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HomeMy WebLinkAbout1974-02-06 Special MinutesFebruary 6, 1974 8:00 P.M. SUBJECT CALL TO ORDER ROLL CALL OF COUNCIL MEMBERS MEETING DISCUSSION Letter, from the Segales to Mayor Strander William F. Hennessey, Attorney Sammamish Commercial Company Tukwila City Council Minutes Agreement City of Tukwila Sammamish Commercial Co. se7 TUKWILA CITY COUNCIL Tukwila City Hall SPECIAL MEETING Council Chambers M I N U T E S SAMMAMISH COMMERCIAL DEVELOPERS AGREMENTS AND RELATED MATTERS Council President Pro -Tem Sterling called the Special Meeting of the Tukwila City Council to order. GARDNER, STERLING, DAVIS, HARRIS. Council President Pro -Tem Sterling explained Councilman Traynor was absent because of illness in his family and Councilman Saul had a previous couuuitment. MOVED BY HARRIS, SECONDED BY DAVIS, THAT COUNCILMAN TRAYNOR AND COUNCILMAN SAUL BE EXCUSED. CARRIED. President Pro -Tem Sterling explained the purpose of the Special Meeting. Reference was made to a letter dated November 24, 1965 to Mayor Strander from Mssrs. Louis and Mario Segale concerning proposed rezoning, Union Pacific Railroad et al, Hearing of November 18, 1965. The letter advised the City of a "drainage easement 15 feet in width and extending 1,006 feet northerly over petitioners' lands to a slough which in turn flows into Green River." And also, "A change in rezoning from R -A to C -M will permit petitioners to con- struct extensive improvements on their property thereby precluding the undersigned [the Segales] from servicing and maintaining their easement. The undersigned have no desire to impede the development of the petitioners' lands, but any such development must take into account the rights of adjoining property owners who will be affected thereby." This rezoning was reconuuended by the Planning Commission. Attorney Hennessey asked for copies or to see copies of the docu- ments being reviewed by the Council President Pro -Tem. Attorney Parker offered copies he had in his file. Reference was made to the Tukwila City Council Minutes of May 15, 1967 which stated, "Mr. Beyer, representing Sammamish Commercial Co. spoke to Council in regard to proposed drainage plan for the south portion of the City. The drainage plan presented by Mr. Beyer would involve Sammamish Commercial Co. property. It was noted that if Council did approve this proposed plan, the improvements would be put in at no cost to the City. Mr. Hill stated that the proposed plan is a good plan, the plan has been verbally approved by Puget Western and it does meet with our requirements. After a brief dis- cussion with Council, Mr. Gardner moved that Council accept this drainage plan from 180th and Southcenter Parkway North to Minkler Blvd., including all of the property owned by Sammamish Conmiercial Co. Seconded by Mr. Minkler and carried. Mr. Hodge will draft an ordinance in this regard." Reference was made to the Agreement dated May 24, 1968 between the City of Tukwila and the Sammamish Commercial Co. President Pro -Tem Sterling read the Agreement. The original map was displayed and Councilwoman Davis pointed out Parcels 1 and 2. As stated in the Quit Claim Deed dated January 8, 1968 Parcel 1 is outlined in red and Parcel 2 is outlined in green. This map was later identified as Exhibit C. A reference was made to Paragraph 5 of the Agreement which stated, "Upon completion of construction and upon the certifi- cation from the City Engineer that "The Development" meets the mini- mum standards of the City, Developer shall assign and convey all permanent facilities of "The Development together with necessary easements, to the City. Said easements shall be for general utility construction." It was noted that Paragraphs 1 and 19 were of impor- tance also and were read. Paragraph 1 stated, "The land or real property for which the "The Development" is requested and to which this agreement applies is real estate in Tukwila, Washington, des- cribed in Exhibit A, which is by this reference made a part thereof as if set out in full." And Paragraph 19 stated, "This 2greement shall constitute an easement and servitude and a covenant running with the land upon the property described in this agreement shall be binding upon the heirs, assigns and successors in interest to the Developer." Councilwoman Harris referred to and asked President Pro -Tem Sterling to read a portion of Page 1 of the Agreement which TUKWILA CITY COUNCIL SPECIAL MEETING February 6, 1974 Page 2 MEETING DISCUSSION Cont. Agreement Cont. Ord. #543 Second Addendum to Developer's Agreement (First) Addendum to Developer's Agreement Mr. Ken Harris Attorney Hennessey City Council Minutes, October 15, 1973 se8 stated, "WHEREAS the Developer desires to construct certain sani- tary sewage facilities, water distribution facilities, storm drain- age facilities and streets at its own costs for a portion of said property for connection with, delivery to and operation of the City. Said improvements are hereinafter called "The Development Reference was made to Ord. #543 dated March 17, 1969 with Exhibit C as an attachment. The map known as Exhibit C was displayed as the Comprehensive Drainage Plan for the area shown in red with the pipeline shown in green. Councilwoman Harris requested that Coun- cilman Gardner give a background of the Comprehensive Plan. Presi- dent Pro -Tem Sterling concurred and gave Councilman Gardner the floor. Councilman Gardner stated ten years ago, the Soil Conserva- tion Service decided to drain the valley floor with pumps and ditches. When industry began, it was then a flood plain and we had to get a flood permit for each building being constructed, so instead, we made a Comprehensive Plan of the area. When this was approved, we would follow that Plan for the entire area it was up to the City to do so. There were three different areas in the Plan, each one accepted separately on the basis of both 60" lines which would enable us to develop in the area. He stated the City had hoped the pumping station would have gone in sooner. He stated Exhibit C was filed with the Dept. of Ecology. Mary Lehto, Record Chronicle, stated that the map shows both 60" lines and the Dept. of Ecology was not yet established at that time. Councilman Gardner stated the map was filed at a later date. Reference was made to the Second Addendum to the Developer's Agree- ment, dated April 27, 1970. President Pro -Tem Sterling read the document. Reference was made to the Addendum to Developer's Agreement dated March 17, 1970 and was read by President Pro -Tem Sterling. Council- woman Davis asked Councilman Gardner about the size of the existing pipe. Councilman Gardner replied the pipe is 60" corrugated steel which because of the corrugation is really only 48" inside diameter and it runs for approximately 2,500 feet. President Pro -Tem Sterl- ing asked Attorney Parker if this is sufficient evidence to hold up in court. Attorney Parker stated he has seen all of this before and had hoped to get new evidence at this meeting. Mr. Ken Harris asked if this installation had been funded by Federal money. He recalled an agreement with Sammamish Commercial Co. regarding a 90% grant on an installation. President Pro -Tem Sterling stated that this particular pipe was paid for by the company. Attorney Hennessey stated that it is not true that no Federal money was received and Sammamish Commercial Co. totally paid for this. Attorney Hennessey then inquired as to the purpose of this Special Meeting. President Pro -Tem Sterling stated this started out to be a work meeting for the Council for the purpose of bringing Council members up to date in regard to this information and especially to inform the new Councilmembers. Now the meeting has blown up into a big public meeting. Attorney Hennessey addressed himself to a comment made by Councilwoman Davis concerning the size of the 60" pipe and stated "the implication here is that Sammamish Co. stole out in the dead of night and installed this drain line. This is not the case. It was installed under City specifications, City in- spection and City supervision and we did what we were told to do. After we had done it, it was all under compliance. It seems un- reasonable to raise the point now. We have a letter from the Public Works Director accepting the drain line. And if it's too small, I don't see how my client can be criticized. Perhaps the pipe might not be as large as the City now wishes, but we did as we were re- quired to do. Another point I would like to see is that I heard from my client and read in the newspaper that it had been suggested that part of Sammamish is not to be eligible for building permits. He referred to the action of the Council on October 15, 1973 in which the Council decided as a City Council they would pass upon the issuance of permits on a case to case basis. I would urge upon the Council and Attorney Parker that the Council's action is com- plettl illegal, void and unconstitutional. It is shocking to the sensibilities of any fair minded person. The City Council does not TUKWILA CITY COUNCIL SPECIAL MEETING February 6, 1974 Page 3 MEETING DISCUSSION Cont. Addendum Cont. 5 have the right to pass upon the issuance of building permits on a case to case basis. When an ordinance is passed and if the appli- cant complies, anyone who meets the standards has a right to that permit. The Council should reflect on that. If the City does deny a building permit on a proper application, the applicant pays the fee and does what the ordinance says it must do, then he is entitled to that permit. There is no ordinance in the City that grants police power and no ordinance which can deny that permit. It has been rumored to our client that that is precisely what the City through its administrative staff proposes to do. It is not my duty to advise the Council or the City and I'm quite humble about law suits that have yet to be decided, but I have never seen one that couldn't be lost and that cuts both ways. It represents for the City an exposure. I don't think it is fair to call upon Mr. Parker publicly or privately to have him give some sort of assurance that you will not lose this law suit you can lose it, and if you do lose it, you are talking about a great deal of money. You as elected representatives have a responsibility to the citizens of this City. My guess would be that you haven't made any provision in your budget for payment for a substantial judgment. I know Mr. Parker cannot, will not assure you you cannot lose. You can lose just as we can lose." President Pro -Tem Sterling stated the Coun- cil has not acted upon denying building permits and this was not the subject of the Special Meeting. Attorney Hennessey stated as long as he were there he might bring it up because he feels quite strongly that a City Council can act only in certain ways and exer- cise only certain powers. It can regulate building as part of its police power, but only in certain ways. It can't do it by motion, ever. Westinghouse Councilwoman Harris stated one of the reasons why she wished to get Agreement second into the subject of the Developer's Agreement was to study the back pipeline ground material as thoroughly as possible. We do have the Develop- er's Agreement that seems to be consistent to the basic Agreement and the Addendum that there will be two lines, one is installed. When will the other be installed? Attorney Hennessey stated we should not argue our respective cases tonight since when we're all done, no one here will be able to decide. But in answer, Sammamish constructed a 60" line which was far in excess of what Sammamish needed for its own purposes. "The excess capacity was a gift to the upstream owners. I'm sure that the upstream owner was glad and grat- ified that he had free drainage built for him. In agreeing to con- struct that line, Sammamish did not agree that it did not have the right to use it. If second lines have to be constructed, for whose benefit must they be constructed." Councilwoman Harris stated the Agreement indicated there will be two, one on each side of the street at the sole cost of Sammamish Commercial Co. There's another Addendum calling for additional lines for the warehouse of Westing- house property. These are signed documents executed in good faith by the City and wouldn't we then under these documents have police power to insure that these certain terms are carried through. Attorney Hennessey stated there's no question of the good faith between the City and the participants. But do you think it's fair or just for Sammamish to build two 60" lines when it doesn't even need one? Councilwoman Harris stated Sammamish should have thought of that at the time they signed the Agreement. Attorney Parker City Council Minutes, referred to an excerpt from City Council Minutes of October 18, October 18, 1971 1971 stating, "Mr. Stack reported the installation of the storm drain on the East side of Andover West will come at a position in time when the other storm drain is needed. At that time when a developer requests a building permit it should be denied awaiting construction of the additional line. The City can always exercise authority and not issue any more permits until the second line is installed when it is necessary." The Minutes went on to state, "Mr. Stack further recommended the storm drain on the West side of Andover Park West be connected to the existing storm drain under South 180th and that property south of South 180th could develop and use the west line but when it is full someone will have to build the other line." And, "Mayor Minkler stated people involved have come to the best possible agreement. When the line reached TUKWILA CITY COUNCIL SPECIAL MEETING February 6, 1974 Page 4 MEETING DISCUSSION Cont. October 18 Minutes Cont. Agreement discussion S9d capacity, the City will have to come to a halt on the issuance of building permits." Attorney Parker stated that is where we are now. President Pro -Tem Sterling stated this Agreement tells him that this drainage system will be built according to the Comprehen- sive Plan and that both lines will be built and that "someone" in those Minutes is Sammamish Commercial Co. Attorney Hennessey stated that "someone" will have to build the line perhaps, but it does not mean to him that "someone" is Sammamish. This is just a difference of opinion in interpretation. But again, the point is how can you [the City] require Sammamish to build not one, when it doesn't even need the one, but two under your interpretation of the Agreement. President Pro -Tem Sterling stated the total drainage plan calls for two lines. The Comprehensive Plan was drawn up to fit the whole picture, and in the area where you are developing, we need two 60" lines. Attorney Parker read from the Agreement regarding the two 60" lines. A short discussion followed. Attorney Parker stated he would urge the Council's opinion upon the court. President Pro Tem Sterling stated he hoped Attorney Parker would exercise more effort on the Council's thoughts than the thought you just present- ed. Attorney Parker stated he could not go into court with some- thing without good cause for. In his opinion, the documents do not indicate at this time what the Council thinks they do. President Pro -Tem Sterling asked if Attorney Parker thought that the Agree- ment along with the Exhibits means that the developer will have to build both lines. Attorney Parker replied, "No, that there is another Agreement that stated that on the East side he will con- struct 600 feet of the 60" line. If the developer were going to do the whole thing, why would there be another Agreement for only 600 feet of it? I have spent many, many hours reading and re- reading these things and I hoped we would uncover something addi- tional here tonight. It is not up to this Council to interpret these documents it's going to be up to the man in the long black robes." President Pro -Tem Sterling stated, "Hopefully each Councilmember could be as fully aware as possible. For instance, I didn't realize that you felt that this Agreement signed by Samma- mish Conmiercial and the City of Tukwila with the Exhibits doesn't really mean that there will be two 60" pipes to be built." Attorney Parker replied it means that under the Comprehensive Storm Drainage Plan there will be two 60" pipes, but it doesn't mean necessarily that Sammamish Conu«ercial Co. is going to build them. Your inter- pretation is the Sammamish Commercial Co. is going to build every- thing necessary in this Plan, simply because its referred to as an Exhibit in this Agreement. President Pro -Tem Sterling asked why wouldn't the Exhibit show just one 60" line? Attorney Parker re- plied that the Agreement was prepared independent of the Exhibit and the drawing was prepared by the engineers and is referred to in the Agreement. They are going to develop a portion of the drain- age facilities outlined in the drawing. Then we have this other Agreement that indicates in front of the Westinghouse property there will be 600 feet constructed. If Sammamish were going to do the whole thing, then why have this second Agreement. Councilwoman Harris stated the second Agreement was accomplished so that Samma- mish could build the facilities in stages instead of having the financial burden of doing it all at once. In reviewing, this was the City's part to assist in the capital outlay. The Westinghouse Agreement was the first of what should have been several to install these facilities as they were developed. Attorney Hennessey stated that if we assume that the drainage basin extended for 20 miles so that in order to drain that you would have had to have a 5 mile pipe through the Sammamish property. Do you believe that Sammamish would have to build a drain large enough to serve that entire drain- age basin? Councilwoman Harris stated the County had assisted as well as the State Highway Dept. by building drainage facilities in the area which diverted drain water off the Sammamish property. President Pro -Tem Sterling asked if it was Attorney Hennessey's theory that Sammamish should only put in a pipe in front of their property that is only good enough for that property. Attorney Hennessey stated they agreed to put in a 60" line which is two or three times over the cost of our own benefit and we paid for it. President Pro -Tem Sterling asked if Sammamish didn't want to be responsible for oversizing a pipe or putting in two pipes because TUKWILA CITY COUNCIL SPECIAL MEETING February 6, 1974 Page 5 MEETING DISCUSSION Cont. Agreement discussion Cont. Mary Lehto, Record Chronicle Howard T. Poyer, Turkey House, Inc. City Council Minutes, October 15, 1973 6 l of the amount of water that comes from someone else. Attorney Hennessey stated we can't be in favor of taking our money and giving it to someone else across the road. This is what you are asking us to do. "If I were the upstream owner I would probably laugh myself to sleep at night when I thought of my good fortune." President Pro -Tem Sterling pointed out that this would project itself up along each upstream owner. Councilwoman Harris stated this was good planning to foresee the needs of the future and build to oversize now. Attorney Hennessey stated he could not agree more and the essence of the duty of the Council is to plan for the future needs of the City. "The Legislature has been thoughtful enough to provide a vehicle to give due fairness in the late- comers agreement which was adopted by this City by ordinance. This enabled the City to plan for the public improvements to go in at the proper time initially so you did not have to go back later and which also would have required the upstream owners when they connected within ten years to contribute their fair pro -rated share. At that time, the City Council then did not choose to avail themselves to that oppor- tunity. That lack of planning then is what has operated to deprive my client unlawfully of its money now, because our property can't be drained by the oversized drain which we put in at our own expense." Councilwoman Harris asked if there were any other developer's agree- ments on the East side of Andover Park East. City Clerk Shirlee Kinney stated she would check the files. Mary Lehto asked who has the easement in their title now and has everything been deeded over. Attorney Parker stated he could not comment on that. Mary Lehto then inquired as to the period of time when Mr. Botch finished the recent re- survey of the area, he referred to at that time to some implied agreements with Sammamish that they would not be involved in further construction costs of another line. Mr. Zepp may have made the comment that this would be unfair. President Pro -Tem Sterling stated he was unaware of this and it would have to be researched. Mr. Poyer stated he had put into plans check this mornIng the speci- fications for a Turkey House on Mr. Doce's property. In the after- noon, Barney Ruppert (Building Director) had told him building per- mits in that area may be held up due to the pending court case and requested him to sign a letter stating that acceptance of the plans check fee did not guarantee the issuance of the building permit. Mr. Poyer stated he told Steve Hall (Public Works Director) he would submit the plans and the check with the understanding he would not get his money back if he could not get the permit. So, am I going to go or no go? President Pro -Tem Sterling stated the purpose of the meeting did not include discussion of building per- mits. Mr. Poyer stated he had requirements to get going on his project within 90 days and was anxious about the situation. Presi- dent Pro -Tem Sterling suggested the Council would have more infor- mation on the building permits at its regular meeting Monday night. Attorney Hennessey quoted in reference to this the Council Minutes of October 15 which state, "MOVED BY CRAIN, SECONDED BY STERLING, THAT NO FURTHER BUILDING PERMITS BE GRANTED IN THE SUBJECT DRAIN- AGE AREA EXCEPT AFTER REVIEW BY THE CITY COUNCIL." Your City Coun- cil does not have that right. Councilwoman Harris stated the City is fast approaching a real problem that we only have 26 more acres eligible for development before the capacity is used up in the one line. We may have building cut down for us anyway because we cannot comply with the Comprehensive Storm Drainage Plan. "My function here as a Member of the Council is to act in the best interests of businessmen, industrial men, citizens of this City and the City as a corporation." I don't want the City to be on the line for a half a million dollars and I don't think the citizens need to foot the bill. As a Councilmember we are asked to make decisions that are very far reaching and I want to try to make a good decision. TUKWILA CITY COUNCIL SPECIAL MEETING February 6, 1974 Page 6 MEETING DISCUSSION Cont. ADJOURNMENT 9:23 P.M. President Pro-Tem Sterling indicated all the information available had been covered and called for Adjournment. MOVED BY DAVIS, SECONDED BY GARDNER, THAT THE SPECIAL MEETING ADJOURN. CARRIED. ATTEST: 7 c ,Jon Sterling, Presldent Pro-Tem -7, 71( l',LOY C: Shirlee A. Kinney, Cit$T Clerk S49