instead of five days after publication. Councilmember Buckshnis referred to Mr. Taraday's statements that the "for example" language in the reasonable economic definition in 23.40.320 changed the reasonable use definition. She referred to an email she received from Mr. Schroeder in which he suggests removing the "for example" language and retain the remainder of the definition. She noted the ordinance proposes completely removing that language. She asked what would happen to the current definition. Mr. Taraday answered this is what the Planning Board could consider, whether on a permanent basis there should be a definition. Many jurisdictions do not have a definition of reasonable economic use because reasonable economic use is a concept defined by state and federal constitutional law. In his opinion, those definitions were problematic. In many of the jurisdictions that have a definition of reasonable economic use, it simply states something like reasonable economic use is a use that is entitled by the Constitution of the United States. He concluded a reasonable economic use variance is necessarily a case by case legal analysis that is not subject to definition. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BLOOM, TO ADOPT THE ORDINANCE AS AN EMERGENCY ORDINANCE. Councilmember Peterson stated he is 100% in favor of the change proposed in the ordinance. However, he is not in favor of behavior unbecoming of this Council. The Council must balance critical areas with open government. If the emergency ordinance had been included in the packet that is available on Friday, he doubted there would have been a flood of applications to get vested. By adopting the emergency ordinance the Council was sacrificing the importance of open governance and the importance of transparency. He noted at least a couple Councilmembers knew an emergency ordinance would be proposed but he and the public received the emergency ordinance at the last hour. It pained him to vote against the ordinance because he felt the interim zoning ordinance was appropriate. If the Council adopted the emergency ordinance, he felt the Council could forget about transparency. Councilmember Fraley-Monillas asked for clarification whether a public hearing was required if the Council adopted the emergency ordinance tonight. Mr. Taraday answered either way, whether the Council adopted the emergency version or the version in the packet, the GMA requires a public hearing be held within 60 days of adoption of an interim zoning ordinance. Councilmember Fraley-Monillas asked the difference between adopting the ordinance as an emergency ordinance and adopting it as an interim ordinance. Mr. Taraday explained the difference in the effective date is a 10 day period. City Clerk Sandy Chase explained she publishes ordinances on the Sunday following the Tuesday meeting and the ordinance is effective the following Friday (5 days after publication); a total of ten days. Councilmember Fraley-Monillas did not support pursuing the ordinance as an emergency rather than an interim and will vote against the motion. Councilmember Bloom indicated she would support the motion. She disagreed with Councilmember Peterson's argument about transparency. Although she would have liked to have had both ordinances presented at once, this discussion is about the transparency. There were no plans to have a public hearing in advance anyway. The difference is ten days, during that period of time, applications could vest which would create confusion and a very difficult situation such as occurred in the prior hearing. The clause in the code does not exist in other cities and the safeguard of 10 days is worth it. Councilmember Buckshnis referred to an email from Mr. Taraday dated June 27, 2013 in which he discusses the ordinance and offers to prepare an emergency version of the ordinance. She recognized the need for an emergency ordinance and would support the motion. Edmonds City Council Approved Minutes July 2, 2013 Page 14 Councilmember Yamamoto did not support the motion. He cited the importance of transparency and not doing things in a hurry. He feared this would set precedence for doing things spur of the moment. UPON ROLL CALL, MOTION FAILED (4-3) FOR LACK OF A MAJORITY PLUS ONE; COUNCIL PRESIDENT PETSO AND COUNCILMEMBERS BUCKSHNIS, BLOOM AND JOHNSON VOTING YES; AND COUNCILMEMBERS YAMAMOTO, FRALEY-MONILLAS AND PETERSON VOTING NO. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER JOHNSON, TO ADOPT ORDINANCE NO. 3931, AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING AN INTERIM ZONING ORDINANCE TO AMEND THE CRITICAL AREAS ORDINANCE, SPECIFICALLY SECTIONS ECDC 23.40.210 AND 23.40.320, TO REPEAL THE DEFINITION OF REASONABLE ECONOMIC USE AND REFERENCES THERETO. Councilmember Peterson suggested the Planning Board review this in an expedited manner. Mr. Taraday answered the ordinance would be in effect for 180 days. During that period of time he recommended the Planning Board return to the Council with a recommendation regarding a permanent ordinance. THE VOTE ON THE MOTION CARRIED UNANIMOUSLY. 9. MAYOR'S COMMENTS Mayor Earling reported approximately 240-250 people attended the Arts Summit. The event was very successful and included a speaker about the interconnection and importance of arts and business. Following several breakout sessions, the group provided direction that will be included in the Cultural Plan. He thanked staff for organizing and putting on the event. Mayor Earling encouraged the public to attend the Walk Back in Time at the Edmonds Cemetery at 1:00 p.m, on July 18. Mayor Earling wished everyone a happy 4th of July. 10. COUNCIL COMMENTS Councilmember Bloom reported she attended the Arts Summit and found it very enjoyable and productive. She thanked Mayor Earling for organizing the event, staff for their assistance and the donors for providing food and refreshments. Councilmember Yamamoto provided a reminder of the 4'h of July 5K Fun Run/Walk. It starts at 10:00 a.m. at City Park and goes through Woodway and along the parade route. Councilmember Buckshnis reported she also attended the Arts Summit. She commended Mayor Earling and staff for their efforts. She wished everyone a happy 4th of July and encouraged everyone to keep their pets indoors on the 4th of July. Council President Petso referred to the alleged conspiracy regarding the ordinance. She did not have any contact with anyone on the Council or staff regarding the ordinance that was not an email that included everyone. She recalled Mr. Taraday asked the Council to get back to him because he recommended the change. A number of Councilmembers responded to her and she communicated that information to Mr. Taraday. Mr. Taraday then sent an email stating it could be done via an emergency ordinance and apparently that was not done until late afternoon today. That was when she first learned the emergency ordinance would be on the agenda. She supported the emergency ordinance as she felt it was a good idea Edmonds City Council Approved Minutes July 2, 2013 Page 15 but she was not aware that a group of Councilmembers had information that other Councilmembers did not. Councilmember Peterson wished everyone a happy and safe 4th of July. He announced the Alderwood Rotary's Concours D'Elegance Car Show on Saturday, July 13 from 1:00 to 5:00 p.m. on the 18th hole of the Lynnwood Municipal Golf Course. The show will include Italian sports cars as well as muscle cars. Proceeds benefit Clothes for Kids, Pathways for Women and other local charities. Councilmember Peterson asked everyone to keep the firefighters and families in Arizona in their hearts and to remember the first responders in Edmonds, in Snohomish County and throughout the country who put their lives on the line daily. Councilmember Fraley-Monillas congratulated the legislature for finally finishing the session. The Snohomish Health Board's emergency meeting regarding funding was canceled when the legislature passed the budget. Time will tell how the legislature's decisions will affect the City. 11. CONVENE IN EXECUTIVE SESSION REGARDING PENDING LITIGATION PER RCW 42.30.110(1)(i). At 8:58 p.m., Mayor Earling announced that the City Council would meet in executive session regarding pending litigation per RCW 42.30.110(1)(i). He stated that the executive session was scheduled to last approximately 10 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. No action was anticipated to occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Earling, and Councilmembers Yamamoto, Johnson, Fraley- Monillas, Buckshnis, Peterson, Petso and Bloom. Others present were City Attorney Jeff Taraday and City Clerk Sandy Chase. At 9:09 p.m., Mayor Earling announced to the public present in the Council Chambers that an additional five minutes would be required in executive session. The executive session concluded at 9:14 p.m. 12. RECONVENE IN OPEN SESSION. POTENTIAL ACTION AS A RESULT OF MEETING IN EXECUTIVE SESSION Mayor Earling reconvened the regular City Council meeting at 9:15 p.m. 13. ADJOURN With no further business, the Council meeting was adjourned at 9:16 p.m. Edmonds City Council Approved Minutes July 2, 2013 Page 16