HomeMy WebLinkAbout2015-10-19 City Council Minutes Approved City Council Minutes—October 19, 2015
Special Meeting
At 5:15 p.m. Mayor Laurie Gere called to order the advertised special meeting of the Anacortes City
Council for the purpose of a site visit regarding the E Street Encroachment Permit Appeal. Council
convened at 2020 27th Place, Anacortes. Councilmembers Eric Johnson, Brad Adams, Liz Lovelett and
John Archibald were present. No testimony was received and no action was taken. At approximately 5:30
p.m. the special meeting adjourned.
Regular Meeting
Mayor Laurie Gere called to order the regular Anacortes City Council meeting of October 19, 2015 at
6:00 p.m. Councilmembers Eric Johnson, Ryan Walters, Erica Pickett, Brad Adams, Liz Lovelett, John
Archibald and Matt Miller were present. Councilmember Matt Miller participated in the meeting via
telephone. The assembly joined in the Pledge of Allegiance.
Citizen Hearings
No one present wished to address the Council.
Mayor/Council Communication and Committee Reports
WSDOT Sharpes Corner Project Update: Todd Harrison from the Washington State Department of
Transportation reported that the transportation investment package recently adopted by the legislature
included $13.4M for initial design of the Sharpe's Corner intersection, beginning in 2015. Mr. Harrison
recalled the community meetings and evaluation of alternatives performed in 2007 under the prior funding
package approved in 2005 before that funding was deferred and work stopped. Mr. Harrison advised that
WSDOT would now review and refresh the data in terms of collisions, congestion and barriers to non-
motorized transportation. After the first of the year community meetings would be held, then work would
begin to develop a design using cost effective solutions. He said construction was planned for 2018-2019.
Proclamation Honoring Jack Darnton: Mayor Gere read a statement proclaiming October 23, 2015 to be a
day honoring Anacortes American publisher Jack Darnton. Mr. Darnton thanked city staff for open and
transparent government during his fourteen years at the helm of the American.
Third Quarter Finance Update: Finance Director Steve Hoglund advised that the third quarter finance
update was included in the evening's Council packet and reported that both expenditures and revenues
were on target. Councilmembers had no questions on the update.
Reports from Finance, Planning, Public Works Committees
Mr. Walters reported that Finance Committee had not meet the prior week due to a scheduling conflict
with the Lodging Tax Advisory Committee (LTAC).
Mr. Walters reported from the LTAC which met the prior week. He indicated that at its next meeting on
November 5, 2015 in the Majestic Hotel ballroom the committee would make final recommendations for
lodging tax awards for 2015.
Mr. Walters reported that the Planning Committee met the prior week to continue work on the KT retail
analysis and would continue that work at subsequent meetings.
Mr. Johnson moved, seconded by Ms. Lovelett, to move Agenda Item 7d, Request Authority to Sell
Surplus WTP Chlortainers, to the Consent Agenda. Vote: Ayes— Pickett, Adams, Lovelett, Archibald,
Miller and Johnson. Abstain—Walters. Motion carried.
Consent Agenda
Ms. Lovelett removed Item E from the Consent Agenda. Mr. Archibald removed Item G from the Consent
Agenda. Mr. Johnson removed Item C from the Consent Agenda.
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Mr. Adams moved, seconded by Mr. Archibald, to approve the following Consent Agenda items. Vote:
Ayes— Pickett, Adams, Lovelett, Archibald, Miller, Johnson and Walters. Motion carried.
a. Minutes of October 2, 2015, October 5, 2015 and October 12, 2015
b. Approval of Claims in the amount of: $433,684.43
d. Ordinance 2962: Third Quarter Budget Amendment
f. Contract Supplement 1: March Point Road Shoulder Widening Design (Reichhardt& Ebe)
h. Ordinance 2959: Acceptance of Donations
i. Request Authority to Sell Surplus WTP Chlortainers
The following vouchers/checks were approved for payment:
Voucher(check) numbers: 77900 through 78047, total $465,321.93
c. Contract Modification: Seahurst Electric- Repair HSP#2 at Water Treatment Plant
Mr. Johnson noted that this pump had failed after only a couple years, asked if it was under warranty, and
asked if the other four pumps were at risk. Public Works Director Fred Buckenmeyer explained that the
other four pumps had been tested and appeared to be operating fine and said that warranty coverage on
the fifth pump had expired a year before its problems began.
e. Resolution 1931: Establishing Water Rates
Ms. Lovelett requested an explanation for the proposed change to rates that had been established two
weeks prior. Mr. Hoglund explained that the rates adopted under Resolution 1928 included an increase of
39%to both the GFCs and the monthly rates for the water utility but that he understood it had not been
Council's intent to increase the GFCs so Resolution 1931 would revert the GFC portion of the water
connection fee to the current rates. Ms. Pickett said she understood that consultant FCS Group had
recommended increasing the GFCs as well. Mr. Hoglund suggested a full GFC study to establish the
basis for and appropriate amount of that increase. Councilmembers discussed whether or not to roll the
GFCs back per proposed Resolution 1931 or retain the increase adopted per Resolution 1928.
Councilmembers generally supported pursuing a GFC study in the very near future and raising the GFC
rates accordingly.
g. Haddon Road Short Plat SPL-2014-0003 Findings of Fact, Conclusions of Law& Decision
Mr. Archibald asked Ms. Swetnam if the Findings of Fact terminated the appeals. Ms. Swetnam indicated
that the applicant would be submitting a new application so the appeals to the prior application were now
moot.
Mr. Johnson moved, seconded by Mr. Archibald, to approve Consent Agenda Items C, E and G. Vote:
Ayes—Adams, Lovelett, Archibald, Miller, Johnson, Walters and Pickett. Motion carried.
NEW BUSINESS
E Street Encroachment Permit Appeal
Mayor Gere called to order an open record public hearing on the appeal of the administrator's approval of
the encroachment permit granted to Joseph Mulcahy and Anthony Young of 2020 27th Place. She advised
that this was a quasi-judicial hearing before the Council which was acting as an appellant body reviewing
the administrative decision of the Planning Director.
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Assistant City Attorney Darcy Swetnam explained the procedures for the hearing and the standard to be
used in evaluating the appeal, referencing the staff memo included in the Council packet for the evening.
She cited AMC 12.30.030 specifying authority for granting encroachment permits and requirements for
appeals. She said Council's decision on the appeal was final, binding and conclusive and that no
deference need be granted to the director's decision.
Ms. Swetnam advised that earlier in the day Dannon Traxler, the attorney recently retained by the
applicants, had contacted City Hall asking for a continuance of the hearing in order to allow the public
record to remain open for additional written comments only until November 2. Ms. Traxler's letter had
been provided to councilmembers prior to the meeting. Mr. Swetnam said that was not a problem if
neither of the parties objected.
Ms. Pickett advised that she was stepping down from participation on this agenda item because she had
friends involved on one side. Ms. Pickett left the room.
Mr. Johnson moved, seconded by Mr. Adams, to leave the record open until November 2, 2015 to accept
written legal testimony. Mayor Gere clarified that the motion was to leave the record open to written
testimony only through November 2, 2015. Vote: Ayes—Lovelett, Archibald, Miller, Johnson, Walters and
Adams. Motion carried.
Regarding the Appearance of Fairness Doctrine, Mayor Gere asked each councilmember to disclose if
they had any interest in the property or the application, if they owned property within 300 feet of the
property subject to the application, if they stood to gain or lose any financial benefit as a result of the
outcome of the hearing, if they could hear and consider the application in a fair and objective manner, and
if they had engaged in any ex parte communication with either the proponent or the opponent of the
application and if so, the substance of such communication.
Mr. Miller indicated he could judge the matter impartially and said he had met both parties at various
times but had not discussed property issues with either party. Mr. Archibald said he knew Joe and
Anthony but was sure he could be fair and impartial. Mr. Lovelett said she had received a call from Mr.
Young some months back about some of the issues the two properties were having, that she had not
been aware of the encroachment application, that she had met Joe and Anthony socially many times and
that the substance of the one 15-minute phone conversation was all material that was included in the
record. Mr. Adams said he could not think of any reason he would not be fair in the deliberations. Mr.
Walters responded no to all of the questions and said he had had no ex parte communications during the
pendency of the application. Mr. Johnson said he had no interest in the property, that he was an
associate of Mr. Mulcahy and Mr. Young but that he could hear and consider the matter in a fair manner.
Mayor Gere asked if any member of the audience wished to challenge any councilmember's participation
in the matter on Appearance of Fairness Doctrine grounds. No one present raised any objections.
Planning Director Don Measamer then briefly summarized the location of the properties, the
encroachment applications received, their review by all city departments, the preliminary approval by the
planning and public works directors for a 20-foot encroachment to each party, and the Welliver appeal of
the Mulcahy-Young permit. Mr. Measamer referred to the extensive materials included in the record.
At approximately 6:40 p.m. Mayor Gere opened the public hearing and collectively swore all intended
speakers to tell the truth. Mayor Gere reminded the audience that any physical evidence must be
submitted to the Clerk for the record, marked with an exhibit label. The mayor advised that each party
would be given 15 minutes to speak and five minutes to rebut. Ms. Swetnam advised that members of the
general public would be given one minute each to speak.
Mayor Gere called the appellant to the podium.
Tom Moser, attorney for appellants Todd and Erin Welliver, thanked Council for conducting a site visit
earlier in the evening to better understand the location of both properties in relation to E Avenue. Mr.
Moser presented his clients' position as contained in Mr. Moser's October 14, 2015 letter to
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councilmembers that had been added to the record and to the Council packets earlier in the day. Mr.
Moser argued that the east half of E Avenue was never properly vacated because no notices were sent to
adjacent property owners, no hearings were conducted, no vote of the City Council was recorded ever
vacating the east portion of E Avenue. Mr. Moser concluded that his clients opposed the applicant's
application to use his client's property. He asked that the appeal be granted. Mr. Moser requested two
working days to respond to whatever additional materials might be submitted into the record by the
applicant's attorney. Ms. Swetnam agreed that would be reasonable. Mr. Moser advised that his clients
intended to seek a revocation of the west half of E Avenue to effectively vacate the west half of E Avenue
to his clients as of 2005. Mr. Moser said that the Conditional Use Permit issued to build the appellant's
house require a 30' access on a public street to their property and expressed concern about how the
encroachment permit, if granted, would affect that. He also noted that a vacation petition has to be signed
by 2/3 of the adjacent property owners and in this case there were only two parties.
Ms. Lovelett requested clarification from Mr. Moser and Ms. Swetnam about the current ownership of the
property and the remaining roadway right of way. Mr. Johnson asked if the title reports from both
properties could be added into the record prior to November 2, 2015. Mr. Moser indicated willingness to
do so.
Mayor Gere called the applicant to the podium.
Applicant Joseph Mulcahy, 2020 27th Street, said that the Welliver appeal claimed ownership of the
property in question and that Mr. Mulcahy would like that assertion to be addressed. Mr. Mulcahy said
that both his vacation application and his encroachment application were made at the recommendation of
city staff. He said that the staff summary included in the record was misleading because it did not contain
all of the information, such as there being no record of the Wellivers ever paying for a vacation. He said
his title company had assured him that the vacation of the land underlying his property was appropriate.
He interpreted Mr. Furlong's email included in the record as indicating that if the city were to vacate the
remaining 40' of E Avenue right of way, Mulcahy-Young would be entitled to half of that. He also called
attention to the specific list of information examined and not examined by Mr. DiJulio in preparing his
opinion included in the record. Mr. Mulcahy said that the city and the county maps don't agree on the
location of the Welliver and Mulcahy-Young homes in relation to E Avenue. Mr. Mulcahy said he did not
feel Mr. Measamer was an unbiased arbiter in the matter. He said that no variance was ever issued for
the Welliver home, that a conditional use permit to build the home as a duplex should have been
required, and that the Welliver home was within the 20' setback, all of which the city allowed.
Applicant Anthony Young, 2020 27th Place, reviewed the Mulcahy-Young Response to appeal of
Encroachment Application included in the record and the evening's Council packet, including Exhibits 1-8
attached thereto.
Mayor Gere then opened the floor to any members of the public who wished to comment on the appeal.
No one present wished to address the Council.
Mr. Walters inquired of the applicants if they experienced ongoing drainage problems. They answered in
the affirmative. Ms. Lovelett requested from staff documentation of ownership of each of the parcels in
question.
Mayor Gere invited the appellant to speak in rebuttal.
Appellant Todd Welliver, 2102 27th Place, clarified that he built his house himself. He said the only reason
he disagreed with the encroachment permit was that 2020 27th Street was already built on 40' of the
original 80' right of way of E Avenue and the encroachment on another 20' would give one party use of
60' of an 80' right of way and that didn't seem fair. In response to a question from Ms. Lovelett, Mr.
Welliver indicated his intention for the easement area was to grass it and use it like a backyard. He
described the drains he had already installed on his property. Mr. Walters asked Mr. Welliver if he applied
for a street vacation in 2013. Mr. Welliver said no, Mr. Mulcahy had done so. Mr. Moser advised that he
would submit his rebuttal in writing.
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Mayor Gere invited the applicant to speak in rebuttal.
Mr. Young said that since 2006 Mulcahy-Young had been seeking enforcement by city authorities of laws
requiring correction to the drainage problems onto their property. Mr. Archibald asked what Mulcahy-
Young would do with the 20' encroachment. Mr. Mulcahy said he intended to bring in good topsoil to help
contain some of the drainage, put in gardens, and potentially fence it but since the property was not
vacated they would not invest in more permanent improvements.
Mr. Walters referred to the staff report stating that the east 40' of the E Avenue right of way had been
vacated as part of the Plat of Pleasant View Addition to Anacortes and asked staff to respond to Mr.
Moser's allegation that the 40'was never properly vacated. Mr. Measamer said that the Pleasant View
replat both vacated and dedicated property and that he and Ms. Swetnam would bring back a brief for
Council to confirm the vacation and dedication process. Mr. Walters confirmed with Ms. Swetnam that the
city could initiate a vacation on its own, that doing so would require signatures of 2/3 of abutting property
owners, and that a vacation could include conditions to address drainage problems. Mr. Miller requested
that staff clarify the current easements, define the terms city property, city easement, and title property,
and elucidate the drainage issues in the area. Ms. Swetnam confirmed for Ms. Lovelett that the Luthigers,
predecessor owners to the Wellivers, paid $14,635 for the vacation of a portion of 27th Street in 2001.
Mr. Walters asked if Mr. Mulcahy's 2013 vacation petition came before Council for action. Mr. Measamer
explained that the Development Review Group had recommended against a vacation (reference April 24,
2013 letter from Eric Shjarback included in the record). Mr. Young said that Mulcahy-Young had been
interested in pursuing the vacation at that time but staff did not move the application forward to Council
for decision.
Mr. Welliver asked how Vintage Investments could have vacated the east 40' of E Avenue since 2/3 of
the abutting property owners would have had to agree and Wellivers did not do so. Ms. Swetnam
indicated that staff would research that process and get Mr. Welliver an answer.
At 7:41 p.m. Mayor Gere closed the public hearing but said the record would be kept open to accept
written comment until November 2, 2015 and that Mr. Moser would be granted an additional 48 hours if
needed to respond.
At approximately 7:42 p.m. Mayor Gere called a five minute recess. At 7:47 the mayor called the meeting
back to order. Ms. Pickett rejoined the proceedings.
Skyline Mixed Use Development, SDP-2015-0001 Closed Record Hearing
Associate Planner Kevin Cricchio presented an application by Skyline Marina Holdings, LLC for a
Shoreline Substantial Development Permit (SDP-2015-0001), Shoreline Conditional Use Permit, land use
type of Conditional Use Permit(CUP-2015-0003), and SEPA environmental review for proposed
construction of a mixed-use development at 2201 Skyline Way that including three buildings totaling
18,500 ±square feet. Mr. Cricchio described the proposed project as summarized in the Council packet
for the evening. He reported that following the open record public hearing on this application before the
Planning Commission on September 23, 2015 the Planning Commission recommended approval of the
subject permits. Mr. Cricchio added that no appeals had been received and said staff also recommended
approval.
Mr. Johnson disclosed that he had attended a public presentation to the Skyline Board made by the
developer about the project.
Mayor Gere asked if the applicant or any party of record wished to make a presentation. No one present
wished to speak.
Ms. Lovelett asked staff to address concerns expressed by parties of record about the road. Planning
Director Don Measamer referred councilmembers to a letter on that subject included in the record from
Anacortes City Council Minutes October 19, 2015 5
Mr. Larkin's attorney. Mr. Measamer elaborated to say that there had been discussion with city staff
regarding maintenance of the private portion of Skyline Way, that the city has no responsibility for
maintenance on that portion of the roadway, but that discussions were ongoing with the Skyline Divisions
on how the city might be able to take over maintenance of that roadway in the future.
Kelly Larkin, 6376 Dow Lane, referred councilmembers to his attorney's letter in the record. Mr. Larkin
indicated that the problem caused by Division 17 and Division 19 was not his problem, that he had a legal
easement and legal rights of way to use the private roadway and no maintenance responsibility.
Mr. Walters confirmed with staff that there was one single family residential unit proposed in Building 3.
Mr. Adams confirmed with staff the location of pedestrian access to the 52 offsite parking spots.
Mr. Johnson moved, seconded by Mr. Archibald, to approve the subject permits subject to the staff
suggested conditions. Vote: Ayes—Archibald, Miller, Johnson, Walters, Pickett, Adams and Lovelett.
Motion carried.
Grant Agreement: Storvik Park Spray Pad
Parks and Recreation Director Gary Robinson introduced Recreation Coordinator Nicole Johnston. Ms.
Johnston asked Council to authorize the mayor to sign the Funding Board Project Agreement from the
Washington State Recreation and Conservation Office (RCO)accepting $335,000 of grant funds and
committing $347,500 of matching funds. Ms. Johnston advised that the grant was awarded in September
and that once the agreement was signed staff could move forward to hire an engineer to develop
construction plans for the project. She displayed schematic drawings for the project including the new
restroom. Ms. Johnston reported that the project had raised almost$70K of donations towards its
$180,000 fundraising goal. She said construction would begin as soon as possible.
Mr. Walters confirmed with Mr. Robinson that the water used at the spray pad would be metered and that
the General Fund would pay the Water Fund for that water. He added that staff was hopeful that the
water could be recycled for irrigation purposes. Ms. Lovelett suggested that the park may need more
parking, urged that construction be completed at the beginning rather than the end of a summer, and
noted that funding for the restroom was already in the budget which might allow that portion of the project
to be completed as soon as possible. Mr. Walters asked Ms. Johnston to provide figures on what it would
cost to operate and maintain the park; she agreed to do so. Mr. Adams asked if the spray pad would need
additional staff for monitoring but Ms. Johnston replied that similar facilities in neighboring jurisdictions
had not found that to be necessary.
Mayor Gere asked if anyone in the audience wished to comment on this project. No one present wished
to address the Council.
Mr. Johnson moved, seconded by Ms. Lovelett, to authorize the mayor to sign the Funding Board Project
Agreement from the Washington State Recreation and Conservation Office (RCO) in support of the
Storvik Park Spray Pad and restroom. Vote: Ayes—Miller, Johnson, Walters, Pickett, Adams, Lovelett
and Archibald. Motion carried.
There being no further business, at approximately 8:15 p.m. the Anacortes City Council meeting of
October 19, 2015 was adjourned.
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