HomeMy WebLinkAbout2010-07-19 City Council Minutes Approved G8. O ff'
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City Council Minutes—July 19, 2010
At 7:30 p.m. Mayor Maxwell called the regularly scheduled Anacortes City Council meeting of
July 19, 2010 to order. Roll call found present: Kevin McKeown, Nick Petrish, Erica Pickett, Brad Adams,
Bill Turner and Cynthia Richardson. Brian Geer was absent. Roll call was followed by the Pledge of
Allegiance.
Minutes of Previous Meeting
Mr. McKeown moved, seconded by Mr. Adams, that the minutes of July 6, 2010 be approved as if read.
Vote: Ayes—Adams, Turner, Richardson and McKeown. Mr. Petrish and Mrs. Pickett abstained as they
were not present at that meeting. Motion carried.
Citizen Hearings
No one present wished to speak on any items not on the regular agenda.
Mayor/Council Communication
Mayor Maxwell thanked the Anacortes Rotarians and Port of Anacortes for a weekend full of events that
brought visitors to town including What the Heck Fest and the work boat races.
Mr. Turner reported that the morning Rotary Club ran Shipwreck Days for the second year in a row. He
observed that the event went well and gets bigger every year.
Unfinished Business
Closed Record Hearing and Appeal: Preliminary Plat and PUD—Hidden Shores
Planning Director Ryan Larsen outlined procedural matters. He said after a brief staff presentation, the
applicant's attorney would have 15 minutes (including rebuttal time) to speak, the Evergreen Islands
attorney would have 15 minutes to speak, and any parties of record who spoke at the Planning
Commission remand would have three minutes to speak, to be followed by Council deliberation. He
reminded that Council actions at this meeting should be to direct staff to prepare findings of fact which will
be returned to Council for final approval. Finally, he advised that page 12 of the letter from Dennis
Reynolds describes a proposed trail in open space but that has not previously been part of the application
so staff asked Council to dismiss that notion.
Mr. Larsen then reviewed that at its May 17 and June 7, 2010 meetings Council heard the closed record
hearing and appeal for this project and remanded three specific issues to the Planning Commission: the
2007 ATSI report, applicability of AMC Section 17.70.570(c) regarding riparian habitat to the subject
project, and clarification of items of concern contributing to the Planning Commission's recommendation
of denial without prejudice. He reported that on June 23, 2010 the Planning Commission held its limited
remand hearing on those topics only, then voted to reaffirm its prior recommendation, determined that
AMC Section 17.70.570(c) did not apply, and provided a list of eight reasons for its original
recommendation of denial; Mr. Larsen read those into the record. Mr. Larsen then summarized the four
appeal issues brought forward by the Applicant.
Staff yielded the floor to the applicant's attorney, Dennis Reynolds, who reviewed his credentials. Mr.
Reynolds proposed a"construct for decision making." He stated that staff has been in support of this
project since the beginning and supports the appeal. He argued that the appeal does not contest the
status of Anaco Bourn, only which buffers are appropriate for it and submits that ten feet is what is called
for. Mr. Reynolds called it ironic that the project is opposed by environmentalists when without this project
the functions and values of Anaco Bourn will never be improved. He recalled that in 2006 the then owner
of the site asked the City to de-list Anaco Bourn as a Fish and Wildlife Conservation Area. He said
Council declined but assigned Anaco Bourn a ten-foot buffer and gave incentives to improve its functions
and values. Mr. Reynolds stated that the opposition has not submitted any new stamped and certified
reports by a professional wetland scientist in the past two years and disagreed with the opposition's
interpretation of the ATSI report; he said the ATSI report calls Anaco Bourn a"constructed channel." He
Anacortes City Council Minutes July 19, 2010 1
stated that staff's memo was correct in concluding that the ten-foot buffer must refer to the entirety of
Anaco Bourn on the project site. He stated that all the scientific reports say the entire Anaco Bourn on the
project site is an artificial ditch. Referencing his client's constitutionally protected right to develop land, Mr.
Reynolds concluded that the proposed project would be in the public interest, would increase the natural
functions and values of an artificial ditch and would provide LID development of smaller lots and more
affordable housing.
Jeffrey Eustis, attorney for Evergreen Islands, urged Council to confirm the Planning Commission's
recommendation to deny the application without prejudice. Noting that Mr. Reynolds had conceded Anaco
Bourn is a fish and wildlife habitat conservation area, Mr. Eustis said the question posed by AMC
17.70.540 is whether it is a natural drainage or an artificial ditch as of 12/31/03. He argued that Council
made that decision in 2005 when Anaco Bourn and other streams were designated fish and wildlife
habitat conservation areas. In 2006, he continued, the code amendment stated that the parts of Anaco
Bourn in artificial ditches or culverts as of 12/31/03 would be encouraged to be daylighted and would be
allowed ten-foot buffers. However, he argued, the amendment doesn't apply to the entire Anaco Bourn
otherwise it wouldn't have been designated a fish and wildlife habitat conservation area. The question
then, he said, is which portions qualify? Mr. Eustis reviewed photographs submitted in his letter on the
record. Noting that the ordinance encourages restoration of artificial portions of Anaco Bourn, he asked
how the areas pictured could possibly be made any more natural than what is already there. He said that
the ATSI report called Anaco Bourn a natural channel. He argued that if the project is allowed to proceed
as proposed, the natural channel will be denuded and ditched contrary to the ordinance. He said the Staff
response to the appeal to the Planning Commission (pages 2-3) note work was done along Marine Drive
in 2004 which affected portions of Anaco Bourn but that this was after the cutoff date of the ordinance,
which is 12/31/03. Mr. Eustis argued that the applicant would have to prove that as of 12/31/03 Anaco
Bourn was an artificial ditch. He said there may be evidence of channelization from Marine Heights down
to where the stream becomes well channelized, but that happened in 2004. He argued that the functions
and values of the site cannot be improved by clear cutting. He concluded that the Growth Management
Act and legal precedent give City Council the right to designate streams and buffers in light of private
property development rights which are not unlimited. He said the Planning Commission and Evergreen
Islands both encourage Council to adhere to those buffers.
Parties of record were then given three minutes each to speak. Andrew Stewart, 2003 M Avenue, and
Jean Andrich, 2016 10th Street, spoke on behalf of Friends of the ACFL, reading a letter supporting the
Planning Commission recommendation for denial without prejudice. The letter stated that the Friends
were taking the rare step of testifying outside the ACFL because the project would directly affect the
health of the ACFL, the water quality flowing into Burrows Bay and health and safety of wildlife that reside
in the ACFL, particularly those that must travel between the ACFL and Burrows Bay to access both fresh
and saltwater. They argued for the irreplaceable high functional value of Anaco Bourn as a wildlife
corridor. They also argued for its value for storm water absorption and runoff control. In conclusion, the
Friends urged Council to keep 50-foot buffers for Anaco Bourn to provide naturally good water quality,
important connective habitat and safe wildlife travel between forest and sea that is essential to the ACFL.
Mr. Reynolds returned to the podium for rebuttal. He argued that the Mitigated Determination of Non-
Significance under SEPA found the project would not have significant adverse impact on wildlife or water
quality and that given the City's plans to build Tyler Way the corridor is not of such importance as Friends
of the ACFL suggest. He clarified that the whole project is not going to be clear cut, stating that 40%of
the property is in a conservation easement and the only true clear cut will be the road. He said the
artificial ditch will be improved and its functions and values increased because that is an affirmative
obligation if the ten-foot buffer is allowed. Mr. Reynolds stated that the GMA requires property owners to
be free from arbitrary decision making. Mr. Reynolds referred to an exhibit to his letter providing a
comparison of PUDs. Mr. Furlong said the document is accepted as part of Mr. Reynolds' submission but
the comparisons in it do not exist in the record and he advised Council not to consider it as part of the
appeal. Mr. Reynolds asked that the document be lodged with the City Clerk. Mr. Reynolds concluded by
reiterating that Council cannot make arbitrary decisions.
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Mr. Furlong said the public hearing could be left open if Council had questions otherwise the public
hearing should be closed. Mr. McKeown asked Mr. Eustis to address Mr. Reynolds' comment about the
MDNS. Mr. Eustis said the MDNS was not under appeal and he was surprised that Mr. Reynolds raised
the topic. He added that buffer sizes are set by City code, not by SEPA and that SEPA can't alter City
code. Mr. Turner asked Mr. Furlong to confirm that the MDNS doesn't degrade City regulations for
riparian buffers. Mr. Furlong stated that the City still has to follow the rules, regardless of the MDNS.
There being no further questions, the Mayor declared the public hearing closed. Mr. Furlong invited
Council to deliberate on the four specific appeal issues, then on the Planning Commission
recommendation to deny the PUD short plat approval, based on the facts in the record and the
application of City code to those facts.
Mrs. Richardson began with overflow parking appeal item. She called it an administrative decision that
doesn't belong as part of the PUD application and moved to deny this appeal item. Mr. McKeown
seconded the motion. Mr. Adams observed the project conditions already require suitable residence
parking. Mrs. Pickett added that overflow parking is not a code requirement. Mr. Larsen agreed. Vote:
Ayes— Pickett, Adams, Turner, Richardson, McKeown and Petrish. Motion carried.
Mrs. Richardson turned to the gated community appeal item. She moved, seconded by Mr. Turner, to
deny the appeal item, stating it is inappropriate to close off a public road and deny public access. Vote:
Ayes—Adams, Turner, Richardson, McKeown, Petrish and Pickett. Motion carried.
Mrs. Richardson turned to the appeal item on LID standards. She said applicability of LID standards is
site specific and is related to engineering issues applied at the time of construction. Without discouraging
the use of LID standards, she moved to deny the appeal item as not appropriate for appeal. Mr. McKeown
seconded the motion. Council and staff discussed what exactly is being appealed and concluded that
Council generally supports LID standards but did not see any purpose to this appeal item since it appears
to appeal a notion that was not denied. Vote: Ayes—Turner, Richardson, McKeown, Petrish, Pickett and
Adams. Motion carried. Mr. Furlong clarified that all of these decisions will be brought back as findings
and conclusions for final review and action by the Council.
Mrs. Richardson then read a prepared statement regarding the buffer width appeal item. After reviewing
the contentions of both parties, she concluded that portions of Anaco Bourn are natural stream and
portions are artificial ditch. She said the ditch portion may qualify for ten-foot buffers if it was an artificial
ditch before 12/31/03 and posed a series of questions and answers to determine that. Is Anaco Bourn a
stream?Yes, it was identified as such in the Critical Areas Ordinance. Was it originally naturally flowing?
Yes, the Purnell report clearly mentions a stream flowing through what is now Marine Heights though it
does not address the Hidden Shores property. Is part of Anaco Bourn now in culverts and ditches? Yes,
all of the route through Marine Heights and part of the route through Hidden Shores is in culverts and
ditches, but it is still a"stream" in the same way that Ace of Hearts Creek is. Was any part of Anaco Bourn
on the Hidden Shores property in artificial culverts or ditches prior to 12/31/03? Probably. Marine Heights
was constructed before then, including the detention pond outfall, but nothing in the Hidden Shores
record provides evidence of how much if any of it extended onto the Hidden Shores property. At the
Council site visit, evidence of an older alignment was noted even though most of the artificial ditch was
altered in 2004 so there may have been a preexisting alignment but it does not show in the record. Is part
of Anaco Bourn still naturally flowing? Yes, through mature vegetation and complex understory. Is the
naturally flowing portion in its historic channel? Probably not. Several reports in the record state it was
created by the outflow from the Marine Heights detention pond "finding its own way"to Clyde Creek
without human intervention. Is there a requirement for a stream to remain in its historic channel? Rivers
and streams often change course from both natural and human causes. Absent any code provision
referencing a stream's location as of a certain date, its location at the time of application must govern.
Survey drawings in the record show the location when submittal drawings were prepared. Could any
portion of Anaco Bourn within Hidden Shores qualify for ten-foot buffers? Possibly. If evidence in the
record shows the location of the artificial portions of the ditch as of 12/31/03 it might qualify. Could the
ditch be relocated into a new channel and still qualify for ten-foot buffers? No, relocating the stream and
wiping out the existing flora and fauna doesn't meet the intent of "return to a more natural state"as
required by the code and doesn't further the goals of the CAO with regard to maintaining existing
Anacortes City Council Minutes July 19, 2010 3
ecological functions. Would any portion of Anaco Bourn on the Hidden Shores property require a 50-foot
buffer?Yes, all of the naturally flowing stream and any of the artificial ditch that cannot be proved to
predate 12/31/03. Mrs. Richardson concluded that the PUD as proposed must be denied because it
doesn't provide for 50-foot buffers for the portion of Anaco Bourn that is a naturally flowing stream, it
doesn't present any evidence as to what portion of the stream if any might qualify for ten-foot buffers by
being an artificial ditch prior to 12/31/03, and it proposes to move major portions of the stream and ditch
without retaining and enhancing the natural ecosystem. She said all three of those conditions would have
to be addressed if the applicant wants to submit a new plan.
Mr. Turner agreed with Mrs. Richardson's rationale and conclusions, saying a small amount if any of the
stream would qualify for the ten-foot buffer. Mr. McKeown said he was convinced by the ATSI report,
paragraph 13.9. He noted that report was written well before this project but still said Anaco Bourn was a
historic tributary. Mrs. Pickett asked Mrs. Larsen if lots 9-11 are accessed from the cul-de-sac. Mr. Larsen
said yes. Mrs. Pickett observed that the City's intent was to give developers an incentive to bring creeks
out of ditches and culverts but that this proposal instead adds three culverts to get the cars to lots 9-11.
She said this doesn't meet the intent of the ten-foot rule. Mr. Adams noted the map in the record that
shows the stream direction through the project and said it would be very difficult to come up with the
proper formula for which portions were natural and which artificial prior to 12/31/03. He said that burden is
on the applicant to provide in order for the project to be approved. Mr. Petrish said he was not at the
recent site visit but was there three or four years ago, that he feels this project is too large for the site, and
that he watched all the Planning Commission proceedings and feels the Commission exhausted all
avenues to arrive at its recommendation and felt Council should support it. Mrs. Richardson moved,
seconded by Mr. McKeown, to deny the appeal item related to buffers. Mr. Furlong clarified the motion is
for staff to develop findings and conclusions consistent with this discussion and bring them back to
Council. Vote: Ayes— Richardson, McKeown, Petrish, Pickett, Adams and Turner. Motion carried.
Mr. Furlong noted the PUD application was still before Council. He reviewed the applicable Anacortes
Municipal Code sections. Mr. Turner said Planning Commission's fourth itemized reason for
recommending denial matched his thinking: that 13 small lots with small setbacks and the effect on the
stream would be detrimental to the surrounding properties in the R2 use zone with no offsetting public
benefit. Mr. Turner said opening up the stream would not provide that benefit. Mrs. Richardson read a list
of her concerns about the proposed PUD including inconsistencies in the plans;ten-foot buffers would
require proving the fact and extent of an artificial stream that existed prior to 12/31/03; the mitigation area
for wetland T cannot extend onto neighboring property; the 25-foot buffer for Marine Heights Wetland A
should be noted on the plans; a wetland scientist needs to determine there will be no net loss of function
due to relocation and mitigation for wetland T or buffering averaging; along Anaco Beach Road building
setbacks must be at least 20 feet and inside should be consistent with underlying R2 zoning; a
reasonable lot size given the surrounding developments would be no less than half the lot size of the
underlying zone; 50% lot coverage is not necessary for larger lots but they should have 35%coverage
consistent with underlying zone; trees shall not be cut until the building permit is issued for each lot
except as required for utility installation; the NGPE should be clearly delineated on the plans, staked by a
surveyor and should be recorded with the final plat; Tyler Way improvements should be shown on the
plans and the right of way should be left undisturbed until it is built; two parking spaces per unit shall be
provided consistent with R2 zoning; no gates across public street; consistent with City policy, all street
improvements must be completed before final plat is recorded and lots are sold; posting of a bond for
wetland mitigation; if geological and topographic conditions are right, LID standards are appropriate and
encouraged. Mrs. Richardson said she would welcome a new proposal that addresses these items,
noting that a smaller number of lots may be the result. Mr. Turner thanked Mrs. Richardson for her
exposition and agreed with her. He said he is not against smaller lots and smaller setbacks if the
environment can be protected. Mrs. Richardson moved, seconded by Mr. Petrish, to deny the PUD
application without prejudice and that the City Attorney come back with corresponding findings of fact.
Vote: Ayes—McKeown, Petrish, Pickett, Adams, Turner and Richardson. Motion carried.
At 9:00 p.m. Mayor Maxwell declared a five minute break. At 9:06 p.m. Mayor Maxwell called the meeting
back to order.
Anacortes City Council Minutes July 19, 2010 4
Consent Agenda
Mr. McKeown moved, seconded by Mrs. Richardson, to approve the following Consent Agenda items.
Vote: Ayes— Petrish, Pickett, Adams, Turner, Richardson and McKeown. Motion carried.
Approval of Vouchers/Cancellation of Warrants
Council voted unanimously that the following vouchers/warrants audited and certified by the City's
Auditing Officer (Finance Director) and subsequently reviewed and approved by the Council Finance
Committee on July 8, 2010 and July 15, 2010 are approved for payment as of this date July 19, 2010.
Claims Warrants
July 2010: Warrant Numbers 56420 through 56617 in the total amount of $466,013.59
EFT
July 2010: Warrant Numbers 56413 through 56419 in the total amount of $2,340.94
Pre-Written Claims
July 2010: Warrant Numbers 56412 in the total amount of$2,000.00
Payroll for July 20, 2010 in the total amount of$549,573.98
Warrant Numbers 35000 through 35052 in the total amount of$45,021.94
Direct Deposit Numbers from 36038 through 36216 in the total amount of$324,593.32
EFT Numbers from 1153 through 1160 in the total amount of$179,958.72
Public Hearing and Ordinance: 2011-2016 Capital Facilities Plan (CFP)
Mayor Maxwell opened the public hearing on the 2011-2016 Capital Facilities Plan which was reviewed at
the July 12, 2010 Study Session. No one present wishing to speak, the Mayor closed the public hearing.
Mrs. Pickett moved, seconded by Mr. Turner, to adopt Ordinance 2830 adopting the 2011-2016 Capital
Facilities Plan. Vote: Ayes— Pickett, Adams, Turner, Richardson and McKeown. Mr. Petrish abstained
because he was not present at the study session where this item was presented. Motion carried.
Closed Record Hearing: Modifications to Conditional Use Permit—Gateway Marina
Mr. Larsen reviewed the proposed modification to the existing Conditional Use Permit for this project. The
original permit was issued for a 7-unit motel in 2004. The revised proposal is for a 12-unit condominium,
41-slip marina with upland amenities, covered underground parking and a portion of the public Guemes
Channel trail along the shoreline. Mr. Larsen reported that the Planning Commission approved the
proposed revisions to the project's shoreline permit at its June 23, 2010 meeting and recommended
approval of the modifications to the Conditional Use Permit with two additional conditions: the project
should provide an easement for the Guemes Channel Trail and should construct 12 slips in the initial
construction phase along with the condominiums. Mr. Larsen observed that the overall project scope has
reduced and concluded that staff recommends approval of the modifications to the Conditional Use
Permit. He added that no appeals have been filed.
Mrs. Pickett expressed concern that condos might provide less public access to the shoreline than a
motel would have. She said she doesn't want to hamper the progress of Guemes Channel Trail and noted
setbacks for Building D are virtually zero along the trail. Mr. Larsen said the applicant has been advised
that the construction drawings must show the easement for the trail and that staff expects to use the
same language that was developed for the Ortman trail easement. Mayor Maxwell noted that one of the
Planning Commission's new conditions specifically requires trail access which was not included in the
original project proposal. Mr. McKeown asked the width of the proposed easement. Mr. Larsen said it
remains to be determined but it could be even more than 20 feet wide. Mrs. Pickett read aloud the
Planning Commission's Recommendation 17 requiring a public access easement. Mrs. Richardson
suggested that the construction drawings need to delineate public from private space in a tasteful way.
Mrs. Richardson moved, seconded by Mr. McKeown, to approve the changes to the Conditional Use
Permit as recommended by the Planning Commission. Mrs. Pickett moved to amend the motion by
amending Planning Commission Recommendation 23 to require construction of the wave attenuator to
shelter the slips as well as the twelve slips. Mrs. Richardson and Mr. McKeown accepted the friendly
Anacortes City Council Minutes July 19, 2010 5
amendment. Mrs. Pickett asked about the parking on the east side of the bend of Dakota Avenue. Mr.
Larsen said that will be public parking. Mrs. Richardson noted the proposed handicapped parking space
was on a steep grade and suggest the applicant move the space lower, closer to the marina. Mr.
McKeown observed that high priced waterfront condos elsewhere have public access trails right in front of
them and owners expect that sharing of space. Mrs. Pickett said she's nervous about the existing
shipyard activity adjacent to the project, noting that potential for conflict is the reason residential is a
conditional use in the CM zone. Councilors agreed it is important for future residents to realize that the
local economy is driven by the people working next door. Mayor Maxwell pointed out people like
Anacortes because it is a working community. Mr. Petrish noted that the road to Lovric's goes right next
to the condos and agreed with Mrs. Pickett's concern that traffic to the marina will trouble residents. The
Mayor noted there were no appeals to the permit modification. Vote: Ayes—Adams, Turner, Richardson,
McKeown, Petrish and Pickett. Motion carried.
Resolution: Tourism 2% Funds
Mr. Larsen reported the Chamber of Commerce has asked for a revision to its Tourism Grant award.
Resolution 1788 in November, 2009 awarded the Chamber$5000 for the Anacortes Jazz Festival but the
Chamber has decided not to hold that event in 2010 so asked to transfer$2000 of those funds to a film
festival and $3000 to a brew festival. The tourism committee recommended approving $2000 for the film
festival and nothing for the brew festival. Mr. Larsen then reported that new public restrooms are being
constructed by a private owner at 4th Street and 0 Avenue. The owner has proposed that the City
contribute half the cost of the sanitary sewer and water General Facilities Charges ($4,175) and provide
$350 per month for ongoing maintenance, water and sewer costs. The tourism committee recommended
approval. Mr. Adams clarified that tourism funds can be used for public restrooms. Mr. Larsen clarified
that the private owner will operate the facilities. Mr. Adams asked what hours they will be open, noting
that other public restrooms in town are not always unlocked when there is demand. Mayor Maxwell said 8
a.m. to 5 p.m. and special event weekend days. Mr. Turner asked how this new restroom came about. Mr.
Larsen explained a City Councilor brought up the need for a restroom in that part of town and staff
pursued it. Mrs. Richardson noted business owners at north end of town will appreciate the new facility
and commended all the people who have worked on it for several years, then moved, seconded by Mr.
Turner, to approve Resolution 1804 authorizing the transfer of 2010 tourism promotion funds to fund a
film festival contract with the Chamber of Commerce and approve funding for public restrooms. Vote:
Ayes—Turner, Richardson, McKeown, Petrish, Pickett and Adams. Motion carried.
Resolution: Sole Source Purchase of Raw Sewage Grinder
Public Works Director Fred Buckenmeyer requested Council approval of a resolution authorizing sole
source purchase of raw sewage grinders for Anacortes sewage pump stations and award of a contract for
a sole source purchase of one of the grinders for Pump Station 13 from JWC Environmental for$32,248.
Mr. McKeown asked the life of the grinders. Mr. Buckenmeyer said at least ten years, Mr. Turner
estimated 10-20 years. Mr. Turner asked if the City should order a spare grinder to have on hand. Mr.
Buckenmeyer said in the short term manual pumping of stations can be performed pending replacement if
a grinder fails. Mr. Turner moved, seconded by Mr. McKeown, to approve Resolution 1805 waiving the
bidding requirement for specified, standardized raw sewage grinders and authorizing a direct negotiation
with the supplier of the equipment to purchase a grinder. Vote: Ayes— Richardson, McKeown, Petrish,
Pickett, Adams and Turner. Motion carried.
There being no further business, at approximately 9:40 p.m. Mayor Maxwell adjourned the regularly
scheduled Anacortes City Council meeting of July 19, 2010.
Anacortes City Council Minutes July 19, 2010 6