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HomeMy WebLinkAbout2011-06-06 City Council Minutes Approved GSSY Off'. City Council Minutes—June 6, 2011 From approximately 5:00 p.m. to approximately 6:00 p.m. the City Council and Planning Commission attended a site visit to South Fidalgo Bay Road and City-owned acreage in the vicinity to discuss 1) the history of the city-owned land area, 2) the upcoming road construction project and 3) ideas/vision for the future of the site. No public testimony was taken. City Councilmembers Eric Johnson, Erica Pickett, Brad Adams, Bill Turner, Cynthia Richardson and Brian Geer were present. At 7:30 p.m. Mayor Maxwell called the regularly scheduled Anacortes City Council meeting of June 6, 2011 to order. Roll call found present: Eric Johnson, Erica Pickett, Brad Adams, Bill Turner, Cynthia Richardson and Brian Geer. Nick Petrish was excused. Roll call was followed by the Pledge of Allegiance. Minutes of Previous Meeting Mr. Geer moved, seconded by Mr. Johnson, that the minutes of May 16, 2011 and May 17, 2011 be approved as if read. Vote: Ayes— Pickett, Adams, Turner, Richardson, Geer and Johnson. Motion carried. Citizen Hearings No one present wished to speak on any item not already on the agenda. Mayor/Council Communication Mr. Geer thanked the Parks and Recreation Department and Recreation Coordinator Nicole Johnston for doing such an excellent job running the Kid's Fishing Derby and Skatefest over the weekend. Consent Agenda Mr. Adams moved, seconded by Mr. Turner, to approve the following Consent Agenda items. Vote: Ayes —Adams, Turner, Richardson, Geer, Johnson and Pickett. Motion carried. Approval of Vouchers/Cancellation of Checks Council voted unanimously that the following vouchers/checks audited and certified by the City's Auditing Officer (Finance Director) and subsequently reviewed and approved by the Council Finance Committee on May 19, 2011, May 26, 2011 and June 2, 2011 are approved for payment as of this date June 6, 2011. Claim Checks May 2011: Check Numbers 60419 through 60612 in the total amount of$1,273,284.26 EFT May 2011: EFT Numbers 60417 through 60418 in the total amount of$345.14 Prewritten Claims June 2011: Check Number 60416 in the amount of$1,314.78 Payroll for May 20, 2011 in the total amount of $552,485.59 Check Numbers 35954 through 35993 in the total amount of $33,724.46 Direct Deposit Numbers from 39815 through 39998 in the total amount of$341,711.91 EFT Numbers from 1276 through 1286 in the total amount of$177,049.22 Payroll for June 3, 2011 in the total amount of$881,267.26 Check Numbers 35994 through 36047 in the total amount of$45,654.52 Direct Deposit Numbers from 39999 through 40203 in the total amount of$597,030.08 EFT Numbers from 1287 through 1292 in the total amount of$188,582.66 Anacortes City Council Minutes June 6, 2011 1 Cancellation of Checks May 2011: Check Number 60089 in the total amount of$116.00 May 2011: Check Number 60338 in the total amount of$85.68 May 2011: Check Number 60343 in the total amount of$21.64 Waived Fees UB for Account Number 070-0400-03 in the total amount of$75.00 UB for Account Number 040-0720-00 in the total amount of$75.00 In the same motion Council: • accepted as complete the Fidalgo Bay Road Landslide Repair project by Larry Brown Construction, Inc. (Contract 10-041-SEW-002); and • approved the Street Fair Application for the Anacortes Antique Machinery Show on September 10, 2011 from 9 a.m. to 5 p.m. Recommend Eagles Hall to Anacortes Register of Historic Places Susan Rooks from the Anacortes Historic Preservation Board presented the nomination of Eagles Hall Aerie#249 to the Anacortes Register of Historic Places. Ms. Rooks said that after holding a public hearing on May 17, 2011 the Board voted unanimously to approve the nomination. On behalf of the Anacortes Historic Preservation Board Ms. Rooks asked Council to ratify that decision and place the Eagles Hall on the Anacortes Register of Historic Places. Ms. Rooks provided a brief history of the building and of the important role the Eagles have played in promoting the health and social life of the community since the building's construction in 1920. Mrs. Richardson moved, seconded by Mrs. Pickett, to accept the Anacortes Historic Preservation Board's recommendation to place Eagles Hall on the Anacortes Register of Historic Places. Mr. Adams commented how well the interior of the building has been preserved. Mr. Johnson commended the application documentation prepared by Ms. Rooks. Vote: Ayes—Turner, Richardson, Geer, Johnson, Pickett and Adams. Motion carried. Mayor Maxwell presented the award to Michael Prater, president of Fraternal Order of Eagles Aerie #249. Mr. Prater thanked the mayor, City Council and citizens of Anacortes for the honor, thanked Ms. Rooks for all her work to achieve the listing and pledged the support of the Eagles to help the community grow and prosper. Request for Final Plat Approval: H Avenue, LLC 3-Lot Replat Senior Planner Libby Grage presented a request from H Avenue, LLC for final plat approval for a 3-lot re- subdivision of Lot 6 of the Stone Ridge short plat. Ms. Grage noted that access is via 32nd Street and infrastructure has already been installed. She recalled that Council issued preliminary plat approval on March 7, 2011 and said the applicant has completed all conditions for final plat approval. She added that the Planning Commission voted to forward the application to City Council for final approval. Mrs. Richardson moved, seconded by Mr. Geer, to approve the final plat as requested. Vote: Ayes— Richardson, Geer, Johnson, Pickett, Adams and Turner. Motion carried. Closed Record Appeal: Anacortes Memory Care Conditional Use Permit Planning Director Ryan Larsen presented a Conditional Use Permit application for the Anacortes Memory Care facility proposed for the southwest corner of K Avenue and 35th Street in the R3 zone. Mr. Larsen said that after holding an open record public hearing on April 27, 2011 the Planning Commission recommended approval of the application subject to 26 conditions. Mr. Larsen said the City received six appeals of that recommendation. Mr. Larsen recommended that Council hear only one of the appeal items at the current meeting, an item submitted in Exhibit 38 by Evergreen Islands and in Exhibit 42 by Sheri Muntean. He explained that this appeal item raises the substantive issue of whether the proposed use is properly classified as an assisted living facility and therefore is an allowed conditional use in the R3 zone. He said if Council determines that the proposed use is an allowed conditional use, staff recommends that based on the new evidence submitted as part of the appeals by Evergreen Islands and others that the proposed project be remanded back to the Planning Commission to accept the new Anacortes City Council Minutes June 6, 2011 2 evidence into the record. He continued that if Council instead determines that the proposed use is not an allowed conditional use in the R3 zone then the other appeals are moot and staff would recommend that the project be denied for inconsistency with the zoning regulations. Mr. Adams asked for clarification on the suggested course of action. City Attorney Brad Furlong explained that whether the proposed use is a permitted conditional use in the R3 zone is a purely legal question and introduces no evidence not already in the record. He said some of the other appeals include new information that is not in the record so it cannot be considered in a closed record hearing and to get additional evidence into the record the application would have to go back to Planning Commission. Mr. Furlong called the former question a threshold decision hence one appropriately made before hearing the other appeals. Mrs. Richardson inquired about remanding the project to Planning Commission, wondering if the applicant or other parties of record would then be able to introduce new evidence pertaining to the recommended conditions. She asked if Council would need to specifically define which new information it would like Planning Commission to accept into the record. Mr. Larsen said Council could simply move to adopt the staff recommendations in the June 2, 2011 memo to Mayor and City Council from Libby Grage. Mr. Larsen then provided a brief overview of the project to construct a 1-story, 19,500 SF facility designed for specialized care of persons diagnosed with beginning stages of dementia. It would have 24 units that could house up to 48 residents. Mr. Larsen described the characteristics of the site, the improvements made to date, and staff recommendations for future improvements. Mr. Larsen then reiterated the staff recommendations for proceeding as outlined in the June 2, 2011 staff memo to Mayor and Council. Mr. Geer confirmed with Mr. Larsen that the project would have 24 rooms and up to 48 residents. Mr. Johnson confirmed with Mr. Larsen that if the project were remanded to Planning Commission that there would be an additional public comment opportunity. Mr. Turner clarified the required process for introducing new information into the record. Mrs. Richardson asked if the appeals currently filed would remain active if the project were remanded or if those appeals would have to be resubmitted. Mayor Maxwell suggested addressing that question after the threshold question was addressed. Mayor Maxwell said that Council would first hear from the two appellants whose appeals address whether the proposed use is a permitted conditional use in the R3 zone and he asked the appellants to limit their testimony to that issue. Each appellant and the applicant were given ten minutes to speak. Tom Glade, 210 Mansfield Court, spoke representing appellant Evergreen Islands. Mr. Glade began his testimony by objecting to the handling of the public hearing before the Planning Commission. Mayor Maxwell asked Mr. Glade to limit his testimony to the question of allowed conditional uses in the R3 zone. Mr. Glade said the Anacortes Municipal Code clearly distinguishes assisted living and congregate care from nursing homes in the list of acceptable conditional uses for residential zones and said nursing homes are allowed in R4 but not R3. Mr. Glade read the definition of nursing home from RCW 18.51.010. He said the level of care provided and freedom of residents distinguish nursing homes from assisted living facilities. Mr. Glade said Council must deny the Conditional Use Permit because the proposed project is clearly a nursing home which is not an acceptable conditional use in the R3 zone. Mr. Glade said the Planning Director erred when he accepted the application. He said the project does not meet the purpose of the R3 zone which is to accommodate single family homes and, conditionally, multi-family homes with up to four units. He said the proposed use would be detrimental to the surrounding neighborhood and raised concerns about traffic and pedestrian safety. Attorney Richard Aramburu, 720 3rd Avenue in Seattle, spoke representing appellant Sheri Muntean. Mr. Aramburu said the question before Council is whether the proposed project is a legal conditional use in the R3 zone. He said his client believes it is not and asked Council to dismiss the application because it is inconsistent with the code. Mr. Aramburu argued that"memory care facility" is not explicitly defined in the code, is different from both nursing homes and assisted living facilities and is specifically for patients with dementia or Alzheimer's. He said four key features distinguish this memory care facility from assisted living: the residents are not appropriate for assisted living, it will be a locked down facility, there will be no individual cooking or kitchen facilities in the units, and there will be very intensive 24/7 care for the residents. Mr. Aramburu said the R3 zone is for single family homes and duplexes. Mr. Aramburu Anacortes City Council Minutes June 6, 2011 3 contrasted the proposed facility with assisted living facilities and said it is much more akin to a nursing home, which is not a permitted conditional use in the R3 zone, only in R4. Mr. Aramburu said the State definition of a nursing home says nursing homes can include care of mentally incompetent persons. He concluded by asking Council to determine that the proposed facility is not an appropriate conditional use in the R3 zone. Attorney Tom Moser, 1204 Cleveland Avenue in Mt. Vernon, spoke representing the applicant. He said staff has rightly understood the procedural challenges presented by the appeals that have been filed and agreed it was appropriate for Council to make a threshold decision on whether the proposed project is an allowed conditional use in the R3 zone. He said he is confident the use is allowed and that Council should so decide and then remand the project to the Planning Commission. Mr. Moser also argued that the June 2, 2011 staff memo to Council correctly analyzed the code in relation to permitted conditional uses in the R3 zone. Mr. Moser agreed that assisted living and congregate care are permitted conditional uses in the R3 zone and said the proposed project is an assisted living facility. He discussed the increasing number of memory care facilities and said they cater to a subset of assisted living residents who have special needs for memory care. He said congregate care is defined in AMC 17.06.030 in contrast to nursing homes and is for residents who need care in a controlled setting with individual living units. He said the proposed project is exactly that, a controlled facility having living units with one or two occupants and a common kitchen. Mr. Moser said staff has the authority to use administrative judgment as to whether an application is an allowed conditional use in the proposed zone and did so in this case. Mr. Moser concluded that the proposed project is a permitted conditional use in the R3 zone and asked Council to decide as such. Mr. Aramburu presented three points in rebuttal. He said this is very specialized care just like nursing homes and so the code requires considering it a nursing home which is not permitted in the R3 zone. Second, the code says assisted living facilities have individual living units and the proposed facility does not have those, it has beds in rooms but a common kitchen and dining area. Third, he said the code requires the City Council, not staff, to determine that a conditional use is listed within the code section in order to approve a conditional use permit. He urged Council to make the threshold decision that the proposed facility is properly considered a nursing home facility hence not appropriate in the R3 zone. Mr. Moser said the proposed project is not a nursing facility, that the residents may be very physically healthy, they are not bedridden. He said residents will be living in individual units, one or two to a room. Mr. Geer asked Mr. Furlong if Council is to decide if the proposed project meets the definition of assisted living center in AMC 17.06.030. Mr. Furlong said yes. Mr. Geer discussed features of assisted living. He said the code says assisted living has "individual living units"and observed that 24 units for 48 residents does not sound like individual living units. Mr. Geer asked to send the matter back to Planning Commission to define "individual living unit". Mrs. Richardson said multiple people can occupy an individual living unit. Mr. Geer said that is a matter of opinion that can be interpreted differently and again requested a code definition of "individual living unit". Mrs. Richardson suggested instead defining "assisted living facility" based on how those are organized and operate. She said assisted living has individual rooms where residents live. Residents require some kind of assistance but the type of assistance is not always the same. The code is clear that assisted living facilities and congregate care where some needs are provided in common with other residents are permitted conditional uses in the R3 zone. She concluded that staff correctly judged the proposed facility to be an assisted living/congregate care facility and said it is an acceptable conditional use in R3. Mr. Turner agreed with Mrs. Richardson and said the proposed project is clearly not a nursing home. Mrs. Pickett asked Mr. Furlong if the administrator has authority to decide if a particular application is an allowed conditional use. Mr. Furlong said the initial step in the application process is for the administrator to determine that, the Planning Commission then makes a recommendation on it and eventually Council makes the final decision. Mr. Adams said dementia care facilities cater to a different user group than either nursing homes or assisted living facilities and said Council could take time to go through the process of determining where that emerging use fits in the code. Mr. Johnson observed that assisted living facilities may provide lots of different types of care, memory care among them. Anacortes City Council Minutes June 6, 2011 4 Mr. Geer moved, based on the testimony and the evidence in the packet, to deny the appeal and remand the project to Planning Commission to get an accurate definition of individual living units. No one seconded. Mr. Geer amended his motion to move to deny the appeal that the proposed project is not an allowed conditional use in the R3 zone. Mrs. Richardson seconded the motion. Mr. Adams said he would like more time to consider this issue and was uncomfortable denying the appeal so soon. Vote: Ayes— Geer, Johnson, Pickett, Turner and Richardson. Nays—Adams. Motion carried. Mr. Geer moved, seconded by Mr. Turner, to remand the project to the Planning Commission for an accurate definition of individual living units for AMC 17.06.030. Following a question from Mr. Furlong, Mr. Geer amended his motion to remand the application to Planning Commission with the specific direction listed in paragraphs 3 and 4 of the Staff Recommendation on page 4 of the June 2, 2011 staff memo from Libby Grage to Mayor and City Council, and to request a definition of individual living unit. Mr. Turner seconded the motion. In response to a question from Mr. Johnson, Assistant Planning Director Don Measamer said "individual living unit" is not defined in the code, that "dwelling unit" is defined and "family" is defined. Mrs. Richardson agreed that the code may need a definition of individual living unit but reminded that it is not the job of the Planning Commission to invent one and that the Planning Commission can't amend the code by means of a hearing on this or any conditional use permit application. Vote: Ayes—Johnson, Pickett, Adams, Turner, Richardson and Geer. Motion carried. Executive Session—Ten (10) Minutes At approximately 8:45 p.m. Mayor Maxwell announced that the Mayor, Council and City Attorney Brad Furlong would convene in Executive Session to discuss potential litigation for approximately ten minutes and would reconvene with no further action. At approximately 8:55 p.m., the Council reconvened and without taking any further action, the regularly scheduled Anacortes City Council meeting of June 6, 2011 was adjourned. Anacortes City Council Minutes June 6, 2011 5