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HomeMy WebLinkAbout1993-11-01 Regular MinutesCITIZENS COMMENTS TUKWILA CITY COUNCIL MINUTES November 1, 1993 Tukwila City Hall 7:00 p.m. Council Chambers CALL TO ORDER Mayor Rants called the Regular Meeting of the Tukwila City Council to order and led the audience in the Pledge of Allegiance. ROLL CALL JOE DUFFIE; JOAN HERNANDEZ; STEVE LAWRENCE, Council President; DENNIS ROBERTSON; CHARLES SIMPSON; ALLAN EKBERG; STEVE MULLET. OFFICIALS LINDA COHEN, City Attorney; JOHN McFARLAND, City Administrator; RON CAMERON, City Engineer; ALAN DOERSCHEL, Finance Director; ROSS EARNST, Public Works Director; PHIL FRASER/TED FREEMIRE, Public Works; GARY SCHULZ, Urban Environmentalist; DENNI SHEFRIN, Associate Planner; LUCY LAUTERBACH, Council Analyst. SPECIAL PRESENTATION A certificate of honorary mention was presented by the ASCE (American Society of Civil Engineers) Past President Rick Gilmore to Ross Earnst for the City's Klickitat /53rd Ave. S. /S. 160th street project. Phil Hemenway, 4036 So. 128th Street, spoke regarding a lawsuit he is involved in, Hemenway versus Tukwila and King County. City Attorney Linda Cohen stated that the issue is currently in the Court of Appeals. CONSENT AGENDA a. Approval of Vouchers: Nos. 67554 through 67846 in the amount of $396,074.76 Res. #1275 b. A resolution adjusting the salary schedule for the Information Systems Coordinator position. c. Authorize Mayor to sign utility easements for the Strander sidewalk project. Res. #1276 d. A resolution approving the Central Business District (CBD) Tree Plan Ord. #1674 e. An ordinance reallocating the use of real estate transfer taxes within the Land Acquisition Recreation and Park Fund (301). f. Authorize Mayor to sign the McLeod Exhibition Center utility easements. MOVED BY HERNANDEZ, SECONDED BY DUFFIE, TO APPROVE THE CONSENT AGENDA AS SUBMI'I"I'ED. MOTION CARRIED. Tukwila City Council Regular Meeting November 1, 1993 Page 2 PUBLIC HEARINGS Ord. #1675 Renewing the Moratorium Relating to Adult Entertainment Establishments OLD BUSINESS Ord. #1676 Refunding Water /Sewer Revenue Bonds; Authorize Mayor to Sign Purchase Contract Mayor Rants opened the public hearing at 7:15 p.m. Hearing no response for the call for public testimony, the hearing was closed at 7:16 p.m. MOVED BY HERNANDEZ, SECONDED BY DUFFIE, THAT THE PROPOSED ORDINANCE BE READ BY TITLE ONLY. MOTION CARRIED. City Attorney Linda Cohen read AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, RELATING TO LAND USE AND ZONING OF ADULT ENTERTAINMENT ESTABLISHMENTS, AND TO LICENSING OF ADULT ENTERTAINMENT ESTABLISHMENTS; RENEWING A MORATORIUM ON ACCEPTANCE OF APPLICATIONS FOR, AND ISSUANCE OF, USE PERMITS AND BUILDING PERMITS FOR ADULT ENTERTAINMENT ESTABLISHMENTS; ESTABLISHING A MORATORIUM ON ACCEPTANCE OF APPLICATIONS FOR, AND ISSUANCE OF, BUSINESS AND OTHER LICENSES FOR ADULT ENTERTAINMENT ESTABLISHMENTS; AND DECLARING AN EMERGENCY. MOVED BY HERNANDEZ, SECONDED BY DUFFIE, TO ADOPT ORDINANCE NO. 1675 AS READ.* Mayor Rants explained that this is a renewal of the moratorium currently in effect. It is anticipated that a new adult entertainment ordinance will be brought to Council early next spring. Linda Cohen stated that she expected the licensing portion of the ordinance to be completed by Spring; however, the zoning portion might take longer as it must proceed through the Planning Commission before coming to Council. *MOTION CARRIED. MOVED BY DUFFIE, SECONDED BY EKBERG, THAT THE ORDINANCE BE READ BY TITLE ONLY. MOTION CARRIED. City Attorney Linda Cohen read AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, RELATING TO THE WATERWORKS UTILITY OF THE CITY, INCLUDING THE SYSTEM OF SEWERAGE AS A PART THEREOF; PROVIDING FOR THE ISSUANCE OF $2,835,000 PRINCIPAL AMOUNT OF WATER AND SEWER REFUNDING REVENUE BONDS, 1993, OF THE CITY FOR THE PURPOSE OF PROVIDING [A PART OF] THE FUNDS REQUIRED TO ADVANCE REFUND A PORTION OF THE CITY'S OUTSTANDING WATER AND SEWER REFUNDING AND CONSTRUCTION REVENUE BONDS, 1972, WATER AND SEWER REVENUE BONDS, 1986, AND WATER AND SEWER REVENUE BONDS, 1990, AND TO Tukwila City Council Regular Meeting November 1, 1993 Page 3 Old Business (con't) Refunding Water /Sewer Revenue Bonds Recess 7:28 p.m. PAY COSTS OF SUCH REFUNDING AND OF ISSUING THE BONDS; FIXING THE DATE, FORM, MATURITIES, INTEREST RATES, TERMS AND COVENANTS OF SUCH BONDS; PROVIDING FOR AND AUTHORIZING THE PURCHASE OF CERTAIN OBLIGATIONS OUT OF THE PROCEEDS OF THE SALE OF THE BONDS HEREIN AUTHORIZED AND FOR THE USE AND APPLICATION OF THE MONEY DERIVED FROM THOSE INVESTMENTS; AUTHORIZING THE EXECUTION OF A CONTRACT WITH PROVIDING FOR THE CALL, PAYMENT AND REDEMPTION OF THE OUTSTANDING BONDS TO BE REFUNDED; AND PROVIDING FOR THE SALE AND DELIVERY OF SUCH BONDS TO LEHMAN BROTHERS INC., SEATTLE, WASHINGTON. Finance Director Alan Doerschel introduced Hugh Spitzer, Bond Counsel from Foster Pepper Shefelman, and John Moore and John Keitz from Lehman Brothers, Inc. Doerschel explained that a month ago the City was at $95,000 net present value savings. At present, due to low interest rates and cost saving measures, the City will save $186,000. Doerschel explained that the City is not extending the bonds, it is just recalling the more costly bonds and replacing them. Doerschel noted that the revised ordinance just distributed to Council shows the following changes: the revised title shows the actual issuance amount of $2,925,000; page 16 shows all the blanks for maturity and interest rates filled in; (old) page 24, the Fiscal Agent Bond Registrar remains blank; (old) page 26, amount of $5,423.75 inserted for cash balance; (new) page 40, Section 24 added which contains language required by the bond insurer. MOVED BY HERNANDEZ, SECONDED BY DUFFIE, THAT ORDINANCE NO. 1676 BE ADOPTED AS READ AND AMENDED. MOTION CARRIED. MOVED BY DUFFIE, SECONDED BY LAWRENCE, TO RECESS FOR 5 MINUTES. MOTION CARRIED. Mayor Rants called the meeting back to order at 7:32 p.m. with Councilmembers in attendance as listed above. Tukwila City Council Regular Meeting November 1, 1993 Page 4 OLD BUSINESS Foster View SEPA Appeal REPORTS Mayor Rants invited Council to attend the November 10th Suburban Mayor Cities meeting Tukwila will host at the Double Tree Suites. Steve Lawrence reported that he has several issues pertaining to the airport which should be addressed. Briefly, they are: 1) half the City of Tukwila is within 55 LDN, which according to EPA is not suitable for residential areas; 2) one portion of the City, which includes Cascade Elementary School, is within 65 LDN which by FAA standards qualifies for mitigation; and 3) Lawrence stated that he is currently refinancing his home. He was told that since he is so close to the airport, the value of his home is 15 -20 percent less than it would be if he lived farther away. Rants stated he hoped there would be a way to expand the LDN lines to include part of the Cascade View area so the City can start getting into some mitigation for those residents that are impacted by the airport as it is now. Councilmember Robertson reported he received many calls from residents who were quite upset to find graffiti on the some of the new barriers on 160th and 51st. The barriers were sandblasted and cleaned up by the next day by a public works crew. Mayor Rants noted that the public works crews are spending many hours cleaning up the City on Monday mornings. Robertson encouraged citizens to notify the police of City officials if they see any type of vandalism occurring. Councilmember Simpson reported the City will present a Gang Awareness Training and K -9 demonstration at the Community Center on November 10th from 9:45 -1:00 p.m. Councilmember Robertson voiced the need to look at EIS processes and procedures in the future. MISCELLANEOUS Continuation of Foster View SEPA Appeal Verbatim transcript attached (5 pages) deliberations, Council voted unanimously to deny the appeals to the MDNS for Foster View Estates. (See attached verbatim transcript.) Councilmember Ekberg suggested announcements of public interest be done at the beginning of the meeting before Citizens Comments. Mayor Rants announced the public meeting dates for the Community Center discussions are November 17 at the Community Center and November 22 at the COW. Tukwila City Council Regular Meeting November 1, 1993 Page 5 ADJOURNMENT MOVED BY DUFFIE, SECONDED BY LAWRENCE, THAT THE MEETING BE ADJOURNED. MOTION CARRIED. 8:10 p.m. W. Rants, Mayor Jane E. Cantu, City Clerk 1 S 0 5 4- VERBATIM TRANSCRIPT Continuation of Foster View SEPA Appeal November 1, 1993 1 Mayor Rants: Continuance of the Foster View SEPA Appeal. Before I go to Council, I would like to go to the City Attorney. Linda Cohen. City Attorney: Thank you. I would just ask if any of the Councilmembers or the Mayor has had any ex parte communications with respect to Foster View in the last two weeks. (Council indicated they had not.) There was also a procedural question that was raised, I believe, by Ms. Carter and then again by Mrs. Lamb with respect to whether or not a decision had been made during the comment period for the mitigated DNS, specifically under the TMC 21.04.150, 4(e), it says "the City shall not act upon a proposal for which a mitigated DNS has been issued for 15 days after the date of issuance If you turn to the WAC provision 197 -11 -704 action is defined. And under 2a Project Action is a project action which involves a decision on a specific project and it goes on to explain in more detail a non project action also constitutes a decision. In this case the Planning Commission has made a recommendation with respect to the PRD. A recommendation is not a decision per se. Action has not been taken. It is not something that is ripe or appealable. And so, the procedure or process is in tact with respect to that one consideration. If there are any questions with regard to that, I'd be more than happy to answer. And also, I would ask that Mr. Beeler have an opportunity to address a procedural not a substantive issue with respect to agency notification of the Department of Fisheries. Mayor Rants: Mr. Beeler? Rick Beeler. DCD Director: One of the issues we followed up on was with the Department of Fisheries and their comments on the MDNS. So today we faxed to Joe Roble, Department of Fisheries, the MDNS. He reviewed that and provided his comments. He also got a copy of one of the geotechnical reports, and he gave us the comments that 1) an HPA hydraulics permit would be required. That's their normal requirement, and that it needs to meet their normal permit requirements. Secondly, he confirmed that if he had received the MDNS during the public comment period, he likely would not have gotten to it, not reviewed it unless somebody had called it to his attention and asked him to bring that up to the top of the pile. Those are the substance of his comments. In fact, it is his comments. Mayor Rants: Thank you. I'm going to follow the procedures as laid out in the TMC by beginning with the right hand side and coming through the Council. If you do not wish to speak at this time, I will come back to you and you will have an opportunity to do that. So, Joe? Would you like to pass at this time, Joe? Councilmember Joe Duffle: Yea. Let me pass. Mayor Rants: Joan? Councilmember Joan Hernandez: I have a question that I asked the City Attorney and I wanted to clarify it that the density issue that was raised by the appellant was not necessarily part of this appeal. That that would apply to the PRD and not to this particular issue. Is that the case? Cohen: I believe it would be appropriate when the PRD is considered. Density is certainly a legitimate consideration at that time. Hernandez: Thank you. Mayor Rants: Steve? 2 Council President Steve Lawrence: Regarding how we proceed -I would prefer that we proceed according to each individual item that was appealed by the appellant and we would come to Findings of Facts on those individually and then proceed from there to Conclusions. Mayor Rants: Does Council concur on that? Duffle: I concur with that. Lawrence: Is that appropriate? Cohen: However you would like to proceed. Perhaps it would be appropriate at this time to reiterate what I believe the two questions that you are facing at this time. After giving Mr. Beeler's decision substantial weight as it needs to be accorded both by TMC and RCW, the question is whether or not you are left with the definite and firm conviction that a mistake has been made number one with Mr. Beeler's not issuing an EIS, and two, whether or not the mitigating conditions imposed adequately mitigates substantial environmental impacts. Councilmember Dennis Robertson: Steve, I'm... Mayor Rants: Are you through Steve? Lawrence: I'll respond. Go ahead, Dennis. Robertson: I've spent a lot of time studying this. It seems to me again that there are two issues as Linda just stated, and I'm not sure we would clarify anything by going through each item especially since there's several different letters and their issues are raised back and forth. In looking at it two things came clear in my mind. First off I'm going to say is I don't believe that Mr. Beeler erred in the decision to issue and MDNS instead of requiring the full EIS. I don't believe that given the rules we're to follow and how we're to make the decisions, that that can be concluded. That's one point. I'm going to go into more detail in a moment. The second point is it's clear to me that the process the City followed, while it may result in a better project, and it is legal, I think in no way meets the spirit of the whole Environmental Impact Act. There certainly is not a feeling on the part of the citizens and the neighbors to this project that they were involved in decisions and had a chance to review or comment on things. So I don't think the process itself is satisfactory. I do not think, though, that there's a basis for overturning Mr. Beeler's decision. I think there is a basis for when this is over with for setting down and discussing with staff a different way to run a process, so that we really do meet more of the spirit of the Act. However, in looking at it, I thing there really were three categories of questions I came up with. One is how the process itself was administered. That was brought up many times by the appellant. And the process itself -there are possibly several small mistakes. In discussing with the City Attorney and reading through this book, the State Environmental Policy Act, I don't believe there is a basis for overturning his decision. In fact, the one point it talks about one of the court cases on page V10, CPC versus Camick Two Orchards said "Administrative Law- -Due Process Intermediate Hearing. Insufficient notice that a hearing resulting in a preliminary advisory decision is cured by adequate notice and an opportunity to be heard at a hearing leading to final action in the same matter I think it's very clear that there's been a very full hearing here, and I'm not sure that the small process issues based brought up are sufficient unto themselves to say that the process is really in error. That Mr. Beeler errored. Second, the other point in administering the process that was brought up was the whole issue of the density calculations were in error because of the definition of the term "sensitive area". I agree that that's a really interesting question, or there is a question there. However, as Joan just asked, that's a question for the PRD process. That is not a question for this particular issue here. And debating whether or not that that term was misused or misunderstood or the wrong definition right now, in Mayor Rants: Councilman Mullet? itself, is not a part of this process. At least that's what I've been told. So, leaving that one out, it seems to me the administration of the overall process, while there might have been some small errors made, wasn't it sufficient? The errors were not sufficient to say that the process has to be re- done. The second big issue Mr. Lamb brought up and I also looked into it. Almost at the same time I had our city attorney research it. And that was the idea of using a study as a mitigation. Because I also looked at the same definitions all the way through mitigation and went to Webster's and looked up some things, and came to the same conclusion Mr. Lamb did. Unfortunately, it doesn't appear that the courts share our interpretation of that. In fact, again in this handbook, on page V14 for Environmental SEPA Mitigated Determination of Non significance Conditions Studies; the entity responsible for determining the environmental studies of a project may, in a Mitigated Determination of Non Significance, that's what we're talking about here, (unclear) Environmental studies in which the ultimate approval of the project will depend. I don't understand how a court could come to that conclusion, but I don't get to make that decision. It is clear that studies can be used as mitigations future studies. So that point doesn't seem to be enough to say that Mr. Beeler errored. And then the third one is to say somehow that there is inadequate mitigation. Again, I saw no basis for that in what was presented by either side, especially since much of the final mitigation is dependent upon future studies to be done. So, Steve, I guess that in looking at the big issues, I couldn't come to a conclusion that there had been an error of either type. And that's all we get to deal with tonight. Mayor Rants: You have I believe answered Steve's question. You have given conclusions of fact at this point without going through each one. So if it's alright with the Council, we'll continue the same way? (Council indicated their concurrence). Simuson: I agree with Dennis. I don't agree with what has happened with the spirit of the SAO, and as we go through this preceding in the next year, I would hope the administration and the Council would bring the SAO back up because I think there's flaws in the SAO in the spirit- -the intention -of the SAO. And so.... Mayor Rants: Allan? 3 Councilmember Allan Ekberg: I also have come to the same conclusion as these two gentlemen to my right. I feel that the process has been followed as outlined by the state and regulatory requirements. And I also feel that the staff has gone beyond the normal call of duty by incorporating peer reviews into the design process. I feel that as a result of their efforts, they're meeting the minimum legal requirements as appropriate. I do have concerns about the PRD and how it may have been employed, but that's not an issue for discussion here tonight, and how the SAO applies to that issue. Councilmember Steve Mullet: We must be on a roll here I guess. After reading through this mass of paperwork, I waded through the sticker bushes on the property and I waded through this pile of papers at the same time. I think that Rick did the right process. I think they handled the processes within the legal bounds of SEPA which is what we're supposed to be deciding, so I, too, feel that the appeal should be denied. SEPA was a very interesting topic to get into, and as you read it, it really doesn't nail anything down. It's almost impossible to do it wrong, it's so vague, which is something that Rick pointed out to us. I also read through all the cases as Dennis did and found several which I won't even go into at this point, to uphold the city's handling of this matter. I was, as opposed to my colleagues, happy to see that the SAO protected some sensitive area but also allowed a piece of property to be developed which I did not feel was totally a sensitive area property. From my background and walking through the area, I felt there was as much good buildable property there in that 10 acre site than there was un- buildable property that needed maintaining. So I don't totally agree with the PRD as it came out, and we will review that at another time. But, overall I felt that /3S 4 the staff did a good job in mitigating this project and striving to balance between a sensitive area issue and the rights of the property owner which were to do with his property as it's zoned, which was build single family homes on it. So, at this point I feel pretty good about the process, and I'm grateful for the citizens and for their input and also for the opportunity to get into all of this and see how it works. I think it was an interesting process. Mayor Rants: Thanks, Steve. Joe? Duffie: I would concur with Mr. Beeler. I think he was more than within his rights what he did as a Planning Official. That's what we elected him to do, and he made those decisions. I do not think there was an error made. Thank you. Mayor Rants: Thank you. Are there any other comments? Hernandez: Sure. I'd like to make a few. I really sympathize with the citizens who brought these concerns forward because I was really concerned about this piece of property, too. And I couldn't agree more with Ron when he said that this piece seemed to be crying out for an environmental impact statement. So I listened very carefully, and I read everything that I was given to read, and I went out and actually walked the property, and I have the scars to prove it. And you know, after reading and listening, I understand now that there's no reason to believe that is an EIS was conducted, that it would result in any stronger mitigations on this property than there are imposed right now. And I also understand that if at any time the SEPA official fears that the impacts are not being adequately mitigated, he can stop and request and EIS. So I feel more comfortable knowing that. And it's a difficult decision, but we have to produce some overwhelming evidence that the SEPA official has errored, and I just find that it's just not possible to do that. I have sympathy with those who are concerned, and I hope that all the mitigation works as it's supposed to work and everything goes as smoothly as it can, as it should, because I know that this is a very sensitive piece of property. But also the guidelines that were given to make this decision are very, very rigid and we have to give Mr. Beeler's threshold decision must be accorded substantial weight, and to me, in order to change that, we have to provide some more overwhelming evidence that he's made an error. And I really can't say that he's made an error, even though I might not agree with it and even though it might not be my judgment, I can't say that he made an error. So, I would have to uphold that decision. Mayor Rants: O.K., Steve? Lawrence: Basically, I concur with what's been said. I came prepared to go through each individual appeal and discuss those, but the net conclusion is very similar to what's already been stated. With substantial weight given to the decision of the SEPA Official for the City, I think that it's fairly clear that an EIS would not have changed anything significantly different than the MDNS is doing. And that the proposed mitigations and their flexibility and their dependence on future studies and additional mitigations if needed, really indicate that the mitigations are probably as adequate as can be. Mayor Rants: Any more? Robertson: One more. As Mr. Beeler commented at the start of all of this and as some of you probably know, I got launched into sitting up here because of an issue very similar to this one and I understand the long nights that you spend trying to read through the material trying to figure it all out. There is one clear difference. The whole MDNS did not exist when I did my round of this kind of things. And with an EIS there's a much longer public process, more opportunity to review things debate them. And apparently, the state legislature felt that that was unnecessary in every case so they modified the law and they allowed and MDNS. If I said that right. And so it exists today. And by the definitions and what we've been told has been followed, has been legally END OF TRANSCRIPT 5 followed, it obviously does not result in a satisfactory process. So I think we can sit down and talk within our City how we can change that. But I also agree with what Steve and Joan said and everybody else said, that doing a long full blown EIS, while it might have provided better citizen input, at this point in the process, probably would have changed nothing. It would have, it's hard to think, taken longer for the applicant, but I doubt if the actual answers at this point would have been any different. Mayor Rants: Thank you. I would now address staff to prepare Findings and Conclusions for council review and acceptance or modification. It would be back to you in that way. Robertson: Can I ask a question -there is talk of the PRD, has to come before the Council. How soon will that happen is one question, and the second question, I'd like to I think Mayor Rants: The PRD is tentatively scheduled for November 29th. Robertson: O.K., the second thing. I've been told that it's not a quasi-judicial, but is it or isn't it. Cohen: It is. Robertson: It is quasi-judicial? Cohen: Yes. Robertson: It is quasi-judicial. That means we can't discuss it-- anything with anybody other than basically the City Attorney on legal points. Cohen: Right. Mayor: O.K., is there any other? Lawrence: I think for the audience's point of view we need to clarify that the Findings and Conclusions that staff will prepare are based exclusively on what we discussed up here. Mayor: Yes, they are. Ekberg: For my clarification when will the Foster Estates SEPA Appeal be officially denied? Mayor: Findings and Conclusions will come back to the Council. Council will either modify them or accept them and at that point it would be denied. Cohen: Officially the decision was made tonight, but... Mayor: Do we need to pass this as a motion? It would help? (Cohen indicates "yes Is there a motion from the Council to deny the appeal? Robertson: I make a motion to deny the appeals. I believe there were two appeals to the MDNS. Lawrence: I second that. That's for Foster View Estates. Mayor: For Foster View Estates. It's been moved and seconded to deny the appeals of Foster View Estates. Any further discussion? (no response). All in favor say "aye (unanimous response); those opposed: (no response). f3