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20190212 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES February 12, 2019 ELECTED OFFICIALS PRESENT Dave Earling, Mayor Adrienne Fraley-Monillas, Council President Michael Nelson, Councilmember Diane Buckshnis, Councilmember Dave Teitzel, Councilmember Neil Tibbott, Councilmember ELECTED OFFICIALS ABSENT Kristiana Johnson, Councilmember Thomas Mesaros, Councilmember CALL TO ORDER/FLAG SALUTE STAFF PRESENT Jason Robinson, Police Officer Phil Williams, Public Works Director Shane Hope, Development Services Director Scott James, Finance Director Kernen Lien, Environmental Program Mgr. Jeanie McConnell Development Program Mgr. Rob English, City Engineer Mike Clugston, Planner Jeff Taraday, City Attorney Scott Passey, City Clerk Jerrie Bevington, Camera Operator Jeannie Dines, Recorder The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Earling in the Council Chambers, 250 5 t Avenue North, Edmonds. The meeting was opened with the flag salute. 2. ROLL CALL City Clerk Scott Passey called the roll. All elected officials were present with the exception of Councilmembers Mesaros and Johnson. 3. APPROVAL OF AGENDA COUNCILMEMBER TEITZEL MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 6. APPROVAL OF CONSENT AGENDA ITEMS COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: 1. APPROVAL OF COUNCIL SPECIAL MEETING MINUTES OF JANUARY 22, 2019 2. APPROVAL OF COUNCIL MEETING MINUTES OF JANUARY 22, 2019 3. APPROVAL OF CLAIM CHECKS 4. APPROVAL OF CLAIM, PAYROLL AND BENEFIT CHECKS, DIRECT DEPOSIT AND WIRE PAYMENT Edmonds City Council Approved Minutes February 12, 2019 Page 1 5. ACKNOWLEDGE RECEIPT OF CLAIMS FOR AN UNDETERMINED AMOUNT 6. PROFESSIONAL SERVICES AGREEMENT - SUMMIT LAW 7. COUNCIL APPROVAL OF THE DEFENSE OF COURT ADMINISTRATOR SHARON WHITTAKER PURSUANT TO CHAPTER 2.06 ECC 8. SURPLUS CITY COMPUTERS 5. PRESENTATION 2. SHORELINE MASTER PROGRAM PERIODIC REVIEW Environmental Program Manager Kernen Lien explained • Purpose of this agenda item: o Reintroduction to SMP periodic review o Scope of periodic review o Proposed code amendments • Comprehensive Update vs. Periodic Review o Completed Comprehensive Update June 2017 ■ State adopted comprehensive guidelines for Shoreline Master Programs in 2003 under WAC 173- 26 ■ Jurisdictions across the state were required to update their SMP's ■ Edmonds' SMP adopted in June 2017 was a complete rewrite of the SMP to be consistent with WAC 173-26 o Periodic Review ■ SMA requires each city and county to review, and, if necessary, revise their SMP at least once every eight years. The City's periodic review is due June 30, 2019 ■ State filed WAC 173-26-090 in August 2017, which became effective September 2017 ■ Provides guidance on the periodic update ■ Periodic review ensures SMP stays current with changes in laws and rules, remains consistent with other City of Edmonds Plans and regulations, and is responsive to changed circumstances, new information and improved data. • Periodic Review Checklist o Summarizes amendments to state law, rules and applicable guidance between 2007 and 2017 that may trigger the need for SMP amendments during periodic reviews o City's SMP comprehensive updated lasted from 2009 — 2017 o Completed checklist identifies items that should be updated in the City's SMP for consistency with state laws and rules o Identified amendments would not result in substantive changes to the SMP • Other review elements o Edmonds Marsh Study ■ Update Shoreline Inventory and Characterization o ECDC 24.80. 100 — Public Hearings ■ Shoreline substantial development permit may begin as a Type II staff decision, and change to a Type III decision before the hearing examiner by a written request during comment period ■ Clarification on this process should be added ■ Staff is recommending something similar to the Critical Area Contingent review process detailed in ECDC 23.40.195 ■ Critical Area Wetland Regulations • SMP Periodic Review Edmonds City Council Approved Minutes February 12, 2019 Page 2 o May 2018 Council adopted Resolution No. 1411 ■ Initiating Periodic Review ■ SMP Periodic Review Work Program ■ Public Participation Plan o Planning Board Review and Recommendation o Must be completed by June 30, 2019 Code changes in response to SMP Periodic Review Checklist 0 2017a. Cost Threshold for substantial development ($7,047) ■ Amended language in ECDC 24.80.010.13.1 0 2016a. Americans with Disabilities Act Permit Exemption ■ Added ECDC 24.80.010.13.16 —Exemptions 0 2017g. Nonconforming uses and development • Amended language in ECDC 24.70.020.1) ■ Amended language in ECDC 24.70.010.D.2 —Nonconforming Uses ■ Amended language in ECDC 24.70.020.G.2 — Nonconforming Structure o Other Amendments ■ ECDC 24.80. 100 — public hearings R ECDC 24.40.020 — Critical Areas • Edmonds Marsh Study o Baseline of existing conditions of the Edmonds Marsh o An addendum to the Shoreline Inventory and Characterization o No recommendations regarding buffers/setbacks for the UMU IV shoreline environment • Next steps o Public hearing at City Council ■ City has not received any comments o Once amendments approved by City Council, submit to Ecology for review Councilmember Buckshnis expressed concern with removing the entire wetland section, acknowledging that the code will refer to Ordinances 4106 and 4127. She asked if there was any disadvantage to leaving the wetland section in the code so people did not have to refer to other documents. Mr. Lien said the wetland section is not the most up-to-date guidance from the Department Ecology which is contained in Ordinance 4127. All the other critical area sections also refer to the CAO. From an administration standpoint, it is more confusing to have two sets of regulations and it is clearer to rely on the CAO for wetlands. Councilmember Buckshnis suggested including the CAO in the packet next time. Councilmember Buckshnis expressed concern with approving something that has draft written on it such as Windward's description of the Edmonds Marsh. If the Council approves this tonight, she asked whether that draft would be included. Mr. Lien said he is not seeking Council approval tonight; a public hearing needs to be held first. It will say draft until the Council approves it. Once the Council holds a public hearing and is agreeable to the update, when he presents a resolution of intent to adopt or an ordinance, the indication of "draft" will be removed. Windward may update the marsh vegetation before City Council adoption later this year. He summarized it is a draft until the Council adopts it. Councilmember Buckshnis referred to the change to 18 months in ECDC 24.40.010.D.2 —Nonconforming Uses and 24.0.020.G.2 — Nonconforming Structure, and asked why 18 months was selected instead of 2 years. Mr. Lien said the intent was for the code to be consistent with the SMP. Councilmember Buckshnis referred to the new section, Special Procedures for WSDOT Projects 24.80.105. Mr. Lien referred to 2015a. 90 day target for local review for WSDOT projects in the SMP Periodic Review Checklist, explaining the legislature adopted a 90 -day target for local review of WSDOT projects. The proposed code language in 24.80.105 is the model language Ecology proposed. Edmonds City Council Approved Minutes February 12, 2019 Page 3 Councilmember Teitzel posed a hypothetical; assuming after the Unocal property transitions to WSDOT and at some point becomes owned by the City of Edmonds via a donation or sale, and asked what changes to the SMP would be needed to reflect that. Mr. Lien answered none. 6. AUDIENCE COMMENTS Mindy Woods, Edmonds, explained when leaving a Diversity Commission meeting at the senior center last Wednesday about 8:20 p.m., two people who are experiencing homelessness approached the senior center hoping to find the cold weather shelter. There was no sign on the door and both walked away. The news announced this morning that four people passed away in King County over the pasts week during the cold weather. It was 28 degrees last Wednesday night and she was not aware of the cold weather shelter in Lynnwood. If she, a person with access to the internet and a working cell phone didn't know that, how was an unhoused person supposed to know. It would also be challenging for a person on foot in the Edmonds bowl to reach a shelter in Lynnwood. Ahmed Amr, Edmonds, recalled about a year ago he expressed concern with the excessive expenditure of a $30,000/month legal retainer for Mr. Taraday, and he has not responded to hundreds of emails he has sent him. He referred to his case that went to court, his arrest for trespass that resulted in a trial by jury that was shut down without a 90 day trial. He alleged the police have come to his home and insulted him, calling him mentally ill in front of his dying wife. The City has spent a lot of money putting him down, hurting him and his wife. He referred to shredding of documents and a suit he filed in the U.S. District Court of Western Washington and the City hiring a lawyer for the person. He explained when a clerk of the court tampers with records, they should be arrested and reported to the FBI. He objected to the legal advice Mr. Taraday has given officers and felt Judge Coburn was a judicial atrocity and that Mayor Earling was a monster. He alleged harassment, abuse of police power, brutality, and the waste of resources financing the defense of a court clerk shredding documents. Laura Johnson, Edmonds, commented it had been a long week with three restless teens at home, but they were lucky to have a warm home and a 4 -wheel drive vehicle. Many are not so lucky; there are a number of homeless residents in Snohomish County including some who live in Edmonds. Those individuals are served by a team of incredible volunteers who dedicate their time to open an emergency cold weather shelter when the temperatures drop. Edmonds used to be a location for a shelter at the senior center but she learned that has closed. She was concerned some homeless individuals who relied on that service were left out in the recent extreme cold. Some of them showed up last Wednesday only to find out that service was no longer available. She questioned why at least a warming station was not opened, transportation provided from the senior center to Lynnwood or at least a notice posted on the door that the senior center was no longer an emergency shelter and how they could reach someone for transportation to the shelter in Lynnwood. She summarized we can and should do better in Edmonds. Mr. Amr continued his comments and Mayor Earling declared a brief recess. 7. PUBLIC HEARINGS 1. PUBLIC HEARING ON THE PLANNING BOARD'S RECOMMENDATION ON PROPOSED AMENDMENTS TO THE EDMONDS COMMUNITY DEVELOPMENT CODE THAT WILL SET A MINIMUM RESIDENTIAL PARKING STANDARD FOR SMALL -FOOTPRINT BUILDINGS N 800 SO. FT. OR LESS) LOCATED IN BD -ZONED PROPERTIES IN DOWNTOWN EDMONDS. THESE SMALL -FOOTPRINT BUILDINGS HAVE PREVIOUSLY NOT HAD ANY PARKING REQUIRED Edmonds City Council Approved Minutes February 12, 2019 Page 4 Development Services Director Shane Hope recalled staff discovered a building permit was submitted and approved that allowed for 9 units/3 stories to be built in a downtown zone with no onsite parking. The building is adjacent to a bus stop and some bicycle parking was provided. The City code allowed for this as long as the building footprint did not exceed 4800 square feet, a code that had been in place at least 10 years. That issue had not been raised before and no one else had submitted a permit utilizing that provision. That building permit raised the issue and staff proposed a moratorium that was adopted by the City Council to halt the development of any further residential units in that area without onsite parking while the issue was studied. The Planning Board held two public meetings, the first in October and a public hearing in December on a proposed code change to remedy the situation. The proposed code change eliminates the 4800 square foot footprint exemption, the existing commercial code applies to commercial buildings and requires residential buildings to provide at least one onsite space per unit. The Planning Board discussed alternatives and concluded this was the most reasonable approach. Other regulations apply in other areas. Councilmember Buckshnis questioned why a staff person did not say wait when this application was submitted, why the code did not differentiate between residential and commercial, and why this building was approved. Ms. Hope said if a person applies for a building permit and the application meets code, it cannot be denied based on what someone would rather the code said. She does not always hear about all the permits that are submitted and staff did not approach her about this one. Even if she had learned about it immediately, once an application is submitted, it is vested. Councilmember Buckshnis said the BD zone is a business district and one would not expect a small residential building in a business district. Ms. Hope assured this change would address the issue. Mayor Earling opened the public participation portion of the public hearing. There was no one present who wished to provide testimony and Mayor Earling closed the public participation portion of the public hearing. Council President Fraley-Monillas asked where the tenants of this building were parking. Ms. Hope answered she did not know. Some tenants may not have a car; those with a car will either have to find street parking or someplace else to park. Council President Fraley-Monillas said with this provision, a developer was not obligated to inform the City where tenants would park. Ms. Hope agreed, the proposed ordinance would require one onsite parking space per unit. Council President Fraley-Monillas asked if there were alternatives to this proposal. Ms. Hope said there could have been alternatives such as a parking pass program, one space for every two units, exceptions due to proximity to a bus stop, etc. The Planning Board preferred this proposal and possibly consider something different in the future. This is a straightforward requirement and fits with the general market. Council President Fraley-Monillas expressed concern with having additional cars parked downtown when there are already issues with parking. Ms. Hope agreed downtown parking is at a premium. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO ADOPT ORDINANCE NO. 4140, AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, RELATING TO RESIDENTIAL UNITS IN THE BD ZONES, PERMANENTLY ELIMINATING AN EXEMPTION FROM PARKING REQUIREMENTS FOR BUILDINGS WITH A FOOTPRINT OF LESS THAN 4800 SF. MOTION CARRIED UNANIMOUSLY. 2. PUBLIC HEARING ON THE INTEGRATION OF SMALL CELL STANDARDS INTO THE CITY'S WIRELESS CODE (ECDC 20.50) AND ADOPTION OF INTERIM ORDINANCE Mike Clugston explained staff has been working with City Attorney Jeff Taraday to develop regulations for a new type of wireless facility, small cell wireless. The packet contains the draft interim ordinance. Edmonds City Council Approved Minutes February 12, 2019 Page 5 Mr. Taraday explained: • Telecommunications Act of 1996 gives the FCC the authority to interpret the Act • FCC Ruling (the "Order") released on September 27, 2018, titled Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment o The Order adopted new rules limiting how state and local governments may treat applications for the installation of small wireless facilities o January 14, 2019 — The Order goes into effect o April 14, 2019 — Local jurisdiction to have aesthetic rules in place o Packet contains interim ordinance. Reason for interim ordinance 1. Allow applications to be processed 2. Clarifies that City requires franchises prior to allowing applications to be processed 3. While expect permanent ordinance for consideration/action by April 14, unexpected things happen. Mr. Clugston reviewed: • What are small cell deployments? o Complementary to towers, adding much needed coverage and capacity to urban and residential areas, venues, and anywhere large crowds gather o Streetlights, utility poles and slimline poles ■ Antennas connected to nodes receive and transmit wireless signals to and from mobile devices • Optical fiber connects to other nodes and carries data to and from communication hubs operated by wireless carriers • The cabinet holds equipment that process wireless signal for multiple wireless carries • Facility Types o Macro Cell o Small Cell ■ FCC defines small wireless facilities as meeting each of the following conditions: 1. Height — 50 feet +/- 2. Each antenna — 3 cubic feet 3. Equipment — 28 cubic feet • Map of wireless facilities in Edmonds o Current Macro sites: 24 o Future Macro sites: dozens more? o Future small cell sites: 1000s? Ms. McConnell reviewed a hierarchy of location preferences for small cell antennas, noting locations outside of the right-of-way are preferred over locations within the right-of-way: Locate Outside the Right -of -Way 1. Existing building 2. Freestanding small cell pole located Locate Within the Right -of -Wax 3. Existing street light pole or utility pole (hollow poles) 4. New freestanding small cell pole or street light 5. Existing PUD single-phase pole (installation on top of pole) 6. Existing PUD transmission pole (installation in communication space) 7. Strand -mounted (installation in communication space) She displayed photographic examples of the proposed location preferences: Installations Outside of the Right-of-WU Edmonds City Council Approved Minutes February 12, 2019 Page 6 1. Locate on existing structures (example at 4" & Main) 2. Zoned property • Freestanding small cell pole within 5 feet of street and side property lines; o Locate on same side of street as power lines; o Height limit 30 feet Right -of -Way Installations 3. Existing hollow streetlight pole or traffic signal light 4. New freestanding cell pole or new street light • Custom designs — Sternberg model streetlights currently used in downtown Edmonds do not have sufficient space • Sternberg makes a model specific for wireless facilities 5. Installation on single phase power pole • Cantenna in line with pole • External conduit — color matched to pole • External equipment — color matched to pole 6. Installation on transmission pole • Antenna in communications space ■ External conduit ■ External equipment Strand -mounted facilities • Installation on an existing pole • Antenna in the communication space ■ External equipment Considerations in Developing code: o Equipment and Wires: Internal vs. External o Clutter on existing wood poles Mr. Clugston reviewed • Changes to ECDC 20.50 o Small cell location preferences and design standards —NEW o Eligible facility requests — Codify existing reference o Permit and review timelines (`Shot Clocks') — Update o New macro monopoles — Update o Clean up • Project timeline: o January 8: Introduction to Council PPW Committee o January 9: Introduction to Planning Board o January 14: FCC Order goes into effect o January 15: Introduction to full Council o February 12: Public hearing and adoption of interim ordinance o February -March: Discussions at Planning Board, review interim ordinance and discuss refinements for small cell aesthetic regulations and bring back to Council o April 2 or sooner: Hearing before City Council o April 14: Local jurisdictions to have aesthetic rules in place Mr. Taraday relayed staff is hoping to meet with industry representatives later this week. He anticipated they would provide testimony during the public hearing as well as at that meeting regarding changes they would like. Staff will be open minded to their input but will also be looking out for the City's best interests. Councilmember Tibbott referred to the photograph in Preference 6 and asked whether that would be a typical installation. Mr. Clugston answered it was difficult to say which was the reason for a range of Edmonds City Council Approved Minutes February 12, 2019 Page 7 preferences. From an industry standpoint, he anticipated Preference 6 would be the easiest to attach and to get permitted. Through the preferences, the goal is to have antennas moved out of right-of-way onto zoned property on buildings or freestanding poles near the right-of-way that do not impact other utilities. Staff does not have a perfect understanding so are providing a range of options to work with the City's preferences for aesthetic appearance and technology feasibility for the industry. Councilmember Tibbott said he was interested in hearing from the public, but personally would rather see installations on existing poles rather than new poles. The top two preferences are outside the right-of-way, which in some cases will be on new poles. If there were a perfectly good wood pole 10 feet away, he asked whether that location would be encouraged. Mr. Taraday said Preference 6 does not illustrate the conduit which is of considerable concern to staff. One of the problems with wood utility poles is that everything is mounted on the outside of the pole. He referred to another photograph illustrating several conduits on the exterior of the pole and several antennas which he noted begins to look unsightly. He acknowledged staff is somewhat guessing what the industry will install; the industry has a better sense of what they will be installing. Councilmember Tibbott referred to a photograph with exterior conduit mounted close to the pole and that matched the pole color, noting he preferred that to additional poles. With regard to Sternberg poles, Councilmember Tibbott preferred to have an exact replica versus an approximate match. He was uncertain how that could be required via the code, noting he found it unacceptable to have a row of Sternberg poles and one that was a different style. Ms. McConnell said she will be checking with the Sternberg representative to see what options are available. Her understanding was it would not be an exact replica of what currently exists because those are not designed for small cell installations. She assumed the new Sternberg pole would have a similar look. Councilmember Tibbott inquired about staff time to process permits, relaying his understanding there may be an opportunity to batch installations. Mr. Clugston offered to research. Councilmember Tibbott assumed permit fees would be collected and asked if the fees would cover the cost of the review process. Mr. Clugston advised it would cover the review time. Councilmember Tibbott referred to the desire to remove clutter from poles and assumed some equipment would be obsolete by the time new equipment is installed. He asked if obsolete equipment, conduit, wires, etc. could be required to be removed before installation of new equipment. Mr. Taraday said staff is also working on a companion piece of legislation that includes revisions to another chapter of the code related to other overhead utilities, but that applies more broadly than just to small cell installations. Councilmember Tibbott said he was referring to 3G versus 5G equipment and whether the older equipment on a building could be removed. Ms. McConnell said the code requires obsolete equipment be removed. Councilmember Tibbott asked if that has been discussed with industry representatives. Ms. McConnell said a meeting is scheduled later this week to discuss the interim ordinance with industry representatives and assumed that would be discussed if it was a concern to the industry. Councilmember Tibbott asked if macro towers were becoming obsolete and would go away and be replaced with 5G equipment or would the macro towers remain and more installed. Mr. Clugston said it was his understanding that macro towers will still be used but he was unsure if more macro sites would be required. Councilmember Tibbott recognized this technology would citizens to enjoy better cell service. However, it was also an opportunity to clean up clutter from previous installation and improve aesthetics. Ms. McConnell referred to Section 20.50.140 that addresses abandonment and discontinuation of use. Councilmember Nelson commented there is nothing small about 1000 cell towers in the city. It was his understanding there was a distance of 150 feet between towers. Ms. McConnell answered the code proposes Edmonds City Council Approved Minutes February 12, 2019 Page 8 300 feet between freestanding small cell facilities but if a specific location on private property does not work, the carrier is asked to talk to adjacent property owners within 150 feet about locating. Councilmember Nelson asked if there was a maximum distance between towers to limit the number. Mr. Taraday said one of the reasons they are referred to as small cell is because the range is small. They are not very powerful antennas and do not cover a large area which is why there need to be so many. Trying to balance the dispersion requirement prompted a great deal of discussion between staff and he anticipated that discussion would continue both with the Council and the industry. The goal is to strike the right balance where there is not too much impact in one place and yet recognize the need to provide working technology and the industry's need to deploy in a functional manner. He was uncertain that 300 feet, the minimum spacing in the interim ordinance, was the right number and whether that would be in the final draft. Councilmember Nelson commented this is an FCC regulation written by the wireless communication industry, federal law that severely limits what the City can do. He asked about the existing fee charged to a wireless company for a macro tower. Mr. Clugston offered to research, noting no new macro towers have recently been permitted on zoned property or in the right-of-way. Councilmember Nelson said the proposed fee is standard fee throughout the country. Mr. Clugston said the fees in the Order are acceptable fees from the FCC's viewpoint; jurisdictions can charge different fees if they can be justified. Councilmember Nelson said a lot of cities are frustrated by the lack of flexibility in fees due to the FCC's nationwide standardization. Councilmember Nelson said public rights-of-way are one of the most valuable public assets and these low fee rules deprive jurisdictions from potential revenue -generating opportunities on City -owned infrastructure that would benefit and improve citizens' lives. He was frustrated with the limitations the FCC imposed, independent of the fact that health implications are not on the table. He was also frustrated with holding a public hearing following the worst snow storm in 70 years. He was concern with the FCC's shot clock to fast track the process when it has profound implications for the City. He was interested in slowing down the process not speeding it up. Councilmember Teitzel recalled one of main comment from the wireless industry is the requirements in the proposed ordinance are more onerous than they would like and they increase the cost and time to obtain permits. He asked how Edmonds' requirements compared with other cities. Mr. Clugston said other jurisdictions who have recently adopted regulations have concealment/camouflage requirements but do not have the requirement to look on private property first. The industry is asked to do that research as part of their siting process before submitting an application and to describe on the application how the location was determined. He was uncertain if other jurisdictions have required that, but staff felt it was a reasonable request in siting deliberations. t Councilmember Buckshnis feared there would be more than 1000 small cell facilities. She agreed with Councilmember Nelson's comment that the right-of-way is very important. She asked the cost of a master permit agreement, commenting if 1000 small cell facilities are allowed, the City should get some money. Mr. Taraday said the state legislature does not allow jurisdictions to charge for use of right-of-way if the user is a telecommunications company. Councilmember Buckshnis asked if there was a fee for the master permit agreement if it was located in the public right-of-way. Mr. Taraday answered the City can charge direct reasonable costs for processing an application such as staff time to review the application, but use of the public right-of-way is free. For Councilmember Buckshnis, Mr. Taraday explained the state legislature made a distinction between pole owners and right-of-way owners. Pole owner can charge a small amount for pole rental space but the City as the owner of the right-of-way is not allowed to charge for right-of-way rental. Edmonds City Council Approved Minutes February 12, 2019 Page 9 Council President Fraley-Monillas asked if the City had to allow poles in the right-of-way. Mr. Taraday said the City has to allow them to deploy. The FCC has stated thou shalt allow small cell deployment in your jurisdiction. Ultimately the City needs to allow the industry to create a feasible pathway for small cell deployment. The FCC's guidance is not so specific as to state exactly what the City can and cannot do which is the reason there is some disagreement, and he expected industry representatives to state during the public hearing that some of the things in the ordinance are illegal. Staff is looking out for the City's best interest given the guidance policy makers have provided but it is not clear exactly what the City can and cannot do so there will be differences of opinion. Council President Fraley-Monillas asked if the Council could make a decision that there could be no more than X number of small cell towers total in the right-of-way. Mr. Taraday did not think so, anticipating that would be considered an impermissible prohibition of their right to deploy. Council President Fraley- Monillas said it would not hold up their right to deploy as they could deploy on private property and negotiate the cost. Mr. Taraday did not disagree from a policy standpoint, but he was predicting the outcome if it were challenged. He acknowledged he could be wrong and the courts could be more generous than he expected but he was not optimistic. Council President Fraley-Monillas understood better cell reception was important to a lot of people, but she was not happy that they can install in the right-of-way and do not have provide compensation for using City property. She suggested the City could assist the industry with contracting with private property owners to use their property. She envisioned these facilities would be located on new buildings in the future which would require compensating the private property owner. Council President Fraley-Monillas asked if there was an existing requirement to remove old equipment. Mr. Taraday said that is in the existing code. Mr. Clugston agreed. Mr. Taraday did not think there had been a major problem with the wireless industry leaving old equipment. The clutter concern is bigger than the wireless industry which is why it is being addressed more broadly. The code is designed to allow the wireless industry to easily take down an old antenna and replace it with a new antenna in exactly the same place. Council President Fraley-Monillas asked about the shot clock. Mr. Clugston said the FCC allows a specific amount of time to review these permits, for example an eligible facilities request, if it is not reviewed within 60 days, it is automatically deemed approved and the industry could challenge that in court. For small cell, the shot clock is also 60 days and if the City misses that deadline, it is not automatically deemed approved yet, but the industry could challenge to have the review done. A shot clock is the amount of time given by the FCC to review permits. Council President Fraley-Monillas commented additional staff may be required if there were 1000+ requests, recalling it was difficult in a good economy to get permitting done quickly. She was concerned there may not be adequate staff to handle the permits and that the fees would not be adequate for staff time, benefits, etc. without hiring additional staff. Mayor Earling opened the public participation portion of the public hearing. Gregory Bush, Wireless Policy Group, consultant representing AT&T, expressed AT&T's support for the City's efforts to update its code and reiterated AT&T commitment to working with staff to develop workable policies for all carriers to provide high quality service as technology continues to evolve. AT&T has significant concerns with the current draft of the wireless code update. The seven step hierarchy requires carriers to locate small cells on private property unless the applicant can demonstrate justification for locating in the right-of-way. The main issue with this is it is complex, not in line with what other jurisdictions in Washington are doing, it will lead to more poles and clutter in the right-of-way due to the Edmonds City Council Approved Minutes February 12, 2019 Page 10 requirement to put a new pole within 5 feet of an existing pole, and it makes it more difficult to comply with shot clocks because of the two week period to check with other private landowners. They prefer to locate on utility poles because they have only one pole owner to talk to and it prevents long, extended negotiation for each pole. He was concerned the draft code may conflict with the recent FCC order, both the shot clock deadlines and imposing burdens not applied to other types of infrastructure deployments. The FCC requires jurisdictions' aesthetic regulations be reasonable, technically feasible, objective, no more burdensome than other applied to other types of infrastructure deployments, and to be published in advance. If the City requires carriers talk to private property owners, a step not required for power, utilities, Comcast, internet, etc., it does not comply with the FCC order. AT&T strongly urges the City to work with the wireless industry to develop reasonable standards and work with other stakeholders such as Snohomish County PUD to reach a workable policy. Kari Marino, Bellevue, representing Verizon Wireless, referred to the letter submitted last week by Kim Allen, Wireless Policy Group representing Verizon, that states the urgency and the reason to deploy, outlining the FCC requirements and asking the City to delay adopting this emergency ordinance until there is an opportunity to ensure it is feasible. There needs to be a path forward for wireless providers that protects the City's best interests especially aesthetic standards. She highlighted the four main issues in the letter: 1. Seven -step preference hierarchy. Small cell technology is designed to radiate RF out; a location on a building does not serve the building well. A property owner has to pull a separate power feed and fiber optic connection which makes it unworkable for the property owner. Another concern is proving they have checked with all property owners within 150 feet. 2. Requesting proprietary coverage maps. She assured they would not provide their strategy plan. The City will know what they want when they submit a permit. 3. Concern the shot clock timeframe will not be met - 4. Size restrictions are too limiting. A meeting is scheduled on Thursday with staff, AT&T and Verizon and possibly other carriers. She looked forward to continuing to work with the City to ensure the end product serves everyone. Hearing no further comment, Mayor Earling closed the public participation portion of the public hearing. Councilmember Teitzel commented if a small cell wireless facility is mounted to the side of an apartment building, it could be close to a bedroom. He asked if there were any health issues with radiation, cell transmissions, etc. that have been studied at a national level and if so, what were the findings. Mr. Clugston said the FCC provides guidance for RF emissions exposure. It was his understanding that if the industry states they meet those standards, there is assumed there will no health impacts. Small cell are smaller antennas and less powerful; what may have been a larger concern with macro antennas may be less with these smaller antennas. If the industry can meet the RF criteria provided by the FCC, the City cannot not further regulate health impacts. Councilmember Teitzel observed two of the major carriers were represented at the public hearing. He asked how many carriers could potentially put up small cell facilities in Edmonds. Mr. Clugston anticipated Verizon AT&T and T -Mobile and Sprint. If a carrier puts up a standalone wireless only pole, Councilmember Teitzel asked if the carrier was obligated to share the pole with other carriers to co -locate equipment. Mr. Clugston answered co -location is encouraged but it is not required. Council President Fraley-Monillas referred to the AT&T's representatives statement that the City's regulatiods would require more work and asked if any study had been done regarding the amount of time it would take a wireless company to talk to private property owners and the cost. Mr. Clugston answered not that he was aware of. Carriers have sited macro towers on the sides of buildings so there may be a precedent Edmonds City Council Approved Minutes February 12, 2019 Page 11 for small cell. Council President Fraley-Monillas said she was concerned about the cost to citizens versus the cost to a private company as her obligation was to the City's 42,000 citizens, not the wireless companies. Councilmember Buckshnis said the master permit agreement refers to maps, yet the Verizon representative stated their maps are proprietary. She asked how the City could determine how many small cell facilities there would be without those maps. Mr. Taraday said propriety maps will be discussed with the industry. He was not yet convinced that the City could not require that as part of its franchising authority. Councilmember Buckshnis observed if 4-5 carriers are going to put up freestanding poles, as many as possible should be located on each pole. Mr. Taraday said one of the reasons the City is asking for that information is to see areas in the City where there are gaps and direct deployment into areas that are underserved, get more than one provider to coordinate if there is a need in an area, etc. There is a good public interest basis for seeking those propriety maps. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO APPROVE ORDINANCE NO. 4141, AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING AN INTERIM ZONING ORDINANCE TO AMEND CHAPTER 20.50 OF THE EDMONDS COMMUNITY DEVELOPMENT CODE, ENTITLED "WIRELESS COMMUNICATIONS FACILITIES." UPON ROLL CALL, MOTION CARRIED (3-2), COUNCILMEMBERS BUCKSHNIS, TEITZEL AND TIBBOTT VOTING YES; COUNCIL PRESIDENT FRALEY-MONILLAS AND COUNCILMEMBER NELSON VOTING NO. Mr. Taraday said the emergency clause in the ordinance will not be effective due to the 3-2 vote; a majority plus one was required for the emergency clause to be effective. Therefore, the ordinance will not be effective until five days after publication. 8. ACTION ITEMS 1. CRUMB RUBBER MORATORIUM EXTENSION Council President Fraley-Monillas explained the moratorium will expire soon and she requested the moratorium be continued through August 31, 2019 pending a response from the EPA and other entities regarding crumb rubber. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS TO APPROVE ORDINANCE NO. 4142, AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, EXTENDING THE PROHIBITION OF THE INSTALLATION OF STYRENE -BUTADIENE RUBBER (ALSO KNOWN AS SBR OR "CRUMB RUBBER" ON PUBLICLY -OWNED ATHLETIC FIELDS WITHIN THE CITY OF EDMONDS FOR AN ADDITIONAL SIX MONTHS. Councilmember Teitzel commented the moratorium has been extended a number of times and asked whether there was any legal limit on the number of extensions. City Attorney Jeff Taraday answered no, 1) this is not within the framework of GMA, and 2) there are good reasons for continuing the moratorium as ongoing human health impact studies are still occurring at the federal level and in California. Both studies are making progress and there will eventually be a conclusion reached at which time there may be a more permanent ordinance. He summarized he was not aware of any limitation to continuing the moratorium until the studies were completed. MOTION CARRIED UNANIMOUSLY. 2. ORDINANCE VACATING A PORTION OF EXCELSIOR PLACE STREET Edmonds City Council Approved Minutes February 12, 2019 Page 12 Environmental Programs Manager Kernen Lien advised the City Council held a public hearing on October 2, 2018 and adopted a resolution of intent to vacate a portion of Excelsior Place north of the property addressed 19511 94th Place'West. The resolution of intent contained four conditions: 1. The retention of a public utilities easement 2. Construction of a utility access and emergency vehicle turnaround 3. A private access easement for all properties with frontage on the vacated portion of Excelsior Place and; 4. A utility and emergency vehicle access easement and covenant requiring construction of additional access road width to meet South County Fire lane standards with future single family development The applicant had 90 days to meet those conditions and staff feels have the applicant has met the conditions. With regard to construction of the turnaround, given that the winter months are not construction season, the applicant has submitted a bond that would ensure construct of the turnaround by June. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TIBBOTT TO APPROVE ORDINANCE NO. 4143, AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, VACATING A PORTION OF EXCELSIOR PLACE ABUT AND LIES NORTH OF THE PROPERTY ADDRESSED AT 19511 94TH PLACE WEST AS SET FORTH IN THE RESOLUTION OF INTENT NO. 141, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. MOTION CARRIED UNANIMOUSLY. 3. RENEWAL OF CITY COUNCIL EMPLOYEE CONTRACTS Councilmember Nelson said this item is employment agreements for Jerrie Bevington and Maureen Judge, both of which have expired. Ms. Judge's previous employment agreement was for one year, $31/hour for the first 6 months and $32 hours for the second 6 months. She also receives City benefits. Ms. Bevington's employment agreement was for 2 years at $33/hour and is not eligible for employee benefits. Ms. Judge's agreement includes a 3% COLA increase or $34/hour and a request for an increase in vacation from 7.33 hours/month to 10 hours/month. HR Director Mary Ann Hardie indicated the City's current policy is 11 days of vacation/year for employees with 2-5 years of service. Ms. Judge received six days for the first six months and five days for the second six months. Ms. Judge's request also includes some comparables. Councilmember Teitzel did not recall completing a performance evaluation for Ms. Judge and asked why that was not done or discussed in executive session versus discussion in an open meeting. Mr. Taraday answered the Council is entitled to review performance of an employee in executive session and could do that now if the Council wished. The Council cannot take action regarding the employee's contract in executive session. Councilmember Teitzel suggested recessing to executive session to have a brief discussion about performance before making a decision. Although he personally had no concern about her performance, he was unaware if other Councilmembers did. He was concerned with increasing the vacation accrual from 7.33 hours/month to 10 hours/month, a 36% increase that he found excessive. He supported having a frank discussion about performance before making a final decision. Councilmember Nelson said a survey was distributed to all Councilmembers regarding Ms. Judge's performance. Council President Fraley-Monillas said in most years, the Council President has evaluated the administrative staff with input from the City Council; it had never been a joint process where the Council met in executive session unless there were performance issues. Councilmember Buckshnis said she completed the survey and Ms. Judge requested an evaluation. She agreed with recessing to executive session because she had no idea what others have said. The Council had the same administrative assistance for many years and the update was status quo. Ms. Judge is asking for a Edmonds City Council Approved Minutes February 12, 2019 Page 13 36% increase in vacation and she would like to talk about that in executive session. Mr. Taraday said the Council can discuss performance of an employee in executive session, but not the terms of compensation. COUNCILMEMBER TEITZEL MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO MOVE INTO AN EXECUTIVE SESSION FOR NO MORE THAN 10 MINUTES FOR A BRIEF DISCUSSION ABOUT MAUREEN JUDGE'S PERFORMANCE AND RECONVENE TO DISCUSS THE SPECIFICS OF THE COMPENSATION PACKAGE. MOTION CARRIED UNANIMOUSLY. Convene in Executive Session Rega_rdin2 Performance of a Public Emgloyee Per RCW 42.30.I10[lx). At 8:54 p.m., Mayor Earling announced that the City Council would meet in executive session to discuss performance of a public employee per RCW 42.30.110(g). He stated the executive session was scheduled to last approximately 10 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. No action was anticipated to occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Earling, and Councilmembers Fraley-Monillas, Buckshnis, Teitzel, Tibbott and Nelson. City Attorney Jeff Taraday was also present. The executive session concluded at 8:59 p.m. Mayor Earling reconvened the regular City Council meeting at 9:04 p.m. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE JERRIE BEVINGTON'S EMPLOYMENT AGREEMENT WITH THE ADJUSTED SALARY AND CONTRACT DATE. Councilmember Buckshnis inquired about Ms. Bevington's rate. Councilmember Nelson advised it was $33/hour. MOTION CARRIED UNANIMOUSLY. Councilmember Teitzel observed Ms. Judge's current contract expired January 22, 2019. Mr. Taraday suggested the contract be retroactive to the day after it expired. COUNCILMEMBER TEITZEL MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, APPROVE MAUREEN JUDGE'S EMPLOYMENT AGREEMENT THAT REFLECTS AN EFFECTIVE DATE OF JANUARY 23, 2019 AND EXPIRES JANUARY 22, 2020 AND INCREASE THE SALARY TO REFLECT 3% COLA OR $33/HOUR AND INCREASE THE VACATION ACCRUAL RATE FROM 7.33/MONTH TO 8.33/MONTH, A 13% INCREASE IN THE ACCRUAL RATE. Mr. Taraday said the 7.33 hours/month was intended to match the table in City code, 11 days/year of vacation. He asked if the intent was to provide more than 11 day/year of vacation. Councilmember Teitzel said based on the Council's assessment of her performance, this is an appropriate level, appropriately 100 hours/year. Mr. Taraday said the existing language in the contract is consistent with City code. Councilmember Teitzel said this is a contract employee. Council President Fraley-Monillas encouraged Council not to support 8.33 hours/month for Ms. Judge which equals 94 hours/year and she requested 10 hours/month. Her duties as a contract employee are at a higher level than most other similar jobs and although she is paid by the City, she is the Council's contract employee. Directors all receive a higher level of vacation and she supported a higher level for Ms. Judge who has many years of experience. She noted the majority of Ms. Judge's work is legislative research and only 25% administrative. Her request for 10 hour/month is only 3 weeks/year which she felt was not too much to provide for an employee of her ability. Edmonds City Council Approved Minutes February 12, 2019 Page 14 COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER NELSON, TO AMEND THE MOTION TO CHANGE 8.33 10 HOURS/MONTH TO 10 HOURS/MONTH. Councilmember Tibbott agreed with Council President Fraley-Monillas. Ms. Judge has a higher level of responsibility than an entry level employee and certainly demonstrates efficiency in her role. He supported the amendment to 10 hours/month of vacation accrual. Council President Fraley-Monillas said 8.33 hours/month equates to100 hours/year, slightly over 2 weeks; 10 hours month is 3 weeks/year, a difference of only 20 hours. Councilmember Buckshnis agreed Ms. Judge is doing a very good job. She preferred an increase from 7.33 to 8.33 or 9 rather than 10. AMENDMENT CARRIED (4-1), COUNCILMEMBER TEITZEL VOTING NO. MAIN MOTION AS AMENDED CARRIED UNANIMOUSLY. 4. 2019 CARRYFORWARD BUDGET AMENDMENT Finance Director Scott James reviewed: a The 2019 Carryforward Budget Amendment begins on Page 642 in the Council Packet ■ 2019 Carryforward Budget Amendment is for Items Not Completed in 2018 ■ There are 57 Carryforward Requests • All Items were Previously Approved by Council • The Carryforward Budget Amendment Will Roll the Unexpended 2018 Budget into the 2019 Budget • Exhibit D (Change n Fund Balance) o Summary: ■ Proposed Amendment Change in Beginning Fund Balance: $3,963,174 ■ Proposed Amendment Change in Revenue: $384,166 ■ Proposed Amendment Change in Expense: $4,347,340 M Proposed Amendment Change in Ending Fund Balance: $0 Exhibit A (packet page 649) o Illustrates each fund's Beginning Fund Balances, Anticipated Revenues, Budgeted Expenditures and Ending Fund Balance • Summary of the 2019 Carryforward Budget Amendment o Beginning Fund Balance is Increased by $3,963,174 o Expenditures are Increased by $4,347,340 o Revenues are Increased by $384,166 o Ending Fund Will Remain Unchanged Councilmember Buckshnis referred to the completion of the UFMP with Davies Tree Resource Group, relaying her understanding the City no longer planned to utilize this consultant due to the poor document produced, yet the carryforward includes $5,644. Ms. Hope answered the intent is for them to fold in the new information and other corrections; they will not do any new work. Councilmember Buckshnis hoped to give them a poor report card, noting some people will be very upset to know the City paid $130,000 for that document. Councilmember Buckshnis asked about the $200,000 carryforward for the community garden, recalling the carryforward was $100,000 and there was $100,000 in this year's budget. Mr. James said $200,000 is for land acquisition. The 2019 budget includes $155,000 for the community garden. Edmonds City Council Approved Minutes February 12, 2019 Page 15 COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO APPROVE THE 2019 CARRYFORWARD BUDGET AMENDMENT AS PRESENTED AT THE CITY COUNCIL MEETING ON FEBRUARY 12, 2019 ORDINANCE NO. 4144. MOTION CARRIED UNANIMOUSLY. 5. PRESENTATION OF PUBLIC UTILITY EASEMENT WITHIN THE PROPERTY FRONTAGE OF EDMONDS RECOVERY CENTER AT 7416 212TH ST SW City Engineer Rob English relayed the building is currently undergoing tenant improvements and a change of occupancy. One of the permitting requirements is a fire sprinkler system in the remodeled building which required a water connection and new meter. The proposal is authorization to approve a 10' by 10' water utility easement on the property for that connection. Staff recommends approval. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO AUTHORIZE THE MAYOR TO APPROVE RECORDING OF A PUBLIC UTILITY EASEMENT WITHIN THE PROPERTY FRONTAGE OF THE EDMONDS RECOVERY CENTER AT 7416 212TH ST SW. Councilmember Tibbott asked if there was any expense associated with the easement. Mr. English answered they are dedicating the easement to the City. MOTION CARRIED UNANIMOUSLY. 9. MAYOR'S COMMENTS Mayor Earling commended Public Works, Parks and Police Department staff for their extraordinary work during the recent snow storm. They have been working 12 hour shifts which continue tonight and likely for days. He offered special thanks for the quality work they have done. Mayor Earling said City Hall and other facilities have been open Monday and Tuesday, opening at 10 a.m. and closing yesterday at 3:00 p.m. and at 5:00 p.m. today. The City has been staffed with enough people to operate both days. City Hall will open at 9 a.m. tomorrow and likely be back to 8 a.m. by Friday. 10. COUNCIL COMMENTS Councilmember Teitzel echoed the comments about the great work Public Works has done keeping streets safe. He recognized not all streets could be plowed but all the major thoroughfares have been passable and sanded. He reported on the Port of Edmonds Commission meeting, recalling the boat shed collapse in 1996 under the weight of heavy snow. The Commission reported the boat sheds weathered the snow well and there were no collapses. Councilmember Buckshnis thanked the Public Works crew who finally sanded her street. She urged everyone to be careful and stay in if possible, commenting a woman fell on her street and broke her femur. Council President Fraley-Monillas thanked everyone for the flexibility to cancel last week's City Council meeting and reschedule items, noting the priority should always be staff and citizens' safety and she believed it was not safe last Tuesday night. Council President Fraley-Monillas gave a shout out to WSDOT who have been working 12-16 hour days to keep the freeways fairly clear which allows staff to reach the City. She still has 2 feet of snow in yard and driveway and will be glad when the snow goes away. Edmonds City Council Approved Minutes February 12, 2019 Page 16 Councilmember Tibbott gave a shout out to the Police Department, especially Officer Wang, who helped his son who skidded out on 196th on Friday and totaled his car. He echoed Councilmember Buckshnis' suggestion for people to drive carefully and to stay off the roads if possible. Mayor Earling added although Councilmember Tibbott's son was in a car accident, he was okay. 11. CONVENE IN EXECUTIVE SESSION REGARDING PENDING OR POTENTIAL LITIGATION PER RCW 42.30.110(l)(i) This item was not needed. 12. RECONVENE IN OPEN SESSION. POTENTIAL ACTION AS A RESULT OF MEETING IN EXECUTIVE SESSION This item was not needed. 13. ADJOURN With no further business, the Council meeting was adjourned at 9:27 p.m. c DAVID 0. EARLING, MAYOR SC ASSEY, CITY CLE Edmonds City Council Approved Minutes February 12, 2019 Page 17