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HomeMy WebLinkAbout2010-05-17 City Council Minutes Approved ' 9oop.7t:,' City Council Minutes—May 17, 2010 At 7:30 p.m. Mayor Maxwell called the regularly scheduled Anacortes City Council meeting of May 17, 2010 to order. Roll call found present: Kevin McKeown, Nick Petrish, Erica Pickett, Brad Adams, Bill Turner, Cynthia Richardson and Brian Geer. Roll call was followed by the Pledge of Allegiance. Minutes of Previous Meeting Mr. Geer moved, seconded by Mr. Petrish, that the minutes of May 3, 2010 be approved as if read. Vote: Ayes— Petrish, Pickett, Adams, Turner, Richardson, Geer and McKeown. Motion carried. Citizen Hearings No one present wished to speak on any items not on the regular agenda. Mayor/Council Communication Mayor Maxwell read letter from the Department of Ecology awarding the Anacortes Wastewater Treatment Plant an outstanding performance award for 2009. The award recognizes compliance with all the requirements of the plant's NPDES permit. Anacortes was one of only 87 out of 500 plants statewide to achieve full compliance with its NPDES permit criteria in 2009. Mayor Maxwell commended the WWTP operators for working to such high standards. Mrs. Richardson thanked everyone involved in the 2010 Waterfront Festival which was a big success and drew many locals and visitors. Mr. Adams reported that the Anacortes Farmer's Market opened Saturday and said there was a good crowd and many local products were featured. He reminded that the Market is open 9 a.m. to 2 p.m. each Saturday through October 15. Unfinished Business: Update-Vacation of 11th Street West of B Avenue (Ortman) Planning Director Ryan Larsen provided a brief update on this issue. He reported that the Ortman street vacation will not likely include Mr. Wynn's property as originally proposed. Mr. Larsen said per Council direction following the public hearing in February, staff is working with Mr. Ortman's attorney to finalize easement language and working with a surveyor to get an exact legal description for the easement. Mr. Larsen said he hopes to bring back both an ordinance and final easement language to Council at the June 7, 2010 regular meeting. Consent Agenda Mayor Maxwell asked Council's approval to move to the Consent Agenda Item 7b, the Interlocal Services Agreements for Reciprocal Library Borrowing with the City of Sedro-Woolley and the Upper Skagit Library District. The Mayor noted these agreements use the same language as the recently approved agreements with Burlington, Mount Vernon and La Conner. Mr. McKeown moved, seconded by Mr. Geer, to approve the following Consent Agenda items. Vote: Ayes — Pickett, Adams, Turner, Richardson, Geer, McKeown and Petrish. 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 May 6, 2010 and May 13, 2010 are approved for payment as of this date May 17, 2010. Claims Warrants May 2010: Warrant Numbers 55584 through 55787 in the total amount of$944,587.28 EFT Claims May 2010: EFT Numbers 55575 through 55583 in the total amount of$3,288.94 Anacortes City Council Minutes May 17, 2010 1 Payroll for May 5, 2010 in the total amount of $824,800.28 Warrant Numbers 34733 through 34786 in the total amount of$60,420.98 Direct Deposit Numbers from 35086 through 35283 in the total amount of$524,509.20 EFT Numbers from 1123 through 1128 in the total amount of$239,870.10 Cancellation of Warrants Claims Warrant Number 55747 in the total amount of$1,523.07 In the same motion Council: Approved Resolution 1800 setting a Public Hearing date of June 7, 2010 for a Petition to Vacate the alley adjacent to Lots 6, 7 and half of Lot 8, Block 14, Bowman's Addition; Approved the Interlocal Services Agreement between the City of Sedro-Woolley and the City of Anacortes to Establish a Pilot Project for Reciprocal Library Borrowing; and Approved the Interlocal Services Agreement between the Upper Skagit Library District and the City of Anacortes to Establish a Pilot Project for Reciprocal Library Borrowing. Closed Record Hearing and Appeal: Preliminary Plat and PUD—Hidden Shores Before opening the hearing Mayor Maxwell asked Councilors if they had any conflicts to disclose. Mr. Turner stated that he has in the past done business Schemmer Engineering but didn't feel that constituted a conflict. Mrs. Richardson disclosed that she also has done business with Schemmer Engineering and that appellant Barth's company did landscaping at her home last year but stated that she has never spoken to anyone in either firm about the project under discussion and so sees no conflict. Mr. Larsen asked Council to review the recommendation of the Planning Commission and consider the appeal filed by applicant Jerod Barth for the Hidden Shores development project. Mr. Larsen proposed that after a brief staff presentation the appellant be given ten minutes to present, that Evergreen Islands then be given ten minutes to present, that parties of record then be given three minutes each to speak if they desire, that the appellant then be given five additional minutes to respond to the evening's testimony, and that the hearing then be closed and Council deliberation begun. Mr. Larsen reminded that at a Closed Record Hearing no new information can be introduced. Mr. Larsen summarized that on May 21, 2008 the applicant submitted an application for a 12-lot PUD and preliminary plat. After public hearing before the Planning Commission in February 2009 the Commission asked the applicant to revise and resubmit the application which he did including new Tyler Way right of way and a thirteenth lot. A new public hearing was held before Planning Commission in February 2010. The Commission formalized its Findings of Fact on April 14, 2010 recommending denial without prejudice. Applicant Mr. Barth filed a timely appeal of four items of the Planning Commission recommendation. Mr. Larsen provided the staff recommendation on each of those four items. Regarding LID standards, Mr. Larsen said the Planning Commission made no specific finding and staff suggested this appeal item be dismissed. Regarding overflow parking on Tyler Way, Mr. Larsen said if the project is approved the applicant will have to obtain an encroachment agreement for the parking so staff recommended Council uphold the appeal of this item which will refer it back to staff. Regarding gated communities, Mr. Larsen said the AMC does not specifically prohibit them but the Planning Commission did not support the concept. Both the Fire and Sanitation departments indicated they can support gates as long as Opticom or keypad access is provided to them. Staff recommended this appeal item be upheld. Regarding Anaco Bourn, Mr. Larsen underscored the following points from the staff recommendation. He recalled that on November 20, 2006 Council directed revision of AMC 17.70.540(A)(7)(a) so that Anaco Bourn continues to be listed as a Fish and Wildlife Habitat Conservation Area (FWHCA) but that"(given the particular characteristics of this FWHCA 17.70.540(A)(7)(c) will be applicable to portions of this stream corridor)." Mr. Larsen continued that the referenced AMC Chapter 17.70.540(A)(7)(c) encourages property owners or developers to open up or daylight portions of streams that are in culverts or artificial ditches as of 12/31/03 and entitles such streams to 10-foot buffers if provided with enhanced buffer planting. Based on the history of the code change and the fact that staff Anacortes City Council Minutes May 17, 2010 2 can see no section of Anaco Bourn upstream of the detention pond that would benefit from the application of AMC Chapter 17.70.540(A)(7)(c), staff suggested that the portion of Anaco Bourn that the code change addresses is the section from the Marine Heights detention pond outfall to some portion of the Hidden Shores property. Jerod Barth, 1135 Whistle Lake Road, appellant, introduced his engineer John Johnston of Schemmer Engineering. John Johnston, 16185 Lookout Lane, Bow, WA, 98232, stated that Critical Areas Reports have to be prepared by a professional wetland scientist per AMC 17.70.330(A). He said that two professional reports were prepared for Anaco Bourn, the first by SWCA's Mirth Walker, Professional Wetland Scientist 000415, who called Anaco Bourn on the subject property an artificial drainageway, and the second by Charlie Newling, Wetland Science Applications, Inc., PWS 000131, who called Anaco Bourne an erosion gully. Mr. Johnston continued that per code cited previously by Mr. Larsen, if Anaco Bourn was in an artificial drainageway as of 12/31/03, a 10-foot buffer applies. He said the final plat for Marine Heights in 1997 called Anaco Bourn a manmade stream. He concluded that in 2006 when then- owner Rob Seip asked to have the Anaco Bourn delisted as a FWHCA, it wasn't delisted but Mr. Johnston understood it to have been given a 10-foot buffer since in his opinion the only reasonable portion of the Bourn to which the new code could apply was the on the subject property. Mr. Barth returned to the podium and referred to the appeal paperwork he had submitted. He concluded that the best available science was brought forward as mandated by code and experts determined that the waterway was not in hydric soils and was not a natural waterway. Mr. Barth said the "portion"of Anaco Bourn to which AMC Chapter 17.70.540(A)(7)(c) applies was the section studied by Charlie Newling, "the segment east of the culvert and in the undeveloped Burrows street right-of-way upslope to the detention pond constructed at the Marine Heights development." Mr. Barth quoted Newling as calling that section an artificial ditch. Mr. Barth then quoted Mirth Walker's report stating that the "the stormwater drainage in the upslope eastern portion of the site does not follow a natural stream drainageway and that it was not constructed in hydric soils." He said that Wendy Cole of Washington Department of Fish and Wildlife (DFW) determined that above Hidden Shores there was natural waterway and because it is hydrologically connected to Barth's property it is considered `waters of the state' but she called it"highly modified." Mr. Barth acknowledged that the project would require an HPA permit to enhance the waterway to DFW standards. Mr. Barth concluded that Anaco Bourn would benefit from his project and that has been his goal from the beginning. Tom Glade, 210 Mansfield Court, speaking on behalf of Evergreen Islands, said the Planning Commission considered many facts that Council doesn't have time to look at. Mr. Glade recalled past instances of differing assessments by consultants. He said that Ms. Cole of DFW retracted her initial assessment when she learned that the origin of Anaco Bourn is in the ACFL. On behalf of Evergreen Islands, Mr. Glade asked Council to honor the work of the Planning Commission and the Critical Areas Ordinance and deny the appeal. Ross Barnes, 1004 7t" Street, stated that hydric soils are indicators for wetlands but not necessarily for streams or rivers. Mr. Barnes stated that twice in 2006 and then again in 2010 the Planning Commission considered a mass of data and concluded that project proponents' consultants were non-credible. He said that Wetland T should be correctly identified as an extension of Marine Heights Wetland A and that 50- foot buffers are required along both the River Clyde and Anaco Bourn. Mr. Barnes stated that Council correctly decided in 2006 that portions of Anaco Bourn, particularly those in Marine Heights, qualified for 10-foot buffers but did not specifically determine that any portion of the Bourn on the Hidden Shores property qualified. Mr. Barnes continued that the applicant has not proved that the Bourn downstream from the drainage easement area is anything but a natural stream swale. Mr. Barnes argued that the SWCA characterization of Anaco Bourn has been refuted by other expert reports that are part of the record. Regarding wetlands, Mr. Barnes argued that the applicant's mitigation proposal cannot meet the mitigation requirements based on the wetlands on site. He referred to an overhead demonstrating that Wetland T is not an isolated Category 4 wetland but part of the Marine Heights Category 3 wetland and so requires 60 foot buffers. He argued that the Corps of Engineers wetland mitigation plan approval letter is irrelevant and obsolete. Mr. Barnes concluded that the applicant's proposal is unfeasible with 50-foot buffers around the wetlands and the River Clyde. Anacortes City Council Minutes May 17, 2010 3 Mayor Maxwell then invited testimony from any other members of the audience who had previously testified on the record. Andrew Stewart, 2003 M Avenue, president of Friends of the Forest, urged Council to support the Planning Commission findings. Mr. Stewart spoke to the importance of the Anaco Bourn as a wildlife corridor to the ACFL. He noted that the Critical Areas Ordinance and the ACFL Comprehensive Plan strongly support wildlife corridors and said that the Anaco Bourn should be respected as an important wildlife corridor. Mr. Barth was invited to return to the podium for rebuttal. He emphasized that he has never refused to submit any information to the City. He also said the Corps of Engineers permit is for the entire property including Wetland T. Mayor Maxwell then closed the Closed Record Hearing and invited Council to deliberate. Mr. McKeown asked Mr. Barth why DFW reversed its original finding. Mr. Barth explained that Wendy Cole originally saw water bubbling out of the 12-inch conduit and said it was from the Marine Heights detention pond, then on a second visit saw water above Marine Heights and determined that water feeds into the detention pond along with other runoff so revised her opinion to deem the Bourn `waters of the state', regardless of the size of that contribution to the flow. Mr. McKeown asked Mr. Barnes why DFW reversed itself. Mr. Barnes said that in 2006 Evergreen Islands demonstrated the stream starts in the ACFL, draining a 160-acre watershed, and that they invited Wendy Cole back to the site to demonstrate that after they saw her original letter. At that point she changed her determination to recognize the Bourn as `waters of the state.' Mr. Adams asked Mr. Barnes if the stream flow depicted on his overhead is the current actual agreed upon flow. Mr. Barnes said yes. Mr. Larsen noted this is Exhibit 19. Mr. Petrish asked Mr. Barnes what date DFW last came to the site. Mr. Barnes replied this spring. Mrs. Richardson noted the DFW letter in Exhibit 11 is dated 2/12/10. Mr. Turner said he is familiar with the area and that there are 130-150 acres of the ACFL that drain into that waterway, then about 20 acres of Marine Heights, and that he has no doubt that the majority of the water in the Bourn is from the forestlands. Mr. Larsen reminded Mr. Turner that no new information can be introduced in a Closed Record Hearing. Mrs. Richardson said in sorting through the voluminous record, the issue of 10-foot vs. 50-foot buffer comes down to the specific wording of AMC Chapter 17.70.540, which includes the phrase " ... and return streams that are in artificial ditches to a more natural state." She said the proposed project will neither daylight a culverted stream nor return a stream that is in a ditch to a more natural state. Anaco Bourn is in a natural state now, she said, and whether or not it is a particular category of stream, nothing in the project proposes to make something that is unnatural more natural. She said the AMC section was specifically written to encourage naturalization of artificial waterways and that if a waterway is already natural, as in this case, no matter what the applicant does it will be less natural than now. She concluded that she can't see that this project meets the criteria for earning the right to 10-foot buffers. She noted that the developer can come back and argue which buffer is appropriate but AMC Chapter 17.70.540 does not apply. Mrs. Pickett acknowledged Mrs. Richardson's argument but also recognized that DFW's first determination was that the water on the subject property was in ditches. It was only when DFW visited the headwaters in the ACFL did Ms. Cole decide the Bourn was `waters of the state.' Mrs. Pickett also acknowledged public frustration about the lack of wildlife corridors. Mrs. Pickett said she would like the City Attorney's opinion since the staff recommendation in the record says the quoted AMC section was written to apply to this stretch of Anaco Bourn and that it qualifies for 10-foot buffers. Mr. Geer asked Mr. Larsen if everything in the project area has already been altered or whether any part of it is still in its natural state. Mr. Larsen referred to the overhead and said that the City did do some work Anacortes City Council Minutes May 17, 2010 4 below the detention outfall, noting that filter fabric fencing is visible under the stream, and then at some point downstream the water was allowed to drain to where it would naturally drain to. Mr. Geer asked Mr. Larsen if he had understood the testimony correctly that there are natural headwaters that enter underground pipes at Marine Heights and then flow onto the subject property and asked again if the water flowing over Hidden Shores is natural or in man made ditches. Mr. Larsen said that the water flows out of the Marine Heights detention pond in a pipe and is channeled to a drainage easement that the City has on the Hidden Shores property, then is directed towards the River Clyde. Mr. Geer asked Mr. Larsen how much of the property is natural stream. Mr. Larsen replied that he didn't know. Mr. Geer said Council needs to know that because it sounds like they are trying to put buffers around manmade ditches. Mrs. Richardson clarified her earlier comments, noting that Council has not made a site visit since the Seip proposal several years ago. She said that if there are portions of the waterway that are human constructed ditches of recent creation then the 10-foot buffer could apply if the appellant were to return the altered streambed to a more natural state. However, she said, her understanding is that the bulk of the property is still in a natural state so the 10-foot buffer wouldn't apply there. Mr. Adams asked Mr. Johnston how he justifies the 10-foot buffer. Mr. Johnston replied that per the AMC, two professional wetland scientists said the stream is artificial. He described again the course of the water from the ACFL through various manmade structures to control it. Mr. Adams asked how the project plans to enhance the Bourn and make it more natural. Mr. Johnston said if DFW declares a waterway to be `waters of the state'the alterations are controlled by an HPA permit. Mr. Geer said there is enough confusion in the testimony that he needs a third party opinion on how much of the waterway has been altered. He suggested either a site visit or a third party report. Mrs. Richardson suggested a site visit as well. She said several Councilors did attend site visits before but conditions have changed and everyone should have the same, current information. Mrs. Pickett asked to postpone a decision until the City Attorney can be present to offer his opinion. Mr. Geer said he would rather have an expert opinion than a site visit. Mayor Maxwell asked Mr. Larsen if the wetland reports by City consultant ATSI are part of the record. Mr. Larsen said he would check. Mr. Petrish agreed with Mrs. Pickett that the City Attorney needs to be present to offer a legal opinion. Mrs. Richardson moved, seconded by Mr. Geer, to table the matter until the next regular City Council meeting on June 7 so the City Attorney can be present. Vote: Ayes—Adams, Turner, Richardson, Geer, McKeown, Petrish and Pickett. Motion to table carried. Mayor Maxwell reminded all present that the Closed Record Hearing is closed and that no new testimony may be introduced or presented to Councilors in any format in the interim. Mr. Turner said he still felt a site visit would be appropriate. Mayor Maxwell said that issue can be addressed when the matter is taken off the table at the June 7, 2010 regular meeting. At 8:48 p.m. Mayor Maxwell called an eight minute break. At 8:56 p.m. the Mayor called the meeting back to order. Bid Award: Flounder Bay Dredging Ordinance: Amending Flounder Bay Area-Specific Rates Flounder Bay Private Agreement Authorization Task Order Amendment: Dalton, Olmsted & Fuglevand, Inc. - Flounder Bay Dredging Consultant Assistant City Engineer Eric Shjarback provided a brief overview of these four related agenda items pertaining to the Flounder Bay Dredging Project. He explained that the Skyline Marina is made up of public waterways and privately owned areas and noted that owners and users are responsible for maintaining the public waterways. He said there has been no major dredging there since the marina was built in the 1970s and the entrance is particularly in need of dredging but the over 500 separate owners were unsure how to coordinate and fund the work. As Phase I of this project, in 2007 the City partnered with the Dredging Advisory Committee (DAC) to explore the feasibility of the project. The area-specific stormwater utility was developed in Phase I as a billing mechanism to fund the public portion of the project. In 2008 Phase II undertook design and permitting for which the City hired consulting engineer Dalton, Olmsted & Fuglevand, Inc. (DFE). Ballots went out to property owners to determine who was willing to pay for what where. A fee formula was developed by the DAC that depends on size of dock, Anacortes City Council Minutes May 17, 2010 5 useable dock space and distance from the entrance of the marina. Phase III is now getting underway to actually perform the dredging. Mr. Shjarback reported that the project was advertised in March and bids were opened May 7, 2010. Pacific Pile and Marine was the apparent low bidder at $1.9M vs. the Engineer's Estimate of$2.4M. He said Pacific Pile and Marine is currently working in Fidalgo Bay on the Port's Scott Paper Mill site cleanup project. The dredging window for the Flounder Bay dredging project opens July 16 and the project must complete by October 2010. Mr. Shjarback underscored that Phases I and II were public work only financed through utility billing but Phase III is a public-private partnership to achieve economies of scale using a single contractor to perform the work but will be paid for with a combination of public funds for the work on the public waterways, paid via stormwater fees over the next five years, and private funds for the private work, which will be prepaid by the private owners. He said the entire project will be managed by the City and its consultant, DFE. Mr. Shjarback summarized that four items require action: approval of bid award to Pacific Pile and Marine (Item 7c), approval of an ordinance amending the area-specific stormwater rates to fund the public portion of the contract (Item 7d), authorization for the Mayor to enter into funding agreements with each of the private property owners (Item 7e), and a task order amendment to DFE for consulting services (construction oversight, environmental monitoring, bathymetric surveying) for Phase III (Item 7f). Mr. Turner noted the estimated dredging cost of$856K and asked how much the final cost might differ from that. Mr. Shjarback said the estimated costs are a maximum for the given scope of work and can't increase unless a signed change order is issued. He noted pay quantities will be determined by before and after bathymetric surveys. Mr. McKeown moved, seconded by Mr. Turner, to approve agenda Items 7c, 7d, 7e, 7f as outlined by Mr. Shjarback. Mr. McKeown and Mayor Maxwell thanked everyone who worked so hard on this productive private-public partnership. Vote: Ayes—Turner, Richardson, Geer, McKeown, Petrish, Pickett and Adams. Motion carried. Bid Award: Depot Site Plaza, Phase I Mr. Shjarback referred to Parks Director Gary Robinson's presentation at the Council Study Session on May 10 outlining the scope of work of this first phase of the project to install permeable pavers and utility infrastructure immediately north of the Depot building. Mr. Shjarback announced that after the bid opening on May 12 the apparent low responsive bidder was RJ Lampers Construction Company, Inc. (Snohomish) with a bid of $61,270.40 including tax vs. the Engineer's Estimate of$90K. Mr. Shjarback asked Council to award the Task Order Agreement to RJ Lampers. Mr. Turner asked the dates of the construction window. Mr. Shjarback replied that the work will be performed in June with a completion date of Friday, July 2, 2010 in time for the 4 h of July weekend. Mr. McKeown moved, seconded by Mr. Adams, to award the bid to RJ Lampers. Mrs. Richardson asked if the City and Port have finalized the proposed property transfer in that area. The Mayor said the details are still being worked out. Mrs. Richardson noted that Phase I of the Depot Site Plaza project is all on property currently owned by the City. Vote: Ayes— Richardson, Geer, McKeown, Petrish, Pickett, Adams and Turner. Motion carried. Mayor Maxwell noted that the bid amount leaves the City approximately$30K of STP grant funds to use at the Depot property. There being no further business, at approximately 9:10 p.m. Mayor Maxwell adjourned the regularly scheduled Anacortes City Council meeting of May 17, 2010. Anacortes City Council Minutes May 17, 2010 6