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2009.05.26 CC Agenda Packet AGENDA Edmonds City Council Council Chambers, Public Safety Complex 250 5th Ave. North, Edmonds ______________________________________________________________ MAY 26, 2009 7:00 p.m. Call to Order and Flag Salute 1. Approval of Agenda 2. Approval of Consent Agenda Items A. Roll Call B. AM-2292 Approval of City Council Meeting Minutes of May 19, 2009. 3. AM-2286 (20 Minutes) Presentation of the Transportation 2040 Plan by Puget Sound Regional Council (PSRC). 4. AM-2291 (15 Minutes) Presentation on Dayton Street Plaza Park Renovation Project and request for authorization to call for bids for the project. 5.Audience Comments (3 minute limit per person)* *Regarding matters not listed on the Agenda as Closed record Review or as Public Hearings. 6. AM-2288 (20 Minutes) Consideration of and potential action on the Ordinance amending Edmonds Community Development Code Chapter 20 relating to establishing permit types, process requirements, notice requirements, consistency with SEPA, open record hearing procedures, closed record appeals, and development agreements. 7. AM-2289 (20 Minutes) Report regarding the Street Tree Plan and removal and replanting of street trees at 5th & Dayton. 8. AM-2293 (5 Minutes) Authorization for the Mayor to sign a Right of Entry and Indemnity Agreement with Horizon Bank for the purpose of removing and replacing frontage trees along Dayton Street. 9. (15 Minutes)Council reports on outside committee/board meetings. 10. (5 Minutes)Mayor's Comments 11. (15 Minutes)Council Comments Adjourn Packet Page 1 of 163 AM-2292 2.B. Approve 05-19-09 City Council Minutes Edmonds City Council Meeting Date:05/26/2009 Submitted By:Sandy Chase, City Clerk's Office Time:Consent Department:City Clerk's Office Type:Action Review Committee: Committee Action: Information Subject Title Approval of City Council Meeting Minutes of May 19, 2009. Recommendation from Mayor and Staff It is recommended that the City Council review and approve the draft minutes. Previous Council Action N/A Narrative Attached is a copy of the draft minutes. Fiscal Impact Attachments Link: 05-19-09 Draft City Council Minutes Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 05/20/2009 10:20 AM APRV 2 Mayor Gary Haakenson 05/20/2009 04:20 PM APRV 3 Final Approval Sandy Chase 05/20/2009 04:58 PM APRV Form Started By: Sandy Chase Started On: 05/20/2009 10:17 AM Final Approval Date: 05/20/2009 Packet Page 2 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 1 EDMONDS CITY COUNCIL DRAFT MINUTES May 19, 2009 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Pro Tem Wilson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT D. J. Wilson, Mayor Pro Tem Ron Wambolt, Council President Pro Tem Michael Plunkett, Councilmember Peggy Pritchard Olson, Councilmember Steve Bernheim, Councilmember Dave Orvis, Councilmember Strom Peterson, Councilmember ELECTED OFFICIALS ABSENT Gary Haakenson, Mayor STAFF PRESENT Jim Lawless, Assistant Police Chief Stephen Clifton, Community Services/Economic Development Director Noel Miller, Public Works Director Rob Chave, Planning Manager Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder 1. APPROVAL OF AGENDA Mayor Pro Tem Wilson advised Agenda Item 4 (Edmonds Business Story: Edmonds Bakery) and Consent Agenda Item 2G (Authorization for the Mayor to sign a Professional Services Agreement for Rick Jenness) had been postponed to a future meeting. With regard to Consent Agenda Item 2G, Councilmember Plunkett advised Mr. Jenness provided the Community Technology Advisory Committee a detailed report that was available to the Council and citizens. COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER AS AMENDED. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE THE CONSENT AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF MAY 5, 2009. C. APPROVAL OF CLAIM CHECKS #111459 THROUGH #111658 FOR $537,103.72 DATED 05/07/09, AND CLAIM CHECKS #111660 THROUGH #111790 FOR $342,386.23 DATED 05/14/09. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #48039 THROUGH #48083 FOR THE PAY PERIOD APRIL 16, 2009 THROUGH APRIL 30, 2009 IN THE AMOUNT OF $827,169.21. Packet Page 3 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 2 D. ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM SAFECO INSURANCE AS SUBROGEE FOR RODNEY AND KARLA BURGIN ($5,222.24). E. LIST OF EDMONDS BUSINESSES APPLYING FOR RENEWAL OF THEIR LIQUOR LICENSES WITH THE WSLCB. F. INTERFUND LOAN ACTIVITY. H. PROCLAMATION IN HONOR OF NATIONAL PUBLIC WORKS WEEK, MAY 17 - 23, 2009. 3. PRESENTATION BY WSDOT FERRIES DIVISION ASSISTANT SECRETARY DAVID MOSLEY. Mr. Mosley explained although it was a difficult legislative session for transportation as well as General Fund issues, progress was made to move the ferry system forward. Sufficient funding was provided in the operations budget to maintain the current level of service throughout the system. As a result, the reductions that were feared when a presentation was made to the Council last year regarding the Long Range Plan, would not occur during the next biennium. There was also funding provided in the 2009- 2011 biennium to build two new ferries which is in addition to the ferry currently under construction. The budget also included plans for two additional ferries in a future biennium budget. He noted recognition by the legislature and their providing funds to replace the aging vessel fleet was a very positive step. WSF also received support for a number of operational improvements outlined in the draft Long Range Plan including transit enhancements and a pre-design study for a vehicle reservation system. He noted the budget did not identify a solution to one of WSF’s major problems, obtaining a sustainable capital revenue source. While the emphasis in this legislative session was on vessels rather than terminals, support was continued for the Edmonds terminal project and a desire for co-development including WSF, Edmonds, Sound Transit, Community Transit and potentially private developers in the terminal area. Funds were specifically allocated to allow WSF to provide engineering, design and support toward that effort. Mr. Mosley commented the previously developed minimum build alternatives will continue to be refined with the resources the legislature provided particularly as they may relate to potential co-development. Mr. Mosley introduced Doug Slyth, Senior Shoreside Manager, who will be the project lead on the vehicle reservation system. The legislature provided funds for WSF to conduct a pre-design study for a vehicle reservation system for the ferry system, to develop a pilot program regarding how a vehicle reservation system would work on a specific route, and to bring the information to the legislature in the 2010 legislative session for their review, consideration and if approved, funding for implementation. He explained the purpose of the reservation system was to reduce congestion, backups and wait times at terminals where communities are negatively affected; to reduce the need for expensive terminal holding area expansions, and to provide customer certainty on space and sailing availability. He relayed ferry customers’ concerns regarding how a vehicle reservation system would work and how it would change their interaction/accessibility to the ferry system. He acknowledged there was also concern with WSF’s ability to effectively implement a vehicle reservation system given some of the difficulties experienced with the electronic fare system. The pre-design study will address the technology and needed capacity for a vehicle reservation system and how that system would work on a specific pilot route. For a number of reasons including interest expressed on both sides of the Edmonds-Kingston route, he anticipated the Edmonds-Kingston route would be selected as the pilot project. Packet Page 4 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 3 Mr. Mosely highlighted challenges WSF continues to face in the years ahead including slight declines in ridership and the lack of a sustainable capital revenue source. He commented WSF was uncertain why ridership was down and analysis was needed to determine why the public was riding ferries less and what was needed to draw them back as well as how to attract new riders. To this end, the legislature allocated funds in the budget for WSF to conduct a marketing effort. He acknowledged both issues would require extensive work over the next few years and they looked forward to working with the Edmonds community on these and other issues. Mayor Pro Tem Wilson expressed his appreciation to Mr. Mosley for keeping the Council informed. He recalled citing Mr. Mosley to Governor Gregoire as an example of people in her administration who keep cities involved and informed. Council President Pro Tem Wambolt questioned whether ridership was down in Edmonds, recalling previous presentations indicated Edmonds’ ridership was not declining. Mr. Mosley answered ridership in Edmonds was down very, very slightly; Edmonds and Bainbridge were the WSF’s strongest routes. Council President Pro Tem Wambolt asked the status of the proposal for WSF to construct a parking garage on the old Safeway property. Mr. Mosley answered that was the co-development issue under discussion that the legislature recognized needed to continue. There is not adequate funding in this biennium to fund such a project but there are resources to continue refining the minimum build alternatives and to work with any co-development project. Council President Pro Tem Wambolt thanked Mr. Mosley for his weekly newsletters. Councilmember Bernheim referred to the Innovative Partnership Program Study that analyzes joint development opportunities at ferry terminals by partnering with shore-based entities to maximize economic opportunity for WSF. The project in Edmonds addressed two possible partnerships, one to build 80 residential units on the DOT and Skippers sites and the second to build 92 residential units. He noted the report states the DOT should engage in a planning process with the city and neighboring properties. He inquired about the future of a partnership with the City and the Skipper’s property owner in regard to economic development in that area. Mr. Mosley advised he had been a party to at least three meetings that included the Skipper’s property owner and City staff to discuss ideas for co-development. Such potential projects were the reason the legislature allocated funds for engineering and design study. Councilmember Bernheim asked whether the intent of the cooperative effort was to maximize revenue for WSF. Mr. Mosley responded the intent was to work together on a project that mitigated some of WSF’s issues in the area such as access to the ferry terminal. Councilmember Bernheim asked if any consideration was being given to a green pricing approach that would charge a higher fare for large, heavy vehicles and/or a reduced rate for smaller, lighter vehicles. Further, he noted a walk-on rider with a bicycle paid a huge premium relative to the space it occupied and fuel consumption of the ferry. Mr. Mosley advised one of the fare structure improvements in the long range plan was to provide a small car discount. He explained currently a higher fare was charged for vehicles over 20 feet. A discount for smaller cars could be for cars 12-14 feet long. He was uncertain that would be included in the fares this fall but he anticipated it would be implemented in the near future. 4. EDMONDS BUSINESS STORY: EDMONDS BAKERY This item was delayed until a future meeting. Packet Page 5 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 4 5. PUBLIC HEARING ON THE PLANNING BOARD RECOMMENDATION TO DECLINE TO AMEND THE EDMONDS COMMUNITY DEVELOPMENT CODE TO FURTHER REGULATE THE RENTAL OF SINGLE FAMILY DWELLINGS. Planning Manager Rob Chave recalled the Council referred this issue to the Planning Board who held a public hearing after adopting an interim ordinance placing a 7 day restriction on short term rentals in single family neighborhoods which expired on May 14, 2009. The decision for the Council was whether to adopt a permanent change to the code. The Planning Board considered regulating short term rentals with a 30 day limitation because the building code differentiates between hotels as typically renting less than 30 days and because some may view short term rental as a commercial operation. The Planning Board recognized this did not appear to be a citywide issue and that the only enforcement action had been related to the property on Cyrus Place. Letters and affidavits were submitted at the Planning Board’s public hearing stating the property on Sunset had been doing short term rental for quite some time without any impact on the neighborhood. The 30 day option considered that record and suggested clarifying the code regarding short term rental versus a long term use. Finding this was not a citywide problem, that it was isolated to one instance and that most of the problems had been resolved using existing enforcement mechanisms related to noise, parking, etc., the Planning Board concluded there was no reason to amend the code and forwarded that recommendation to the Council. Mr. Chave recognized the difficulty for the Council to balance the interest of the broad community versus a specific instance that may be resolvable using existing mechanisms in the code. He noted when presented with a problem, the response may be to amend the code to address the problem; the difficulty with that was the risk of unintended consequences over time. The Planning Board decided if the existing rules generally seemed to work and could effectively address situations that arose, there was no reason to change the code. He noted there was a great deal of testimony at the Planning Board public hearing both for and against amending the code. Mayor Pro Tem Wilson clarified the one instance Mr. Chave referred to was on Cyrus Place. Mr. Chave agreed. Councilmember Plunkett inquired about the process if the Council determined they wanted to adopt an ordinance after public testimony and deliberation, and whether the ordinance would need to be referred to the Planning Board again. City Attorney Scott Snyder responded that assuming the Council direction was within the range of alternatives considered by the Planning Board, staff would prepare a final ordinance for public hearing before the Council. The minimum requirement would be another public hearing if there were substantive changes. Mr. Chave advised the Planning Board considered both 7 and 30 day alternatives. Mr. Snyder requested an opportunity to discuss a decision-tree with the Council following the conclusion of the public hearing. He suggested if the Council decided to regulate short term rental and set a time limit, there were several other important decisions to be made regarding how to treat nonconforming uses and whether they should be abated. Councilmember Bernheim recalled Development Services Director Duane Bowman’s assurance when the Council discussed this on December 16 that the Planning Board would consider whether short term rentals should be allowed as an economic development driver. He requested Mr. Chave summarize the issues of taxation of short term rentals, licensing, standards, etc. Mr. Chave responded the Planning Board did not have detailed discussions regarding economic development. Their approach was from the standpoint of regulation, nuisance, etc. Packet Page 6 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 5 Councilmember Bernheim asked if long term leases in residential areas or short term rentals had any licensing requirements and paid taxes based on income and if there were signage requirements for short term rentals. Mr. Chave answered signage was addressed under home occupation review. He explained the rental of rooms was an outright permitted use in residential zones. One line of logic would be if rental of rooms was an allowed use, a home occupation permit was not necessarily required. Residents renting rooms have traditionally been advised to obtain a business license but he was uncertain whether most did. A resident who was renting rooms and registered as a business would be required to report income, pay taxes, etc. Mr. Snyder advised there was no specific signage permitted in residential neighborhoods. Mr. Chave advised a home occupation was allowed to identify the home but not advertise the business. Mr. Snyder advised longer term rentals were subject to state leasehold excise tax; short term daily rentals that collect sales tax were subject to hotel/motel tax. Councilmember Plunkett referred to a letter the Council received from Richard Gifford, an attorney representing Mr. Wilkinson that questioned citizens’ motivations, cited possible discrimination and implied that if the City regulated short term rental, it would be in danger of civil rights violations. He asked if Mr. Snyder anticipated civil rights issues would arise if the Council adopted a permanent ordinance. Mr. Snyder suggested he address that issue following the public hearing, noting there were potentially 4-5 legal challenges. The Council must make clear legislative findings regarding the problem, how to address it, whether nonconforming uses should be allowed to continue or be abated and if abated, how to abate them. Councilmember Bernheim asked whether any of the potential legal challenges needed to be addressed if the Council took no action. Mr. Snyder answered if the Council made a decision not to regulate short term rentals, there did not need to be any further discussion regarding those potential legal challenges. Mayor Pro Tem Wilson opened the public participation portion of the public hearing, noting the Council had received additional correspondence from Bob & Vera McGee, Scottsdale, Arizona, who stay in the Edmonds area each year; Don & Carol Ricker, Edmonds, who support a 30 day minimum; Jim Wilkinson, Edmonds, regarding unintended consequences; Wendy Chaffee, Edmonds, who was opposed to short term rentals; and Jolaine Murrell who said there should be more places like the Sunset Avenue property available for short term rental. Sally Wassall, Edmonds, anticipated the Planning Board failed to recommend changes to the code because they had not had first hand experience with noise, traffic and crime in their neighborhoods. She urged the Council to pass a 30-day minimum rental period in single family R6 residential areas. She relayed conversations with neighbors of the property on Cyrus Place regarding problems they experienced with the daily and weekly rentals. She relayed problems they encountered in Surry, BC where there were no ordinances to enforce situations that arose and the only solution was to call the police. Jim Wassall, Edmonds, recommended rentals in single family neighborhoods be a minimum of 30 days. He asserted if the Council accepted the Planning Board’s recommendation, they would be ignoring the wishes of the majority of Edmonds residents as everyone he has talked to felt 30 days was a reasonable restriction on rentals in single family neighborhoods. He recalled in November 2008 the Council passed interim zoning Ordinance 3702 that established a 7 day minimum time limit; that ordinance has since expired and there is now no minimum time limit in rentals in single family residents. He expressed concern that the house on Sunset could legally rent their property on an hourly basis. He recalled Mr. Bowman’s recommendation that the City establish a 30 day minimum rental requirement for single family residential rentals and authorize a one year amortization from the date of passage for all existing short term rentals. He urged the Council at a minimum to extend Ordinance 3702 for another 6 months. Packet Page 7 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 6 Marilyn Lindberg, Edmonds, commented she did not purchase her home in a single family neighborhood with the knowledge that zoning was not as it appeared or that the triplex next door would become a hotel/motel. She recommended distinguishing between single family residential and commercial zoning. She urged the Council to consider the type of city they wanted and not allow short term rentals to become a problem. Without guidelines, the only recourse for violations of noise, parking and drug problems would be to call the police. Bob Krump, Edmonds, commented his family made Edmonds their home due to the quality of life it offered including getting to know their neighborhoods and local businesses. He recalled problems he experienced living next door to a single family home used for two rental units. When a neighborhood became a rental situation, the residents lost the ability to know their neighbors and the neighborhood crime watch program suffered. He referred to a neighboring property that recently requested a permit for an accessory dwelling unit (ADU), pointing out the possibility of the property owner renting both his residence and the ADU. With the budget issues facing the City, he questioned whether the City had the staff to address issues arising from short term rentals. He recommended the Council adopt a 30-day minimum for rentals in single family neighborhoods. Jan Conner, Edmonds, voiced her opposition to short term rentals of less than 30 days in residential neighborhoods. As the Manager of the Best Western Edmonds Harbor Inn, she was concerned individuals renting their residences were not paying taxes, not obtaining business licenses or transient accommodation licenses and not paying hotel/motel taxes. She was doubtful that short term rentals of residences would be an economic development driver. By allowing short term rentals in residential neighborhoods, the Council would put all single family residences in competition with the Harbor Inn. Although she welcomed fair competition, she pointed out the Inn must comply with building code regulations, taxes, licensing, etc. which a single family residence may not. She summarized the Harbor Inn generated most of the lodging tax collected by the City as well as made considerable expenditures to promote the City. Pam Hoelzle, Edmonds, recalled hearing in a local business about nuisances on Sunset Avenue and how dangerous it was to live there. She commented in the three years she has lived on Sunset she has never seen any nuisances. She questioned the Council’s stand on personal private property rights, how regulating short term rental of the house on Sunset would affect residents’ ability to rent individual rooms in their houses, and whether there had been any nuisances with short term rentals on Sunset. She concluded it appeared this was a neighborhood squabble that had gotten out of control. Peter Wilkenson, Edmonds, a resident living next door to Jim Wilkinson, commented during the 12 years he has lived there, he has not encountered any problems with the short term rental of the Wilkinson property. He did not support regulating a problem that did not exist and recommended the Council follow the Planning Board’s recommendation. Michelle Hoverter, representing the Pinyerd Family Trust, commented this was not a neighborhood squabble and the emotional and threatening language that has occurred was unfortunate. The issue was what was allowed in a single family zone and the fact that vacation rentals in single family zones violated the tenor of the neighborhood as well as the zoning. She was disappointed the Planning Board did not recommend strengthening and clarifying the zoning code for single family residences and anticipated they may have been afraid to because of the threatening and emotional language they heard. She noted there were sufficient hotels in Edmonds to accommodate visitors without opening single family areas to short term vacation rentals. She pointed out the triplex on Sunset Avenue was grandfathered into the single family zone and its historic use before the recent short term rentals was as a month-to-month or longer single family residential rental, a use that should be preserved. Packet Page 8 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 7 Steve Thole, Edmonds, spoke in favor of a 30-day minimum rental period, finding a 7-day minimum to be a commercial use of a property. He pointed out the potential for all homes in a single family to rent their property for 7-day periods, essentially establishing a hotel. He disagreed with the Planning Board’s determination that the situation was not broken so it did not need to be fixed. He urged the Council to proactively address what constituted a commercial versus a residential use of a property. He applauded Mr. Wilkinson for his efforts to screen his tenants, noting he had only been renting for three years, a relatively short period of time. As a landlord himself, he also carefully screened renters but acknowledged there eventually were problems. He anticipated the probability of problems was greater with short term rentals than long term rentals. Al Rutledge, Edmonds, commented he has attended several Planning Board meetings. He pointed out many affected citizens were not present tonight for the public hearing on an issue that was important to the future of Edmonds. Rowena Miller, Edmonds, pointed out there were no guarantees regarding neighbors whether they owned, leased or rented. The only problem the City encountered with a short term rental had been addressed by the existing ordinances that control noise, traffic, parking, commerce, junk, etc. She recalled 42 years ago her family including 5 children stayed with a friend for 3 weekends which led to their purchasing a home in Edmonds. She pointed out the City’s vision to attract visitors to support the local economy. She urged the Council to support the Planning Board’s recommendations regarding short term rentals in residential zones, commenting the Planning Board conducted a thorough study including several public hearings and their reasons for not amending the code were valid. She urged the Council to keep Edmonds a welcoming place to live and visit. Hearing no further comment, Mayor Pro Tem Wilson closed the public participation portion of the public hearing. Mr. Snyder presented a decision tree explaining there were different tests at different stages of the Council’s decision-making process. The decision to use police power to regulate via zoning was typically given a great deal of deference by the courts. Challenges were substantive due process and the courts tend to defer to legislative findings. The first question was what’s the problem and does it need to be regulated. In the course of their discussions, the Council should cite the record for information for the legislative findings that identify the problem. And although there had been numerous concerns and issues raised by the public regarding potential impacts, he urged the Council to focus on actual impacts cited in the testimony. With regard to violation of the State’s discrimination provisions, he commented gender preference, race, religion, creed or handicap of the owner of property had absolutely nothing to do with any decision the Council made. And to the extent that it had crept into the record was as much by the property owner and attorney as the neighbors. He anticipated it would play no role in the Council’s discussions. The defense to a claim of discrimination in the application of a zoning ordinance or to substantive due process was similar – is there a real problem and does it need to be addressed. In discrimination law it was finding a business necessity for the action the Council was taking and in substantive due process it was whether there was a problem and has it been effectively addressed. He pointed out lawfully established nonconforming uses would remain. If the Council chose not to regulate, nothing further was required. If the Council chose to regulate, Mr. Wilkinson’s property and potentially other properties were lawful nonconforming uses and the next step would be to determine whether nonconforming uses needed to be abated and if so, how. Packet Page 9 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 8 COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO ADOPT THE PLANNING BOARD’S RECOMMENDATION AND NOT REGULATE RENTALS IN RESIDENTIAL AREAS. Councilmember Bernheim commented the current practices did not merit adopting an amendment and the current regulations were adequate. Council President Pro Tem Wambolt referred to the comments by the Manager of the Best Western, that this perhaps could provide unfair competition. Mr. Snyder responded that was not a legal question; it was for the Council’s discretion. A question for the Council was whether the playing field should be leveled by tightening up the City’s hotel/motel tax provisions to reach other short term renters. Mr. Chave commented it would be worthwhile to review how business licenses and home occupations interact with regard to State taxation. Council President Pro Tem Wambolt advised he would support the motion and although he understood the residents concerns, it was not a big problem and if the Council chose not to amend the current regulations, they could be amended in the future if necessary. He pointed out prior to the interim ordinance, there had only been the one problem. Councilmember Plunkett indicated he would not support the motion, finding the legislative record replete with information from the Police Department and residents regarding issues with short term rentals, particularly the home near Talbot Road. Further, he pointed out no one purchased a home expecting there to be short term rentals in their neighborhood. He found a 30-day limit a reasonable regulation and supported the residential nature of Edmonds’ neighborhoods. Councilmember Orvis indicated he would not support the motion and preferred a 30-day limitation on short term rentals. He viewed overnight rentals in a residential neighborhood as a commercial use, a use inappropriate for a residential neighborhood. He referred to the comment that the existing codes were adequate, pointing out if they were adequate, why had an interim ordinance been necessary. He pointed out code enforcement was a very slow process and it was virtually impossible to address overnight rentals. He concluded people living in a neighborhood for a longer period of time became accountable to their neighbors. That was the reason the accessory dwelling unit regulations required the property owner to occupy the primary residence so that the property owner would be aware of any disruptive activity. MOTION CARRIED (5-2), COUNCILMEMBERS PLUNKETT AND ORVIS VOTING NO. 6. AUDIENCE COMMENTS Carla Elder, Edmonds, explained their home was annexed into Edmonds in October 1995. Three years prior to annexation, her husband and she obtained a building permit in Snohomish County to construct an addition to their home. Under that permit, the foundation was installed and the addition was framed, sided and roofed. Her husband, who did all the work himself, became ill and passed away in December 2006 before the project was finished. When she visited the Edmonds Planning Department to obtain permits to complete the 600 square foot addition, she was told she did not meet the Edmonds setback requirement of 7½ feet; the rear setback in Snohomish County is 5 feet, a requirement she met at the time the permit was issued in Snohomish County and the foundation installed. She summarized the foundation was legally installed, inspected and approved. She now wanted to complete the interior of the addition which includes wiring, plumbing, insulation and drywall. The Planning Department stated she could apply for a variance at a cost of $1500, indicating there was no guarantee the variance would be granted. She questioned the need for a variance when her structure had been legally constructed. Mayor Pro Tem Wilson responded if Mayor Haakenson were present, he would invite her to call him tomorrow. In Mayor Haakenson’s absence and to avoid the Council’s prejudicing themselves in the decision-making process, Mayor Pro Tem Wilson suggested she speak with Community Services Director Stephen Clifton. Packet Page 10 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 9 Jim Wassall, Edmonds, referred to the next item on the agenda, a work session on an ordinance banning single use plastic checkout bags, pointing out these were not single use plastic bags but were multi-use plastic bags. He displayed his collection of multi-use plastic bags, commenting many people reused their plastic bags and even the Edmonds library used multi-use plastic bags. He recommended whatever ordinance the Council adopted allow residents to continue to use multi-use plastic bags. George Murray, Edmonds, referred to the amendments to Chapter 20 discussed previously, pointing out the importance of residents having the ability to speak to the Council. He referred to the Planning Board’s discussion regarding changes to Chapter 20 to exclude the Council from the appeals process, noting many of their comments were valid but some did not apply such as the process is not orderly, it is not the best for the City, or the process is confusing. With regard to concern with litigation, he pointed out the process allowed the Council to listen to citizens and for legal counsel to respond. He recommended when the Council again considered the changes to Chapter 20, the Council’s involvement in the appeal process be retained. Rowena Miller, Edmonds, referred to this fall’s levy and encouraged the Council to inform residents of the value of an average house in Edmonds and the rate per $1000 of assessed value. Mayor Pro Tem Wilson recalled the average home price in Edmonds was $456,000. He advised the Council had not yet decided on the size of the levy. Hank Landau, Edmonds, co-chair of the Edmonds Bicycle group, explained they have worked with the City and surrounding communities for the past 15 years on bicycle and pedestrian improvements for safety and convenience. The group also participates in educating the community regarding their responsibilities toward bicyclists and bicyclists of their responsibility toward motorists. He extended his thanks to City staff for their support of Bike to Work Day May 15 that included a station near the ferry terminal and a ride around Edmonds led by Transportation Engineer Bertrand Hauss in which Councilmember Bernheim participated. He thanked the Parks Department for working with Senator Shin to secure State funds to complete the missing link of the Interurban Trail in Edmonds. He also thanked staff for their consideration of bicycle and pedestrian improvements in the Energy Department Block Grant application. Diane Buckshnis, Edmonds, recalled the Community Services/Development Services Committee considered a suggestion to open the Sunset overlook to leashed dogs and recommended removing the sign and allow people with dogs to walk on the Sunset overlook. She urged the Council to adopt the ordinance making that change. Next, she referred to the Finance Committee’s recommendation to approve the contract with Rick Jenness, expressing concern that there was no competitive bid for this contract and that Mr. Jenness had already been paid for work performed prior to the Council’s approval of the contract. She was also concerned with his fee of $135/hour measured in ¼ hour increments. To ensure transparency, she recommended the City obtain competitive bids and schedule approval of the contract as an agenda item rather than the Consent Agenda. Mayor Pro Tem Wilson advised that item was pulled from tonight’s Consent Agenda. Al Rutledge, Edmonds, recommended the Council hold another public hearing regarding the levy and identify items that would be cut if the levy were not approved. He relayed a rumor that a fire station would be closed if the levy did not pass. He further advised of his plans to present letters from several organizations at the June 2 public hearing regarding the ordinance to ban plastic bags. Stephen Clifton, Community Services/Economic Development Director, reported the North Puget Sound Consortium of which the City is a member is currently renegotiating Comcast franchise agreements. The City’s contract expires in April 2011. The City is seeking citizen input regarding cable- Packet Page 11 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 10 related needs and interest, interest in education and government channels and the availability and performance of Comcast as it negotiates a new franchise agreement. Citizens are encouraged to participate in an online survey available on the City’s website at www.ci.edmonds.wa.us. Roger Hertrich, Edmonds, expressed concern with the financial arrangement with Rick Jenness and how long the City had been paying him without a contract. He was concerned there was no Request for Qualifications or a bidding process. He referred to language in Mr. Jenness’ contract that he would be paid for ongoing customer service and other services not described in the statement of work as directed by the City representative. He recommended staff identify how much Mr. Jenness had been paid in the past 1½ years and determine whether that and the current contract exceeded the amount requiring a bidding process. Next, he referred to the WSF study Councilmember Bernheim referenced, and the WSF representative’s indication that he met with the Skipper’s property owner and staff. He suggested staff provide a report to the Council regarding these discussions. Clyde Dimmick, Edmonds, objected to a letter to the editor that referred to people who used plastic bags as wasteful, stupid and harmful. He cited several inconsistencies in the presentation to the Council by Algalita Marine Research Foundation, such as indicating Edmonds would be the first city to ban plastic bags yet their presentation listed the United States as one of the countries that had banned plastic bags. Another inconsistency being the U.S. Congress’ passage of the Ocean Dumping Act in 1972 and revised in 1988 to include plastic despite Dr. Eriksen’s statement there had not been any federal legislation in the United States. He pointed out a 20-cent per plastic bag charge would cost the public $1.6 million/year and provide $260,000 in State sales tax using Councilmember Peterson’s estimate of 8 million plastics bags per year. Reusable bags cost at least $4.95 each; if the 30,000 households in Edmonds purchased 6 bags, the cost would be $1.2 million plus sales tax. He urged the Council to consider the economics of a plastic bag ban. 7. WORK SESSION ON ORDINANCE BANNING SINGLE USE PLASTIC CHECKOUT BAGS IN EDMONDS. With regard to Mr. Dimmick’s comments, Councilmember Peterson advised none of the options under consideration included a 20-cent per bag charge. That option will be considered by Seattle voters in August. He expressed a preference for the draft retail or hybrid ordinance and suggested eliminating the grocery ordinance. Councilmember Orvis also favored the retail ordinance but suggested all three be presented for the public hearing. Councilmember Plunkett preferred to have all three at the public hearing (grocery, retail and hybrid). He recalled discussion regarding a fourth option and suggested that it be included in the Council packet for the public hearing. Council President Pro Tem Wambolt recommended discussion of this issue be halted. He thanked Councilmember Peterson for his efforts to champion this issue and for the focus he brought to the issue that made the public more prudent regarding their use of plastic bags. He noted single use was an inaccurate description of the bags because they were useful for more than one purpose and were often used multiple times. He pointed out there was ample evidence showing proper behavior was not only the result of legislation as well as evidence that legislation did not always result in proper behavior. He cited several examples such as the public was not required to recycle, yet thousands have done so for many years; Michael Young’s use of seven recycling containers behind his business because it was the right thing to do; and the ineffective legislation prohibiting the use of handheld cell phones while driving. Packet Page 12 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 11 Council President Pro Tem Wambolt envisioned businesses and citizens could produce a good result without legislation such as Petosa’s and PCC have done. If the City banned plastic bags, he feared what would be next. He displayed a T-shirt with the slogan “Singapore is a fine city,” and reference to the multiple fines in Singapore for chewing gum, urinating in lifts, not flushing toilets, feeding birds, littering, spitting, eating and drinking, flower picking, and smoking. He acknowledged this was an exaggeration of what was likely to happen in Edmonds but legislation opened the door to unnecessary regulation. To those who wanted Edmonds to be first to ban plastic bags, he preferred to be right than first due to the potential for unintended consequences. He recommended delaying to see what happened with the vote in Seattle. He preferred to educate the public rather than ban plastic bags. Councilmember Bernheim advised he proposed an ordinance that would institute a fee on plastic bags as an alternative to a ban. Mayor Pro Tem Wilson suggested that option be included in the Council packet for the public hearing. Councilmember Bernheim pointed out under the ban, stores were free to sell plastic bags, the ban was only on providing free plastic bags at the checkout counter. He displayed an example of a recyclable paper water bottle, commenting bottled water was a huge, unnecessary industry as people did not need to stay hydrated throughout the day. He referred to comments that the Council should adopt this ban because it was the first step, voicing his concern with what would then be the next steps. He supported next steps that were effective in reducing greenhouse gas emissions and the danger to the environment. Council President Pro Tem Wambolt agreed this was the tip of the iceberg. He noted many people recycled plastic bags via reuse as well as recycling them in receptacles at the grocery store. COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED TO TABLE THIS ISSUE. MOTION DIED FOR LACK OF A SECOND. City Attorney Scott Snyder referred to Chapter 4.32 and the City’s extensive regulation of public amusement venues when Funtasia was proposed, the teen dance hall ordinance in Chapter 4.44 and horse taxi regulations in Chapter 4.85 as examples of regulations that were adopted to address citizens concerns but had not be used for 15-20 years. Mr. Snyder stated whatever ordinance the Council decided to consider should go through SEPA review, specifically the environmental checklist. Staff did not recommend Seattle’s approach (a fee on plastic bags) due to potential legal challenges. Under Washington law, the City’s taxing powers were very limited. The difference between a tax and a fee is a tax raises revenues and a fee is used to offset the costs of regulation. Seattle’s ordinance is based in large part on the fact that Seattle operates a Solid Waste Utility which Edmonds does not. If Council chose to pursue a fee ordinance, it would be important for Council to do an economic analysis that determined the amount of revenue that would be generated and an appropriate use for the revenue. If the fee simply raised revenue that was deposited into the General Fund and was not devoted to a solid waste or recycling function, it was an illegal tax. The other substantive due process argument was there was no way to distinguish where a bag originated, whether inside or outside the City. For these reasons, the alternatives staff proposed were based on ordinances from Oakland and other jurisdictions where the prohibition was on giving plastic bags away free. Councilmember Plunkett suggested the retailer be allowed to retain the fee collected for administrative purposes. Mr. Snyder answered the proposed ordinances did not completely ban plastic bags, they simply prohibited giving bags away free. If the retailer charged for the plastic bags, the City was not involved. Councilmember Peterson referred to discussion regarding a voluntary system, noting there was currently a voluntary system as any store could choose not to use plastic bags as Petosa’s and PCC have done. He pointed out both PCC and Petosa’s supported the proposed legislation because while they have Packet Page 13 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 12 voluntarily stopped using plastic bags, it put them at a disadvantage with larger corporate stores unwilling to take that step. When large corporations were unwilling to do what was right, he felt that was when government needed to step in. He noted the Northwest Grocers Association were not completely opposed to the proposed legislation but wanted to ensure it was fair. He concluded this was an attempt to get people to change their habits for the right reasons; it was financially advantageous both for the consumer and the store for people to bring their own bags. Councilmember Peterson asked whether SEPA review was mandated by the State. Mr. Snyder answered that had been one of the bases for challenge in Oakland. Because the ordinance was styled as an environmental measure, it was important to do at least the environmental checklist procedure. He noted staff’s determination regarding whether there were negative environmental impacts would be used by the Council in adopting a final ordinance. Councilmember Plunkett questioned the timing of the SEPA review, whether the Council could pass an ordinance subject to SEPA review. Mr. Snyder advised the environmental review must be completed before a final ordinance was adopted. Council President Pro Tem Wambolt expressed concern with the mounting legal fees related to this issue. Mayor Pro Tem Wilson advised the next steps were the June 2 public hearing on the options and the SEPA process. He suggested delaying Council consideration of the ordinance (originally scheduled for June 16). 8. RESOLUTION SUPPORTING CONTINUED REFINEMENT OF AND PUBLIC INPUT ON THE 2009 PROPOSED LEVY. Mayor Pro Tem Wilson explained the intent of the resolution was to generate discussion and for the Council to provide direction to staff. He explained the resolution offered two options, 1) a General Operations Levy, and 2) a Parks, Public Safety & Families Levy. He anticipated the likelihood of passage was greater if the levy was more specific. He pointed out all the necessary paperwork to place the levy on the ballot must be submitted to Snohomish County by August 11; therefore, the last date a public hearing could be held was July 28 and the ordinance must be passed by the August 4 meeting. Councilmember Bernheim suggested in the second option, funds for the Crime Prevention Services be included in the explanation regarding funding public safety. He also recommended adding to the second option funding dedicated to tourism and economic development such as funding an Economic Development Director or tourism research. Council President Pro Tem Wambolt pointed out the intent of the levy was to restore cuts made by Mayor Haakenson at the March 13 meeting, not add more expenses. He was hesitant to add other items, pointing out the funds from the levy would not last as many years if additional expenses were added. Mayor Pro Tem Wilson commented the levy amount of $4.3 million took the city to 2016 and $3.75 million, the average of the Citizen Levy Review Committees (CLRC), funded the City through 2013. At the end of those timeframes, the City would either need to ask voters for more money, have new revenues in place, or make cuts. Councilmember Plunkett preferred the General Operations Levy because he was unwilling at this time to say if the levy did not pass he would cut funding for Yost Pool, the senior center, crime prevention nor was he willing to make fully compensating public safety employees subject to the vote. Packet Page 14 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 13 Council President Pro Tem Wambolt recalled the CLRC urged the Council identify the consequences if the levy did not pass. Councilmember Plunkett responded although the CLRC’s input was helpful and that effort had been interesting, it was Council’s responsibility to make the decision. Mayor Pro Tem Wilson agreed the Council committing themselves to an action in May predicated on an outcome in November may not be necessary yet but would need to be done at some point and at least by August. He explained that in approximately September ordinances would be presented and public hearings held on potential cuts so that action could be taken if necessary following the November election. He explained even with the cuts and givebacks, the City would get through 2009 but without funds from a levy, the City would be in a terrible place again in 2010. His intent with the resolution was to provide direction to staff regarding potential cuts and levy amounts so that preferred alternatives could be developed and open houses held. He was comfortable with the Council simply identifying the levy amount by August and discussing potential cuts in September/October. He summarized it was a disservice to the community not to be clear about the cuts that would be made should the levy fail. For Councilmember Orvis, Mayor Pro Tem Wilson explained the resolution directed staff to provide two alternatives for a levy and to make a presentation to the Council followed by open houses. Councilmember Orvis observed the resolution was only to start the process; it did not commit the Council to either option. Councilmember Peterson recalled during the retreat the Council recognized this was not a “feel good” levy and the Council needed to be up front with citizens that this was a bare bones, last ditch resort. He agreed with identifying cuts that would be made if the levy did not pass, pointing out it was important for citizens to understand that if the levy did not pass, the day-to-day operations of the city would be affected. Mayor Pro Tem Wilson proposed moving staff presentations from to June 2 to June 16 and to direct staff to make presentations on the two options outlined in the resolution. The Council agreed. Mayor Pro Tem Wilson asked whether the Council wanted to include Councilmember Bernheim’s suggestion to add economic development to the second option. Councilmember Bernheim agreed the intent of the levy was to generate funds necessary for general operations or restoring specific items that would be cut. He was willing to support the resolution as drafted as long as the Council had the ability to expand government services if a good idea arose. Mayor Pro Tem Wilson advised the Council always retained the ability to add or subtract from the budget. Mayor Pro Tem Wilson asked if Council supported a levy of $4.3 million or $3.75 million. Council President Pro Tem Wambolt preferred $3.75 million, anticipating voter approval of a $4.3 million levy would be more difficult. Councilmember Peterson agreed with Council President Pro Tem Wambolt. MAYOR PRO TEM WILSON MOVED, SECONDED BY COUNCILMEMBER OLSON, TO ADOPT RESOLUTION NO. 1200 (REGARDING THE 2009 PROPERTY TAX LEVY) WITH THE CHANGE MOVING THE STAFF PRESENTATIONS FROM JUNE 2 TO JUNE 16. Mayor Pro Tem Wilson noted most of the items in the General Operations Levy were also in the Parks, Public Safety and Families Levy; approximately 80% of the items were the same. MOTION CARRIED UNANIMOUSLY. 9. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF MAY 12, 2009 Community Services/Development Services Committee Council President Pro Tem Wambolt reported the Committee was provided a briefing on the Comprehensive Transportation Plan. The total cost of the projects in the plan is approximately $102 million. A consultant was hired to consider funding scenarios including a $30, $60, and $80 Packet Page 15 of 163 Edmonds City Council Draft Minutes May 19, 2009 Page 14 Transportation Benefit District (vehicle license) fee. The Planning Board will review the plan, hold public hearings and forward a recommendation to the City Council. Next, the Committee discussed the proposal to ban single use plastic bags. The Committee then discussed the legalization of hens and voted to forward the proposal to the Planning Board for consideration and recommendation. The final item discussed was potential updates to the City’s SEPA rules as part of the code rewrite project. The last update occurred 25 years ago. The update will focus on updating the City’s regulations to be consistent with state law and changes elsewhere in the city’s codes and policies that have been made over the years. The update will also address the state’s authorization for flexible thresholds which enables the City to adjust its SEPA thresholds for different areas of the City. Finance Committee Council President Pro Tem Wambolt reported the Committee considered an authorization for the Mayor to sign a Professional Services Agreement for Rick Jenness. The contract was pulled from tonight’s Consent Agenda. Due to the number of questions, he recommended scheduling it as an agenda item at a future Council meeting. The Committee was also provided a General Fund report for the month ending April 30, 2009 that indicated the financial situation had not improved or worsened. The year end sales tax projection was still down $1 million and REET projections for 2009 were $350,000, approximately ¼ of 2007 and collections were currently 54% below year-to-date 2008. 10. MAYOR'S COMMENTS Mayor Pro Tem Wilson had no report. 11. COUNCIL COMMENTS COUNCIL PRESIDENT PRO TEM WAMBOLT MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO APPROVE MAYOR PRO TEM WILSON’S ABSENCE FOR THE PAST THREE COUNCIL MEETINGS. MOTION CARRIED UNANIMOUSLY. Council President Pro Tem Wambolt reported on the April 21 Consent Agenda, the Council acknowledged receipt of a Fire District 1 proposal and authorized Mayor Haakenson and staff to negotiate with the District. He reported two meetings were held with Fire District 1 last week. The proposal is for Fire District 1 to purchase the City’s fire stations and capital equipment and absorb all the City’s firefighters. Fire District 1 would not tax residents directly, they would charge Edmonds a fee each year for providing the service. Initial analysis indicates this would save the City approximately $1 million. Staff will update Council as discussions with Fire District 1 continue. He note the City’s capital equipment and fire stations are valued at approximately $9 million. The focus of the second meeting with Fire District 1 was whether they had the money to purchase the fire stations and equipment and it appears they do. He was impressed with the Fire District 1 representatives, finding them very professional. He advised representatives of the firefighters union are also participating in the meetings with Fire District 1. He advised there had been no discussions about eliminating a fire station if the levy failed. Councilmember Bernheim commented he was taking the public’s comments regarding cooperation seriously, noting the last three meetings had been excellent examples of legislative cooperation. He further announced Sound Disposal now allows disposal of compostable food waste in the yardwaste container. He thanked Sound Disposal for taking that action. 12. ADJOURN With no further business, the Council meeting was adjourned at 9:55 p.m. Packet Page 16 of 163 AM-2286 3. Puget Sound Regional Council Transportation 2040 Presentation Edmonds City Council Meeting Date:05/26/2009 Submitted By:Conni Curtis, Engineering Submitted For:Robert English Time:20 Minutes Department:Engineering Type:Information Review Committee: Committee Action: Information Subject Title Presentation of the Transportation 2040 Plan by Puget Sound Regional Council (PSRC). Recommendation from Mayor and Staff N/A - Information only. Previous Council Action N/A Narrative Transportation 2040, the region’s new long range multi-modal transportation plan, is being developed to replace the current plan, Destination 2030. Transportation 2040 is being prepared by the PSRC boards and staff. The objectives of the plan are to align with VISION 2040 and the Regional Economic Strategy; to extend the planning horizon to 2040; to address key transportation issues; and to create a sustainable funding strategy. The planning process was initiated in a 2007 scoping process and is scheduled for adoption in the spring of 2010. On May 29, 2009, PSRC will issue a Notice of Availability for the Transportation 2040 Draft Environmental Impact Statement (DEIS) and open the written comment period that will last through July 13. The Transportation DEIS Executive Summary (containing a CD with the entire document and appendices) will be distributed to PSRC members, the SEPA distribution list, and other interested parties. It will available on the PSRC website and in regional libraries. The purpose of this evening's presentation by PSRC is to give the Council a brief overview of the components and funding strategies for the six Transportation 2040 alternatives under consideration. The presentation will note programs that impact Edmonds. Fiscal Impact Attachments No file(s) attached. Form Routing/Status Route Seq Inbox Approved By Date Status 1 Engineering Robert English 05/19/2009 03:46 PM APRV Packet Page 17 of 163 1 Engineering Robert English 05/19/2009 03:46 PM APRV 2 Public Works Noel Miller 05/19/2009 04:16 PM APRV 3 City Clerk Sandy Chase 05/20/2009 08:50 AM APRV 4 Mayor Gary Haakenson 05/20/2009 09:29 AM APRV 5 Final Approval Sandy Chase 05/20/2009 10:14 AM APRV Form Started By: Conni Curtis Started On: 05/14/2009 03:22 PM Final Approval Date: 05/20/2009 Packet Page 18 of 163 AM-2291 4. Dayton Street Plaza Park Renovation Project Edmonds City Council Meeting Date:05/26/2009 Submitted By:Frances Chapin, Parks and Recreation Time:15 Minutes Department:Parks and Recreation Type:Action Review Committee: Committee Action: Information Subject Title Presentation on Dayton Street Plaza Park Renovation Project and request for authorization to call for bids for the project. Recommendation from Mayor and Staff Council authorize staff to advertise for bids for the Dayton Street Plaza Park Renovation Project. Previous Council Action Project included in the approved 2009-2010 City of Edmonds Budget. Narrative The Dayton Street Plaza is located at the north end of the former Public Works facility on 2nd and Dayton. The renovation will create an attractive and accessible public space adjacent to one of the most well used walking routes between downtown and the waterfront. In addition to being on a popular walking route and across the street from Edmonds' Landing, the site attracts visitors to the Edmonds Arts Festival Foundation Art Works facilty and the Driftwood Players Rehearsal Annex. Currently the site is uninviting from the street, and landscape materials and concrete, including an inoperable fountain, are in poor shape. The renovated plaza will create a welcoming public space that includes an inviting entry from the sidewalk on Dayton, a small gathering space with seating wall and artist designed element in the plaza surface, and three sites for installation of outdoor sculptures. It will provide a visually interesting walking destination for nearby residents and an inviting resting spot for the many people who walk between the downtown and waterfront. The project meets goals in the 2008 approved Parks Comprehensive Plan to provide public gathering spaces with art elements and to strengthen connectivity between the core downtown and the waterfront. It also contributes to meeting goals in the approved Community Cultural Plan to provide art elements in public spaces and enhance opportunities for display of public art which contribute to Edmonds' growing reputation as a cultural destination. The completed design for the renovation was presented at Planning Board on 1/28/2009. Design work was initiated through a small works contract with Barker Landscape Architecture in 2007. Public process included an advertised Public Open House to review designs at Art Works on 7/9/2008. Plans were well received by neighborhood residents and other community members Packet Page 19 of 163 who attended. The 2008 - 2014 Capital Improvement Program and the 2009 - 2010 City Budget specify funding of $135,000 for this project in the 132 Fund. The funding includes community financial support of $25,000 contributed by the Edmonds Arts Festival Foundation, $5,000 from the Hubbard Family Foundation, and $2,500 from Edmonds in Bloom. Authorization is requested to call for bids for the Dayton Street Plaza Park Renovation Project. Fiscal Impact Attachments Link: Design layout Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 05/20/2009 10:44 AM APRV 2 Mayor Gary Haakenson 05/20/2009 04:20 PM APRV 3 Final Approval Sandy Chase 05/20/2009 04:58 PM APRV Form Started By: Frances Chapin Started On: 05/20/2009 09:29 AM Final Approval Date: 05/20/2009 Packet Page 20 of 163 P a c k e t P a g e 2 1 o f 1 6 3 AM-2288 6. Ordinance Amending Edmonds Community Development Code Chapter 20 Edmonds City Council Meeting Date:05/26/2009 Submitted By:Rob Chave, Planning Time:20 Minutes Department:Planning Type:Action Review Committee: Committee Action: Information Subject Title Consideration of and potential action on the Ordinance amending Edmonds Community Development Code Chapter 20 relating to establishing permit types, process requirements, notice requirements, consistency with SEPA, open record hearing procedures, closed record appeals, and development agreements. Recommendation from Mayor and Staff Approve the ordinance drafted by the City Attorney (Exhibit 1). Previous Council Action The City Council held a work session on the Planning Board recommendation on February 24, 2009. A public hearing was held on March 17, 2009, and Council directed the City Attorney to prepare an ordinance to implement the Planning Board's recommendation. Subsequently, an additional public hearing was held on May 5, 2009. Narrative This is a continuation of Council deliberations on an ordinance amending Chapter 20 of the Edmonds Community Development Code (ECDC). Public hearings were held on March 17 and May 5, 2009. A key section of the code rewrite deals with the process and procedure regulations found in Title 20 of the Edmonds Community Development Code (ECDC). Attached as Exhibit 1 is the ordinance drafted by the City Attorney's office following the hearing and initial approval by the City Council on March 17th. This ordinance implements the Planning Board recommended changes to Title 20. The purpose for these revisions is to clearly define the process and procedures for handling permit processing. The draft regulations also address the issues raised by the Hearing Examiner that needed clarifying. Key changes include: * Establishing permit types * Tables identifying the different permit types and the decision making process * Submission requirements and procedures * Public notice requirements establishing the responsibility for the permit applicant to provide the notice Packet Page 22 of 163 * Establishing SEPA consistency regulations * Establishing open and closed record hearing procedures * Creating a new section dealing with Development Agreements In addition to the draft ordinance and various meeting minutes, Exhibit 5 of the attachments is a summary of the various pros and cons that staff has heard surrounding the issue of whether or not the City Council should be involved in quasi-judicial land use decisions (particularly as an appeal body). Fiscal Impact Attachments Link: Exhibit 1: Proposed Ordinance Link: Exhibit 2: City Council minutes 2009 Link: Exhibit 3: City Council minutes 2008 Link: Exhibit 4: Planning Board Minutes Link: Exhibit 5: Quasi-judicial Pros and Cons Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 05/20/2009 08:50 AM APRV 2 Mayor Gary Haakenson 05/20/2009 09:29 AM APRV 3 Final Approval Sandy Chase 05/20/2009 10:14 AM APRV Form Started By: Rob Chave Started On: 05/18/2009 09:56 AM Final Approval Date: 05/20/2009 Packet Page 23 of 163 {BFP724406.DOC;2/00006.900150/} 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING NEW CHAPTERS AND REPEALING CERTAIN CHAPTERS IN TITLE 20 ECDC RELATING TO PROCEDURES FOR APPROVING LAND USE DEVELOPMENT PERMITS; AMENDING VARIOUS ECDC SECTIONS THAT REFERENCE SECTIONS IN REPEALED CHAPTERS IN TITLE 20 ECDC; PROVIDING FOR SEVERABILITY AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, the City of Edmonds’ current process and procedures for approving land use development permits require revision and modernization to conform more clearly and accurately with procedures set forth in state statutes; and WHEREAS, revision and modernization of the City’s process and procedures for approving land use development permits is also an ideal opportunity to draft the applicable codes to be more user friendly; and WHEREAS, the City’s Planning Board, after public meetings and hearings to consider improvements to the aforementioned process and procedure, forwarded to the City Council its recommended amendments to Title 20 ECDC; and WHEREAS, the City Council, after holding a public hearing on the same, approved the amendments to Title 20 ECDC recommended by the Planning Board; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Repealed. The following Chapters in Title 20 ECDC are hereby repealed: Packet Page 24 of 163 {BFP724406.DOC;2/00006.900150/} 2 Chapter 20.90 ECDC Application Process. Chapter 20.91 ECDC Public Hearings and Notice. Chapter 20.95 ECDC Application and Staff Review. Chapter 20.105 ECDC Appeals and Court Review. Section 2. Repealed. Sections 20.100.000 (Scope), 20.100.010 (Hearing examiner review), 20.100.020 (Planning advisory board review), and 20.100.030 (City council action on recommendations) of Chapter 20.100 ECDC are hereby repealed. Section 3. Retitled. Chapter 20.100 ECDC, Hearing Examiner, Planning Advisory Board And City Council Review, is hereby retitled as Chapter 20.100 ECDC, Miscellaneous Review. Section 4. Adopted. New Chapters in Title 20 ECDC are hereby adopted to read as hereto attached as Exhibit A. Section 5. Amended. Subsection 4.85.090(D) of the Edmonds City Code is hereby amended to read as follows: D. Notice of off street or on street areas designated in accordance with subsection C above shall be clearly posted to provide reasonable notice. Approval or denial of an off or on street area shall be appealable in the same manner as if it were a Type II decision (see Chapter 20.01 ECDC). Section 6. Amended. Subsection 7.10.065(C) of the Edmonds City Code is hereby amended to read as follows: C. In the event the owner fails to connect to the sewer line within the 10- day period or to provide the adequate assurances required by subparagraph (B)(2) above, water service to such residential or commercial structures and to the property on which they are located shall be discontinued. Service shall not again be instituted until such time as the owner has connected to the sewer system, paid the actual costs of the city including, but not limited to, disconnecting, reconnecting, notifying the owner and otherwise taking action with respect to the requirements of this section. The actual cost thereof may vary, but the city council hereby establishes such reconnection fee to be $250.00; provided, however, that in the event the actual costs are greater, they may be imposed by written order of the community services director or his designee and the reconnection shall not Packet Page 25 of 163 {BFP724406.DOC;2/00006.900150/} 3 be completed until such time such assessed costs are paid. In the event that the owner or owners believe that the reconnection charges are in excess of the amount actually incurred or which reasonably may be incurred the city, the owner or owners may appeal the set fee or additionally designated fee to the Hearing Examiner in the same manner as if it were a Type II decision (see Chapter 20.01 ECDC). Section 7. Amended. Subsection 7.80.110(B) of the Edmonds City Code is hereby amended to read as follows: B. All existing multifamily residences will also be required to make provisions for the collection of recyclables. It is recognized that in some instances this may require changes to approved site plans including but not limited to common areas of the building site and parking areas. It is also recognized that the provision of recyclable collection facilities in existing multifamily residences may also create violations of certain parts of the zoning chapter. The staff will review proposed facilities for collection of recyclables and/or yard waste, and will make a staff decision on whether a more formal review by the architectural design board is necessary. Such staff decisions shall be staff decisions rendered and appealable in the same manner as if they were Type II decisions (see Chapter 20.01 ECDC). In the event that a required parking space needs to be utilized for a collection facility, it shall still be counted toward meeting the parking requirements in the Edmonds Community Development Code. Section 8. Amended. Subsection 16.20.050(E)(1) of the Edmonds Community Development Code is hereby amended to read as follows: 1. The following applications for the following approvals shall be processed as a Type II development project permit application (see Chapter 20.01 ECDC): Section 9. Amended. Subsection 16.20.050(F)(2) of the Edmonds Community Development Code is hereby amended to read as follows: 2. The request for waiver shall be reviewed by the hearing examiner as a Type III-A decision and may be granted upon a finding that one of the following sets of criteria have been met. Section 10. Amended. Subsection 16.43.030(F)(1) of the Edmonds Community Development Code is hereby amended to read as follows: Packet Page 26 of 163 {BFP724406.DOC;2/00006.900150/} 4 1. If a certificate of appropriateness is issued by the Edmonds historic preservation commission under the provisions of Chapter 20.45 ECDC for the proposed project, the staff may modify or waive any of the requirements listed below that would otherwise apply to the expansion, remodeling, or restoration of the building. The decision of staff shall be processed as a Type II development project permit application (see Chapter 20.01 ECDC). Section 11. Amended. The first paragraph of Section 16.60.030, Site development standards – Design standards., of the Edmonds Community Development Code is hereby amended to read as follows: 16.60.030 Site development standards – Design standards. Design review by the architectural design board is required for any project that includes buildings exceeding 60 feet in height in the CG zone or 75 feet in height in the CG2 zone. Projects not exceeding these height limits may be reviewed by staff as a Type I decision. Regardless of what review process is required, all projects proposed in the CG or CG2 zone must meet the design standards contained in this section. Section 12. Amended. Subsection 16.75.020(D)(5) of the Edmonds Community Development Code is hereby amended to read as follows: 5. A master plan may be approved as a comprehensive plan amendment, a planned residential development (PRD), or as a contract rezone. The planning advisory board and city council shall review and act upon a proposed master plan as a Type V development project permit application (see Chapter 20.01 ECDC), except in the case of a PRD, which shall be reviewed in accordance with the provisions of Chapter 20.35 ECDC. Section 13. Amended. Subsection 17.40.020(F) of the Edmonds Community Development Code is hereby amended to read as follows: F. Restoration. If a nonconforming building or structure is destroyed or is damaged in an amount equal to 75 percent or more of its replacement cost at the time of destruction, said building shall not be reconstructed except in full conformance with the provisions of the Edmonds Community Development Code. Determination of replacement costs and the level of destruction shall be made by the building official and shall be appealable as a Type II staff decision under the provisions of Chapter 20.06 ECDC. Damage of less than 75 percent of replacement costs may be repaired, and Packet Page 27 of 163 {BFP724406.DOC;2/00006.900150/} 5 the building returned to its former size, shape and lot location as existed before the damage occurred, if, but only if, such repair is initiated by the filing of an application for a building permit which vests as provided in ECDC 19.00.015, et seq., within one year of the date such damage occurred. This right of restoration shall not apply if: Section 14. Amended. Subsection 17.40.020(G)(4) of the Edmonds Community Development Code is hereby amended to read as follows: 4. A nonconforming residential single-family building may be rebuilt within the defined building envelope if it is rebuilt with materials and design which are substantially similar to the original style and structure after complying with current codes. “Substantial compliance” shall be determined by the city as a Type II staff decision, except that any appeal of the staff decision shall be to the ADB rather than to the hearing examiner. The decision of the ADB shall be final and appealable only as provided in ECDC 20.07.006. Section 15. Amended. Subsection 17.50.070(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Exceptions to the required parking standards in the downtown area. When requested by the developer, the staff, using information provided by the applicant, may decrease the required parking for a building listed on the Edmonds register of historic places in order to retain historic elements of the building during its expansion, remodeling or restoration. Any building construction or remodeling activities serving as the justification for the parking exception shall be consistent with the criteria and procedures governing historic buildings contained in Chapter 20.45 ECDC. The decision on the parking exception shall be processed as a Type II decision. Section 16. Amended. Subsection 17.50.090(A)(3) of the Edmonds Community Development Code is hereby amended to read as follows: 3. Applications for a conditional use permit, or an appeal of a staff decision approving or denying a one-year extension thereof shall be reviewed by the hearing examiner under the same terms and conditions as any conditional use permit utilizing the criteria contained in Chapter 20.05 ECDC and under the procedural requirements contained in Chapter 20.06 ECDC. An application for a two-year extension shall be processed in the same manner as an initial application for a conditional use permit for a temporary parking lot and new or changed conditions may be imposed in Packet Page 28 of 163 {BFP724406.DOC;2/00006.900150/} 6 the course of that process. Section 17. Amended. Subsection 17.70.005(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. The granting of a permit for a sales office or sales model shall be processed as a Type I decision. Section 18. Amended. Section 17.70.010, Other temporary buildings., of the Edmonds Community Development Code is hereby amended to read as follows: 17.70.010 Other temporary buildings. Except as provided below in ECDC 17.70.030, a conditional use permit shall be required to construct a temporary building in any zone. The permit shall be valid for a period of one year; provided however, that said permit may be extended by the community services director for a single one-year extension upon submittal of a written application prior to the expiration of the original permit. All the requirements of the zoning district shall be met. Said application for a conditional use permit or an appeal of the staff decision granting or denying the extension of such a permit shall be reviewed by the hearing examiner in accordance with the requirements for any other conditional use permit under Chapter 20.06 ECDC. Section 19. Amended. Section 17.75.020, Primary uses requiring a conditional use permit., of the Edmonds Community Development Code is hereby amended to read as follows: 17.75.020 Primary uses requiring a conditional use permit. Outdoor dining shall be a primary use requiring a conditional use permit in the BN – neighborhood business zone, BC – community business zone, BD – downtown business zone, CW – commercial waterfront zone, and CG – general commercial zone, for outdoor seating which exceeds 10 percent of the existing interior seating in the establishment or more than eight seats, whichever is greater. This use shall be established and maintained only in accordance with the terms of a conditional use permit approved by the hearing examiner as a Type III-A decision under the procedural requirements contained in Chapter 20.06 ECDC. At a minimum, the conditions considered for imposition by the hearing examiner may include a restriction on operating hours, location of the Packet Page 29 of 163 {BFP724406.DOC;2/00006.900150/} 7 outdoor seating, and/or buffering of the noise and visual impacts related to the outdoor dining seating. All seating permitted pursuant to the conditional use permit shall be located outside of public rights-of-way. If outdoor seating is approved under these provisions, no additional parking stalls shall be required for the outdoor dining. Section 20. Amended. Section 17.90.020, Approval., of the Edmonds Community Development Code is hereby amended to read as follows: 17.90.020 Approval. The city staff will take general standards to the architectural design board for approval. Once the architectural design board establishes general standards, recycling boxes which meet general standards and comply with the provisions of this chapter may be approved by the staff without further review. Any decision made by the staff is appealable as if it were a Type II decision (see Chapter 20.01 ECDC). Boxes which do not meet general standards shall be reviewed individually by the architectural design board in accordance with the provisions of Chapter 20.10 ECDC upon payment of the fee for such review. Section 21. Amended. Section 17.90.050, Appeal., of the Edmonds Community Development Code is hereby amended to read as follows: 17.90.050 Appeal. Any person cited with a notice of violation shall have 10 calendar days from the date of mailing thereof to appeal from the findings of the notice. Such appeal shall be to the city's hearing examiner as a Type II appeal of a staff decision in accordance with Chapter 20.06 ECDC. Failure to appeal shall create a presumption of violation in accordance with the provisions of the notice of violation. Section 22. Amended. Subsection 17.95.040(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Appeals of Final Decision. Major employers may file a written appeal of the city's final decision regarding the following actions: 1. Rejection of an employer's proposed program; 2. Denial of an employer's requests for a waiver or modification of any of the requirements of this chapter or a modification of the employer's Packet Page 30 of 163 {BFP724406.DOC;2/00006.900150/} 8 program; Such appeals must be filed with the city within 10 calendar days after the employer receives notice of a final decision. Timely appeals shall be heard by the city's hearing examiner as if it were a Type II appeal of a staff decision in accordance with Chapter 20.06 ECDC. The hearing examiner's decision shall be final. Determinations on appeal shall be based on whether the decision being appealed was consistent with this chapter or applicable law. Section 23. Amended. Subsection 17.100.030(B) of the Edmonds Community Development Code is hereby amended to read as follows: B. Decisions to approve, condition, or deny a CUP; to review a CUP; or decline to renew a CUP shall be a Type III-A decision. Section 24. Amended. Subsection 18.00.020(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Decision. The public works director shall decide whether to approve, conditionally approve, or deny the application, based on the staff analysis and comments from other city departments. The decision shall be in writing and shall be appealable to the hearing examiner pursuant to Chapter 20.06 ECDC as if it were a Type II decision. No application may be approved that conflicts with any portion of the community development code, unless that portion is specifically subject to waiver or variance. Section 25. Amended. Section 18.05.040, Variances., of the Edmonds Community Development Code is hereby amended to read as follows: 18.05.040 Variances. Applications for variances from the underground requirements of this chapter shall be reviewed by the community services director as a Type II development project permit application (see Chapter 20.01 ECDC). For the purposes of this chapter, the special circumstances necessary to justify a variance from the undergrounding provisions of this chapter shall be limited to technological impracticability of any required underground installation or to a finding that the cost of the underground installation is excessive in light of the benefits derived and outweighs the benefits to be gained by the public. Packet Page 31 of 163 {BFP724406.DOC;2/00006.900150/} 9 Section 26. Amended. Subsection 18.45.045(B) of the Edmonds Community Development Code is hereby amended to read as follows: B. Upon receipt of the application for a clearing permit, the staff shall inspect the site and contiguous properties. If the staff determines that the plan is in compliance with the provisions of this section and will result in the removal of no more trees or vegetation than is necessary to achieve the proposed development or improvement, the permit shall be approved as a Type II decision (see Chapter 20.01 ECDC). Section 27. Amended. Section 18.45.055, Notice., of the Edmonds Community Development Code is hereby amended to read as follows: 18.45.055 Notice. Notice to surrounding property owners shall be provided pursuant to ECDC 20.02.004, informing them of the application for a clearing permit. Section 28. Amended. Section 18.45.060, Appeals., of the Edmonds Community Development Code is hereby amended to read as follows: 18.45.060 Appeals. Any person aggrieved by the decision of the staff regarding a clearing permit may appeal such decision to the hearing examiner within 10 working days of the date of the decision. The appeal shall comply with the provisions of Chapter 20.06 ECDC. Section 29. Amended. Subsection 18.50.020(C)(2) of the Edmonds Community Development Code is hereby amended to read as follows: 2. In the event that any applicant believes that the dedication requirement is in excess of that required to mitigate the applicant's actual development impacts, the applicant may appeal the staff decision to the hearing examiner as if it were a Type II decision in accordance with Chapter 20.06 ECDC. On appeal a dedication shall be required only if: Section 30. Amended. Subsection 18.80.010(Notes)(4) of the Edmonds Community Development Code is hereby amended to read as follows: 4 If the fire chief and public works director can demonstrate that the fire Packet Page 32 of 163 {BFP724406.DOC;2/00006.900150/} 10 fighting or rescue operations may be impaired by limited roadway width, the right-of-way width and paving requirements for a street or access easement may be increased and/or additional paved or graveled shoulders required. Both such decisions shall be staff decisions rendered and appealable as if they were Type II decisions in accordance with Chapter 20.06 ECDC. Section 31. Amended. Subsection 18.80.060(B)(5)(c) of the Edmonds Community Development Code is hereby amended to read as follows: c. In such cases, the city engineer may then consider use of an existing common driveway or other alternative. Only when no other reasonable alternative exists for access to a property will a curb cut be approved which results in the loss of existing on-street parking. No more than one access point per lot will be permitted in the downtown business area. The city engineer's decision to approve alternative access shall be processed as a Type II project permit application and decision (see Chapter 20.01 ECDC). Section 32. Amended. Subsection 18.80.060(C)(1) of the Edmonds Community Development Code is hereby amended to read as follows: 1. Except as otherwise provided, the width of any residential driveway shall not exceed 20 feet exclusive of the radii of the turns, with such measurement being made parallel with the center line of the street. Driveway approaches shall extend from the edge of the existing street a distance of 20 feet or to the edge of the property line, whichever is greater. Approaches shall be constructed of asphalt concrete pavement or an equivalent approved by the city engineer. The standard width for commercial and other nonresidential streets shall be 30 feet. At the application of the applicant or the city engineer, additional width in excess of the established standard may be approved as a staff decision to a maximum width of 40 feet. Such decision shall be made only after notice as a Type II project permit application and decision (see Chapter 20.01 ECDC). Such application shall be approved only if: (a) it conforms to the provisions of the comprehensive plan; (b) is found to be in the public interest when the needs of the applicant are reviewed and balanced in light of the benefits to the general public and the impacts, if any, on the immediate neighborhood; and (c) is consistent with or enhances public safety and will not create a hazard to vehicular, pedestrian or bicycle traffic. The public works director may authorize additional residential driveway width for three-car garages and for access driveways necessary for off-street parking or recreational vehicles. Packet Page 33 of 163 {BFP724406.DOC;2/00006.900150/} 11 Section 33. Amended. Subsection 18.82.070(E) of the Edmonds Community Development Code is hereby amended to read as follows: E. The decision of the director may be appealed to the hearing examiner as a Type II decision in accordance with Chapter 20.06 ECDC. Section 34. Amended. Subsection 19.00.005(A)(6)(e) of the Edmonds Community Development Code is hereby amended to read as follows: e. The maximum amount of time any building permit may be extended shall be a total of three (3) years. At the end of any three (3) year period starting from the original date of permit issuance, the permit shall become null and void and a new building permit shall be required, with full permit fees, in order for the applicant to complete work. The voiding of the prior permit shall negate all previous vesting of zoning or building codes. Whenever an appeal is filed and a necessary development approval is stayed in accordance with ECDC 20.07.004, the time limit periods imposed under this section shall also be stayed until final decision. Section 35. Amended. Subsection 19.00.025(B)(5) of the Edmonds Community Development Code is hereby amended to read as follows: 5. Any decision of the city staff regarding the application stated in this section and its interpretation shall be considered a Type I decision appealable only to the superior court of Snohomish County by Land Use Petition Act. Section 36. Amended. Subsection 19.10.040(A) of the Edmonds Community Development Code is hereby amended to read as follows: A. Notices of permit submittal application with the city shall be posted by the applicant pursuant to ECDC 20.02.004 and ECDC 20.03.002(A). Such notices shall be conspicuously posted and maintained at each street frontage at the applicant's expense pursuant to ECDC 20.03.001(A). Notice of permit issuance or denial shall be conspicuously posted as required above. Upon each posting a 10-day appeal period shall commence. Appeals shall be to the Snohomish County superior court in accordance with the Land Use Petition Act, and no other appeal shall be permitted. Packet Page 34 of 163 {BFP724406.DOC;2/00006.900150/} 12 Section 37. Amended. Section 20.05.020, General requirements., of the Edmonds Community Development Code is hereby amended to read as follows: 20.05.020 General requirements. A. Review. The hearing examiner shall review and decide on conditional use permit applications as Type III-A decisions as set forth in ECDC 20.01.003. B. Appeals. Appeals shall be to the Snohomish County superior court in accordance with the Land Use Petition Act. C. Time Limit. Unless the owner obtains a building permit, or if no building permit is required, substantially commences the use allowed within one year from the date of approval, the conditional use permit shall expire and be null and void, unless the owner files an application for an extension of time before the expiration date. D. Review of Extension Application. An application for any extension of time shall be reviewed by the community development director as a Type II decision. E. Location. A conditional use permit applies only to the property for which it has been approved and may not be transferred to any other property. F. Denial. A conditional use permit application may be denied if the proposal cannot be conditioned so that the required findings can be made. Section 38. Amended. Section 20.10.040, Optional pre-application., of the Edmonds Community Development Code is hereby amended to read as follows: 20.10.040 Optional pre-application. The applicant may submit plans required under ECDC 20.02.002 as part of the complete application in preliminary or sketch form, so that the comments and advice of the architectural design board may be incorporated into the final plans submitted for application. Section 39. Amended. Section 20.11.010, Review procedure - General design review., of the Edmonds Community Development Code is hereby amended to read as follows: 20.11.010 Review procedure – General design review. Packet Page 35 of 163 {BFP724406.DOC;2/00006.900150/} 13 A. Review. The architectural design board (ADB) shall review all proposed developments that require a threshold determination under the State Environmental Policy Act (SEPA). All other developments may be approved by staff as a Type I decision. When design review is required by the ADB, proposed development shall be processed as a Type III-B decision. The role of the ADB shall be dependent upon the nature of the application as follows: 1. The ADB shall conduct a public hearing for the following types of applications: a. Applications that are not consolidated as set forth in ECDC 20.01.002(B). b. Applications that are consolidated as set forth in ECDC 20.01.002(B) but in which the ADB serves as the sole decision-making authority. c. Applications that are consolidated as set forth in ECDC 20.01.002(B) but in which all decision-making authority is exercised both by staff, pursuant to this chapter and Chapter 20.13 ECDC, and by the ADB. The ADB shall act in the place of the staff for these types of applications. 2. The ADB shall review proposed developments at public meetings without a public hearing and make recommendations to the hearing examiner to approve, conditionally approve, or deny proposals for developments that, although consolidated as set forth in ECDC 20.01.002(B), are not subject to a public hearing by the ADB under subsection (A)(1) of this section. The hearing examiner shall subsequently hold a public hearing on the proposal. 3. The ADB under subsection (A)(1) of this section and the hearing examiner under subsection (A)(2) of this section shall approve, conditionally approve, or deny the proposal. The ADB or hearing examiner may continue its public hearing on the proposal to allow changes to the proposal, or to obtain information needed to properly review the proposal. See ECC 3.13.090 regarding exemptions from review required by this chapter. 4. Notwithstanding any contrary requirement, for a development in which the city is the applicant, the action of the ADB under subsection (A)(1) of this section and the hearing examiner under subsection (A)(2) of this section shall be a recommendation to the city council. B. Notice. Public notice by mail, posting or newspaper publication shall only be required for applications that are subject to environmental review Packet Page 36 of 163 {BFP724406.DOC;2/00006.900150/} 14 under Chapter 43.21C RCW, in which case notice of the hearing shall be provided in accordance with Chapter 20.03 ECDC. Section 40. Amended. Section 20.11.040, Appeals., of the Edmonds Community Development Code is hereby amended to read as follows: 20.11.040 Appeals. All design review decisions of the hearing examiner or the ADB are appealable to the city council as provided in Chapter 20.07 ECDC. Section 41. Amended. Subsection 20.11.050(B)(3) of the Edmonds Community Development Code is hereby amended to read as follows: 3. Review of Extension Application. An application for an extension shall be reviewed by the planning official as a Type I decision (Staff decision – No notice required). Section 42. Amended. Section 20.12.010, Applicability., of the Edmonds Community Development Code is hereby amended to read as follows: 20.12.010 Applicability. The architectural design board (ADB) shall review all proposed developments that require a threshold determination under the State Environmental Policy Act (SEPA) using the process set forth in ECDC 20.12.020, below. All other developments may be approved by staff as a Type I decision using the process set forth in ECDC 20.12.030, below. When design review is required by the ADB under ECDC 20.12.020, the application shall be processed as a Type III-B decision. Section 43. Amended. Subsection 20.12.020(A) of the Edmonds Community Development Code is hereby amended to read as follows: A. Public hearing – Phase 1. Phase 1 of the public hearing shall be scheduled with the Architectural Design Board (ADB) as a public meeting. Notice of the meeting shall be provided according to the requirements of ECDC 20.03.004. This notice may be combined with the formal Notice of Application required under ECDC 20.03.002, as appropriate. Packet Page 37 of 163 {BFP724406.DOC;2/00006.900150/} 15 Section 44. Amended. Subsection 20.12.020(B)(3) of the Edmonds Community Development Code is hereby amended to read as follows: 3. Phase 2 of the public hearing shall be conducted by the ADB as a continuation the Phase 1 public hearing. Notice of the meeting shall be provided according to the requirements of Chapter 20.03 ECDC. During Phase 2 of the public hearing, the ADB shall review the application and identify any conditions that the proposal must meet prior to the issuance of any permit or approval by the city. When conducting this review, the ADB shall enter the following findings prior to issuing its decision on the proposal: Section 45. Amended. Section 20.12.080, Appeals., of the Edmonds Community Development Code is hereby amended to read as follows: 20.12.080 Appeals. A. Design review decisions by the ADB pursuant to ECDC 20.12.020.B are appealable to the city council as provided in Chapter 20.07 ECDC. These are the only decisions by the ADB that are appealable. B. All design review decisions of the hearing examiner are appealable to the city council as provided in Chapter 20.07 ECDC. C. Design review decisions by staff under the provisions of ECDC 20.12.030 are only appealable to the extent that the applicable building permit or development approval is an appealable decision under the provisions of the ECDC. Design review by staff is not in itself an appealable decision. Section 46. Amended. Subsection 20.12.090(B)(3) of the Edmonds Community Development Code is hereby amended to read as follows: 3. Review of Extension Application. An application for an extension shall be reviewed by the planning official as a Type I decision (Staff Decision – No Notice Required). Section 47. Amended. Subsection 20.15A.240(D) of the Edmonds Community Development Code is hereby amended to read as follows: D. Appeals shall be governed by the procedures specified in Chapter 20.06 ECDC. Packet Page 38 of 163 {BFP724406.DOC;2/00006.900150/} 16 Section 48. Amended. Section 20.16.110, Reconsideration and appeal., of the Edmonds Community Development Code is hereby amended to read as follows: 20.16.110 Reconsideration and appeal. Reconsideration of the hearing examiner's ruling shall be governed by ECDC 20.06.010. Appeal of the hearing examiner's ruling shall be governed by Chapter 20.07 ECDC. Section 49. Amended. Subsection 20.16.130(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Building permits for an EPF which fail to comply with the conditions of approval shall be suspended and a report made to the director. The director shall institute a proceeding before the hearing examiner to permit the EPF's sponsor a hearing at which to show cause why its conditional use permit should not be revoked or further conditioned. Such hearing shall be conducted as if it were a Type III-A decision in accordance with Chapter 20.06 ECDC. Section 50. Amended. Section 20.19.010, Conditional use permit required., of the Edmonds Community Development Code is hereby amended to read as follows: 20.19.010 Conditional use permit required. When a conditional use permit is required by the provisions of Title 16 ECDC relating to the zoning districts, conditional use permit applications for operation of a mini day-care shall be processed as a Type II decision (Staff Decision – Notice Required) utilizing the criteria set forth in this chapter. In addition to the specific criteria set forth herein, the staff and hearing examiner on appeal shall also review the application under the criteria and required findings set forth in Chapter 20.05 ECDC relating to conditional use permits in order to establish that the proposed facility is not deleterious to the immediately surrounding neighborhood nor constitutes a public nuisance. The director of community services or designee, or the hearing examiner on appeal, may impose reasonable conditions on the approval of the conditional use permit for mini day-care facilities in order to ensure that the criteria of ECDC 20.19.020 are met and that the facility is in harmony with the surrounding neighborhood. The hearing examiner’s decision on appeal shall be final. Packet Page 39 of 163 {BFP724406.DOC;2/00006.900150/} 17 Section 51. Amended. Section 20.19.050, Conditional use permit required., of the Edmonds Community Development Code is hereby amended to read as follows: 20.19.050 Appeal. Appeals may be taken from staff decision to the hearing examiner under the provisions of Chapter 20.06 ECDC. An appellant may challenge the imposition of conditions or may elect to challenge a later determination as to whether those conditions have been met. The hearing examiner’s decision on appeal shall be final. Section 52. Amended. Subsection 20.20.010(B) of the Edmonds Community Development Code is hereby amended to read as follows: B. A home occupation which does not meet one or more of the requirements of subsection A of this section may be approved as a conditional use permit (Type III-A decision) pursuant to Chapter 20.05 ECDC and the procedures set forth in Chapter 20.06 ECDC, if the home occupation: Section 53. Amended. Subsection 20.21.030(A) of the Edmonds Community Development Code is hereby amended to read as follows: A. Permit Required. Any person who occupies or permits another person to occupy an attached accessory dwelling unit as a place of residence shall first obtain a permit. The permit shall be reviewed and processed as a Type II decision (Staff decision – Notice required). Section 54. Amended. Section 20.30.010, Application., of the Edmonds Community Development Code is hereby amended to read as follows: 20.30.010 Application. In addition to the information required by ECDC 20.02.002, the applicant shall provide the written consent of all owners of the affected land. Section 55. Amended. Section 20.30.020, Review., of the Edmonds Community Development Code is hereby amended to read as follows: 20.30.020 Review. Packet Page 40 of 163 {BFP724406.DOC;2/00006.900150/} 18 The community development director shall review applications for joint use of parking as a Type II decision (Staff decision – Notice required) using the criteria of this chapter as a basis for review. Section 56. Amended. Section 20.40.030, Notice., of the Edmonds Community Development Code is hereby amended to read as follows: 20.40.030 Notice. Notice of rezone hearings (and text change) before the planning board shall be the same as set forth for proposed amendments to the comprehensive plan in ECDC 20.00.020 for newspaper publication, and pursuant to ECDC 20.03.004. Section 57. Amended. Section 23.40.200, Appeals., of the Edmonds Community Development Code is hereby amended to read as follows: 23.40.200 Appeals. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this title may be appealed according to, and as part of, the appeal procedure, if any, for the permit or approval involved. Section 58. Amended. Subsection 23.40.210(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Hearing Examiner Review. The city hearing examiner shall review variance applications as Type III-A decisions and conduct a public hearing pursuant to the provisions of Chapter 20.06 ECDC. The hearing examiner shall approve, approve with conditions, or deny variance applications based on a proposal's ability to comply with general and specific variance criteria provided in subsections (A) and (B) of this section. Section 59. Amended. Subsection 23.40.210(E) of the Edmonds Community Development Code is hereby amended to read as follows: E. Time Limit. The director shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance, unless the applicant files an application for an extension of time before the expiration. An application for an extension Packet Page 41 of 163 {BFP724406.DOC;2/00006.900150/} 19 of time shall be reviewed by the director as a Type II decision (Staff decision – Notice required). Section 60. Amended. Section 20.55.010, Application requirements., of the Edmonds Community Development Code is hereby amended to read as follows: 20.55.010 Application requirements. In addition to the material required in ECDC 20.02.002, the application shall contain all material required by WAC 173-14-110, or as the same may be amended. Section 61. Amended. Section 20.55.020, Notice., of the Edmonds Community Development Code is hereby amended to read as follows: 20.55.020 Notice. A. Publication. In addition to the requirements of Chapter 20.03 ECDC, notice shall be given by publication in a newspaper of general circulation in Edmonds at least once a week on the same day of the week for two consecutive weeks. Except as provided hereafter in ECDC 20.55.025, the last day of publication shall be at least 30 days before the first public hearing on the permit. B. Contents. Except as provided hereafter in ECDC 20.55.025, and in addition to the requirements of Chapter 20.03 ECDC, the notice of the hearing examiner shall state that before the first pubic hearing, any person may request a copy of the final action on the permit. The notice shall also contain all information required by WAC 173-14-070, or as the same may be amended. Section 62. Amended. Section 20.55.030, Review., of the Edmonds Community Development Code is hereby amended to read as follows: 20.55.030 Review. The hearing examiner shall review and issue decisions on shoreline permits as a Type III-A decision, using the criteria contained in the city shoreline master program, Chapter 23.10 ECDC, the policies of the Shoreline Act and of Chapter 173-14 WAC, or as the same may be amended. Packet Page 42 of 163 {BFP724406.DOC;2/00006.900150/} 20 Section 63. Amended. Subsection 20.60.015(A) of the Edmonds Community Development Code is hereby amended to read as follows: A. Staff Approval. Except as referred to the architectural design board pursuant to subsections (A)(1) of this section, and except as provided in subsection B of this section, the planning manager, or designee, shall review all applications for design review under this chapter, and shall approve, conditionally approve or deny the application in accordance with the policies of ECDC 20.10.000, the criteria set forth in ECDC 20.10.070, and the standards and requirements of this chapter. The decision of the planning manager on any sign permit application may be appealed to the hearing examiner pursuant to the procedure established in Chapter 20.06 ECDC for appeal of Type II staff decisions. Section 64. Amended. Section 20.65.010, Review., of the Edmonds Community Development Code is hereby amended to read as follows: 20.65.010 Review. The Planning Board shall review proposed changes to the official street map as a Type V decision, using as the basis for its review and recommendation the purposes of the comprehensive plan as stated in Chapter 15.05 ECDC, and the purposes of the Comprehensive Street Plan, as stated in Chapter 15.40 ECDC, and the purposes of the official street map, as stated in Chapter 18.50 ECDC. Section 65. Amended. Section 20.75.040, Application., of the Edmonds Community Development Code is hereby amended to read as follows: 20.75.040 Application. Applications for subdivisions shall be made to the community development director on forms provided by the community development department. A subdivision application will be processed concurrently with any applications for rezones, variances, planned unit developments, site plan approvals and other similar approvals, that relate to the proposed subdivision, unless the applicant expressly requests sequential processing. The application shall contain the following items in addition to those specified in ECDC 20.02.002: A. A reproducible copy of the preliminary plat and the number of prints required by the community development department; Packet Page 43 of 163 {BFP724406.DOC;2/00006.900150/} 21 B. Title report; C. A survey map, if required by the community development director, of the exterior boundaries of the land to be subdivided, prepared by, and bearing the seal and signature of, a professional land surveyor registered in the state of Washington. This map can be combined with the preliminary ECDC 20.75.050 plat at the applicant's option; D. The application fee as set in Chapter 15.00 ECDC; E. A proposal for dedication of park land rather than payment of “in-lieu” fees, if desired by the applicant; F. Source of water supply and name of supplier; G. Method of sewage disposal, and name of municipal system if applicable. Percolation rates and other information required by the public works department shall be submitted if septic tanks are to be used; H. Other information that may be required by the community development director in order to properly review the proposed subdivision, including information needed to determine the environmental impact of the proposal. Section 66. Amended. Subsection 20.75.050(G) of the Edmonds Community Development Code is hereby amended to read as follows: G. Review. A certified determination of the planning manager or his/her designee may be appealed to the hearing examiner as a Type II decision as set forth in Chapter 20.06 ECDC. Section 67. Amended. Subsection 20.75.055(D) of the Edmonds Community Development Code is hereby amended to read as follows: D. The director's decision shall be issued in writing and shall be mailed to all properties within 300 feet of the site. Appeal may be taken from the director's decision within 10 working days of mailing of the decision and posting thereof in accordance with the provisions of Chapter 20.06 ECDC. Section 68. Amended. Section 20.75.065, Preliminary review., of the Edmonds Community Development Code is hereby amended to read as follows: 20.75.065 Preliminary review. Packet Page 44 of 163 {BFP724406.DOC;2/00006.900150/} 22 A. Responsibility for Review. The community development director, or a designated planning staff member, is in charge of administering the preliminary review of all subdivisions. The public works director and the fire department, and other departments if needed, shall participate in preliminary review by appropriate recommendations on subjects within their respective areas of expertise. B. Notice of Hearing. 1. When the director of community services has accepted a subdivision for filing, he shall set a date of hearing, and give notice of the hearing as provided in ECDC 20.03.004, and by the following for a formal subdivision: a. One publication in a newspaper of general circulation within Snohomish County pursuant to Chapter 1.03 ECC and posting notice in three conspicuous places within 300 feet of any portion of the boundary of the proposed formal subdivision not less than 10 working days prior to the hearing. b. Mailing to a city if a proposed formal subdivision is adjacent or within one mile of the city's boundary, or the proposed subdivision would use the utilities of the city. c. Mailing to the county if a proposed formal subdivision is adjacent to the city-county boundary. d. Mailing to the State Department of Highways if a proposed formal subdivision is adjacent to a state highway right-of-way. e. The notice must include a legal description and either a vicinity location sketch or a location description in nonlegal language. C. Time Limits for Staff Review. Staff review shall be completed within 120 days from the date of filing. D. Formal Subdivision Review. The hearing examiner shall review a formal subdivision as a Type III-A decision in accordance with provisions of Chapter 20.06 ECDC. E. Short Subdivisions – Staff Review. The director of community services shall review a short subdivision as a Type II decision (Staff Decision – Notice Required). F. Appeal of Staff Decision. Any person may appeal to the hearing Packet Page 45 of 163 {BFP724406.DOC;2/00006.900150/} 23 examiner a Type II decision of the community development director on a short subdivision under the procedure set forth in Chapter 20.06 ECDC. Section 69. Amended. Subsection 20.75.110(A) of the Edmonds Community Development Code is hereby amended to read as follows: A. Preliminary Plats. The community development director may approve as a Type II decision (Staff Decision – Notice Required), minor changes to an approved preliminary plat, or its conditions of approval. If the proposal involves additional lots, rearrangements of lots or roads, additional impacts to surrounding property, or other major changes, the proposal shall be reviewed in the same manner as the original application. Application fees shall be as set in Chapter 15.00 ECDC. Section 70. Amended. Subsection 20.75.155(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Staff Review. The director of public works and the community development director shall review the final plat of a formal subdivision. They shall then forward the final plat to the city council for a Type IV-A decision after having signed the statements required by ECDC 20.75.140 or attaching their recommendation for disapproval. Section 71. Amended. Section 20.75.158, Short plat - Staff review., of the Edmonds Community Development Code is hereby amended to read as follows: 20.75.158 Short plat – Staff review. The community services director, through his/her designees, the director of public works and the community development director shall conduct an administrative review of a proposed short subdivision and either sign the statements required by ECDC 20.75.140, if all requirements of this chapter have been met, or disapprove such action, stating their reasons in writing. Such administrative action shall be final subject only to right of appeal to the hearing examiner as a Type II decision under Chapter 20.06 ECDC. Dedication of any interest in property contained in an approval of the short subdivision shall be forwarded to the city council for formal acceptance on its consent agent; provided, however, that such acceptance shall not stay any approval, time period for appeal or the effective date of the short subdivision. Packet Page 46 of 163 {BFP724406.DOC;2/00006.900150/} 24 Section 72. Amended. Section 20.80.020, Zoning and planning changes., of the Edmonds Community Development Code is hereby amended to read as follows: 20.80.020 Zoning and planning changes. A. Review. Amendments to the following text materials (and where applicable maps, and other incorporated codes or codifications within them) before amendment by the city council shall first be reviewed by the planning advisory board as a Type V decision using the purposes and criteria set forth in the applicable chapters as the basis for its review and recommendations: 1. Title 15 ECDC, Comprehensive Plan, except application and permit fees. 2. Title 16 ECDC, Zoning Districts. 3. Title 17 ECDC, General Zoning, Regulations. 4. Title 20 ECDC, Review Criteria and Procedure, excluding: a. Chapter 20.15A ECDC, Environmental Review (SEPA); b. Chapter 20.70 ECDC, Street Vacations. 5. Chapter 18.50 ECDC, Official Street Map. B. Notice. See ECDC 20.03.004. C. When the city council, in its discretion, deems it appropriate to adopt pre-annexation zoning comparable to that in effect in Snohomish County for a proposed annexation area, the procedural and notice requirements of RCW 35A.14.340 shall control over the provisions of this chapter, Chapter 20.03 ECDC and ECDC 20.02.004. In the event that the city council determines it appropriate to zone property proposed for annexation to the city in a category which is not comparable to zoning in effect in Snohomish County, the provisions of this chapter, Chapter 20.03 ECDC and ECDC 20.02.004 shall apply. Any change to pre-annexation zoning proposed after annexation to the city shall also comply with the provisions of this chapter, Chapter 20.03 ECDC and ECDC 20.02.004. Section 73. Amended. Section 20.85.020, General requirements., of the Edmonds Community Development Code is hereby amended to read as follows: Packet Page 47 of 163 {BFP724406.DOC;2/00006.900150/} 25 20.85.020 General requirements. A. Review. The hearing examiner shall review variances as Type III-A decisions in accordance with provisions of Chapter 20.06 ECDC. B. Appeals. Appeals of hearing examiner decisions on variance shall be to the Snohomish County Superior Court as provided in ECDC 20.07.006. C. Time Limit. The approved variance must be acted on by the owner within one year from the date of approval or the variance shall expire and be null and void, unless the owner files an application for an extension of time before the expiration and the city approves the application. D. Review of Extension Application. An application for an extension of time shall be reviewed by the community development director as a Type II decision (Staff Decision – Notice Required). E. Location. A variance applies only to the property for which it has been approved and may not be transferred to any other property. Section 74. Amended. Section 23.40.200, Appeals., of the Edmonds Community Development Code is hereby amended to read as follows: 23.40.200 Appeals. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this title may be appealed according to, and as part of, the appeal procedure, if any, for the permit or approval involved. Section 75. Amended. Subsection 23.40.210(C) of the Edmonds Community Development Code is hereby amended to read as follows: C. Hearing Examiner Review. The city hearing examiner shall, as a Type III-A decision (see Chapter 20.01 ECDC), review variance applications and conduct a public hearing. The hearing examiner shall approve, approve with conditions, or deny variance applications based on a proposal's ability to comply with general and specific variance criteria provided in subsections (A) and (B) of this section. Section 76. Amended. Subsection 23.40.210(E) of the Edmonds Community Development Code is hereby amended to read as follows: E. Time Limit. The director shall prescribe a time limit within which the Packet Page 48 of 163 {BFP724406.DOC;2/00006.900150/} 26 action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance, unless the applicant files an application for an extension of time before the expiration. An application for an extension of time shall be reviewed by the director as a Type II decision (see Chapter 20.01 ECDC). Section 77. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance. Section 78. Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum and shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. APPROVED: MAYOR GARY HAAKENSON ATTEST/AUTHENTICATED: CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: BY W. SCOTT SNYDER FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. Packet Page 49 of 163 {BFP724406.DOC;2/00006.900150/} 27 SUMMARY OF ORDINANCE NO. __________ of the City of Edmonds, Washington On the ____ day of ___________, 2009, the City Council of the City of Edmonds, passed Ordinance No. _____________. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING NEW CHAPTERS AND REPEALING CERTAIN CHAPTERS IN TITLE 20 ECDC RELATING TO PROCEDURES FOR APPROVING LAND USE DEVELOPMENT PERMITS; AMENDING VARIOUS ECDC SECTIONS THAT REFERENCE SECTIONS IN REPEALED CHAPTERS IN TITLE 20 ECDC; PROVIDING FOR SEVERABILITY AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this _____ day of ________________, 2009. CITY CLERK, SANDRA S. CHASE Packet Page 50 of 163 {BFP724405.DOC;1/00006.900150/} 1 EXHIBIT A Chapter 20.01 TYPES OF DEVELOPMENT PROJECT PERMIT APPLICATIONS Sections: 20.01.001 Procedures for processing development project permits. 20.01.002 Determination of proper procedure type. 20.01.003 Development project permit application framework. 20.01.004 Joint public hearings. 20.01.005 Decisions. 20.01.006 Legislative enactments not restricted. 20.01.007 Exemptions from development project permit application processing. 20.01.001 Procedures for processing development project permits. A. For the purpose of development project permit processing, all development project permit applications shall be classified as one of the following as addressed and referenced in ECDC 20.01.003: Type I, Type II, Type III or Type IV. Legislative decisions are Type V actions, and are addressed in ECDC 20.01.005. Exclusions from the requirements of development project permit application processing are contained in ECDC 20.01.003(B). B. Unless otherwise specified, all references to days shall be calendar days. Whenever the last day of a deadline falls on a Saturday, Sunday or legal holiday designated by RCW 1.16.050, the deadline shall run until the next day that is not a Saturday, Sunday or holiday. 20.01.002 Determination of proper procedure type. A. Determination by Director. The Development Services Director or his/her designee (hereinafter the “director”) shall determine the proper procedure for all development project applications. Questions concerning the appropriate procedure shall be resolved in favor of the higher numbered procedure. B. Optional Consolidated Permit Processing. An application that involves two or more procedures may be processed collectively under the highest numbered procedure required for any part of the application or may be processed individually under each of the application procedures identified in ECDC 20.01.003. The applicant may determine whether the application will be processed collectively or individually. If the applications are processed individually, the highest numbered type procedure shall be undertaken first, followed by the other procedures in sequence from the highest numbered to the lowest. C. Decisionmaker(s). Applications processed in accordance with subsection B of this section which have the same procedure number, but are assigned to different hearing bodies, shall be heard collectively by the highest decisionmaker; the city council being Packet Page 51 of 163 {BFP724405.DOC;1/00006.900150/} 2 the highest body, followed by the hearing examiner or Planning Board, as applicable, and then the director. Joint public hearings with other agencies shall be processed according to ECDC 20.01.004. Concurrent public hearings held with the design review board and any other decisionmaker shall proceed with both decisionmakers present. 20.01.003 Development project permit application framework. A. Decisions. TYPE I TYPE II TYPE III-A TYPE III-B TYPE IV-A Type IV-B TYPE V Statement of zoning restriction Modification to landscape plans Plat vacations and alterations Essential Public Facilities Final plats Site specific / contract rezone Development agreements Boundary line adjustments, lot line adjustment, lot combination Formal interpretation of the text of the ECDC by the Director or designated staff Shoreline substantial development, shoreline variance Architectural Design review Final Planned Residential Development Zoning text amendments; area-wide zoning map amendments Permitted uses not requiring site plan review Home occupation permit Preliminary Planned Residential Development Comprehensive plan amendments Special use permits Accessory Dwelling Unit Conditional use Annexations Minor amendments to Planned Residential Development Draft environmental impact statement / SEPA determinations General variances, and sign permit variances, Development regulations Minor Preliminary Plat amendment Revisions to shoreline management permits Site plan/major amendments to site plans Master Plan Minor design review Administrative variances Preliminary plats Sign permits Short plat Land clearing/ grading B. The following permits or approvals are specifically excluded from the procedures set forth in this Title: landmark designations, building permits, street vacations, street use permits, encroachment permits, and other public works permits issued under Title 18. Packet Page 52 of 163 {BFP724405.DOC;1/00006.900150/} 3 C. Action Type. PROCEDURE FOR DEVELOPMENT PROJECT PERMIT APPLICATIONS (TYPE I – IV) LEGISLATIVE TYPE I TYPE II TYPE III-A TYPE III-B TYPE IV-A TYPE IV-B TYPE V Recommendation by: N/A N/A N/A N/A N/A Planning Board Planning Board Final decision by: Director Director Hearing examiner Hearing examiner / ADB City council City council City council Notice of application: No Yes Yes Yes Yes Yes No Open record public hearing or open record appeal of a final decision: No Only if appealed, open record hearing before hearing examiner Yes, before hearing examiner to render final decision Yes, before hearing examiner or board to render final decision No Yes, before Planning Board which makes recommendation to council Yes, before Planning Board which makes recommendation to council Closed record review: No No No Yes, before the council No Yes, before the council Yes, or council could hold its own hearing Judicial appeal: Yes Yes Yes Yes Yes Yes Yes 20.01.004 Joint public hearings. A. Administrator’s Decision to Hold Joint Hearing. The director may combine any public hearing on a development project permit application with any hearing that may be held by another local, state, regional, federal, or other agency, on the proposed action, as long as: (1) the hearing is held within the city limits; and (2) the requirements of subsection C of this section are met. B. Applicant’s Request for a Joint Hearing. The applicant may request that the public hearing on a permit application be combined as long as the joint hearing can be held within the time periods set forth in this title. In the alternative, the applicant may agree to a particular schedule if that additional time is needed in order to complete the hearings. C. Prerequisites to Joint Public Hearing. A joint public hearing may be held with another local, state, regional, federal or other agency and the city, when: Packet Page 53 of 163 {BFP724405.DOC;1/00006.900150/} 4 1. The other agency is not expressly prohibited by statute from doing so; 2. Sufficient notice of the hearing is given to meet each of the agencies’ adopted notice requirements as set forth in statutes, ordinances, or rules; 3. The agency has received the necessary information about the proposed project from the applicant in enough time to hold its hearing at the same time as the city hearing; or 4. The hearing is held within the geographic boundary of the city. 20.01.005 Decisions. A. Administrative Decisions. Type I and II decisions are administrative. Administrative decisions are made by the Director. Unless otherwise provided, appeals of Type II decisions shall be initiated as set forth in ECDC 20.07.004. B. Quasi-judicial Decisions. Type III, Type IV and appeal of Type II decisions are quasi-judicial. Quasi-judicial decisions are made by the Hearing Examiner and/or the city council. C. Legislative Decision. Type V decisions are legislative. Legislative decisions are made by the city council. 1. Planning Board. The Planning Board shall hold a public hearing and make recommendations to the city council on Type V actions, except that the city council may hold a public hearing itself on area-wide rezones to implement city policies, or amendments to zoning code text, development regulations or the zoning map. The public hearing shall be held in accordance with the requirements of Chapter 20.06 ECDC, RCW 36.70A.035 and all other applicable law. 2. City Council. The city council may consider the Planning Board’s recommendation in a public hearing held in accordance with the requirements of Chapter 20.06 ECDC and RCW 36.70A.035 and all other applicable law. If the city council desires to hold a public hearing on area-wide rezones to implement city policies, or amendments to zoning code text, development regulations or the zoning map, it may do so without forwarding the proposed decision to the Planning Board for a hearing. 3. Public Notice. Notice of the public hearing or public meeting shall be provided to the public as set forth in ECDC 20.03.004. 4. Implementation. City council decision shall be by ordinance or resolution and shall become effective on the effective date of the ordinance or resolution. Packet Page 54 of 163 {BFP724405.DOC;1/00006.900150/} 5 20.01.006 Legislative enactments not restricted. Nothing in this chapter or the permit processing procedures shall limit the authority of the city council to make changes to the city’s comprehensive plan, or the city’s development regulations as part of the annual revision process. 20.01.007 Exemptions from development project permit application processing. A Whenever a permit or approval in the Edmonds Community Development Code has been designated as a Type I, II, III or IV permit, the procedures in this title shall be followed in development project permit processing, except as provided in ECDC 20.01.003(B). B. Pursuant RCW 36.70B.140(2), lot line or boundary adjustments, building and/or other construction permits, or similar administrative approvals categorically exempt from environmental review under SEPA (Chapter 43.21C RCW and the city’s SEPA/environmental policy ordinance, Chapter 20.15A ECDC), or permits/approvals for which environmental review has been completed in connection with other development project permits, are excluded from the following procedures: 1. Notice of application (ECDC 20.02.004) unless an open record hearing is allowed on the development project permit decision; 2. Except as provided in RCW 36.70B.140, optional consolidated development project permit review processing (ECDC 20.01.002(B)); 3. Joint public hearings (ECDC 20.01.004); 4. Single report stating all of the decisions and recommendations made as of the date of the report that do not require an open public record hearing (ECDC 20.06.002(C)); and 5. Notice of decision (ECDC 20.06.009). Packet Page 55 of 163 {BFP724405.DOC;1/00006.900150/} 6 Chapter 20.02 TYPE I – IV DEVELOPMENT PROJECT PERMIT APPLICATIONS Sections: 20.02.001 Optional preapplication conference. 20.02.002 Development project permit application. 20.02.003 Submission and acceptance of application. 20.02.004 Notice of application. 20.02.005 Referral and review of development project permit applications. 20.02.001 Optional preapplication conference. A. Prior to filing applications for development project permit actions, the applicant may request a preapplication conference. The purpose of the preapplication conference is to merely acquaint the applicant with the requirements of the Edmonds Community Development Code. Applicant shall be responsible for verifying the accuracy of information provided by the city at the conference. B. The conference shall be held within 28 days of the request, upon payment of applicable fee(s) as set forth in the city’s adopted fee resolution. C. The director shall provide the applicant with the following during the conference: 1 A form which lists the requirements for a completed application; 2. A general summary of the procedures to be used to process the application; 3. The references to the relevant code provisions or development standards which may apply to approval of the application; and 4. The city’s design guidelines. D. Neither the discussions at the conference nor the information on the form provided by the director to the applicant under ECDC 20.02.001(C) shall bind the city in any manner or prevent the city’s future application or enforcement of all applicable codes, ordinances and regulations. E. Requests for preapplication conferences for all other types of applications will be considered on a time-available basis by the director. 20.02.002 Development project permit application. Applications for development project permits shall be submitted on forms provided by the director. An application shall consist of all materials required by the applicable Packet Page 56 of 163 {BFP724405.DOC;1/00006.900150/} 7 development regulations, and shall include the following general information as applicable: A. A completed development project permit application form; B. A verified statement by the applicant that the property affected by the application is in the exclusive ownership of the applicant, or that the applicant has submitted the application with the consent of all owners of the affected property; C. A property and/or legal description of the site for all applications, as required by the applicable development regulations; D. The applicable fee; and E. Statement addressing all applicable standards, requirements and criteria in the development regulations. 20.02.003 Submission and acceptance of application. A. Determination of Completeness. Within 28 days after receiving a development project permit application, the city shall mail or personally deliver to the applicant a determination which states either: 1. That the application is complete; or 2. That the application is incomplete and what is necessary to make the application complete. B. Identification of Other Agencies with Jurisdiction. To the extent known by the city, other agencies with jurisdiction over the project shall be identified in the determination of completeness. C. Additional Information. A development project permit application is complete for the purposes of this section when it meets the submission requirements of ECDC 20.02.002 and the submission requirements of the applicable development regulations. The determination of completeness shall be made when the application is sufficiently complete for review, even though additional information may be required or project modifications may be undertaken subsequently. The director’s determination of completeness shall not preclude the director’s ability to request additional information or studies whenever new information is required, or substantial changes are made to the proposed project. D. Incomplete Applications. 1. Whenever the applicant receives a determination from the city pursuant to ECDC 20.02.003(A)(2) that the development project permit application is incomplete, the applicant shall have 90 days to submit the necessary information. Within 14 days Packet Page 57 of 163 {BFP724405.DOC;1/00006.900150/} 8 after an applicant has submitted the requested additional information, the director shall make a determination of completeness and notify the applicant in the manner provided in subsection A of this section. 2. Whenever the applicant receives a notice that the contents of the application, which had been previously determined under ECDC 20.02.003(A)(1) to be complete, is insufficient, ambiguous, undecipherable, or otherwise unresponsive of the information being sought, the applicant shall have 90 days to submit the necessary information. 3. If the applicant does not submit the additional information requested within the 90-day period, for the development project permit, the director shall make findings and issue a decision, according to the Type I procedure, that the application has lapsed for lack of information necessary to complete the review. The decision shall state that no further action will be taken on the applications, and that if the applicant does not make arrangements to pick up the application materials from the planning and/or public works/engineering departments within 30 days from the date of the decision, the application materials will be destroyed. 4. When the director determines that an application has lapsed because the applicant has failed to submit required information within the necessary time period, the applicant may request a refund of the application fee remaining after the city’s determination of completeness. E. Director’s Failure to Provide Determination of Completeness. A development project permit application shall be deemed complete under this section if the director does not provide a written determination to the applicant that the application is incomplete as provided in subsection A of this section. F Date of Acceptance of Application. Development project permit applications shall not be officially accepted until complete. When an application is found complete, the director shall note the date of acceptance for continued processing. G. After acceptance, the city shall begin processing the applications. Under no circumstances shall the city place any applications on “hold” to be processed at some later date, even if the request for the “hold” is made by the applicant, and regardless of the requested length of the “holding” period. This subsection does not apply to applications placed on “hold” upon determination by the city that the application requires additional information for a decision. 20.02.004 Notice of application. A. Generally. A notice of application shall be provided to the public, all city departments and agencies with jurisdiction of all Type II, III and IV development project permit applications in accordance with Chapter 20.03 ECDC. B. Issuance of Notice of Application. Packet Page 58 of 163 {BFP724405.DOC;1/00006.900150/} 9 1. Within 14 days after the city has made a determination of completeness pursuant to ECDC 20.02.003, a notice of application shall be issued. 2. If any open record predecision hearing is required for the requested development project permit(s), the notice of application shall be provided at least 14 days prior to the open record hearing. C. Contents. The notice of application shall include: 1. The date of submission of the initial application, the date of the notice of completion and acceptance of the application, and the date of the notice of application; 2. A description of the proposed project and a list of the development project permits requested in the application and, if applicable, a list of any studies requested under Chapter 36.70B RCW; 3. A description of other required permits not included in the application, to the extent known by the city at that time; 4. A description of existing environmental documents that evaluate the proposed project, and, if not otherwise stated on the document providing notice of application, the location where the application and any studies can be reviewed; 5. A statement setting forth: (a) the time for the public comment period, which shall be not less than 14 nor more than 30 days following the date of notice of application; (b) the right of any person to comment on the application, receive notice of and participate in any hearings, and request a copy of the decision on the application; and (c) any appeal rights; 6. The date, time, place and type of hearing, if a hearing has been scheduled when the date of notice of application is issued; 7. Any other information determined appropriate by the director such as the director’s threshold determination, if complete at the time of issuance of the notice of application. D. Public Comment on the Notice of Application. All public comments in response to the notice of application must be received by the city’s development services department by 4:00 PM on the last day of the comment period. Comments in response to the notice of application received after the comment period has expired will not be accepted no matter when they were mailed or postmarked. Comments shall be mailed or personally delivered. Comments should be as specific as possible. Packet Page 59 of 163 {BFP724405.DOC;1/00006.900150/} 10 E. SEPA Exempt Projects. A notice of application shall not be required for development project permits that are categorically exempt under SEPA, unless a public comment period or an open record predecision hearing is required. 20.02.005 Referral and review of development project permit applications. Within 10 days of accepting a complete application, the director shall transmit a copy of the application, or appropriate parts of the application, to each affected government agency and city department for review and comment, including those responsible for determining compliance with state and federal requirements. The affected agencies and city departments shall have 15 days to comment on the application. The agency or city department is presumed to have no comments if comments are not received within the 15-day period. The director shall grant an extension of time only if the application involves unusual circumstances. Extensions shall be for a maximum of five working days. Packet Page 60 of 163 {BFP724405.DOC;1/00006.900150/} 11 Chapter 20.03 PUBLIC NOTICE Sections: 20.03.001 Responsibility for providing public notice. 20.03.002 Public notice of application. 20.03.003 Optional public notice. 20.03.004 Notice of public hearing. 20.03.001 Responsibility for providing public notice. A. Except where an action is initiated by the city, the applicant for a development project permit application shall be responsible for all posting, publishing, mailing and other notification required by the director. 1. No later than 14 days after the required date of posting, publishing and/or mailing, the applicant shall provide to the director an affidavit attesting that each required method of notification was carried out in conformance with the regulations in this and other applicable chapters. For required mail notice, the applicant shall submit a U.S. Postal Service Certificate of Mailing containing the names and addresses of all parties provided public notice. 2. If the affidavit and U.S. Postal Service Certificate of Mailing is not filed as required, any scheduled hearing or date by which the public may comment on an application shall be postponed, if necessary, in order to allow compliance with the notice requirements of this and other applicable chapters. 3. If the applicant fails to file the affidavit and U.S. Postal Service Certificate of Mailing as herein required within 90 days of required date of posting, publishing and/or mailing, the director shall make findings and issue a decision, according to the Type I procedure, that the application has lapsed for lack of information necessary to complete the review. The decision shall state that no further action will be taken on the applications, and that if the applicant does not make arrangements to pick up the application materials from the planning and/or public works/engineering departments within 30 days from the date of the decision, the application materials will be destroyed. B. The appellant of a development project permit decision shall be responsible for all posting, publishing, mailing and other notification required by the director. 1. No later than 14 days after the required date of posting, publishing and/or mailing, the appellant shall provide to the director an affidavit attesting that each required method of notification was carried out in conformance with the regulations in this and other applicable chapters. For required mail notice, the applicant shall submit a U.S. Postal Service Certificate of Mailing containing the names and addresses of all parties provided public notice. Packet Page 61 of 163 {BFP724405.DOC;1/00006.900150/} 12 2. When the responsibility of providing notice is on the appellant, failure to timely or properly file affidavit of notice and certificate of mailing may be grounds for the director to summarily dismiss the appeal. 20.03.002 Public notice of application. Notice of application for Type II, Type III and Type IV development project permits shall be provided by posting, publishing and mailing. A. Posting. Posting of the property for site specific proposals shall consist of one or more notice boards as follows: 1. A single notice board shall be placed by the applicant: a. At the midpoint of the street fronting the site or as otherwise directed by the director for maximum visibility; b. Five feet inside the street property line, except when the board is structurally attached to an existing building; provided, that no notice board shall be placed more than five feet from the street without approval of the director; c. So that the top of the notice board is between five to six feet above grade; and d. Where it is completely visible to pedestrians. 2. Additional notice boards may be required when: a. The site does not abut a public road; b. A large site abuts more than one public road; or c. The director determines that additional notice boards are necessary to provide adequate public notice. 3. Notice boards shall be: a. Maintained in good condition by the applicant during the notice period; b. In place at least 30 days prior to the date of any hearing, and at least 15 days prior to the end of any required comment period; c. Removed within 15 days after the end of the notice period. Packet Page 62 of 163 {BFP724405.DOC;1/00006.900150/} 13 4. Removal of the notice board prior to the end of the notice period shall be cause for discontinuance of the department review until the notice board is replaced and remains in place for the specified time period. 5. Notice boards shall be constructed and installed in accordance with specifications promulgated by the director. The format and content of the notice must be pre-approved by the director, and contain at least the project location, description, type of permit(s) required, comment period dates, and a location where the complete application may be reviewed. B. Published Notice. Notice of application shall be published in the city’s official newspaper (or if one has not been designated, in a newspaper of general circulation within the City). The format and content of the notice must be pre-approved by the director, and contain at least the project location, description, type of permit(s) required, comment period dates, and a location where the complete application may be reviewed. C. Mailed Notice. Notice of application shall be mailed to the following: (1) owner of the property involved if different from applicant; and (2) owners of real property, as shown by the records of the county assessor, within 300 feet of the boundaries of the property(ies) involved in the application. The format and content of the notice of application must be pre-approved by the director, and contain at least the project location, description, type of permit(s) required, comment period dates, and a location where the complete application may be reviewed. D. Shoreline Master Program (SMP) Permits. 1. Methods of Providing SMP Notice. Notice of the application of a permit under the purview of the city’s shoreline master program (SMP) shall be given by one or more of the following methods: a. Mailing of the notice to real property owners as shown by the records of the county assessor within 300 feet of the boundary of the property upon which the proposed project is to be built; b. Posting of the notice in a conspicuous manner, as determined by the director, on the property upon which the project is to be constructed; or c. Any other manner deemed appropriate by the director to accomplish the objectives of reasonable notice to adjacent landowners and the public. 2. Content of SMP Notice. SMP notices shall include: a. A statement that any person desiring to submit written comments concerning an application, or desiring to receive notification of the final decision concerning an application, may submit comments, or requests for the decision, to the Packet Page 63 of 163 {BFP724405.DOC;1/00006.900150/} 14 director within 30 days of the last date that notice is published pursuant to this subsection; b. A statement that any person may submit oral or written comments at the hearing; c. An explanation of the manner in which the public may obtain a copy of the city’s decision on the application no later than two days after its issuance. 3. Public Comment Period. The public comment period shall be 30 days. 4. The director shall mail or otherwise deliver a copy of the decision to each person who submits comments or a written request for the decisions. 20.03.003 Optional public notice. The director, in his or her sole discretion, may: A. Notify the public or private groups with known interest in a proposal or type of proposal; B. Notify the news media; C. Place notices in appropriate regional or neighborhood newspapers or trade journals; D. Publish notice in agency newsletters or send notice to agency mailing lists, either general lists or lists for specific proposals or subject areas; and E. Mail notice to additional neighboring property owners. 20.03.004 Notice of public hearing. A. Applicants of Type III or Type V actions, and appellants of Type II actions shall provide notice of public hearing by mailing, posting and publishing. B. Content of Notice of Public Hearing for All Applications. The notice of a public hearing required by this chapter shall contain: 1. The name and address of the applicant and the applicant’s representative; 2 A description of the subject property reasonably sufficient to inform the public of its location, including but not limited to a vicinity location or written description, a map or postal address, and a subdivision lot and block designation (complete legal description not required); 3. The date, time and place of the hearing; Packet Page 64 of 163 {BFP724405.DOC;1/00006.900150/} 15 4. The nature of the proposed use or development; 5. A statement that all interested persons may appear and provide testimony; 6. The sections of the code that are pertinent to the hearing procedure; 7. A statement explaining when information may be examined, and when and how written comments addressing findings required for a decision by the hearing body may be admitted; 8. The name of a city representative to contact and the telephone number where additional information may be obtained; 9. A statement that a copy of the application, all documents and evidence relied upon by the applicant, and applicable criteria are available for inspection at no cost and that copies will be provided at the requestor’s cost; and 10. A statement explaining that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and that copies will be provided at the requestor’s cost. C. Mailed Notice. Mailed notice of the public hearing shall be provided as follows: 1. The notice of the public hearing shall be mailed to: a. The applicant; b. The owner of the subject property, if different from applicant; c. All owners of real property, as shown by the records of the county assessor, within 300 feet of the boundaries of the property(ies) involved in the application; and c. Any person who submits a public comments on an application; 2. Type III Preliminary Plat Actions. In addition to the above, requirements for mailed notice of public hearing for preliminary plats and proposed subdivisions shall also include the following: a. Notice of the filing of a preliminary plat adjacent to or within one mile of the municipal boundaries of any city or town, or which contemplates the use of any city or town utilities shall be given to the appropriate city or town authorities; b. Notice of the filing of a preliminary plat of a proposed subdivision adjoining the boundaries of Snohomish County shall be given to the appropriate county officials; Packet Page 65 of 163 {BFP724405.DOC;1/00006.900150/} 16 c. Notice of the filing of a preliminary plat of a proposed subdivision located adjacent to the right-of-way of a state highway or within two miles of the boundary of a state or municipal airport shall be given to the secretary of transportation; d. If the owner of the real property which is proposed to be subdivided owns another parcel or parcels of real property which lie adjacent to the real property proposed to be subdivided, notice under RCW 58.17.090(1)(b) shall be given to owners of real property located with 300 feet from any portion of the boundaries of the adjacent parcels owned by the owner of the real property to be subdivided. 3. For a plat alteration or a plat vacation, notice shall be as provided in RCW 58.17.080 and 58.17.090. 4. General Procedure for Mailed Notice of Public Hearing. a. The records of the Snohomish County assessor’s office shall be used for determining the property owner of record. Addresses for a mailed notice required by this code shall be obtained from the applicable county’s real property tax records. As required under ECDC 20.03.001, the applicant shall provide a sworn certificate of mailing to all persons entitled to notice under this Chapter. b. All mailed public notices shall be deemed to have been received on the next business day following the day that the notice is deposited in the mail. D. Procedure for Posted or Published Notice of Public Hearing. 1. Posted notice of the public hearing shall comply with requirements set forth in ECDC 20.03.002(A). 2. Notice of public hearing shall be published in the city’s official newspaper (or if one has not been designated, in a newspaper of general circulation within the City). The format and content of the notice must be pre-approved by the director. E. Time and Cost of Notice of Public Hearing. 1. Notice shall be mailed, posted and first published not less than 10 or more than 30 days prior to the hearing date. Posted notices shall be removed by the applicant within 15 days following the public hearing. 2. All costs associated with the public notice shall be borne by the applicant of Type III and Type IV actions, or appellant of Type II actions. Packet Page 66 of 163 {BFP724405.DOC;1/00006.900150/} 17 Chapter 20.04 CONSISTENCY WITH DEVELOPMENT REGULATIONS AND SEPA Sections: 20.04.001 Determination of consistency. 20.04.002 Initial SEPA analysis. 20.04.003 Categorically exempt and planned actions. 20.04.001 Determination of consistency. A. Purpose. Consistency between a proposed development project permit application, applicable regulations and comprehensive plan shall be determined through the process described in this section. B. Consistency. During development project permit application review, the director shall determine whether the development regulations applicable to the proposed project, or in the absence of applicable development regulations, the city’s comprehensive plan, address the following: 1. The type of land use permitted at the site, including uses that may be allowed if the criteria for their approval have been satisfied; 2. The level of development, such as units per acre, density of residential development in urban growth areas, or other measures of density; 3. Availability and adequacy of infrastructure and public facilities identified in the comprehensive plan; and 4. Whether the plan or development regulations provide for funding of these facilities as required by Chapter 36.70A RCW. C. Project Review. Project review by the director and appropriate city staff shall identify specific project design and conditions relating to the character of development, such as the details of site plans, curb cuts, drainage swales, the payment of impact fees, or other measures to mitigate a proposal’s probable significant adverse environmental impacts. During project review, neither the director nor any other city reviewing body may re-examine alternatives or hear appeals on decided matters which have already been found to be consistent with development regulations and/or the comprehensive plan, except for issues of code interpretation. 20.04.002 Initial SEPA analysis. A. In addition to the land use consistency review, the director shall review the development project permit application for consistency with the State Environmental Packet Page 67 of 163 {BFP724405.DOC;1/00006.900150/} 18 Policy Act (“SEPA”), Chapter 43.21C RCW, the SEPA Rules, Chapter 197-11 WAC, and the city environmental policy ordinance, Chapter 20.15A ECDC, and shall: 1. Determine whether applicable regulations require studies to adequately analyze all of the proposed project’s specific probable adverse environmental impacts; 2. Determine whether applicable regulations require mitigation measures to adequately address identified environmental impacts; and 3. Provide prompt and coordinated review by other government agencies and the public on compliance with applicable environmental laws and plans, including mitigation for specific project impacts that have not been considered and addressed at the plan or development regulation level. B. In its review of a development project permit application, the director shall determine whether the requirements for environmental analysis, protection and mitigation measures in the applicable development regulations, comprehensive plan and/or in other applicable local, state or federal laws provide adequate analysis of and mitigation for the specific adverse environmental impacts of the proposal. C. If the director bases or conditions his or her approval of the development project permit application on compliance with the requirements or mitigation measures described in subsection A of this section, the city shall not impose additional mitigation under SEPA during project review for the same adverse environmental impacts. D. A comprehensive plan, development regulation or other applicable local, state or federal law provides adequate analysis of, and mitigation for, the specific adverse environmental impacts of a proposal when: 1. The impacts have been avoided or otherwise mitigated; or 2. The city has designated in the plan, regulation or law that certain levels of service, land use designations, development standards or other land use conditions allowed by Chapter 36.70A RCW are acceptable. E. In deciding whether a specific adverse environmental impact has been addressed by an existing city plan or development regulation, or by the regulations or laws of another government agency, the director shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the director shall base or condition any project approval on compliance with these other regulations. F. Nothing in this section limits the authority of the director in reviewing or mitigating the impacts of a proposed project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by Chapter 43.21C RCW. Packet Page 68 of 163 {BFP724405.DOC;1/00006.900150/} 19 G. The director shall also review the application under Chapter 20.15A ECDC, the city environmental policy ordinance; provided, that such review shall be coordinated with the underlying permit application review. 20.04.003 Categorically exempt and planned actions. A. Categorically Exempt. Actions categorically exempt under RCW 43.21C.110(1)(a) do not require environmental review or the preparation of an environmental impact statement. An action that is categorically exempt under the rules adopted by the Department of Ecology (Chapter 197-11 WAC) may not be conditioned or denied under SEPA. B. Planned Actions. 1. A planned action does not require a threshold determination or the preparation of an environmental impact statement under SEPA, but is subject to environmental review and mitigation under SEPA. 2. A “planned action” means one or more types of project action that: a. Are designated planned actions by an ordinance or resolution adopted by the city; b. Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with: i. A comprehensive plan or subarea plan adopted under Chapter 36.70A RCW, or ii. A fully contained community, a master planned resort, a master planned development or a phased project; c. Are subsequent or implementing projects for the proposals listed in paragraph (2)(b) of this subsection; d. Are located within an urban growth area, as defined in RCW 36.70A.030; e. Are not essential public facilities, as defined in RCW 36.70A.200; and f. Are consistent with the city’s comprehensive plan adopted under Chapter 36.70A RCW. C. Limitations on Planned Actions. The city shall limit planned actions to certain types of development or to specific geographical areas that are less extensive than the Packet Page 69 of 163 {BFP724405.DOC;1/00006.900150/} 20 jurisdictional boundaries of the city, and may limit a planned action to a time period identified in the environmental impact statement or this title. D. During project review, the city shall not re-examine alternatives to or hear appeals on the items identified in ECDC 20.04.001(B), except for issues of code interpretation. E. Project review shall be used to identify specific project design and conditions relating to the character of development, such as the details of site plans, curb cuts, drainage swales, the payment of impact fees, or other measures to mitigate a proposal’s probable adverse environmental impacts. Packet Page 70 of 163 {BFP724405.DOC;1/00006.900150/} 21 Chapter 20.06 OPEN RECORD PUBLIC HEARINGS Sections: 20.06.001 General. 20.06.002 Responsibility of director for hearing. 20.06.003 Conflict of interest. 20.06.004 Ex parte communications. 20.06.005 Disqualification. 20.06.006 Burden and nature of proof. 20.06.007 Order of proceedings. 20.06.008 Decision. 20.06.009 Notice of final decision - Miscellaneous. 20.06.010 Reconsideration of decision. 20.06.001 General. A. Open record public hearing, or simply public hearing, means a hearing conducted by a single hearing body or officer authorized to conduct such hearings, that creates the city’s record through testimony and submission of evidence and information, under procedures prescribed in this Chapter. A public hearing may be held prior to the city’s decision on a development project permit to be known as an "open record predecision hearing." A public record hearing may be held on an appeal, to be known as an "open record appeal hearing," if no open record predecision hearing has been held on the development project permit. B. Open record predecision hearings on all Type III and IV development project permit applications and open record appeal hearings on all Type II decision appeals shall be conducted in accordance with this chapter. Public hearings conducted by the city hearing examiner shall also be subject to the hearing examiner’s rules. C. Unless otherwise provided, appeals of Type II decisions shall be initiated as set forth in ECDC 20.07.004. 20.06.002 Responsibility of director for hearing. The director shall: A. Schedule project applications for review and public hearing; B. Verify compliance with notice requirements; C. Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal as of the date of the report, including recommendations on development project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall also describe any Packet Page 71 of 163 {BFP724405.DOC;1/00006.900150/} 22 mitigation required or proposed under the city’s development regulations or SEPA authority. If the threshold determination, other than a determination of significance, has not been issued previously by the city, the report shall include or append this determination. D. Prepare the notice of decision, if required by the hearing body, and mail a copy of the notice of decision to those entitled by this chapter to receive the decision. 20.06.003 Conflict of interest. The hearing body shall be subject to the code of ethics, prohibitions on conflict of interest and appearance of fairness doctrine as set forth in Chapter 42.23 RCW, and Chapter 42.36 RCW as the same now exists or may hereafter be amended. 20.06.004 Ex parte communications. A. No member of the hearing body may communicate, directly or indirectly, regarding any issue in a proceeding before him or her, other than to participate in communications regarding procedural aspects necessary for maintaining an orderly process, unless he or she provides notice and opportunity for all parties to participate. Nothing herein shall prevent the hearing body from seeking legal advice from its legal counsel on any issue. B. If, before serving as the hearing body in a quasi-judicial proceeding, any member of the hearing body receives an ex parte communication of a type that could not properly be received while serving, the member of the hearing body, promptly after starting to serve, shall disclose the communication as described in ECDC 20.06.004(C). C. If a member of the hearing body receives an ex parte communication in violation of this section, he or she shall place on the record: 1. All written communications received; 2. All written responses to the communications; 3. The substance of all oral communications received, and all responses made; and 4. The identity of each person from whom the member received any ex parte communication. The hearing body shall advise all parties that these matters have been placed on the record. Upon request made after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a rebuttal statement on the record. 20.06.005 Disqualification. Packet Page 72 of 163 {BFP724405.DOC;1/00006.900150/} 23 A. Any member who is disqualified shall make full disclosure to the audience of the reason(s) for the disqualification, abstain from voting on the proposal, and physically leave the hearing. B. If enough members of the hearing body are disqualified so that a quorum cannot be achieved, then all members present, after stating their reasons for disqualification, shall be requalified and deliberations shall proceed. 20.06.006 Burden and nature of proof. A. Except for Type V actions, appeal of Type II actions and closed record appeals, the burden of proof is on the proponent. The development project permit application must be supported by convincing proof that it conforms to the applicable elements of the city’s development regulations and comprehensive plan (review criteria). The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated. B. In an appeal of Type II actions or closed record appeal, the appellant has the burden of proof with respect to points raised on appeal. C. In a closed record appeal of the Architectural Design Board, its decision shall be given substantial deference regarding decision review within its expertise and contained in its decisions. 20.06.007 Order of proceedings. The order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate. A. Before receiving testimony and other evidence on the issue, the following shall be determined: 1. Any objections on jurisdictional grounds shall be noted on the record and if there is objection, the hearing body may proceed or terminate the proceeding; 2. Any member disqualifications shall be determined. B. The presiding officer may take official notice of commonly known and accepted information, such as: 1. Ordinances, resolutions, rules, officially adopted development standards, and state law; 2. Public records and facts judicially noticeable by law. C. Information officially noticed need not be proved by submission of formal evidence to be considered by the hearing body. Parties requesting official notice of any Packet Page 73 of 163 {BFP724405.DOC;1/00006.900150/} 24 information shall do so on the record. The hearing body, however, may take notice of matters listed in subsection B of this section at any time. Any information given official notice may be rebutted. D. The hearing body may view the proposed project site or planning area with or without notification to the parties, but shall put into the record a statement setting forth the time, manner and circumstances of the site visit. E. Information shall be received from the staff and from proponents and opponents. The presiding officer may, in his or her discretion, permit persons attending the hearing to ask questions. Unless the presiding officer specifies otherwise, approved questions will be asked of persons submitting testimony by the presiding officer. F. When the presiding officer has closed the public hearing portion of the hearing, the hearing body may openly discuss the issue and may further question the staff or any person submitting information. An opportunity to present rebuttal shall be provided if new information is presented in the questioning. When all evidence has been presented and all questioning and rebuttal completed, the presiding officer shall officially close the record and end the hearing. 20.06.008 Decision. A. Following the hearing procedure described in ECDC 20.06.007, the hearing body shall approve, conditionally approve, or deny the application. If the hearing is an appeal, the hearing body shall affirm, reverse or, with the written consent of the applicant, which shall include a waiver of the statutory prohibition against two open record hearings, remand the decision for additional information. B. The hearing body’s written decision shall be issued within 10 working days after the close of record of the hearing and within 90 days of the opening of the hearing, unless a longer period is agreed to by the parties. C. The city shall provide a notice of decision as provided in ECDC 20.06.009. D. If the city is unable to issue its final decision on a development project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision. 20.06.009 Notice of final decision - Miscellaneous. A. The director shall issue a notice of final decision within 120 days of the issuance of the determination of completeness pursuant to ECDC 20.02.003; provided, that the time period for issuance of a notice of final decision on a preliminary plat shall be 90 days, for a final plat 30 days, and a short plat 30 days. The notice shall include the SEPA threshold determination for the proposal and a description of any available administrative Packet Page 74 of 163 {BFP724405.DOC;1/00006.900150/} 25 appeals. For Type II, III and IV development project permits, the notice shall contain the requirements set forth in ECDC 20.06.002(C) and explain that affected property owners may request a change in property tax valuation notwithstanding any program of revaluation. 1. The notice of final decision shall be mailed or otherwise delivered to the applicant, to any person who submitted comments on the application or requested a copy of the decision, and to the Snohomish County assessor. 2. Notice of the decision shall be provided to the public by any means deemed reasonable by the director. B. In calculating the 120-day period for issuance of the notice of final decision, or other decision period specified in 20.06.009(A) ECDC, the following periods shall be excluded: 1. Any period during which the applicant has been requested by the director to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the director notifies the applicant of the need for additional information until the earlier of the date the director determines that the additional information provided satisfies the request for information, or 14 days after the date the additional information is provided to the city; 2. If the director determines that the information submitted is insufficient, the applicant shall be informed of the particular insufficiencies and the procedures set forth in subsection (B)(1) of this section for calculating the exclusion period shall apply; 3. Any period during which an environmental impact statement (EIS) is being prepared pursuant to Chapter 43.21C RCW and Chapter 20.15A ECDC. The time period for preparation of an EIS shall be governed by Chapter 20.15A; 4. Any period for consideration and issuance of a decision for administrative appeals of development project permits, which shall be not more than 90 days for open record appeals and 60 days for closed record appeals, unless a longer period is agreed to by the director and the applicant; 5. Any extension of time mutually agreed to by the director and the applicant in writing. C. The time limits established in this title do not apply if a development project permit application: 1. Requires an amendment to the comprehensive plan or a development regulation; Packet Page 75 of 163 {BFP724405.DOC;1/00006.900150/} 26 2. Requires siting approval of an essential public facility as provided in RCW 36.70A.200; or 3. Is substantially revised by the applicant, in which case the time period shall start from the date that a determination of completeness for the revised application is issued by the director pursuant to ECDC 20.02.003 and RCW 36.70B.070. 20.06.010 Reconsideration of decision. A. General. Any person identified in ECDC 20.07.003 as having standing to file an administrative appeal may request reconsideration of a decision of the hearing examiner which issues immediately after the open record public hearing on a development project permit application described in this chapter. Reconsideration is not a condition precedent to any appeal. Reconsideration shall be limited to: 1. error(s) of procedure; 2. error(s) of law or fact; 3. error(s) of judgment; and/or 4. the discovery of new evidence that was not known and could not in the exercise of reasonable diligence, been discovered. B. Time to File. A request for reconsideration, including reconsideration fee, must be filed with the city planning director within 10 calendar days of the hearing examiner’s written decision. Such requests shall be delivered to the director before 4:30 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 4:30 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were sent, mailed or postmarked. C. Computation of Time. For the purposes of computing the time for filing a request for reconsideration, the day the hearing examiner’s decision is issued shall not be counted. If the last day of the reconsideration is a Saturday, Sunday, or holiday designated by RCW 1.16.050, or by a city ordinance, then the reconsideration may be filed on the next business day. D. Content of Request for Reconsideration. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee (which shall be the same as the administrative appeal fee), and contain the following information: 1. The name, address and phone number of the requestor; 2. Identification of the application and final decision which is the subject of the request for reconsideration; 3. Requestor’s statement of grounds for reconsideration and the facts upon which the request is based; 4. The specific relief requested; Packet Page 76 of 163 {BFP724405.DOC;1/00006.900150/} 27 5. A statement that the requestor believes the contents of the request to be true, followed by his/her signature. E. Effect. The timely filing of a request for reconsideration shall stay the hearing examiner’s decision until such time as the hearing examiner issues a decision on reconsideration. F. Notice of Request for Reconsideration. The requestor shall provide mailed notice that a request for reconsideration has been filed to all parties of record as defined in ECDC 20.07.003. G. Hearing Examiner’s Action on Request. The hearing examiner shall consider the request for reconsideration without a hearing, but may solicit written arguments from parties of record. A decision on the request for reconsideration shall be issued within 10 business days after receipt of the request for reconsideration by the city. 1. The time period for appeal shall recommence and be the same for all parties of record, regardless of whether a party filed a motion for reconsideration. 2. Only one request for reconsideration may be made by a party of record. Any ground not stated in the initial motion is waived. 3. A decision on reconsideration or a matter that is remanded to the hearing examiner by the City Council is not subject to a motion for reconsideration. H. Limitations on Hearing Examiner’s Reconsideration. The hearing examiner shall consider the request for reconsideration based on the administrative record compiled on the application up to and including the date of the hearing examiner’s decision. The hearing examiner may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record and the hearing examiner’s decision. The reconsideration decision issued by the hearing examiner may modify, affirm or reverse the hearing examiner’s decision. I. Notice of Final Decision on Reconsideration. The director shall issue a notice of final decision on reconsideration in the manner set forth and to the persons identified in ECDC 20.06.009. J. Further Appeals. If no administrative appeal is allowed of the hearing examiner’s decision, and a request for reconsideration was timely filed, then any judicial appeal must be filed within 21 days after issuance of the decision on reconsideration, as provided in Chapter 36.70C RCW. Packet Page 77 of 163 {BFP724405.DOC;1/00006.900150/} 28 Chapter 20.07 CLOSED RECORD APPEALS Sections: 20.07.001 Appeals of decisions. 20.07.002 Consolidated appeals. 20.07.003 Standing to initiate an administrative appeal. 20.07.004 Appeals of recommendations and decisions. 20.07.005 Procedure for closed record decision/appeal. 20.07.006 Judicial appeals. 20.07.007 Resubmission of application. 20.07.001 Appeals of decisions. A. "Closed record appeal" means an administrative appeal on the record to the city council, following an open record public hearing on a development project permit application when the appeal is on the record with no new evidence or information allowed to be submitted, except as provided in ECDC 20.07.005(B), and only appeal argument allowed. B. The right of appeal for all development project permit applications and Type V land use decisions shall be as described in the matrix set forth in ECDC 20.01.003. 20.07.002 Consolidated appeals. All appeals of development project permit application decisions, other than appeals of determinations of significance (“DS”), and exempt permits and approvals under ECDC 20.01.007, shall be considered together in a consolidated appeal using the appeal procedure for the highest type permit application. 20.07.003 Standing to initiate an administrative appeal. A. Limited to Parties of Record. Only parties of record may file an administrative appeal. B. Definition. The term “parties of record,” for the purposes of this chapter, shall mean: 1. The applicant; 2. Any person who testified at the open record public hearing on the application; 3. Any person who individually submits written comments concerning the application at the open record public hearing. Persons who have only signed petitions are not parties of record; and/or Packet Page 78 of 163 {BFP724405.DOC;1/00006.900150/} 29 4. The city of Edmonds. 20.07.004 Appeals of recommendations and decisions. Permit Decisions or Recommendations. Appeals of a hearing body’s recommendation or decision on a development project permit application shall be governed by the following: A. Standing. Only parties of record have standing to appeal the hearing body’s decision. B. Time to File. An appeal must be filed within 10 working days of the issuance of the hearing body’s written decision. Appeals, including fees, must be received by the city’s development services department by mail or by personal delivery at or before 4:30 PM on the last business day of the appeal period. Appeals received by mail after 4:30 PM on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked. C. Computation of Time. For the purposes of computing the time for filing an appeal, the day the hearing body’s decision is issued shall not be counted. If the last day of the appeal is a Saturday, Sunday, or holiday designated by RCW 1.16.050 or by a city ordinance, then the appeal may be filed on the next business day. D. Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee as set forth in the city’s adopted fee resolution, and contain the following information: 1. Appellant’s name, address and phone number; 2. A statement describing appellant’s standing to appeal; 3. Identification of the application which is the subject of the appeal; 4. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts in the record; 5. The specific relief sought; 6. A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature. E. Effect. The timely filing of an appeal shall stay the hearing body’s decision until such time as the appeal is concluded or withdrawn. F. Notice of Appeal. The appellant shall provide mailed notice of the appeal to all parties of record as defined in ECDC 20.07.003. Packet Page 79 of 163 {BFP724405.DOC;1/00006.900150/} 30 20.07.005 Procedure for closed record decision/appeal. A. Closed record appeals shall be on the record established at the open record hearing before the hearing body/officer whose decision is appealed, which shall include the written decision of the hearing body/officer, copies of any exhibits admitted into the record, and official transcript, minutes or tape recording of the proceedings. 1. At his own expense, a party to the appeal may have the official tape recording of the open record hearing transcribed; however, to be admitted into the record, the transcription must be performed and certified by a transcriber that is pre-approved by the City. In addition, the certified transcription must be received by the City directly from the transcriber at least 16 working days before the date scheduled for the closed record review. It shall be each party of record’s responsibility to obtain a copy of the transcription from the City. 2. The director shall maintain a list of pre-approved transcribers that are court approved; and if needed, shall coordinate with parties to the appeal so that no more than one official transcription is admitted into the record. B. No new testimony or other evidence will be accepted by the city council except: (1) new information required to rebut the substance of any written or oral ex parte communication provided during an appearance of fairness disclosure; and (2) relevant information that, in the opinion of the city council, was improperly excluded by the hearing body/officer. 1. Appellants who believe that information was improperly excluded must specifically request in writing within 5 working days of the appeal deadline that the information be made part of the record. The request shall be addressed to the city council president, describing the information excluded, its relevance to the issues appealed, the reason(s) that the information was excluded by the hearing body/officer, and the reason why the hearing body/officer erred in excluding the information. 2. In determining whether the information should be admitted, the city council president may request other parties of record to submit written arguments rebutting the above. Non response by the city council president within 5 working days of the initial request that the information be made part of the record shall constitute a rejection of the same. C. Parties to the appeal may present written arguments to the city council. Arguments shall describe the particular errors committed by the decision maker below, with specific references to the administrative record. The appellant shall bear the burden to demonstrate that the decision below is clearly erroneous given the record. D. Appellant may submit his or her written arguments 12 working days before the date scheduled for the closed record review. Parties of record, except for the appellant, may respond in writing to appellant’s arguments no later than 7 working days before the Packet Page 80 of 163 {BFP724405.DOC;1/00006.900150/} 31 closed record review. Appellant may rebut in writing to responses submitted by parties of record no later than 4 working days before the closed record review. If the applicant is not the appellant, applicant may submit a final surrebuttal in writing to appellant’s rebuttal no later than 2 working days before the closed record review. E. Written arguments, responses, rebuttal and surrebuttals must be received by the city’s development services department by mail or personal delivery at or before 4:30 PM of the date due. Late submittals shall not be accepted. Submittals received by mail after 4:30 PM on the last day of the appeal period will not be accepted, no matter when such submittals were mailed or postmarked. It shall be the responsibility of the parties involved to obtain for their own use from the city copies of written arguments, responses, rebuttals and surrebuttals submitted. F. All written submittals shall be typed on letter size paper (8.5 x 11), with one inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12), single sided, double spaced and without exceeding twelve pages in length, including exhibits, if any. Exhibits that are not already in the record shall not be allowed. G. The review shall commence with the resolution of appearance of fairness issues, if any, followed by a presentation by the director, or the director’s designee, of the general background of the proposed development and the issues in dispute. After the director’s presentation, the city council may ask clarifying questions on disputed issues to parties of record, with an opportunity for the director (or designee), appellant and/or applicant, respectively, to rebut to the response. The city council shall not request information outside the administrative record. H. The city council shall determine whether the decision below by the hearing body/officer is clearly erroneous given the evidence in the record. The city council shall affirm, modify or reverse the decision of the hearing body/officer accordingly. Upon written agreement by the applicant to waive the requirement for a decision within the time periods set forth in RCW 36.70B.080, as allowed by RCW 36.70B.080(3), the city council may remand the decision with instructions to the hearing body for additional information. I. Notice of Final Decision on Closed Record Appeal. The director shall issue a notice of final decision on closed record appeal in the manner set forth and to the persons identified in ECDC 20.06.009. 20.07.006 Judicial appeals. The city’s final decision on an application may be appealed by a party of record with standing to file a land use petition in Snohomish County superior court. Such petition must be filed within 21 days after issuance of the decision, as provided in Chapter 36.70C RCW. 20.07.007 Resubmission of application. Packet Page 81 of 163 {BFP724405.DOC;1/00006.900150/} 32 Any permit application or other request for approval submitted pursuant to this chapter that is denied shall not be resubmitted or accepted by the director for reconsideration for a period of 12 months from the date of the last action by the city on the application or request unless, in the opinion of the director, there has been a significant change in the application or a significant change in conditions related to the impacts of the proposed project. Packet Page 82 of 163 {BFP724405.DOC;1/00006.900150/} 33 Chapter 20.08 DEVELOPMENT AGREEMENTS Sections: 20.08.010 Authority and general provisions. 20.08.020 General provisions of development agreements. 20.08.030 Enforceability. 20.08.040 Approval procedure for development agreements. 20.08.050 Form of agreement, council approval, recordation. 20.08.060 Judicial appeal. 20.08.010 Authority and general provisions. A. The city may consider, and enter into, a development agreement with a person having ownership or control of real property within the city limits. The city may consider a development agreement for real property outside of the city limit but within the urban growth area (UGA) as part of a proposed annexation or a service agreement. B. A development agreement shall be consistent with the applicable policies and goals of the city of Edmonds comprehensive plan and applicable development regulations. 20.08.020 General provisions of development agreements. A. As applicable, the development agreement shall specify the following: 1. Project components which define and detail the permitted uses, residential densities, nonresidential densities and intensities or building sizes; 2. The amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of state law, any reimbursement provisions, other financial contributions by the property owner, inspection fees, or dedications; 3. Mitigation measures, development conditions and other requirements of Chapter 43.21C RCW; 4, Design standards such as architectural treatment, maximum heights, setbacks, landscaping, drainage and water quality requirements and other development features; 5. Provisions for affordable housing, if applicable; 6. Parks and common open space preservation; 7. Phasing; Packet Page 83 of 163 {BFP724405.DOC;1/00006.900150/} 34 8. A build-out or vesting period for applicable standards; and 9. Any other appropriate development requirement or procedure which is based upon a city policy, rule, regulation or standard. B. As provided in RCW 36.70B.170, the development agreement shall reserve authority to impose new or different regulations to the extent required by a serious threat to public health and safety. 20.08.030 Enforceability. Unless amended or terminated, a development agreement is enforceable during its term by a party to the agreement. A development agreement and the development standards in the agreement govern during the term of the agreement, or for all or that part of the build- out period specified in the agreement. The agreement may not be subject to an amendment to a zoning ordinance or development standard or a new zoning ordinance or development standard or regulation adopted after the effective date of the agreement. The permit approval issued by the city after the execution of the agreement must be consistent with the development agreement. 20.08.040 Approval procedure for development agreements. A development agreement is a Type V development project permit application and shall be processed in accordance with the procedures established in this title. A development agreement shall be approved by the Edmonds city council after a public hearing. 20.08.050 Form of agreement, council approval, recordation. A. Form. All development agreements shall be in a form provided by the city attorney’s office. The city attorney shall approve all development agreements for form prior to consideration by the Planning Board. B. Term. Development agreements may be approved for a maximum period of five years. C. Recordation. A development agreement shall be recorded against the real property records of the Snohomish County assessor’s office. During the term of the development agreement, the agreement is binding on the parties and their successors, including any area that is annexed to the city. 20.08.060 Judicial appeal. If the development agreement relates to a project permit application, the provision of Chapter 36.70C RCW shall apply to the appeal of the decision on the development agreement. Packet Page 84 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 4 pursuing studies in musical theater. Elizabeth Melnikas is a talented musician who plays the flute and the saxophone and plans a performing and teaching career in the arts. And, Ingrid Porter is a dancer with a promising career in the art of dance. 7. PUBLIC COMMENT ON DRAFT LEVY PROPOSAL AND DRAFT RESOLUTION REGARDING 2009 PROPERTY TAX LEVY. Mayor Haakenson explained the draft levy proposal and resolution were developed by Council President Wilson and neither staff nor the Council had the opportunity to provide input yet. Al Rutledge, Edmonds, asked whether the funds from the levy would be sufficient for the future. Roger Hertrich, Edmonds, reiterated his concern with specifying certain uses for the levy funds because residents would expect the funds be used for those purposes; however, staff had the ability to transfer money via Interfund Transfers that was only approved by the Council after the fact. He recommended changing the process to require Council approval of Interfund Transfers before they occurred. In response to Mr. Rutledge’s question whether this was the final levy, Council President Pro Tem Wambolt answered this would be the last levy until the next one, anticipating this would not be the last levy in the City’s history. If the levy passed, he was hopeful there would be enough revenue growth during those years and that the legislature would allow cities to raise property taxes by an amount greater than 1%. In response to Mr. Hertrich’s comments, Council President Pro Tem Wambolt pointed out if the levy passed, none of the City’s services would be enhanced and there would be additional cuts if the levy did not pass. The levy was required to maintain the status quo with the exception of the cuts made by Mayor Haakenson in March. 8. PUBLIC HEARING ON ORDINANCE AMENDING EDMONDS COMMUNITY DEVELOPMENT CODE CHAPTER 20 RELATING TO ESTABLISHING PERMIT TYPES, PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA, OPEN RECORD HEARING PROCEDURES, CLOSED RECORD APPEALS, AND DEVELOPMENT AGREEMENTS. Planning Manager Rob Chave explained this was the second public hearing on amendments to Title 20 of the Edmonds Community Development Code; the first hearing was held in March. He explained this was part of the overall code rewrite; the objectives of the code rewrite were to, 1) provide clear standards for permit processing, 2) reduce potential for legal liability, and 3) address the Hearing Examiner’s procedural concerns. He identified the major proposed changes: • Establishing permit types. • Creating tables that identify the different permit types and decision-making processes. • Submission requirements and procedures. • Change public notice requirements and procedures to require the permit applicant to provide the notice. • Establishing SEPA consistency regulations. • Establishing open and closed record hearing procedures. • Creating a new section regarding Development Agreements. Packet Page 85 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 5 With regard to the format, Title 20 will be reformatted to place the process and procedures section at the start of the chapter with a subsection for specific permit review criteria. The process and procedures section will have the following seven subsections: • Chapter 20.01 – Types of development project permit types • Chapter 20.02 – Type I-IV development project permit applications • Chapter 20.03 – Public notice requirements • Chapter 20.04 – Consistency with development regulations and SEPA • Chapter 20.06 –Open record public hearings • Chapter 20.07 – Closed record appeals • Chapter 20.08 – Development Agreements He reviewed a matrix in Chapter 20.01 that identified the permit type and decision process. He reviewed a second matrix that identified the procedures for Type I – V permits that addressed recommendation, final decision, notice of application, open record public hearing or open record appeal of a final decision, closed record review and judicial appeal. Mr. Chave reviewed the public notice requirement in Chapter 20.03, explaining the biggest change in this section was the requirement for the applicant/appellant to provide all public notice. Staff will prepare the notice and give it to the permit applicant/appellant to post and mail. The code contains requirements regarding when and where notice must be provided. Failure to provide proper notice will result in beginning the process again. He noted this change would also reduce administrative costs to the City. Mr. Chave explained Chapter 20.04 requires consistency with development regulations and SEPA. This chapter codifies what staff already does in preparing staff reports and adds planned actions which are not currently addressed in the code. Chapter 20.06, Open Record Public Hearings, establishes clear procedures for conducting open record hearings, addresses the issues raised by the Hearing Examiner regarding processing reconsideration requests, and establishes the burden of proof. Chapter 20.07, Closed Record Appeals, establishes procedures for closed record appeals, establishes a consolidated appeals process, and establishes standing to initiate an administrative appeal. Mr. Chave recalled former Development Services Director Duane Bowman identified five areas where the Council would no longer be involved in appeals under the proposed regulations: 1) appeals of Conditional Use Permits 2) variances, 3) preliminary plat/major amendments to a plat, 4) shoreline substantial development variance permits and 4) appeals of Draft EIS or SEPA decisions. Mr. Chave explained Chapter 20.08, Development Agreements, is a new section that addresses development agreements, establishes the processing procedures, and establishes an appeal process. Mr. Chave identified the following reasons for having the Council involved in quasi judicial decisions: 1. Council is representative. 2. Council is elected. 3. Highest local authority. 4. Can better monitor and understand interaction between policy and decision. 5. Cost to go to court. Mr. Chave identified the following reasons for not having the Council involved in quasi judicial decisions: 1. Very limited latitude in quasi judicial matters. 2. Restricts ability to discuss with citizens. 3. Freedom to get involved in public design. Packet Page 86 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 6 4. Quasi judicial decisions must be decided professionally not legislatively. 5. Liability 6. Political process best for legislative matters. 7. Intermediate step – still have ability for court appeal. Mr. Chave clarified under the proposed ordinance, the Council retains the ability for a quasi judicial appeal on major ADB projects. He recommended the City regularly update the code rather than waiting for a major code rewrite such as was occurring now. With regard to shoreline appeals, he clarified the Council did not currently make a decision, they only ruled on the appeal. The final decision was made by the Shoreline Hearings Board. With regard to substantial development permits, the decision was made at the Hearing Examiner level but it was reviewed by the State. With regard to CUPs, preliminary plat decisions, the Council would be removed from the appeal process. However, in his experience, attorneys were usually involved at the appeal level under the current process. Councilmember Plunkett noted another significant change was in a closed record appeal, the applicant, appellant and parties of records must submit materials in writing. Mr. Chave explained the code currently allowed parties to make argument based on the record at the closed record appeal but they were not allowed to introduce new factual information. Under the proposed rules, verbal argument would not be allowed and argument was confined to written statements. He explained with verbal argument, it was virtually impossible during a hearing to determine whether or not information was new. However, having the information provided in writing would allow a determination to be made whether the information was part of the record and not new information that could potentially prejudice the appeal hearing. Councilmember Plunkett asked who would redact the written statements submitted for a closed record appeal and if the information were redacted, how would the Council be informed. City Attorney Scott Snyder answered he disliked interrupting speakers during a closed record appeal when it appeared their commentary was outside the record. He envisioned it would be up to the other party to object to anything in the written materials submitted for the closed record appeal; staff and he would prefer not to redact any materials. He summarized staff would review the materials submitted but it would be up to a party to object if they believed information was being injected into the record. Councilmember Plunkett anticipated the Council would then receive two or more opinions on what materials should be redacted, from the applicant and appellant and possibly other parties of record. Mr. Snyder envisioned a rule would be established to allow written objection to anything in the record and the Council would make an initial determination before beginning its deliberations to dispose of any procedural objections. Mr. Snyder commented this would also provide a discussion on the record and an indication regarding what material was considered. Councilmember Bernheim asked how the Hearing Examiner was selected and appointed. Mayor Haakenson advised Council representatives participated in the interview process; Council President Pro Tem Wambolt and Councilmember Orvis participated in the interview and selection of the current Hearing Examiner. Mr. Chave summarized the Council’s involvement was via the interview process and approving the Hearing Examiner’s contract. Councilmember Bernheim referred to the five decisions the Council would no longer participate in, CUP, general variances and sign permit variances, preliminary plats, shoreline development and draft EIS and asked what discretion there was in approving/denying an appeal. Mr. Chave answered the rules were quite strict; there were specific criteria in the code with regard to variances and the Hearing Examiner has been very strict about applying them. CUPs also have specific criteria. Shoreline permits, whether a shoreline substantial development permit or a variance, must comply with the Shoreline Master Program which is the reason the State retains authority over the shoreline permits. Local jurisdictions when Packet Page 87 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 7 enacting and enforcing a Shoreline Master Program are acting as the State’s agent. Preliminary plat is a ministerial decision, applying the criteria, and there is very little discretion. With regard to SEPA, Mr. Chave clarified it was not a decision on an EIS but a threshold determination, whether additional study was needed. It was often difficult to explain to the public that if they were interested in the project, they needed to participate in the hearing about the project because design issues, etc. were not environmental impacts that would be addressed by SEPA. He summarized SEPA was a very technical analysis and did not lend itself to discretionary decision. Mr. Snyder commented the difficulty was applying the Substantial and Competent Evidence Doctrine. He acknowledged the process was inherently skewed in favor of the developer who will retain experts and give a series of expert opinions or address facts in the record. The difficulty for citizens was they often raised questions but seldom provided evidence. Councilmember Bernheim asked whether it was possible for the Council and Hearing Examiner to reach different conclusions when reviewing the same record. Mr. Snyder agreed decisions were often close. He noted Washington Cities Insurance Authority’s (WCIA) concern about liability was based on their experience with City Councils being susceptible to argument to make something right. Councilmember Orvis referred to Councilmembers being personally liable, noting in the Spokane case the Council injected themselves into a ministerial decision, they were acting outside what State law allowed and their attorney advised them not to. He summarized for a Councilmember to be personally liable they would have to do something really unwise. Council President Pro Tem Wambolt pointed out the list of reasons why to have the Council involved in quasi judicial decision-making and why not to have the Council involved, Exhibit 5, was added since the March 17 hearing. All the other information was the same. Mayor Haakenson advised the Council would take comment tonight and deliberate on May 19. He opened the public participation portion of the public hearing John Reed, Edmonds, a member of the Planning Board, advised the Planning Board held 7 meetings on revisions to Chapter 20 from mid-2007 to March 2008. He was opposed to some of the proposed changes, pointing out citizens directly affected by land use decisions began the process at a disadvantage because staff and developers understand the process. Citizens do not understand the process and often come into the process late and are not aware how to proceed. He pointed out many issues are discussed and decided by the Planning Board with little or no public input because citizens know they can present their case to the Council. He requested the Council make two changes to Chapter 20, 1) restore the Council’s role as quasi judicial authority from which they were proposed to be removed, and 2) restore verbal argument to the quasi judicial appeal process; Councilmembers needed to hear citizens’ emotions. The Planning Board spent 10 months and 7 meetings developing the proposed amendment; the Council should take the necessary time before taking action on these important changes. He urged the Council to increase citizens’ opportunity for land use participation as well as increase the Council’s role in these decisions. He disagreed with the Council effectively telling citizens if they disagreed with something happening next door, their only option was to hire an attorney and go to court; many could not afford to do so and would not take that step. He urged the Council before voting on these changes to explain to the citizen why they were voting in the manner they did. Dr. Rich Senderoff, Edmonds, commented it was ironic while Americans were demanding more oversight and transparency in government, the Council was considering this legislation. He recalled his earlier comments regarding how the Council would provide checks and balances regarding land use issues when they would no longer be the highest decision maker. He disagreed that the Council did not have an Packet Page 88 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 8 oversight responsibility, pointing out the U.S. Congress was a legislative branch that had oversight responsibility. He disagreed with staff’s indication that Council would have more oversight via the ability to discuss citizens concerns on specific projects because they will not be involved in quasi judicial hearings. He pointed out the difficulty for citizens to keep abreast of issues before Council as well as before the Hearing Examiner and assumed even the Council may not be aware of permits before the Hearing Examiner. He understood quasi judicial cases were challenging for the Council because they must follow the law, pointing out true leaders accept the responsibility of explaining the requirements to constituents. He questioned how Councilmembers could position themselves as environmental proponents while voting to reduce public oversight and transparency over shoreline substantial development and shoreline variances. Diane Buckshnis, Edmonds, commented the first time she spoke regarding Chapter 20 was in regard to the lack of transparency to the public when they were not provided the matrixes. She received the matrixes 10 days later and found them very insightful, illustrating that the Council would be removed from decisions on substantial shoreline variances. She stressed the Council should be responsible for hearing citizens and responsible for reviewing development on the Edmonds shoreline. Betty Larman, Edmonds, recalled her appeal of a building permit to the Council on which the Council agreed. She thanked Council President Pro Tem Wambolt for removing this item from the Consent Agenda. She expressed concern with how quickly four Councilmembers passed the amendment, commenting they had reneged their responsibility by agreeing to allow the Hearing Examiner to hear appeals. She disputed the argument that the Hearing Examiner was more knowledgeable, pointing out several decisions have been lost on appeal. She observed staff wanted the Council to remove themselves from difficult decisions which she viewed as weakening the City as it did not allow citizens to have their voice heard without going to court. She urged the Council to uphold citizens’ rights to come to their elected representatives and for the Council to hear, not read, their comments regarding important issues. She summarized the Council should be the final authority on all appeals and urged the Council to reject the ordinance as written. Roger Hertrich, Edmonds, commented when he was on the Council, he considered it the highest honor to act as a judge in quasi judicial matters. Removing the Council from that role diminishes their ability to represent the community. He referred to the matrixes and suggested adding descriptions about the permit types and who was responsible for each decision. He asserted by removing themselves from final authority on final plats, the Council was in violation of its responsibility. He urged the Council to take as much time as the Planning Board to review and make a decision on the proposed amendments. Al Rutledge, Edmonds, commented he attends many Planning Board, Architectural Design Board and Hearing Examiner meetings. He pointed out at Hearing Examiner meetings, the Hearing Examiner will often ask for comments in writing to ensure clarity. He asked City Attorney Scott Snyder to comment on the lengthy Burnstead court case. Hearing no further comment, Mayor Haakenson closed the public participation portion of the public hearing In response to Mr. Rutledge’s comment, Mr. Snyder responded the Burnstead appeal was very atypical in the length of time, the level of briefing, and the number of hours and was hopefully an anomaly. He commented the belief that having the Council in the process would affect appeals one way or another was erroneous. Whether a citizen or developer, it was likely a close decision would be appealed and the LUPA process was typically fairly quick. He did not anticipate having the Council involved in the process would change the number of appeals that occurred. Packet Page 89 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 9 9. AUDIENCE COMMENTS George Murray, Edmonds, commented last week’s meeting included many articulate comments on both sides of the issue of banning plastic bags. Although few citizens were able to provide similar comment on the amendments to Chapter 20 because it was such a complex subject, he was glad a few citizens had researched the issue and provided comment. Next, he pointed out the Port Commission does a good job of reaching consensus of opinion. He planned to begin attending Port meetings. He noted consensus was the act of consenting as well as the consensus process. For example, Congress requires a 60 vote margin to avoid trampling the minority. He urged the Council to take the time necessary to get amendments to Chapter 20 right. Betty Larman, Edmonds, questioned why the Council was spending so much time discussing a ban on plastic bags, if it was because it was election season and camera time was important to promote oneself. She pointed out there was no ordinance for consideration and no definition of plastic bags and a myriad of uses for plastic bags to be considered. She agreed pollution was reprehensive and unacceptable but felt banning plastic bags was not the answer. She preferred education rather than legislation that would be nearly impossible to implement and control. She suggested if stores charged a fee for plastic bags as they do in Europe’s large markets, customers would remember to bring their own bags/baskets. She urged the Council to stop wasting time discussing a plastic bag ban and use their time to brainstorm ways to make the City thrive and become solvent again, the most pressing and important issue facing the Council. Al Rutledge, Edmonds, provided the Council a history regarding pool studies, the first in 1994 while Laura Hall was Mayor, the second in 2001 while Barbara Fahey was Mayor and now the third in 2009. He urged the City to finalize the pool issue. Next, he pointed out State law allowed the City to make a mid-year budget adjustment. He also indicated his plans to comment at the May 19 meeting regarding the plastic bag ban on behalf of the food bank. He urged the City to reach a compromise. Roger Hertrich, Edmonds, referred to the revisions to Chapter 20, particularly the change in public notice, asserting the public was better served by staff continuing to provide notice, pointing out the increased fees could be used to cover the cost. He suggested Chapter 20 be revised to allow email exchange of information rather than only mail. He referred to the decision matrix in Chapter 20, pointing out decisions staff could make include boundary line adjustments, minor amendments to PRDs, SEPA determinations, sign permits, administrative variances and accessory dwellings. The action type matrix indicates there is an opportunity for judicial appeal of staff decisions; however, there was no notice of application so the public was not aware an application had been submitted and a decision made. He summarized in staff decisions the public was left out. Diane Buckshnis, Edmonds, Director, Edmonds Arts Festival, announced the Edmonds Arts Festival was recently named Best in the West by King 5 TV. She announced the India: Land of Many Colors patrons preview event on June 18 and the Arts Festival on June 19-21. With regard to plastic bags, as a regulatory consultant to Lithuania and Kazakhstan for several years, she found if people were given a choice, they always felt good about it. Rather than ban plastic bags, she suggested people be given a choice and/or charged 5 cents per bag. 10. MAYOR'S COMMENTS Mayor Haakenson had no report. 11. COUNCIL COMMENTS Council President Pro Tem Wambolt pointed out several people questioned why the Council was rushing to adopt the revisions to Chapter 20 and urging the Council to also take up to 13 months to make a Packet Page 90 of 163 Edmonds City Council Draft Minutes May 5, 2009 Page 10 decision. However, he noted most felt even though the Planning Board took 13 months to provide their recommendation, their decision was incorrect. 12. ADJOURN With no further business, the Council meeting was adjourned at 8:44 p.m. Packet Page 91 of 163 Edmonds City Council Approved Minutes March 17, 2009 Page 7 Councilmember Bernheim recalled he submitted his application to the Group of 33 eight hours after the deadline and was not invited to participate. He favored including anyone who was interested on the Committee. Councilmember Wambolt commented deadlines should be adhered to unless there were extenuating reasons. He pointed out the Committee had been advertised for three weeks and there were already 53 members, an adequate representation from the community. He did not support accepting any additional applications. Councilmember Plunkett commented additional applicants should be welcomed and was in the spirit of openness and transparency. In view of the Council’s support for accepting additional members, Council President Wilson advised he would support the motion. He noted Councilmember Wambolt and he had been meeting as the revenue work groups since November and encouraged other Councilmembers to participate in this process. Councilmember Wambolt asked how long applications would be accepted. Council President Wilson clarified the motion was to accept any application until 6:00 p.m. on Monday, March 23. MOTION CARRIED UNANIMOUSLY. Council President Wilson advised the Committee meetings would be advertised as special meetings in the event four or more Councilmembers attended. 5. PUBLIC HEARING ON RECOMMENDED AMENDMENTS TO CHAPTER 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE RELATING TO ESTABLISHING PERMIT TYPES, PROCESS REQUIREMENTS, NOTICE REQUIREMENTS, CONSISTENCY WITH SEPA, OPEN RECORD HEARING PROCEDURES, CLOSED RECORD APPEALS, AND DEVELOPMENT AGREEMENTS. Development Services Director Duane Bowman recalled the Council had a work session on these amendments on February 24 and had been provided additional information prior to tonight at their request. The objectives of the rewrite are to, 1) provide clear standards for permit processing, 2) reduce potential liability, and 3) address Hearing Examiner procedural concerns. He identified the major proposed changes: • Establishing permit types. • Creating tables that identify the different permit types and decision-making processes. • Submission requirements and procedures. • Change the public notice requirements to establish the responsibility for the permit applicant to provide the notice. • Establishing SEPA consistency regulations. • Establishing open and closed record hearing procedures. • Creating a new section regarding Development Agreements. With regard to the format, Title 20 will be reformatted to replace the process and procedures section at the start of the chapter with a subsection for specific permit review criteria. The process and procedures section will have the following seven subsections: • Chapter 20.01 – Types of development project permit types • Chapter 20.02 – Type I-IV development project permit applications • Chapter 20.03 – Public notice requirements • Chapter 20.04 – Consistency with development regulations and SEPA Packet Page 92 of 163 Edmonds City Council Approved Minutes March 17, 2009 Page 8 • Chapter 20.06 –Open record public hearings • Chapter 20.07 – Closed record appeals • Chapter 20.08 – Development Agreements He reviewed the table in Chapter 20.01 establishing the type for various permits and a second table in Chapter 20.01 that identified the decision process for all permit applications that addressed recommendation, final decision, notice of application, open record public hearing or open record appeal of a final decision, closed record review and judicial appeal. Mr. Bowman reviewed the public notice requirement in Chapter 20.03, explaining the biggest change in this section was the requirement for the applicant/appellant to provide all public notice. Staff will prepare the notice and give it to the permit applicant/appellant to post and mail. Affidavits for posting and mailing are required prior to any public hearing. Failure to provide proper notice will result in beginning the process again. Mr. Bowman explained Chapter 20.04 requires consistency with development regulations and SEPA. This chapter formalized what staff already does in preparing staff reports and adds planned actions which are not currently addressed in the code. Chapter 20.06, open record public hearings, establishes clear procedures for conducting open record hearings, addresses the issues raised by the Hearing Examiner regarding the processing of reconsideration requests, and establishes the burden of proof. Chapter 20.07, closed record appeals, establishes procedures for closed record appeals, establishes consolidated appeals process, and establishes standing to initiate an administrative appeal. Mr. Bowman explained Chapter 20.08, development agreements, is a new section that addresses development agreements, establishes the processing procedures, and establishes an appeal process. Councilmember Plunkett asked for an approximation of how many permit types the proposed changes would remove the City Council from considering in a quasi judicial hearing. Mr. Bowman estimated 5-6 and offered to identify specifically which ones. Councilmember Bernheim recalled he requested a transition table. Mr. Bowman answered that was sent to the Council on March 6. He provided a comparison of the proposed amendment to the existing code: • Types of project permit applications – proposed Chapter 20.01, compared to staff review in 20.95 and 21.00 under Hearing Examiner, Planning Board and City Council review. • Development project permit applications – proposed Chapter 20.02, compared to 20.95 Application and Review • Public Notice – proposed Chapter 20.03, compared to Chapter 20.91 Public hearings and Notice • Consistency with development regulations and SEPA; new, therefore there is no comparison • Open record public hearings – proposed Chapter 20.06, compared to 21.00 Hearing Examiner, Planning Board and City Council review • Closed record appeals proposed Chapter 20.07, compared to 21.05 Appeals and Court Review • Development Agreements 20.08, new, therefore no comparison. Mr. Snyder pointed out this was a complete rewrite/restructure, therefore it was difficult to make comparisons between the existing code and the new code. He explained the City’s original code provisions date from 1980. Since then, SEPA, Shoreline Management Act, Growth Management Act, and other state imposed changes have been added to the code, making it very unwieldy, particularly the appeal process. Mayor Haakenson opened the public participation portion of the public hearing. Packet Page 93 of 163 Edmonds City Council Approved Minutes March 17, 2009 Page 9 Rich Senderoff, Edmonds, acknowledged this issue was complex. He questioned whether the proposed changes reduced public oversight and transparency to land use decisions. He viewed the Council as a check and balance in decisions. He recalled comments by residents during a neighborhood meeting at Seaview Elementary that most had day jobs and did not have time to invest reviewing development proposals versus developers for whom that was their day job. This placed residents at a disadvantage and they relied on the Council to provide the check and balance. He urged the Council to consider how checks and balances and oversight were provided in the process. Betty Larman, Edmonds, commented the recommended amendments to Chapter 20, particularly to Chapter 20.06, made it extremely difficult and onerous for citizens to appeal decisions of the ADB, etc. by adding many hurdles and costs to the process. She noted the filing process was very cumbersome and she questioned the deadline for filing appeals, at 12:00 p.m. rather than the end of the business day. She also preferred appeals be directly to the City Council rather than the Hearing Examiner or a higher court. She noted elected officials knew the rules and were just as smart as the Hearing Examiner. She commented decisions by the Hearing Examiner that result in higher court trials were an unnecessary expense to the City. She urged the Council to reconsider the amendments in Chapter 20.06, finding most unnecessary, burdensome and expensive. Diane Buckshnis, Edmonds, expressed interest in transparency for the public. She referred to Planning Board Member Reed’s request for a spreadsheet in January 2008 that identified the City’s current review process, advising that information was not available to the public. She acknowledged the code had been rewritten but the public should have access to the same information the Council was provided. She urged the Council to reject the amendments because the process had not been transparent. Roger Hertrich, Edmonds, pointed out this was a huge document and required supervision via the appeal process. Rather than appeals going to Superior Court, he preferred they be to the City Council. Via the appeal process, the Council had the opportunity to learn about problems with new regulations. He disagreed with the change in the notice/posting requirement, commenting the City was experienced with that process whereas it would be new to an applicant and there was potential for error. He suggested the deadline for submitting appeals be consistent such as 5:00 p.m. He referred to the appeal regarding the PRD on the former Woodway Elementary site, commenting if the Council had been able to make a decision on perimeter, the City, the applicant and the appellant could have saved a great deal of money and a decision could have been made much sooner. He suggested since the document was so voluminous and contained so many new procedures, the Council hold a second public hearing. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. Mr. Snyder agreed with the suggestion to make the submission deadline consistent. Next, he explained the GMA and the Regulatory Reform Act put citizens at a disadvantage and developers at an advantage in establishing a record with regard to land use decisions. The Regulatory Reform Act attempted to shift what the legislature saw as inappropriate political intrusion into the process by imposing very tight guidelines regarding what could be heard and when it could be heard. He noted 95% of the document was boilerplate and reflected either case law or Regulatory Reform. He explained there was no way for the Council to make a situation right and be a judge; in a quasi judicial decision, the Council must follow the law and could not make a legislative decision. He emphasized regardless of who held the hearing, there must be a complete record and basic due process requirements and rules of evidence must be observed. With regard to the Burnstead appeal referenced by Mr. Hertrich, Mr. Snyder questioned whether the City had 16-20 hours to hear an appeal. One of the reasons a Hearing Examiner was used to hold that type of hearing was to establish a clear record developed by a professional that could now be reviewed on appeal. Packet Page 94 of 163 Edmonds City Council Approved Minutes March 17, 2009 Page 10 With regard to the public’s comments regarding the unnecessary expense of Superior Court review, Mr. Snyder pointed out that was a requirement of the Land Use Petition Act (LUPA); land use permit decisions were appealable to Superior Court. He explained when staff began this rewrite approximately 18 months ago, the intent was to place the legal requirements on the City Council and Hearing Examiner in one place in a straightforward manner. If the Council held a second public hearing, he suggested focusing on the policy decision changes. He offered to provide a citation from the GMA, LUPA, Regulatory Reform, etc. whenever the City was obligated to do things in a certain manner. He summarized most of the decision making process was not discretionary; what the Council hears and whether it goes to the Council or Hearing Examiner is a policy decision, other issues such as burden of proof are dictated by case law or statute. Mr. Bowman commented if the Council chose to hold a second public hearing one of the key policy issues was shifting the responsibility for public notice to the applicant. He noted as staff was reduced, it was appropriate to shift that responsibility. With regard to where the Council would be removed from quasi judicial hearings, he confirmed under the proposed amendments that would occur in five incidences: conditional use permit; variances; preliminary plat and major amendments to a plat; shoreline substantial development permits and variances; and draft EIS/SEPA. Contrary to Ms. Larman’s comment, the Council would retain the appeal on ADB decisions on major design appeals. Mr. Snyder advised the City currently had a provision that violated state law; a wide open permit review procedure. In accordance with case law, only conditional use permits with a specific condition can be reviewed; all other permits, once final, cannot be revoked. The City’s current ordinance allows reopening of an approved permit. Councilmember Orvis observed the Planning Board recommended the City Council be removed from quasi judicial hearings and asked whether the Planning Board had considered decisions made by the City Council versus decisions made by the Hearing Examiner. Mr. Bowman answered no. Councilmember Orvis asked whether the Planning Board reviewed any case law. Mr. Bowman answered Mr. Park and Mr. Snyder provided legal advice during discussions. Mr. Snyder advised removing the Council from quasi judicial decisions was the recommendation of Washington Cities Insurance Authority (WCIA) because the pressure for Councils to make things right in a political sense was the biggest source of liability statewide. He reminded of the Hotel Group application which if appealed the City likely would have lost. Mr. Bowman recalled the Planning Board discussed Nycrum v Chelan County and Mission Springs v Spokane during their deliberations. Mr. Snyder observed Councilmember Orvis’ point was if done right, the Council was no more liable than a Hearing Examiner. Councilmember Orvis asked whether the court cases where the Council agreed with the Hearing Examiner versus disagreed with the Hearing Examiner had been reviewed. He recalled three decisions in which the City was overturned where the City Council agreed with the Hearing Examiner. He referred to Lutheran Daycare v Snohomish County, a Hearing Examiner decision to deny a conditional use permit that the Council agreed with and then received an arbitrary and capricious ruling. He concluded using the Hearing Examiner to make decisions did not prevent arbitrary and capricious rulings. Mr. Bowman agreed, pointing out the odds were reduced significantly. He noted the City’s current Hearing Examiners were all attorneys and very good at what they did. Mr. Snyder expressed his preference not to discuss the Burnstead case until the order was in. Councilmember Plunkett asked whether the Council could speak to the judge’s opinion on the Burnstead case. Mr. Snyder noted there were 43 grounds for appeal, the judge overturned 40 and 3 were upheld but the order regarding the remedy, whether remanded to the City or cleared up by the order, has not yet been determined. Councilmember Plunkett asked whether he could speak to the judge’s published opinion in Packet Page 95 of 163 Edmonds City Council Approved Minutes March 17, 2009 Page 11 the Burnstead case. Mr. Snyder explained the opinion was not final and was appealable. If the Council wished to discuss it, he preferred to recess to Executive Session. Councilmember Plunkett observed there were other policy issues in the proposed amendments in addition to the public notice and quasi judicial public hearing such as the requirement for argument to be in writing and development agreements. Mr. Bowman viewed the development agreement as a regulation rather than a policy question. He agreed the requirement for argument to be in writing was a policy decision. If the Council chose to retain its position as the arbitrator before appealing to court, he highly recommended argument be in writing. Councilmember Plunkett asked whether a development agreement could be a policy decision. Mr. Snyder explained the ability for a development agreement is provided for by state statute. The purpose of including it in the code was to address an issue a citizen raised regarding where development agreements were addressed in the code. Mr. Snyder advised these amendments also clarify written appeal requirements which he viewed as a due process requirement. He agreed the requirement for written submissions rather than oral presentation to the Council on appeal was a policy decision for the Council. Councilmember Plunkett questioned whether the City had to allow development agreements. Mr. Snyder advised they were provided for in State law and an applicant could apply for one; the City had the option of saying no. In response to Ms. Larman’s comments regarding the Council being as smart as the Hearing Examiner, Councilmember Wambolt disagreed, pointing out the Hearing Examiners are very competent and more experienced than he is in land use matters. He preferred the Hearing Examiner remain involved in decisions. With regard to Mr. Senderoff’s preference for the Council to be involved in decisions, he acknowledged citizens wanted the Council involved because they were elected. He noted the WCIA preferred the Hearing Examiner make decisions rather than the City Council. Mr. Snyder relayed the WCIA recommended the Hearing Examiner be used as much as possible. He recommended hearings be held by a Hearing Examiner regardless of whether the Council retained the decision-making authority on appeal, recognizing the difficulty for elected officials to say no to evidence that was not on the record. Councilmember Wambolt agreed with Mr. Hertrich regarding the notice requirement, observing it would be difficult for someone not skilled in that process. He asked whether the recommendation to shift the responsibility for the notice/posting was in anticipation of a reduction in staff. Mr. Bowman acknowledged it was likely there would be a reduction in staff and if the responsibility were not shifted, it would be one more thing for the reduced staff to do. He assured having the applicant do the noticing worked; he was involved in making that change in Bothell and received only one complaint regarding notice requirements in six years. Councilmember Bernheim asked how late the city offices were open. Mr. Bowman answered 4:30 p.m. Councilmember Bernheim suggested the 5:00 p.m. deadline be changed to 4:30 p.m. He agreed it should be consistent throughout the document and suggested “close of business hours.” Councilmember Bernheim asked whether there had been any other cases decided by the Hearing Examiner and appealed to Superior Court that were reversed/modified. Neither Mr. Bowman nor Mr. Snyder could recall any other than the Burnstead case. Councilmember Bernheim was in favor of having the applicant post/mail notice, commenting in most instances the applications would be submitted by experienced developers. Mr. Bowman agreed that would be the case in the vast majority of instances. Councilmember Bernheim asked what type of case a citizen would be required to provide notice. Mr. Bowman answered it would most likely be an appeal. Councilmember Bernheim observed the City could provide notice for citizen appeals. Packet Page 96 of 163 Edmonds City Council Approved Minutes March 17, 2009 Page 12 COUNCIL PRESIDENT WILSON MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO DIRECT THE CITY ATTORNEY TO PREPARE THE NECESSARY ORDINANCE TO IMPLEMENT THE PROPOSED CHANGES TO CHAPTER 20 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE REGARDING PERMIT PROCESSING AND PROCEDURES. It was the consensus of the Council to change 5:00 p.m. in the code to 4:30 p.m. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO AMEND THE MOTION TO MAKE DECISIONS WHERE THE CITY COUNCIL WAS EXCLUDED FROM THE QUASI JUDICIAL PROCESS, TO REVERT THOSE DECISIONS SO THAT THE CITY COUNCIL CONTINUED TO BE INVOLVED IN THAT PROCESS. For Councilmember Wambolt, Mr. Bowman explained under Type III-A the Council would not be reviewing preliminary plats, general variances, sign permit variances, and conditional use, shoreline substantial development and variances and plat vacations and alterations. With the amendment proposed by Councilmember Orvis, those would become Type III-B. UPON ROLL CALL, MOTION FAILED (3-4), COUNCILMEMBERS BERNHEIM, ORVIS AND PLUNKETT IN FAVOR; COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS PETERSON, WAMBOLT AND OLSON OPPOSED. UPON ROLL CALL, MAIN MOTION AS AMENDED CARRIED (4-3), COUNCIL PRESIDENT WILSON AND COUNCILMEMBERS OLSON, PETERSON, AND WAMBOLT IN FAVOR; COUNCILMEMBERS ORVIS, BERNHEIM, AND PLUNKETT OPPOSED. Mayor Haakenson declared a brief recess. 6. AUDIENCE COMMENTS Mitchell Stern, Edmonds, thanked the Council for their time and service to the community. He recognized the closure of Yost Pool was about dollars, noting it was also about part-time jobs for high school and college students, physical and mental health for adults and children, increased demand due to the projected closure of the Lynnwood pool for the summer 2010 and possibly 2011, obesity related health issues, the uniqueness of this facility, and the revenue potential from residents inside and outside Edmonds. He recommended review and refinement of all aspects of revenues and expenditures associated with Yost Pool to ensure its operation was self-sustaining. He recommended a Yost Pool Committee be created to do an in-depth review of the issues and return with a full recommendation regarding projected operation for the summer 2009 and beyond. He expressed his willingness to participate on the committee. Janis Freeman, Edmonds, announced the next meeting of Sustainable Edmonds on Saturday, March 21 at the Port of Edmonds Conference Room from 2:00 – 4:00 p.m. The topic will be “The Edible Garden, Growing Food in Our Own Yards” and three expert gardeners will share their knowledge. She advised everyone was welcome and there was no charge although donations were welcome. Diane Buckshnis, Edmonds, commented on her involvement in the dog park community and the art community. She relayed three friends received a letter on the Mayor’s stationary that appealed for participation on the Citizens Levy Review Committee, and stating the levy committee would be formed to discuss the City’s future and determine what services were important to the citizens of Edmonds. It further stated severe cuts would begin immediately without citizen input on services and named several such as Yost Pool and the Discovery Program. The letter was followed by the Mayor’s press release on Friday stating these cuts had already been made. With these cuts already in place, it appeared the citizens Packet Page 97 of 163 Packet Page 98 of 163 Packet Page 99 of 163 Packet Page 100 of 163 Packet Page 101 of 163 Packet Page 102 of 163 Packet Page 103 of 163 Packet Page 104 of 163 Packet Page 105 of 163 Packet Page 106 of 163 Packet Page 107 of 163 Packet Page 108 of 163 Packet Page 109 of 163 Packet Page 110 of 163 Packet Page 111 of 163 Packet Page 112 of 163 Packet Page 113 of 163 Packet Page 114 of 163 Packet Page 115 of 163 Packet Page 116 of 163 Packet Page 117 of 163 Packet Page 118 of 163 Packet Page 119 of 163 Packet Page 120 of 163 Packet Page 121 of 163 Packet Page 122 of 163 Packet Page 123 of 163 Packet Page 124 of 163 Packet Page 125 of 163 Packet Page 126 of 163 Packet Page 127 of 163 Packet Page 128 of 163 Packet Page 129 of 163 Packet Page 130 of 163 Packet Page 131 of 163 Packet Page 132 of 163 Packet Page 133 of 163 Packet Page 134 of 163 Packet Page 135 of 163 Why have the Council involved in quasi-judicial decision-making 1. The City Council is representative. As elected officials, City Councilmembers are theoretically representative of their citizens’ views and are best able to carry out their citizens’ wishes. 2. The City Council is elected. If the Council makes poor decisions, the citizens can ultimately have a direct impact on who their representatives are – or are not. 3. The City Council is the highest local authority. Decisions affecting land use and property should be made by those with a “stake” in the town – i.e. by someone who lives there. City Councilmembers all live in Edmonds. 4. The City Council can better monitor and understand how city regulations and policies interact with specific land use decisions if they are able to see “first hand” what the issues are. 5. For an appeal, going to court is not an adequate substitute for going to the City Council. Going to court costs more time and money (e.g. hiring an attorney) than going to a City Council meeting, and this setting is more intimidating and less understandable to the average citizen. This would make the appeal process less accessible to the average citizen. Why the Council should not be involved 1. The actual latitude afforded a decision-maker is very limited. Quasi-judicial decisions must be made according to adopted policies and regulations. Councilmembers can only make decisions that are supported by the same rules that others would apply. 2. Freedom to discuss issues with citizens. If the Council is taken out of the quasi-judicial decision process, individual citizens can discuss their concerns over a specific project or development proposal with Councilmembers. Currently, that can only happen after-the-fact (after all decisions and appeals have been exhausted), which limits accessibility of citizens to their elected officials. 3. Freedom to get involved in the details of public design projects. Currently, the City Council must be careful how it gets involved in public projects, since these can end up on a Council agenda as an appealed quasi-judicial decision (e.g. ADB decisions on the design of public buildings). 4. Quasi-judicial decisions must be decided professionally. Elected officials must be educated in and understand the limits of their decision-making power and be careful to follow adopted rules and regulations, not react to citizen wishes. The number of people on one side or the other of the issue is irrelevant, contrary to the rules that may apply in a political process. It can be difficult to explain this to a constituent who believes that their elected representative should decide according to how the “majority” of the neighborhood feels. 5. Liability is a serious concern. The courts have increasingly come down hard on decision-makers who do not properly make quasi-judicial decisions. City Councilmembers can be held personally liable for their quasi-judicial decisions. Quasi-judicial decisions are best made by those professionally trained to make them – according to existing rules. 6. The political process is complex and responds to different influences than are available – or are relevant – in a quasi-judicial process. Political processes are most appropriate for dealing with goals, policies, and regulations that can be developed and discussed in an open legislative forum. 7. Taking the City Council out of the appeal process for quasi-judicial decisions removes only one intermediate step in the appeal process; going to court has always been available to a citizen as an option. In many instances (especially the most controversial), attorneys are already involved in the dispute, and having one less appeal hearing to attend could actually reduce attorney time (and fees). Removing Council from the process does not reduce citizen involvement; public hearings are still held – only the Council’s limited, non-discretionary, on-the-record review is removed. Packet Page 136 of 163 AM-2289 7. Report Regarding the Street Tree Plan & Replanting of Street Trees at 5th & Dayton Edmonds City Council Meeting Date:05/26/2009 Submitted By:Brian McIntosh, Parks and Recreation Time:20 Minutes Department:Parks and Recreation Type:Action Review Committee: Committee Action:Recommend Review by Full Council Information Subject Title Report regarding the Street Tree Plan and removal and replanting of street trees at 5th & Dayton. Recommendation from Mayor and Staff Street Tree Plan Amend language in Street Tree Plan as follows to better reflect current practices in regard to removing and replanting street trees. As an element of the City Comprehensive Plan, required public hearings will be scheduled at both the Planning Board and City Council for consideration to become part of 2009 Comprehensive Plan amendments. 1. Downtown Plan, pg. 120. Current language: All trees shown on the map shall be minimum 3 inch caliper unless otherwise approved. Proposed amended language: All trees on the map shall be a minimum of 2 inch caliper unless otherwise approved buy City staff following evaluation of existing site conditions and availabiltiy of appropriate species. 2. Tree Planting Procedures, pg. 124. Current language: In retail/commercial and mixed use areas, install minimum 3 inch caliper trees with minimum 7 foot branching height unless otherwise approved by the City. Proposed amended language: In the retail/commercial and mixed use areas, install minimum 2 inch caliper trees with 7 foot branching height unless otherwise approved by City staff following evaluation of existing site conditions and availability of appropriate species Removal and Replanting of Street Trees at 5th & Dayton Proceed with replacement street trees at this intersection to match in size and species of those recently replaced at Old Milltown and the Bank of Washington. Previous Council Action Packet Page 137 of 163 At the April 21, 2009 City Council meeting, Council President Wilson scheduled a review of the Street Tree Plan in advance of removal and replacement of trees at the corner of 5th & Dayton. Narrative Street Tree Plan The Street Tree Plan "Vision" summarizes the intentions of the Plan. "The Street Tree Plan exists to benefit the local community and business climate through enhancement of the identity and character of the downtown, gateways, and neighborhoods and primary routes of travel. Street Trees provide seasonal interest, summer shade, and a transition between the street and adjacent buildings and properties. The plan recommends species which provide these benefits and are hardy, relatively easy to maintain, and tolerant of urban conditions. The City may modify or amend tree species selection in the future". Concerns have been raised that tree caliper does not match the recommended replacement size of 3 inch caliper. It is also important to understand why entire intersections or rows of trees are replanted at the same time. Throughout the plan the caliper discrepancy and the need to replant as parcels is addressed in the following sections: Species Selection, pg 118. There are 14 criteria in this section with the final criteria being "Appropriate mature size and form for their location". Maintenance, pg 119. Current mature trees have no root barriers to encourage downward roots. Implementation, pg 119. When possible, plant entire blocks or series of blocks at the same time that sidewalks are reconstructed. This will provide some uniformity in size and form. Downtown Plan, pg 120. Specific street trees are identified for planting on particular stretches in the downtown. A map showing species location is shown on the next page. All trees shown on the map shall be minimum 3 inch caliper unless otherwise approved. Tree Planting Procedures, pg124. Planting procedure recommendations address...avoiding conflict of roots with underground utilities and pavement...Installation size and branching height should be chosen to maximize the tree survival rate...In retail/commercial and mixed use areas, install minimum 3 inch caliper with minimum 7 foot branching height unless otherwise approved by the City. Tree caliper is directly related to the size of the root ball that can be successfully planted in the available space as well as the availability and uniformity of the appropriate species. Unfortunately in much of the downtown area root ball size is limited because of the congested utilities below ground. Larger root balls could be pruned down but the survivability of the tree would be jeopardized. In the past qualified Public Works and Parks staff have evaluated conditions to make these field determinations. Removal & Planting of Street Trees at 5th & Dayton Packet Page 138 of 163 As part of the street pavement overlay project on Dayton Street, the northeast and northwest sidewalk/corner parks are required to be modified to meet current ADA standards. In addition, the existing street trees have been slated to be removed and replaced. The current trees have become unsuitable due to branches breaking off and the roots lifting the sidewalks. Since the City is aware that the trees are creating a hazardous situation, the City's insurance carrier, WCIA, requires that the hazard be eliminated. In accordance to the Street Tree Plan, the replacement trees will be October Glory Maples. Two trees will be planted at each intersection corner and grow to approximately 40 feet in height and 35 feet in diameter when mature. The fall leaf color will be deep red to purple. To provide uniformity the caliper will match the October Glory recently planted in front of Old Milltown and the Bank of Washington on the opposite side of the intersection. Fiscal Impact Attachments Link: Street Tree Plan Link: Current NW/NE 5th and Dayton Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 05/20/2009 11:58 AM APRV 2 Mayor Gary Haakenson 05/20/2009 04:20 PM APRV 3 Final Approval Sandy Chase 05/20/2009 04:58 PM APRV Form Started By: Brian McIntosh Started On: 05/19/2009 10:12 AM Final Approval Date: 05/20/2009 Packet Page 139 of 163 Packet Page 140 of 163 Packet Page 141 of 163 Packet Page 142 of 163 Packet Page 143 of 163 Packet Page 144 of 163 Packet Page 145 of 163 Packet Page 146 of 163 Packet Page 147 of 163 Packet Page 148 of 163 Packet Page 149 of 163 Packet Page 150 of 163 Packet Page 151 of 163 Packet Page 152 of 163 Packet Page 153 of 163 Packet Page 154 of 163 Packet Page 155 of 163 Packet Page 156 of 163 Packet Page 157 of 163 AM-2293 8. Right of Entry and Indemnity Agreement with Horizon Bank Edmonds City Council Meeting Date:05/26/2009 Submitted By:Kim Karas, Public Works Submitted For:Noel Miller Time:5 Minutes Department:Public Works Type:Action Review Committee: Committee Action: Information Subject Title Authorization for the Mayor to sign a Right of Entry and Indemnity Agreement with Horizon Bank for the purpose of removing and replacing frontage trees along Dayton Street. Recommendation from Mayor and Staff It is recommended that authorization be given for the Mayor to sign a Right of Entry and Indemnity Agreement with Horizon Bank for the purpose of removing and replacing frontage trees along Dayton Street. Previous Council Action On April 21, 2009, this item was reviewed and discussed. Approval of this item was deferred until the City Council reviewed the City's Street Tree Plan. Narrative Public Works staff has identified three (3) trees along the Dayton Street frontage of the Horizon Bank parking lot which are causing city sidewalk panels to lift. This creates an uneven walking surface within the Dayton Street right-of-way that poses a hazard to pedestrian traffic. These trees were required to be planted at the time of development, due to the City's Architectural Landscaping Development Requirements. The City's obligation under this agreement is to remove the current trees and replace them with frontage trees better suited to this area, preventing future lifting of the sidewalk panels and maintain the replacement trees for a period of two (2) years. Fiscal Impact Attachments Link: Horizon Bank Final Agreement Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 05/20/2009 01:47 PM APRV 2 Mayor Gary Haakenson 05/20/2009 04:20 PM APRV 3 Final Approval Sandy Chase 05/20/2009 04:58 PM APRV Form Started By: Kim Karas Started On: 05/20/2009 01:25 PM Final Approval Date: 05/20/2009 Packet Page 158 of 163 Final Approval Date: 05/20/2009 Packet Page 159 of 163 Packet Page 160 of 163 Packet Page 161 of 163 Packet Page 162 of 163 Packet Page 163 of 163