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Cm130903EDMONDS CITY COUNCIL APPROVED MINUTES September 3, 2013 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Pro Tern Petso in the Council Chambers, 250 5tb Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Lora Petso, Mayor Pro Tem Adrienne Fraley-Monillas, Council Pres Strom Peterson, Councilmember Frank Yamamoto, Councilmember Joan Bloom, Councilmember Kristiana Johnson, Councilmember Diane Buckshnis, Councilmember ELECTED OFFICIALS ABSENT Dave Earling, Mayor ALSO PRESENT Thea Ocfemia, Student Representative STAFF PRESENT Al Compaan, Police Chief Pro Tern Stephen Clifton, Community Services/Economic Development Director Phil Williams, Public Works Director Roger Neumaier, Finance Director Carrie Hite, Parks & Recreation Director Rob Chave, Acting Development Services Dir. Frances Chapin, Cultural Services Manager Kernen Lien, Senior Planner Jeff Taraday, City Attorney Sandy Chase, City Clerk Jana Spellman, Executive Council Assistant. Jeannie Dines, Recorder Mayor Pro Tern Petso introduced Student Representative Thea Ocfemia, a student in the IB program at Edmonds-Woodway High School. 1. ROLL CALL City Clerk Sandy Chase called the roll. All elected officials were present with the exception of Mayor Earling. APPROVAL OF AGENDA COUNCIL PRESIDENT PRO TEM FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE THE AGENDA, DELETING AGENDA ITEMS 13 AND 14. MOTION CARRIED UNANIMOUSLY. APPROVAL OF CONSENT AGENDA ITEMS COUNCIL PRESIDENT PRO TEM FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER JOHNSON, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 27, 2013. B. APPROVAL OF CLAIM CHECKS #204020 THROUGH #204118 DATED AUGUST 29, 2013 FOR $521,419.08 (REISSUED CHECK #204104 $3,898.20). Edmonds City Council Approved Minutes September 3, 2013 Page 1 C. AUTHORIZATION FOR MAYOR TO SIGN CONTRACT WITH ARTIST FOR FIVE CORNERS ROUNDABOUT PUBLIC ART. AUDIENCE COMMENTS Roger Hertrich, Edmonds, referred to the interim ordinance regarding critical areas that Mayor Earling vetoed and the Council will reconsider tonight. He recalled his comments to the Council last week regarding the definition of impervious and how the code included graveled areas and packed dirt. His interpretation of impervious was something that water or moisture could not pass through. He understood the planner was changing something to provide a better understanding of impervious and may eliminate the use of graveled areas as impervious. He questioned whether the City was interpreting impervious correctly and whether that changed the Council's outlook on the interim ordinance. Ken Reidy, Edmonds, referred to the Code of Ethics on the August 20, 2013 agenda that included an excerpt from the City's personnel policies titled Chapter 10, Employee Responsibilities and Code of Ethics. He read from the General Code of Conduct section, "The City's primary function is to provide service to the citizens of Edmonds. To achieve that goal, all employees are expected to treat the public as their most valued customer. All employees are expected to serve the public in a professional manner, which is courteous, efficient and helpful. Among the City's expectations are tact and courteous toward the public and fellow employees and adherence to City policies. All persons representing the City of Edmonds shall conduct business in a professional manner, respecting all citizens' rights and showing courtesy to all. Their actions shall be conducted within compliance of the laws and regulations governing the City's actions, including but not limited to RCW Title 42. City representatives are expected to conduct business in an open manner. They shall not engage in any conduct which would reflect unfavorably upon City government or any of the services it provides. They must avoid any action which might result in or create the impression of using their position for private gain, giving preferential treatment or privileged information to any person, or losing impartiality in conducting the City's business." Mr. Reidy requested a City representative explain the City's procedures related to enforcement of this General Code of Conduct including who can request a code of conduct investigation, what steps must be followed, who conducts the investigation, and whether there is an independent code of conduct officer or board. Alex Witenberg, Edmonds, recalled a citizen request that the Council work to create a train horn quiet zone in Edmonds. Although he understood the man's desire not to have train horns sounding near his home, Mr. Witenberg recommended the Council and City focus on a more important issue related to trains, emergency access to the waterfront when trains pass through Edmonds. As a seasonal employee for the Edmonds Park Department, he has witnessed trains blocking traffic traveling to and from the waterfront. Trains traveling through Edmonds that separate downtown from the waterfront also block emergency vehicles from accessing the ferry terminal, Port and beaches. A fellow Parks employee relayed the he was once stranded on the waterfront side of the railroad tracks for over 1'/2 hours after a mud slide caused trains to be diverted and resulted in a continuous stream of trains blocking both access points to the waterfront. He recommended the Council focus on developing an alternative access point to the waterfront, at least for emergency vehicles. He recalled during budget discussions, fire and police are stressed by Council and citizens as the most important services the City provides; establishing emergency access to the waterfront should be at or near the top of the Council's priorities and offers an excellent opportunity to develop consensus among Councilmembers. Citizens will hold the City Council accountable if residents suffer as a result of emergency personnel's inability to reach the waterfront in a catastrophe. 5. COMMUNITY SERVICE ANNOUNCEMENT: EDMONDS SCARECROW FESTIVAL Bill Lambert, Board President, South Snohomish County Historical Society and Museum, announced the Society is sponsoring the first ever Scarecrow Festival and Contest. He displayed a scarecrow created by the Museum Guild members that will be donated to the Edmonds Center for the Edmonds City Council Approved Minutes September 3, 2013 Page 2 Arts fundraiser. He recognized Dave Buelow, Board Member and Project Manager, and Ted Heekin who discovered a similar event in Cambria, California and brought the idea to Edmonds. He invited everyone in the community to participate including Councilmembers, the Mayor and City employees. A flyer with instructions was included in the packet and is available at their website, historicedmonds.or . Applications, available at the Museum website, can be submitted beginning September 15 and citizens can vote for their favorite at the website beginning October 1. Family -friendly scarecrows will be on display at businesses, City areas and residences. The winner will be announced at the Museum's annual fundraiser on November 8. Sponsorship of this event recognizes the Historical Society's 40"' anniversary. The Museum's mission is to publicize and celebrate the community heritage. This has been done for nearly 20 years by developing and sponsoring the Edmonds Farmers Market, haunting the museum at Halloween and quarterly exhibits includes this year's Farming in Snohomish County and 40 x 40, a display of artifacts in their collection. In addition to the Scarecrow Festival, the Society is trying to generate interest in a fire museum to house the City's two antique fire engines. The community is invited to their fundraiser, Heritage Days, on November 8. The first stage of the museum renovation, the downstairs, has been completed under the direction of Museum Director Tarin Erickson; more exciting improvements and exhibits are coming. Councilmember Buckshnis asked whether scarecrows had to be scary. Mr. Lambert responded it was the person's choice; the only requirement is that scarecrows be family friendly. 6. PUBLIC HEARING ON ORDINANCE NO. 3935 — AN INTERIM ZONING ORDINANCE TO AMEND THE CRITICAL AREAS ORDINANCE, SPECIFICALLY SECTIONS ECDC 23.40.220, 23.40.320, 23.50.020, 23.50.040, AND 23.90.040, TO ALLOW DEVELOPMENT WITHIN LEGALLY ESTABLISHED IMPERVIOUS AREAS AND WITHIN BUFFER AREAS THAT ARE PHYSICALLY SEPARATED AND FUNCTIONALLY ISOLATED FROM AN ASSOCIATED CRITICAL AREA. Senior Planner Kernen Lien explained the origin of this change was to bring the City's critical area regulations into consistency with the City's Best Available Science (BAS) report that was prepared as part of the City's Critical Areas Ordinance (CAO) update in 2004. Allowed activities are activities that can occur within a critical area or critical area buffer. Allowed activities can be conditioned, must use "Best Management Practices" and must not degrade the associated critical area. Examples include utility maintenance, activities within the improved right-of-way, and alterations to structures that do not increase the "footprint of development." This developed footprint concept was discussed in the BAS report. The BAS report noted that the vast majority of the City (96%) is already developed and that future growth will be concentrated in the redevelopment of existing parcels. The BAS report noted the challenge for the CAO is providing opportunities to improve conditions around critical areas in the long term while allowing reasonable redevelopment. The BAS report concluded the main route to improving critical areas and their buffers was to require enhancement in exchange for allowing development and redevelopment within the existing footprint of development. Another aspect of development within the developed footprint is physically separated and functionally isolated. He provided the definition of buffer in the City's critical area regulations ECDC 23.40.320: "...a designated area immediately next to and part of a stream or wetland that is an integral part of the stream or wetland ecosystem." A property or development may be separated from the critical area by a "footprint of development" such as a road or structure. Mr. Lien highlighted the proposed changes to the CAO in the interim ordinance to bring the current CAO into compliance with BAS: Edmonds City Council Approved Minutes September 3, 2013 Page 3 • Development proposal within the footprint of development ECDC 23.40.220.C.3, ECDC 23.50.020.E • Definitions ECDC 23.40.320 impervious surface and footprint of development • Physically separated and functionally isolated ECDC 23.50.040.1-1, ECDC 23.90.040.D.4.c • Wetland enhancement ECDC 23.50.040.J Councilmember Buckshnis referred to her emails regarding what has occurred; this issue came to the Parks, Planning & Public Works Committee in July who referred it to the Planning Board and it was returned to the Council. The Council got caught up in the examples rather than the actual verbiage. She pointed out an expert must determine when it is physically separated and functionally isolated. She asked whether a representative of the Department of Ecology (DOE) was present. Mr. Lien answered no; however, Paul Anderson, Wetland Specialist, Washington State Department of Ecology, provided an email regarding the interim ordinance. Councilmember Buckshnis asked whether the Council could change the ordinance to clarify impervious surface. City Attorney Jeff Taraday advised the interim ordinance will expire in 180 days from adoption regardless of whether the Council takes any further action. If/when the Council replaces it with a permanent ordinance, the Council will have the opportunity to make any changes. Councilmember Johnson suggested it would be helpful for the public to understand the background of the BAS report and CAO and how they relate to GMA. She understood it was adopted in 2004 and was supposed to be updated every 7 years which would be 2011. Mr. Lien explained the BAS report itself is not adopted by the City. In development of critical area regulations, the City is to consider BAS, peer reviewed articles on buffers, etc. The City's last CAO update in 2004 was effective in 2005; the next update will be 2015. The CAO is to generally be consistent with BAS. There are instances where it can deviate from BAS. In the BAS report, many of the studies are done in rural areas where 100-200 foot buffers actually exist and the goal is to protect the critical area. In Edmonds, it does not make sense to require a 100-200 foot buffer because the buffers do not exist. The BAS report and discussions with Ecology and the interim ordinance address allowing development to occur within developed areas in exchange for enhancement of the critical area or critical area buffer, improving critical areas in the long run over current conditions. Councilmember Johnson asked Mr. Lien to summarize activity in the last eight years since the CAO was adopted and asked if this was the first challenge to the ordinance. Mr. Lien responded there has not been a challenge to the ordinance; this issue has arisen occasionally in the past including two recent examples. The issues of physically separated and functionally isolated and development within the developed footprint were recently discussed with DOE in regard to the Shoreline Management Program update. The proposed changes would apply across the City; there are a number of examples of physically separated and functionally isolated and development within the developed footprint. Historically the City focused on not expanding the impervious surface area; closer inspection of that language including the word "structure" which changed how the code was applied. Councilmember Bloom recalled when this was originally presented it was described as the change had to be made so the CAO was consistent with BAS. She referred to an email from Mr. Taraday, noting she did not understand what he meant. There was also an email from Mayor Pro Tern Petso with an example where the CAO does not have to be consistent with BAS. She asked Mr. Taraday to explain whether it was necessary for this change to be made; if the CAO and BAS had to be consistent. Mr. Taraday responded her question did not have a simple yes/no answer. He can review the relevant statutory law and case law but it is complicated. He explained Councilmember Bloom emailed him a question today and he emailed her a response; his response may not have been a good paraphrasing of the law. In 1999 Washington State Supreme Court had occasion to consider the BAS requirement in the GMA. He read the Edmonds City Council Approved Minutes September 3, 2013 Page 4 excerpt he sent Councilmember Bloom today from a case, Honesty in Environmental Analysis and Legislation (HEAL) v. Central Puget Sound Growth Management Hearings Board: The GALA requires balancing of more than a dozen goals and several specific directives in implementing those goals. The Legislature passed RCW 36.70A.172(1) five years after the GAM was adopted. It knew of the other factors, but neither made best available science the sole factor, the factor above all other factors nor made it purely procedural. Instead, the Legislature left the cities and counties with the authority and obligation to take scientific evidence and to balance that evidence among the many goals and factors to fashion locally appropriate regulations based on the evidence not on speculation and surmise. The trial court's formulation that best available science be included in a substantive way is not inconsistent with this court's reading of the Board's interpretation of the statute. The trial court also said the evidence would `guide" decision -making. If by this the trial court meant the science must be considered and balanced, then the trial court and the Board are in agreement. If `guide, " means the proposed regulations or policies of the City must result in a particular outcome based on that evidence standing alone, the court went too far. The trial court, by reversing the Board, believed the Board had not applied the scientific evidence in a substantive way. We cannot agree with the trial court's reversal of the result. Whether scientific evidence is respectable and authoritative, challenged or unchallenged, controlling or of no consequence when balanced against other factors, goals and evidence to be considered, is first in the province of the city or county to decide. Then, if challenged, it is for the Growth Management Hearings Board to review. The Legislature has given great deference to the substantive outcome of that balancing process. We hold that evidence of the best available science must be included in the record and must be considered substantively in the development of critical areas policies and regulations. Mr. Taraday summarized what he heard the court saying was the Council did not have to take a conclusion reached in the BAS report and apply it verbatim in the City code; that is not necessarily required. However, the City, Planning Staff, Council, etc., need to include BAS in the record and must have substantively considered it. It is not enough just to have a folder/file with the BAS report and draft regulations; what the BAS report says must be taken into consideration. If the City is departing from its BAS report, it must justify that departure by identifying another competing goal in the GMA in explaining because of that goal and because of local circumstances, the City Council decided to do it differently than stated in the BAS report. Councilmember Bloom relayed her understanding of Mr. Taraday's explanation that the BAS report is used as a guide but nothing needed to be changed at this point because it is only a guide. Mr. Taraday responded "guide" can be interpreted in different ways. He explained BAS must be included in the record and must be considered substantively in the development of critical area policies and regulations. His interpretation of "considered substantively" meant if the City was not relying on the BAS report to make the code say essentially the same thing, at the very least there needed to be a substantive explanation for why the code did not match the report. Councilmember Bloom explained she reviewed the BAS report; she did not find any direction regarding allowing increased impervious surface in areas that are physically separated and functionally isolated. She asked Mr. Lien to explain where in the BAS report it says this change should be made. Mr. Lien responded there is no specific reference in the BAS report to physically separated and functionally isolated. It is an expansion of the developed footprint concept and allowing redevelopment within those areas. The definition of buffer is the area immediately next to and an integral part of the critical area. The definition of buffer incorporates this concept. Physically separated and functionally isolated, which is determined by a qualified professional, that part of the buffer is separated from the critical area by a developed footprint. That is the connection to the BAS report and development within the previously Edmonds City Council Approved Minutes September 3, 2013 Page 5 developed footprint. In some areas of the City, properties are separated by a road such as the park example and buffers often extend across multiple parcels. It is separated by a footprint of development, therefore not providing any function to the critical area. Mr. Lien referred to a letter from Steve Quarterman, Senior Ecologist, Landau Associates, regarding application of BAS, specifically in recognizing fragmentation provided by public roads, legally established structures and similar circumstances isolate habitats, and the inherent understanding that these features do not constitute vegetated areas adjacent to aquatic resources. Mr. Quarterman's letter also states this language appears consistent with the current definition of buffers in the City's CAO. Mr. Lien explained the BAS recognized Edmonds was a developed city and allowing development and redevelopment in the developed footprint or separated from the critical area in order to enhance critical areas. The proposal in the interim ordinance is consistent with BAS. Councilmember Bloom relayed her understanding of Mr. Lien's explanation was there is no reference in the BAS to physically separated and functionally isolated. Mr. Lien agreed there was no specific reference. Mr. Taraday agreed the phrase, physically separated and functionally isolated, does not appear in the BAS report, but the concept is represented by the following paragraph on page 31 of the BAS report: Instituting large buffers that would extend into residential yards that were previously developed would offer no additional protection for the resource. To ensure improvement in wetland buffer function over time the new CAO requires buffer enhancement for redevelopment that expands an existing structure footprint into a buffer. Mr. Lien referenced another mention of expansion on page 57 of the BAS report: New development or expansion of existing development into fish and wildlife habitat conservation areas would require a native vegetation enhancement plan. The gist of the BAS report was allowing limited development or redevelopment in exchange for enhancement of a critical area because large buffers do not exist throughout the City. In response to the inquiry made during Audience Comments, Councilmember Bloom asked Mr. Lien to read the definition of impervious surfaces in the interim ordinance. Mr. Lien advised the definition of impervious surface was taken from the State and the Phase II stormwater requirements, "impervious surface means a hard surface area that either prevents or retards entry of water into the soil mantle as it occurs under natural conditions prior to development, resulting in stormwater runoff from the surface in greater quantities or an increased rate of flow compared to stormwater runoff characteristics under natural conditions prior to development. Common impervious surfaces include but are not limited to rooftops, walkways, patios, driveways, parking lots or storage areas, outdoor swimming pools, concrete or asphalt paving, gravel roads, packed earthen materials, or oiled macadam or other surfaces that similarly impede the natural infiltration of stormwater." Councilmember Bloom observed it includes compacted dirt as well as gravel. Mr. Lien agreed. Mayor Pro Tern Petso observed this is a required hearing but not an action item. Mr. Lien agreed. Mayor Pro Tern Petso referred to the BAS report that states preliminary from August 2004 and asked whether that was the BAS report or was there a final version. Mr. Lien answered that is the BAS report. Mayor Pro Tern Petso commented best available science is not the BAS report; it is actually the scientific reports that were relied on to create the BAS report. Mr. Lien answered the BAS report summarizes best available science. Mayor Pro Tern Petso asked how this was allowed without a SEPA review. Mr. Lien answered SEPA was done. The EIS addendum from 2004 when the City did the CAO update was adopted; the interim ordinance has been sent to Commerce and reviewed by State departments which generated the comment from DOE's Wetland Specialist. Mayor Pro Tern Petso asked whether there was a public component to the SEPA process. Mr. Lien answered it was noticed. Edmonds City Council Approved Minutes September 3, 2013 Page 6 Councilmember Buckshnis asked Ms. Hite to describe the spray pad project and how it enhances the impervious surfaces and recycles water, the amount of time the City has spent on the project, portions of the project that are in critical areas and how it is physically separated and functionally isolated from the wetland marsh by a parking lot. She recalled Mr. Taraday's comments that this is a fine balancing act that needs to take into consideration all issues. She emphasized the code did not correctly translate the BAS report. Parks & Recreation Director Carrie Hite commented this project seems to have been caught up in the discussion about the CAO. The City Park play area and spray pad plan was adopted in a master plan in 1992 prior to adoption of the CAO in 2004. She displayed a wetland reconnaissance prepared by Landau Associates overlaid with the current 30% design prepared by the landscape architect. The design has been put on hold due to this issue so it is now a couple months behind. She identified the edge of the Class 2 wetland, Wetland A, on the east side of SR 104, a freshwater wetland with some habitat but not as ecologically demanding as a Class 1 wetland. According to the CAO a 100-foot buffer should be considered. She identified the 100-foot buffer on the wetland reconnaissance, noting the wetland was not surveyed so is not an exact measurement. A survey can be done if necessary. Ms. Hite explained the wetland buffer contains condominiums and a great deal of impervious surface including the roadway, the exit drive from City Park, a parking lot and a driveway. She summarized nearly the entire buffer is impervious. She identified the City Park play area and spray pad, including the current footprint of the play area; the expansion includes the spray pad which was adopted in the 1992 master plan. Financing for the project includes funds in the 2013 CIP to replace the deteriorating playground which was used as a match for a $500,000 RCO grant the City received. The Hazel Miller Foundation funded $270,000 of the project and Snohomish County provided $80,000. The project is completely funded because the play area replacement was done at the same time as the installation of the new spray pad. A portion of the current footprint lies within the buffer; the footprint was expanded to add required ADA walkways. If the ADA walkways were removed, the footprint would be reduced; the State RCO demands higher accessibility in all projects. Ms. Hite explained moving the project south outside the buffer area would require removal of several trees. The project already impacts two trees; efforts will be made to save them. Some diseased trees will be removed. She identified a grasscrete area designed for truck access to service the underground tank. She explained three types of water systems that can be used in a spray park: 1. Recirculating system — an expensive system that Snohomish County would not permit because it is more than 100 feet from the current restroom 2. Percolating system that drains into the ground — not an option because of the proximity to the marsh. 3. Pump directly into the sewer system Ms. Hite explained the system being designed for City Park is a water reuse system that reuses water from the spray area. The water from the impervious area drains into a tank. The tank is treated by UV and routed out to 14 irrigation zones in City Park, to the restroom to flush toilets, and pumped out for use in the flower program downtown. She acknowledged not all the water can be reused and some will be pumped to the sewer. The proposed system will have less impact on the wetland than the current footprint. Councilmember Buckshnis concluded the spray park water system will enhance the critical area. Ms. Hite responded the water system captures all the water, treats and reuses it and pumps it off site. Mayor Pro Tem Petso opened the public participation portion of the public hearing. Letters had been received from Paul Anderson, Washington State Department of Ecology, and from Steven Quarterman, Landau Associates. Edmonds City Council Approved Minutes September 3, 2013 Page 7 Neil Fallon, Tacoma, American Brewing Company, commented sales are so good they need to expand. He explained prior to opening American Brewing three years ago, he met with the landowners and the City and was assured he could expand and relied on that information when he signed the lease. Now when he needs to expand, he was informed the interpretation of the code had been reconsidered and his use now falls under this complicated set of ideas. He would like to locate two pieces of equipment on asphalt that is currently located within a buffer. His lease is expiring and he needs to renegotiate it; if he is not allowed to locate the equipment, it will affect his ability to operate his business. In addition, they are applying to become a publicly traded company. They are in the process of expanding nationally and need this additional equipment. He expressed his support for Ordinance No. 3935 and recommended the Council not overturn the Mayor's veto of Ordinance No. 3940. Val Stewart, Edmonds, commented the interim ordinance is a temporary measure that will be considered by the Planning Board and a recommendation forwarded to the Council. The interim ordinance will allow two well -intended projects to move forward. She referred to Ms. Hite's explanation regarding the benefits of the spray park, quoting her statements that this is one of the greenest options for operating a spray park and has been introduced throughout California. This project is one of the first in the State and the first in Snohomish County to incorporate this green design. With regard to sustainability, Ms. Stewart pointed out without this interim ordinance the park project will be delayed and the financial impacts could undermine some of the green benefits. With regard to the American Brewing Company project, from an economic and environmental sustainability standpoint, having a silo to store ingredients reduces the amount of gas and transportation costs and makes the business financially sustainable. Both projects are well -intended and have wonderful benefits. She doubted a project that would encounter this glitch in the code would be proposed in the five months until the interim ordinance expires. Ken Reidy, Edmonds, recalled Paul Anderson and the State Department of Ecology exerted very strong jurisdiction over a large wetland in his neighborhood in 2006. He offered to send the Council Mr. Anderson's October 6, 2006 letter, addressed to Scott Snyder and others, that states the State had jurisdiction over the wetland in his neighborhood. He summarized the State was blocked from the process, the wetland was filled without their knowledge; Mr. Anderson came to his neighborhood and was blocked from the property. Mr. Anderson later told him that he highly doubted the State's water quality certifications were met. In subsequent conversations, Mr. Anderson said resources were an issue with the State's involvement in protecting critical areas in cities. Roger Hertrich, Edmonds, referred to the definition in the packet of best practices, no degradation of associated critical areas, and asked if paving degraded the ability to absorb. He did not understand Mr. Fallon's problem when the area where he wanted to locate equipment was already covered with asphalt. He questioned the definition of impervious, pointing out gravel has spaces for water to flow through. He referred to the definition, no degradation of associated critical area, noting cutting trees or paving over porous ground was degrading the associated critical area. He concluded the proposed changes were not appropriate and he preferred to allow the Planning Board to conduct their review. He acknowledged the City Park project was caught up in this situation but the Council should not change the code to address one project. Bruce Witenberg, Edmonds, expressed support for the interim critical areas ordinance and opposed overriding the Mayor's veto of the Council repeal of the interim critical area ordinance. While it may not be perfect, the interim ordinance was a vast improvement over the current ordinance. It creates compatibility between the City's CAO and the BAS, an important element lacking in the current CAO. The interim ordinance allows the City Park project and the American Brewing Company silo projects to continue, noting the adverse economic impacts on American Brewing of the Council not adopting the interim ordinance. The City Park project is on a tight timeline due to government grant deadlines. Failure to meet the deadlines would disappoint the children anxiously awaiting the completion of the project and may have unintended consequences of jeopardizing future park grant funds. There is the risk that the Edmonds City Council Approved Minutes September 3, 2013 Page 8 grant timeline will not be extended and the project not completed at all. In addition the Council may be jeopardizing its credibility with the Hazel Miller Foundation who has provided substantial funding for this project. There is also the risk the Foundation may rescind its funding if the project is delayed. He questioned where funds would come from if public and private funding lapse. He respected the fact that some Councilmembers want to hear the opinion of the Planning Board, however, that would cause at least a six week delay. Councilmembers who support delaying implementation of the interim critical area ordinance are in effect saying they do not have confidence in the Planning Board's recommendation of the interim ordinance, no confidence in the City Attorney who drafted the interim ordinance and no confidence in the Department of Ecology with whom staff has discussed the interim ordinance and are supportive of this approach. Those Councilmembers are substituting their judgment and personal beliefs for the expertise of professionals. He urged the Council to vote in favor of the interim ordinance. Hearing no further comment, Mayor Pro Tern Petso closed the public participation portion of the public hearing. In response to Mr. Reidy's comment about Ecology's role in regulating wetlands, Mr. Lien explained Paul Anderson's email suggested the interim ordinance language be changed to state other permits may be required for enhancements within a wetland or stream. His suggestion will be presented to the Planning Board. Ms. Hite confirmed Mr. Witenberg's comments that the project is under a State deadline that requires the project be completed by July 2014. The project is on track for mid -July 2014; construction was originally expected to be completed by May and the park open for the summer. An extension can be requested and the State often grants an extension but that is not guaranteed. In addition there has been some communication from the Hazel Miller Foundation, not necessarily to rescind their funds, but to look carefully at the changes in the project. The same is true for the funds provided via an Interlocal Agreement with Snohomish County. She summarized there is a great deal of time, funding, budget and scope riding on the ability to develop City Park as proposed. Councilmember Peterson observed Agenda Item 9 is related to this discussion. He suggested moving Item 9 prior to Items 7 and 8. Mayor Pro Tem Petso agreed they were related; however Item 8 is a public hearing and Item 7 was scheduled prior to the public hearing because it is related to the public hearing topic. Mr. Taraday clarified no action is required. This public hearing is required by State law; adoption of an interim ordinance also requires the legislative body adopt Findings of Fact justifying its action. He will prepare a resolution for approval at the next Council meeting affectively adopting the whereas clauses in Ordinance 3935 as the City Council's Findings of Fact that justify adoption of the interim ordinance. He invited Councilmembers to offer additional Finding of Fact. Mayor Pro Tern Petso advised Councilmembers will be absent from the September 17 and 24 meetings. She asked if the Council should hold a regular Council meeting on September 10 to consider the resolution. Mr. Taraday answered he would leave that up to Mayor Pro Tern Petso; adoption of the resolution can pass on a 3-2 vote. Council President Pro Tern Fraley-Monillas suggested a short Council meeting on September 10 prior to committee meetings, observing there were 3 Councilmembers absent on September 17 and 2 absent on September 24. Mayor Pro Tern Petso agreed the resolution would be scheduled for a regular Council meeting on September 10 prior to committee meetings. Edmonds City Council Approved Minutes September 3, 2013 Page 9 7. DISCUSSION REGARDING I-502 AND CITY OPTIONS REGARDING MARIJUANA. City Attorney Jeff Taraday referred to the memo in the Council packet prepared by Susan Drummond, Lighthouse Law Group, regarding the four options the City has for addressing marijuana facilities. Mr. Taraday explained the Council recently adopted a moratorium on which a public hearing will be held next. During the six months the moratorium is in effect, the City can consider what it wants its policy to be with regard to medical marijuana, collective gardens and recreational marijuana facilities that were approved via I-502. He reviewed the four options outlined in the memo: 1. Take no action 2. No immediate action; further assess likely impacts and legal concerns. Kent has litigation pending with regard to a ban on marijuana facilities. Mr. Taraday expected Kent's ban will be upheld by State courts but a published opinion has not yet been issued. 3. Adopt a permanent ban on marijuana facilities 4. Adopt zoning regulations that allow marijuana facilities in certain zones subject to conditions Mr. Taraday explained this is a timely discussion because there will be a great deal of activity with regard to I-502 in the next 6 months. Tomorrow the Liquor Control Board plans to inform cities and counties the number of retail marijuana facilities they will license for each area. The Liquor Control Board's allocation does not mean a city cannot ban retail marijuana facilities. The Liquor Control Board will allocate retail marijuana facilities based on population. Even if Edmonds is allocated a certain number of facilities, the City does not have to allow them. The City's code is essentially silent, other than the moratorium, with regard to collective gardens and retail marijuana stores. He noted no one could apply for a retail license until they have a State license. Mr. Taraday referred to the timeline in the packet, noting a date he learned about today is the Liquor Control Board estimates they will begin issuing licenses in March/April 2014. The City's moratorium will expire in February 2014; hopefully, the Council has provided clear direction before then regarding zoning, a ban, etc. If the decision is to ban, a ban should be in place by February 2014. If the decision is to zone facilities, the zoning should be in place by February 2014. Because the code is currently silent, he recommended the Council provide a clear policy directive. He did not recommend the Council take no action on a permanent basis. With regard to federal law, as the memo mentions, on August 29 the Justice Department decided they will allow I-502 to go into effect. He highlighted statements in a 4-page memo (not in the packet), Guidance Regarding Marijuana Enforcement intended for all United States attorneys: The Justice Department is committed to using its limited investigative and prosecutorial resources to address the most significant threats. The Justice Department identified eight particular threats that it will continue to focus on: • Preventing the distribution of marijuana to minors; • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; • Preventing the diversion of marijuana from states where it is legal under state law in some from to other states; • Preventing state -authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; • Preventing violence and the use of firearms in the cultivation and distribution of marijuana; • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and • Preventing marijuana possession or use on federal property. Edmonds City Council Approved Minutes September 3, 2013 Page 10 Mr. Taraday continued his summary of the memo: Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose. If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself Mr. Taraday summarized all marijuana is illegal under federal law; the federal government is not changing the classification of marijuana under federal law. The memo states that federal law enforcement has their enforcement priorities and as long as the states are operating a tight ship with respect to their regulations and making sure State laws that make marijuana legal and the regulatory scheme do not interfere with the federal government's eight enforcement priorities, it appears the federal government will let the states continue without waiving their right to step in later if they perceive things are getting out of hand or the State's enforcement is too loose. Council President Pro Tern Fraley-Monillas recalled after the federal government's statements, the governor's office made a statement agreeing with the federal government. Mr. Taraday said it appears certain there will be State licensed retail marijuana facilities in Washington; the question is whether the Council wants them in Edmonds and if so, where. Council President Pro Tern Fraley-Monillas preferred to observe the challenges over the next few months. Mr. Taraday responded if a majority of the Council is thinking a ban may be the right way, there is no harm in leaving the moratorium in place and letting 2-4 months pass to see what happens with the Kent case, to confirm that the court will uphold cities' ability to ban retail marijuana facilities. However, if the Council is leaning toward permitting and zoning, he recommended Council not simply wait because it will take time for the Planning Board to work through appropriate zoning. Zoning would ideally take place before licenses are issued in March/April 2014. Councilmember Buckshnis said she was swaying between 2 (no immediate action) and 4 (adopt zoning regulations) and having the Parks, Planning & Public Works Committee discuss zoning regulations. She inquired about taxes the City would receive. Mr. Taraday answered unlike collective gardens which are not taxed, State licensed facilities will be taxed and if they are allowed in Edmonds, the City will receive the local share of sales tax. Councilmember Buckshnis asked if the City would determine that tax. Mr. Taraday answered it is sales tax; there is no special marijuana tax collected by the city. Councilmember Buckshnis recalled liquor tax is collected by the State and distributed to the cities. Mr. Taraday summarized the City does not have specific taxing authority unique to only marijuana facilities. If there is a State licensed retail marijuana facility in Edmonds, it would be like any other retail operation in Edmonds whereby the City would receive a portion of the sales tax. Councilmember Buckshnis suggested this also be reviewed by the Public Safety and Finance Committees. Mayor Pro Tern Petso observed a city may be permitted to prevent a facility from locating with 1,000 feet of a school. She asked if a city could require a greater distance or add other public facilities such as libraries or parks. Mr. Taraday explained I-502 will address that; the 1,000 foot buffer is listed in 1-502 and covers parks, schools, libraries and other areas where minors may be present. The State will address much of that via its own licensing efforts. If the City has the ability to ban, it would have the authority to further restrict them. Councilmember Peterson summarized the issues moving forward include, 1) retail locations, 2) collective gardens, and 3) businesses that use marijuana as a food additive. Mr. Taraday advised under I-502, there are three different licenses, 1) producer, 2) processor, and 3) retailer. In addition there is the non-I-502 collective garden related to medical marijuana; there is currently nothing in the code to address this. Edmonds City Council Approved Minutes September 3, 2013 Page 11 Collective gardens are not licensed or taxed by the State. Unless there is City zoning to regulate collective gardens, the City cannot rely on the Liquor Control Board to regulate them. Councilmember Peterson asked if the City was more vulnerable to a collective gardening license without regulations in the code. Mr. Taraday requested the Council provide clear policy direction with regard to collective gardens. Before the moratorium was adopted there were inquiries about collective gardens. He did not envision that interest would go away with the establishment of State licensed marijuana outlets because collective gardens do not pay tax. Acting Development Services Director Rob Chave commented silence is not generally prohibition. If someone applies, staff attempts to determine where it fits in the code. Many of the land use classifications are very broad; for example a collective garden could be considered gardening. He did not recommend the Council do nothing. He agreed with referring it to multiple committees because land use will have a relatively minor role and there are other issues such as licensing, enforcement, etc. He suggested not referring to the Planning Board until the Council has had more discussion regarding what path they want to follow. Councilmember Peterson asked if restaurants would be allowed to use cannabis as an ingredient. Mr. Taraday answered he did not think so because no public consumption of marijuana was allowed even under I-502. Councilmember Peterson recalled I-502 did not allow public smoking but was unsure if there was no public consumption. Mr. Taraday recalled there no distinction between smoking and consumption; he offered to research. Councilmember Peterson asked whether there was a 1,000 foot restriction from schools, churches, etc. for breweries, distilleries, liquor stores and other licensed operations or were they only allowed in commercial areas. Mr. Chave answered there are similar distance separation requirements for adult entertainment; by the time they are applied throughout the City there are a very limited number of sites available. The City's GIS person is attempting to map potential sites under the limitations of I-502. He anticipated the potential locations would be fairly limited. Councilmember Peterson suggested that information be given to the committees for review. He asked if the State was utilizing GIS in allocating the number of facilities per jurisdiction. Mr. Taraday answered he believed the State was allocating facilities based on population not GIS. Councilmember Peterson observed the State could allocate Edmonds 15 facilities and there could only be 3 available sites. Mr. Taraday agreed that was possible. Councilmember Yamamoto asked whether Council action was necessary to extend the moratorium. Mr. Taraday answered the moratorium will remain in effect for 6 months from the date of adoption, February 2014. The Council has time to give this careful consideration. Depending on how the Council wants to proceed, it would be helpful to know sooner rather than later so staff can plan accordingly. Mayor Pro Tern Petso advised this was on tonight's agenda as a discussion item prior to the public hearing to inform the public. However, it appeared Mr. Taraday was asking for Council direction. Councilmember Peterson favored following the rules and regulations in I-502 with regard to zoning and siting. He also suggested obtaining information from other cities who have allowed collective gardens such as Mukilteo. Washington is on the leading edge of an important change in attitudes toward marijuana, both medical and recreational and it is important to have as much information as possible. Council President Pro Tern Fraley-Monillas agreed with Councilmember Peterson. Mayor Pro Tern Petso suggested scheduling this for October committee meetings. She asked Mr. Taraday whether he had sufficient direction from Council. Mr. Taraday answered there was time for discussion by Council committees. The Liquor Control Board plans to adopt the rules on October 16. The rules will be in fairly final form by the October committee meetings. A public hearing on the draft rules is scheduled on October 9. Edmonds City Council Approved Minutes September 3, 2013 Page 12 Councilmember Johnson agreed that would be a prudent course. She also suggested committees be provided the GIS information that identifies potential locations. Councilmember Peterson suggested further discussion could occur at the Council's October 22 work session. 8. PUBLIC HEARING ON ORDINANCE NO. 3938 — RELATING TO COLLECTIVE GARDENS AND THE RECREATIONAL USES OF MARIJUANA, ESTABLISHING AN IMMEDIATE EMERGENCY MORATORIUM ON THE SITING, ESTABLISHMENT AND OPERATION OF ANY STRUCTURES OR USES RELATING TO COLLECTIVE GARDENS, MARIJUANA PRODUCTION, MARIJUANA PROCESSING, OR MARIJUANA RETAILING, TO BE IN EFFECT UNTIL THE CITY OF EDMONDS ADOPTS ZONING REGULATIONS ADDRESSING SUCH MARIJUANA USES, AND ESTABLISHING AN IMMEDIATE EMERGENCY MORATORIUM ON THE SUBMISSION OF ANY BUSINESS LICENSE APPLICATIONS FOR SUCH USES, SETTING SIX MONTHS AS THE EFFECTIVE PERIOD OF THE MORATORIUM, TO ALLOW THE WASHINGTON STATE LIQUOR CONTROL BOARD AN OPPORTUNITY TO COMPLETE ITS RULE MAKING FOR THE LICENSING OF SUCH USES AND TO ALLOW THE CITY TO STUDY THE SECONDARY LAND USE IMPACTS OF SUCH USES, ESTABLISHING THE DATE OF THE PUBLIC HEARING ON THE MORATORIUM AND DECLARING AN EMERGENCY. City Attorney Jeff Taraday advised this is a statutorily required public hearing; anytime the Council adopts a moratorium a public hearing is required within 60 days of adoption. Mayor Pro Tem Petso opened the public participation portion of the public hearing. There were no members of the audience present who wished to provide testimony. Mayor Pro Tern Petso closed the public participation portion of the public hearing. Mr. Taraday advised he would prepare a resolution using the whereas statements from the ordinance as the Findings of Fact for Council consideration at the September 10 meeting. Councilmember Peterson recalled he voted against the moratorium. Although he likely still would have voted against it, he would have felt more comfortable if the previous item had been scheduled on the agenda along with the moratorium. 9. RECONSIDERATION OF THE MAYOR'S VETO OF ORDINANCE NO. 3940 — REPEALING INTERIM ORDINANCE NO. 3935, WHICH AMENDED THE CRITICAL AREAS ORDINANCE, SPECIFICALLY SECTIONS ECDC 23.40.220, 23.40.320, 23.50.020, 23.50.040, AND 23.90.040, TO ALLOW DEVELOPMENT WITHIN LEGALLY ESTABLISHED IMPERVIOUS AREAS AND WITHIN BUFFER AREAS THAT ARE PHYSICALLY SEPARATED AND FUNCTIONALLY ISOLATED FROM AN ASSOCIATED CRITICAL AREA. Mayor Pro Tern Petso explained this reconsideration is required by State law. Councilmember Bloom asked if this was being done because the Mayor has the option to either veto an ordinance or sign and pass it. City Attorney Jeff Taraday answered yes; or a Mayor could do nothing in which case it becomes law. Councilmember Bloom referred to the last sentence of the RCW that states if the Mayor fails for 10 days to either approve or veto an ordinance, it shall become valid without his or her approval. Ordinances shall be signed by the mayor and attested by the clerk. She asked what happened if the Mayor did not veto or sign an ordinance. Mr. Taraday explained if the Mayor does not veto or sign an ordinance it becomes valid without his/her approval. Councilmember Bloom asked whether it became effective within 10 days. Mr. Taraday answered the effective date depends on what is stated in the ordinance. Councilmember Bloom observed the effective date could be as stated in the ordinance; Edmonds City Council Approved Minutes September 3, 2013 Page 13 otherwise it would be effective 10 days after approval by Council. Mr. Taraday explained there is a difference between a valid law and the effective date of the law. This statute addresses what it takes to become a valid law; in order to become a valid law, an ordinance must either be signed by the Mayor or the Mayor does nothing for a period of 10 days. Councilmember Buckshnis asked whether this required a super majority. Mr. Taraday answered if a Councilmember moved to override the veto, the motion would only pass with five votes of the Council. If the motion failed, Ordinance No. 3935 remains in effect. Councilmember Yamamoto observed the ordinance would remain in effect if the Council voted to uphold the Mayor's veto. Mr. Taraday advised no motion is necessary to uphold the Mayor's veto. The veto has already taken place and Ordinance No. 3940 is void unless the Council overrides the veto. Recognizing this has been a confusing issue, Councilmember Johnson explained on July 9 the Parks, Planning & Public Works Committee had presentations on the City Park project and American Brewery project that identified problems with the CAO. The committee was asked to forward it to the Planning Board and that is what the committee recommended. Before the Planning Board began their discussion, staff requested an interim ordinance. She voted no on the interim ordinance because it had not been presented at the committee and had the appearance of changing the rules to accommodate a City project. It also appeared it was a shortcut to resolve either a project management or project design problem. Councilmember Johnson explained since that time she has attended two Planning Board discussions and read more on the subject. It appears the City is moving in the right direction. She did not like how this was handled or that the City Council was placed in this position. She assured no Councilmember wanted to disappoint the children or was opposed to the City Park spray pad project. It was staffs responsibility to uphold the Comprehensive Plan and the orderly review of items before the City Council. She did not want the Council to put the City Park project in jeopardy via further delays and for that reason and although she had opposed the interim ordinance, she would not vote to overturn the Mayor's veto. Mayor Pro Tern Petso advised she would support a motion to overturn the Mayor's veto. She did not believe this was about two particular projects but had impacts citywide. She was certain there were errors in the ordinance, one of them in an emailed public comment and another that pointed out the current ordinance considers gravel and hardpan dirt as part of the previously developed footprint. She was concerned that the ordinance allows paving of critical area buffers. In the case of the City Park project, very little paving of the critical area buffer would occur. In other projects a great deal of paving in the critical area buffer may occur and it is possible that paving will drain to a related stream or wetland causing the type of problems the City witnessed last Thursday. Mayor Pro Tem Petso said the City is not bound by the conclusions of a 9-year old preliminary BAS report. BAS refers to scientific studies and the BAS recommendation regarding paving in critical areas does not follow BAS but is in contradiction to BAS. She referred to the November 16, 2004 minutes where the City Council was told BAS requires using large buffers around critical areas. That night the Council made an exception to BAS and reduced buffer sizes for a variety of reasons. The Council is not bound; it is doing it by choice. The Council is also not bound by a previous Council and can make its own decision. The best available science she has been given is that Edmonds is so developed that too much sediment is being dumped into the marsh, creeks and streams and Puget Sound too quickly which damages the environment. The idea of making this worse to benefit two projects was unfortunate and she anticipated if it were a private applicant rather than the City, the Council would support redesigning the project. She was disappointed but pleased that the amount of information about what constitutes BAS as well as the minutes from prior discussions will allow the Planning Board to develop an ordinance to replace the interim ordinance even if the Council does not vote to override the veto tonight. Edmonds City Council Approved Minutes September 3, 2013 Page 14 Councilmember Buckshnis pointed out flooding occurs because of 100 year old pipes that cannot accommodate stormwater and the marsh pipe that is plugged with cattails because funding has not been obtained for restoration. She objected to global statements about the reasons for flooding problems without citing other issues. She agreed with Councilmember Johnson and supported retaining the interim ordinance while the Planning Board reviewed the matter. She recalled when the pier at the dog park was removed, it could not be paved because it would be impervious, which indicates the City is following its rules. Council President Pro Tem Fraley-Monillas pointed out there were not enough votes to overturn the Mayor's veto. She was concerned the administration has used veto power three times in less than two years which she felt put democracy in jeopardy. Anytime the Council takes a vote in opposition to the Mayor, the Mayor has the ability to veto. In this form of government the Mayor is allowed to overturn the Council's action; the Council is the body elected by the citizenry. She was concerned the Mayor may be overusing his veto power. Councilmember Peterson said while he respected Mayor Pro Tern Petso's opinion and understood why she disagreed with some of the findings, the idea that the City was allowing carte blanche paving of critical areas was incorrect. In fact, environmental experts make the determination to ensure no harm is done. The Council has taken the CAO very seriously and he doubted any Councilmember had done more work than Councilmember Buckshnis. He did not agree with Mayor Pro Tern Petso's conclusions; the Council was not giving a green light to paving of critical areas. This is a way to move forward in a built environment and create better projects than may currently exist in a critical area. Mr. Lien explained even though development may be allowed in a physically separated and functionally isolated buffer, the critical area and buffer enhancement provides greater protection than what currently exists. The goal is to improve critical areas in the long run via mitigation and enhancement. As currently written, adverse impact to a critical area would not be allowed. Councilmember Bloom agreed with Mayor Pro Tern Petso. She understood the Council did not have the votes to override the veto. She found it too simplistic to say the City's hydrology problems are related to the infrastructure. After reading the BAS report today, one part stood out to her particularly due to last week's flash flood: Wetland buffers maintain wetland hydrology by preventing large, sudden fluctuations associated with flash surface run-off in developed areas with impervious surfacing. In terms of maintaining wetland hydrology, there is a direct correlation between the amount of undisturbed, pervious vegetated lands adjacent to a wetland and the degree to which severe hydrological fluctuation is minimized. While larger buffer widths better limit hydroperiod extremes, it is generally thought that buffer widths of 100 feet or more function to effectively maintain wetland hydrology. She noted the change would allow increased impervious surfaces; the enhancements are not clearly defined and it is unknown how many projects may slip in during the interim ordinance. It is not good policy to change the CAO for the sake of one project, a City project. She suggested all Councilmembers read the BAS report; the passage referenced by Mr. Lien was only a small part, everything else talks about the importance of wetlands and wetland buffers. As a result of personal experience in her neighborhood, she did not believe the City has done a good job of protecting its wetlands and she did not think the situation in her neighborhood was not isolated. Council President Pro Tern Fraley-Monillas suggested the Council agree to disagree and move forward. There are not enough votes to overturn the veto and the discussion only serves to create animosity among Councilmembers. Mayor Pro Tem. Petso asked whether the statute required the Council to take a vote or had the Council satisfied the statutory requirements by scheduling and discussing reconsideration. Mr. Taraday said he did not read RCW 35A.12.130 to require a motion to override. Edmonds City Council Approved Minutes September 3, 2013 Page 15 10. ACTION ITEM: ADOPTION OF LONGEVITY PAY FOR NON -REPRESENTED EMPLOYEES Interim Reporting Human Resources Director Carrie Hite recalled the Council discussed this item last week and chose not to take action because it was a fourth Tuesday work session. She advised the numbers provided last week were from April; there have been a couple of retirements since then. The Finance Department recalculation of longevity pay for nonrepresented employees including those retirements reduced the cost from $35,000 to $28,311. She provided answers to questions that were raised last week: • Fiscal impact if longevity pay started July 1, 2013: half of $28,311 or $14,000 • Flat rate rather than a percentage ($500 for every 5 years of service): $29,000 for 2013 • Applying the rate to the average salary: $26,842 • Average salary of management who would receive longevity pay: $92,000 • Number of employees at their top step that would receive longevity pay: 9 • Fiscal impact for outlying years: Unable to determine as it depends on retirements Ms. Hite advised when the packet materials were provided, the edited version of the Nonrepresented Compensation Policy was not included; the edited version was in last week's packet. She read the additional language: In addition, non -represented employees will receive longevity pay, based on total length of service with the City, in addition to their monthly rate of pay, and in accordance with the following rates: 5 years 0.5% of employee's monthly rate ofpay IOyears 1.0% of employee's monthly rate ofpay 14 years 1.5% of employee's monthly rate ofpay 18 years 2.0% of employee's monthly rate ofpay If the Council preferred a flat rate or a rate based on the average, staff can return with the language. She requested the Council provide direction to assist with the budget process. Councilmember Bloom recalled reference in the materials that nonrepresented employees' earning potential was reduced by 35%. Ms. Hite explained when nonrepresented employees were hired, the City had a 50% salary range. For example, she was hired under the old compensation policy and was told the range was $101,000 and $155,000. In doing salary comparisons of comparable cities of all nonrepresented jobs, the compensation consultant found the low end of the salary range was very low and the high end was really high, a 50% span. Most comparable cities' ranges spanned 35%. The compensation consultant shrunk those ranges, raising the low and reducing the high. At the high end, employees hired under the old policy lost 35% of their earning potential. Councilmember Bloom recalled last year all nonrepresented employees were brought up to a step and 5 steps were created for each job and each step is a 5% increase. To the question regarding why the steps were created and why employees are progressing through the steps, Ms. Hite answered there has been a very subjective compensation system for nonrepresented employees. It is subjective based on merit; merit as determined by an employee's supervisor, not based on moving through steps. All other comparable cities had a way to move through ranges; a few had flat rates at the director level. In the past most nonrepresented employees were stuck in one place or subjectively given a 1-5% merit increase. Because of the added risk of the City compensation system if someone were discriminated against, the compensation consultant recommended an objective pay schedule whereby employees could move through ranges within 5-7 years of employment with 5% increments. The Council requested the compensation consultant conduct a total compensation survey that included deferred compensation, longevity, medical benefits, life insurance, long and short term disability, car allowances, educational incentives, etc. Councilmember Bloom asked how much it cost to place all nonrepresented employees on a step last year. Ms. Hite recalled the budget contained $85,000 to get employees to a step and the remainder was divided Edmonds City Council Approved Minutes September 3, 2013 Page 16 to provide employees a lump payment. Councilmember Bloom recalled the high end of the range for a number of positions was $15,000 - $20,000 more than comparable cities' highest pay level. Ms. Hite answered only 2-3 positions were above the range that was adopted and their salaries were frozen. Councilmember Johnson observed of the 24 employees, 9 were at the top of their range. Theoretically 15 employees could have three sources of increased income: achieve a step, longevity pay, and COLA. She asked the maximum amount an employee could receive in 2014 from those three sources. Ms. Hite answered most of the 9 employees at their top step have been employed for 19+ years. Longevity of/z% - 1% could be added to a 5% step increase and a 1.4% COLA. Councilmember Bloom observed a significant number of employees were above the maximum of the comparables. Ms. Hite answered the comparables were used to adopt new salary ranges; salary ranges are an average of all comparable cities. There were 2-3 employees above the top of the range in the new ranges; those employees were frozen. Most fell within the new ranges and a few were below the low. A portion of the $85,000 was used to bring them up to a step. Councilmember Bloom summarized Edmonds' maximum for many of the comparables before adjustment were made were $15,000 - $20,000 above comparable cities. Ms. Hite agreed, recalling the compensation consultant determined the ranges were really high and really low; he lowered them to the average. Councilmember Buckshnis commented of the 24 employees who would receive longevity, their average salary is $93,000. Of those 24, 9 are at the top of their range. Ms. Hite noted all 3 of her managers have been with the City 20+ years and are at the top of their range; they represent 30% of the 9 employees. Councilmember Buckshnis explained when the consultant decreased the range it showed 22 of the 32 nonrepresented employees are above 50% of their range and 4-5 are over their range. She asked if some employees would receive a step as well as a COLA regardless of the decision regarding longevity pay. Ms. Hite stated employees will progress through their steps at the 5% increase until they top out and then they will no longer receive a step. In addition, the Mayor will consider the bargaining units' COLAs and the budget and make a decision whether to provide a COLA for nonrepresented employees. The Council will be informed in the budget of the nonrepresented COLA and can take action as they wish. She summarized steps are in the policy and COLAs are subject to the Mayor including them in the budget. For Councilmember Buckshnis, Ms. Hite advised the Council also approved 24 hours of management leave for nonrepresented employees that do not accrue comp time. Councilmember Buckshnis observed directors automatically receive 4 weeks; managers accrue based on their service. If this does not pass tonight, Mayor Pro Tern Petso asked whether it could be brought up again. Ms. Hite advised the Council could request it at any time. Councilmember Buckshnis asked if consideration had been given to days off instead of longevity pay. Ms. Hite was uncertain that would be a good incentive because employees who have been employed a long time have a great deal of leave balance. Longevity pay was recommended due to the shrinking of the ranges and was intended to compensate valuable employees with tenure whose intellectual and historical capacity help lead the City. She referred to a Seattle Times article about employers' efforts to recruit and retain employees due to lower unemployment rates. Now that the recession is over, she anticipated there will be some turnover. Council President Pro Tern Fraley-Monillas asked whether the longevity pay increased retirement benefits. Ms. Hite offered to research it. As she was in the same retirement plan, Council President Pro Tern Fraley-Monillas said it did because it increased the average final compensation. Councilmember Peterson asked what $28,000/year would add to retirement; he anticipated it would not be a significant amount. Ms. Hite used one of her managers who had been employed by the City for 40 Edmonds City Council Approved Minutes September 3, 2013 Page 17 years and earned $90,000; adding 2% to this salary for longevity would add $1800 to his salary. The City's percentage of the retirement is 6.2%. She noted that was the PERS rate a few years ago and it may be different now. Councilmember Peterson commented the Council has discussed this for a long time. He supported moving forward with longevity pay, noting the Council originally separated this from the rest of the nonrepresented compensation plan due to budget constraints. There will be a tighter job market in the futures with opportunities for valued employees to take jobs in the private sector. Longevity pay is not a huge increase but shows the Council's consideration of employees willing to stay during difficult times and put in extra hours without a lot of extra pay. COUNCILMEMBER PETERSON, MOVED, SECONDED BY COUNCILMEMBER YAMAMOTO, TO ADOPT THE EXTERNAL/INTERNAL EQUITY PORTION OF THE COMPENSATION PACKAGE LONGEVITY PAY, FOR FIVE YEARS 1/,.% OF AN EMPLOYEES' MONTHLY SALARY, FOR 10 YEARS 1% AND 1.5% FOR 14 YEARS, AND 2% FOR 18 YEARS. Councilmember Peterson said he was not opposed to a flat rate or an average rate. The percentage rate gives a needed bonus to employees who have worked for the City a long time and have excelled. Longevity pay will provide incentive for nonrepresented employees to not only work another year but a little harder to work their way through the system. Councilmember Buckshnis was apprehensive because the Council has not seen new numbers from Finance Director Roger Neumaier based on his new ideas about reserves. COUNCILMEMBER BUCKSHNIS MOVED TO AMEND THE MOTION TO PROVIDE '/2% AT FIVE YEARS, 1% FOR 10 YEARS, 1.5% FOR 15 YEARS, AND 2% FOR 20 YEARS. MOTION DIED FOR LACK OF A SECOND. For Council President Pro Tern Fraley-Monillas, Ms. Hite advised SEIU is on the same schedule. SEIU are the office staff who work alongside nonrepresented employees. The Teamsters' schedule is slightly different and the Police Department's schedule is entirely different. Councilmember Yamamoto explained he is the Chief Operating Officer for a small company in Edmonds. The article Ms. Hite referenced is very pertinent to them; they try to retain and pay their employees accordingly. He noted $28,000 is a very negligible amount to retain the best people. Councilmember Bloom said she will not support the motion for a number of reasons. Last year nonrepresented were provided management leave and 5% step increases. A compensation study had not been done for several years and many adjustments were made to make it more fair and equitable. Of the comparable cities that responded, 50% do not provide longevity pay. The City does not seem to have difficulty retaining employees; several employees have been with the City for a long time. She did not feel longevity pay would make employees stay longer; employees stay for their own reasons. The most important reason she opposed the motion was last year the City paid people to leave; she found it confusing that people were paid to leave last year and now longevity pay would be offered to encourage people to stay. She noted longevity pay was not just for this year, it would be ongoing. She was uncomfortable with including longevity pay in nonrepresented compensation when the Council will likely need to ask citizens for a levy in the future. Council President Pro Tern Fraley-Monillas said she would also vote against the motion. She objected to this ethically, believing it was anti -labor. In her conversations with represented employees in the City, they see it the same way. Providing nonrepresented employees a compensation package similar to represented employees sets a poor example for employees represented by labor unions. Those employees Edmonds City Council Approved Minutes September 3, 2013 Page 18 question why they should pay union dues when they could receive similar benefits without paying union dues. Councilmember Johnson said she has given this a lot of thought and would be in favor of longevity pay for employees who are at the top of their salary range who no longer receive step increases. However she felt this was the wrong time to consider longevity pay as these are still uncertain times and the City Council must be prudent with tax dollars and be fiscally responsible. She did not see providing longevity pay to nonrepresented employees to be in the citizens' interest at this time. Mayor Pro Tem Petso said a lot of good issues were raised. This matter can be brought up again in the future. THE VOTE ON THE MOTION FAILED (2-5), COUNCILMEMBERS YAMAMOTO AND PETERSON VOTING YES. 11. MAYOR'S COMMENTS Mayor Pro Tern Petso had no report. 12. COUNCIL COMMENTS Councilmember Johnson thanked Ted Heekin for bringing the Scarecrow Festival to Edmonds after seeing it in California. She volunteered to be on the Council's scarecrow committee. Councilmember Peterson provided a reminder of the Chamber of Commerce Classic Car Show on Sunday, September 8 that will feature approximately 300 cars. There will be new family events including an opportunity for children to race Hot Wheels. He thanked the Chamber of Commerce for sponsoring the event. Councilmember Buckshnis wished Sally and Jim Wassell a happy 50"' anniversary. Councilmember Yamamoto advised he will be having open heart surgery next week and will be absent from Council meetings for a few weeks. 13. CONVENE IN EXECUTIVE SESSION REGARDING PENDING OR POTENTIAL LITIGATION PER RCW 42.30.110(1)(i). This item was deleted via action taken under Agenda Item 2. IF�7X4113►►�/01►1a1►W1]9UQWy=1111WMZell IOQNI/:\W.T4l-1er6W.W.W:iOKI"awl] adMDUIIMIS 80 EXECUTIVE SESSION. This item was deleted via action taken under Agenda Item 2. 15. ADJOURN With no further business, the Council meeting was adjourned at 10:02 p.m. Edmonds City Council Approved Minutes September 3, 2013 Page 19