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HomeMy WebLinkAbout1987-02-24 Special Minutes - Valley View Estates Appeal Public Hearing (Continued)February 24, 1987 Tukwila City Hall 7:00 p.m. Council Chambers M I N U T E S Public Hearing Reopened Council Members Present TUKWILA CITY COUNCIL PUBLIC HEARING CONTINUED VALLEY VIEW ESTATES APPEAL 53"7% *THIS IS NOT A VERBATIM TRANSCRIPT Mayor Van Dusen reopened the Public Hearing continued from February 23. MABEL J. HARRIS; WENDY A. MORGAN, Council President; EDGAR D. BAUCH; CHARLES E. SIMPSON; MARILYN G. STOKNES. Councilman McKenna is not present, to comply with the Appearance of Fairness doctrine. A court reporter is in attendance. Testimony Mayor Van Dusen commented that there was confusion at last night's meeting created by the change in attorneys. Attorney Haney addressed the problem from last night on pro- cedures. The attorney in attendance ruled that evidence was limited to the record of the Board of Architectural Review and their exhibits and that no new evidence could be pre- sented in this proceeding. Attorney Haney clarified that individuals who are appealing a Board of Architectural Review decision must state the grounds for appeal. Based on this, there is a limit on the amount of evidence that Council may consider. He stated that Council may hear any and all evi- dence, including the evidence that was before the Board of Architectural Review and any new evidence that relates to the specific issues on appeal. Council must decide whether the BAR, based on that evidence, on the BAR's record and any new evidence, failed to consider something or made an error; if Council finds that the BAR erred they may overturn their decision. If Council finds no errors on the part of the BAR, they should uphold their decision. Council may modify the decision of the BAR if they find an error that is correct- able. Attorney Haney suggested that the appellant should be allowed to introduce the evidence they were not able to sub- mit last night. Dennis Robertson, appellant, 16038 48th Ave. So., stated they are concerned. There is a real concern on the part of the citizens. They understand that the City lost a lawsuit and that the applicant was allowed to apply for a building per- mit. It has become apparent to them that the City is very concerned about potential litigation from the applicant. Because of this they feel the City has been doing everything to give the applicant every opportunity to present their case. This is appropriate to a point. If you look at what has occurred, it is inconceivable not to believe they have been treated unfairly. They have not brought counsel because it is expensive and this is their City. They can handle this themselves. During the first hearing, after they presented their case, there was discussion on hearsay evidence. The citizens left the hearing that night believing that what the appellants presented could not be considered by the Council. The citizens did not come back. The next night it changed. The applicant's attorney has interrupted us and challenged us. The City Attorney has been asking the applicant's attor- ney for opinions but he has not asked the appellant's. There are a lot of things like this. After several other examples, Mr. Robertson stated that they believe they have been treated unfairly. Last night they were not allowed to present all of their evidence so their testimony was out of context. TUKWILA CITY COUNCIL February 24, 1987 Page 2 VALLEY VIEW ESTATES APPEAL Testimony (cont.) S7 *THIS IS NOT A VERBATIM TRANSCRIPT Nobody could consider this fair. Tonight the Mayor, Attorney Haney, Mr. Beeler and Attorney Haggard held a meeting; we weren't invited. I'm not saying anything improper happened, but think about what that does to our moral. If this hearing is to be denovo there are several items we would like to pre- sent that we weren't allowed to last night. Mr. Robertson asked for a five minute recess to discuss the change in policy and the presenting of new evidence. RECESS 7:40 7:50 p.m. Mayor Van Dusen called the hearing back to order. The appellants have the floor. Dick Goe, appellant, noted that their presentations last night were based on the presumption they were going denovo. The change in procedure left their presentations rather frac- tured. Even so, they were able to point out the basic and numerous errors in the decisions of the BAR. The fact is that they were refrained from showing Council additional information to support their position. At this point, it may have lost significance. After discussion last night, it became obvious that to lengthen these proceedings is likely to destroy the ability of Council to make a decision in a timely manner. Tonight Mr. Duffie is not here, tomorrow night the Mayor will be gone, and Thursday night Mr. Bauch starts his vacation. Although they were ill- treated last night, the most expeditious position they can take is the same one they have always taken, and that is to try and help the City in its deliberations. He asked Council to go ahead and proceed, on the record. Attorney Haney offered, again, that the appellants are being given the opportunity to present the remainder of the evi- dence they didn't present last night. Mr. Goe said that in the interest of time and an expeditious determination, they will forego presenting the supporting evidence they tried to present last night. Joel Haggard, Attorney for the applicant, responded to the comments of Mr. Robertson and Mr. Goe. For the record, Mr. Goe, is not an appellant. This Council, Mr. Bauch, par- ticularly, asked Mr. Haney whether or not the record of the SEPA Appeal would be part of this hearing. During that pro- ceeding there were comments by way of argument that the appellants need not bring any experts here, and we don't need to listen to the high paid experts that the applicant has. There was no evidence in the record with respect to the pay received by anyone of the experts for the applicant. Last night we heard, again, discussion often repetitive, as the record will show if you listen to the tapes of the BAR appeal, and yet tonight the appellants are telling you in a very well presented preemptive strike made to make Council feel defensive. The appellants said they would like to pre- sent the information, but they are not going to. No clear, no definite statement by the appellants has been made. They continue to put Council in a defensive position. It is clear in listening to the comments tonight that they are suggest- ing, regardless of fact or reality, that they have been pre- judice because they assert that they have not been treated fairly. If you listen to the tapes of the BAR appeal you will hear the same arguments made before you in the SEPA appeal and then the same arguments you heard last night. The continued repetition does wear people down. It has been TUKWILA CITY COUNCIL February 24, 1987 Page 3 VALLEY VIEW ESTATES APPEAL Testimony (cont.) RECESS 8:25 8:40 p.m. 33 73 *THIS IS NOT A VERBATIM TRANSCRIPT suggested by the appellants that they have been treated unfairly because of restrictions on hear -say evidence. The appellants have said they didn't know what to do when they filed the appeal for the BAR. They did what the City staff told them; yet, you received a letter from their attorney who promised a detailed statement of objections. We still do not have it. Fairness is not one sided; it cuts both ways. At the BAR appeal, Mr. Kirsop indicated during the proceedings that it appeared to him that regardless of what the applicant did, it wouldn't be satisfactory to the appellants. (Attorney Haggard suggested that each Council Member listen to the record of the BAR appeal; this is what you're asked to sit in judgment on The appellants have just told you that you have messed them up; let them start over; let them do as much as they want so they can't put you in that kind of position. MOVED BY HARRIS, SECONDED BY SIMPSON, THAT IF THE APPELLANTS WOULD LIKE TO ADD ANY ADDITIONAL EVIDENCE, AND IF THEY ARE PREPARED TO DO SO TONIGHT, THAT THEY BE ALLOWED TO DO S0.* Dharlene West stated that it would not be fair for them to come now and give you this very disjointed presentation. Since they presented their case last night, and they did the best they could under the circumstances, they are not pre- pared with the evidence they were not allowed to use last night. The appeal process should go on as it was designated to do so last night. The City and the applicant should pre- sent their case with the same rules they had to use. Attorney Haney recommended that Council allow the appellants the opportunity to clarify the procedure for the record. If they want to take advantage of this, they may make their case. If they don't feel they can do it tonight, they can make a case for doing it another night. Attorney Haney clarified that the motion would be to take new evidence on particular issues. Once Council does this, it opens up the hearing to new evidence on the issues from both sides. If one side does not want to present that, the other side can still come back and present their evidence. *MOTION CARRIED WITH BAUCH VOTING NO. The hearing will be denovo. Dennis Robertson said they would like to go ahead. With the change in procedure, Attorney Haney administered the oath to all those wishing to testify. Anyone who is going to testify as to facts and evidence in the remainder of this hearing should be placed under oath. Mayor Van Dusen called the public hearing back to order. He commented that as Chairman of these hearings he is trying to be completely fair in the hearings in dealing with the appellants, the City and the applicant. Attorney Haney clarified again that the City staff are the ones defending the decision of the Board of Architectural Review. The applicant is here defending the project. The applicant did not appeal the decision of the BAR so we assume they are also defending the BAR decision or at least asking that the BAR decision not be altered in any significant way to impact their project. The applicant has a real stake in these proceedings and so does staff in defending the BAR decision which was based on staff's recommendation. TUKWILA CITY COUNCIL February 24, 1987 Page 4 VALLEY VIEW ESTATES APPEAL Testimony (cont.) he was in error at the time. Mr. Beeler presented the follows: Exhibit 36 Exhibit 37 Exhibit 38 Exhibit 39 Exhibit 40 Exhibit 41 Exhibit 42 Exhibit 43 Exhibit 44 Exhibit 45 Exhibit 46 Exhibit 47 Exhibit 48 8:55 p.m. COUNCILMAN DUFFIE ARRIVED AT THE MEETING. *THIS IS NOT A VERBATIM TRANSCRIPT Dick Goe, appellant, commented since the hearing has gone denovo, it is important that Council hear the things they tried to say last night. The information they are presenting now was only intended to support their contention that errors were made in the BAR decision. Mr. Goe discussed the matter of the outside noise attenuation and turned the floor over to Mr. Robertson for further comment. Attorney Haney asked to have exhibit numbers presented at this point. Exhibits 1 through 34 Exhibits from the BAR. Exhibit 35 BAR adopted Findings and Conclusions and deci- sion Tape recordings of the BAR Public Hearings. Council Agenda Synopsis. Issues for Council Background. Alternative City Council action. BAR History. Appeal Staff Report. Decision Form. Summary of Appeal Issues. Appeal letter of May 27, 1986, from Dennis Robertson. Appeal letter of May 29, 1986, from Dharlene Letter of May 29, 1986, from George Kresovich. Three page document from Dharlene West Unavoidable Adverse Impacts on Page 22 Two page document submitted by Mrs. West Noise Control by Acoustical Treatment. Exhibit 49 Submitted by Ann Crain Plant Legend for Valley View Estates. Exhibit 50 Staff Report dated May 22, 1986. Exhibit 51 Submitted by Dennis Robertson Report. during the BAR process they stated Dennis Robertson pointed out that /it would take a fence in excess of 30 feet;* he then read from the transcript of the BAR hearing on noise levels and use of barriers. The impli- cation was that a noise barrier that would do any good would have to be so high you couldn't build it. He reviewed the report he submitted for the record. The purpose of his calculations was to show that a barrier could be built. An 8 foot fence around the child's play area would almost reduce the noise to a satisfactory level. He reviewed barrier heights for recreation areas A, B, and C. Council should tell the applicant to reduce the noise level in the recreation areas by 20 decibels or that they should change the site layout and place the recreation area behind buildings. He pointed out that there are no interior recreation areas in the site plan, no swimming pool, no cabana, no recreation room. These people are either going to play outside or inside their apartment. It is only reason- able to give them a safe place for recreation. The BAR made a mistake. I have given you the proof. Robert Crain, appellant, said that nothing he said last night was new evidence. They have made a real effort during the BAR and again this time not to really be repetitive. This is a different body. Comments before the BAR are not repetitive TUKWILA CITY COUNCIL February 24, 1987 Page 5 VALLEY VIEW ESTATES APPEAL Testimony (cont.) 53 73 *THIS IS NOT A VERBATIM TRANSCRIPT when told to Council. They feel the BAR erred in making decisions. They have to repeat those things to Council. These are the things the BAR did not make good sound deci- sions on. They are not being repetitive. Dick Goe, appellant, introduced the staff information and the BAR decision in the matter of the North Hill Reservoir. This reservoir recedes adjacent to a single family dwelling area similar to that on McMicken Hill. They are trying to point out the approach used in landscaping to protect the off -site neighborhood from the impact of the site. The approach used there was on a City project where staff made certain recom- mendations and the BAR supported them. In so doing, they provided the necessary transition through landscaping for the off -site neighbors. Mr. Haggard objected to the material. There is no showing of the relevance. The date on the decision is prior to the conclusion of the BAR hearing and the appellants could have provided that information to the BAR. It is not appropriate to bring material to Council that could have been brought to the BAR. Attorney Haney noted that the information under discussion is the Planning Commission Staff report dated March 27, 1986, for the North Hill Reservoir Project. Dick Goe objected to Mr. Haggard's remarks; either this hearing is denovo or it is on the record. Council made the choice it is denovo. If this is so we are obligated to pre- sent the information we were going to provide last night. Attorney Haggard said the material has to be relevant. This is not the decision of the BAR; it was merely a staff report. It was available to the appellants, and they could have pre- sented it to the BAR, but they chose not to. Dennis Robertson said the BAR did rule and sustained the conclusions of the staff report. The point they are trying to make is that the BAR unevenly applied their conditions. In this case the North Hill Reservoir is being built by the City; the City conditioned itself. It is reasonable that the conditions the City applied to itself would be applied to another applicant. Attorney Haney said it was up to Council to rule on the rele- vance of this. Mayor Van Dusen stated that there was a point made on the adequacy of landscaping last night, and if this is put into evidence now, it brings up the question on what the purpose of the BAR is. He ruled that it is not proper evidence for tonight. MOVED BY BAUCH, SECONDED BY MORGAN, TO APPEAL TO COUNCIL ON THE MAYOR'S DECISION.* Council Member Morgan asked, was it not the intent of Council that issues that were not raised last night would now be raised? Attorney Haney agreed but did not understand that Council would not rule that something might be irrelevant. Council Member Morgan asked if material was not admitted to the BAR Hearing, is it appropriate for Council to consider it in this appeal. Attorney Haney explained that Council can take new evidence that was not admitted in the BAR Hearing in order to determine whether the BAR made an error. Council now had to rule on whether the evidence that was offered is relevant to determining that question. TUKWILA CITY COUNCIL February 24, 1987 Page 6 VALLEY VIEW ESTATES APPEAL Testimony (cont.) REVOTE ON ORIGINAL ROLL CALL VOTE: MOTION DUFFIE YES HARRIS NO MORGAN NO BAUCH YES SIMPSON YES STOKNES NO RECESS 9:45 9:55 p.m. *THIS IS NOT A VERBATIM TRANSCRIPT Mayor Van Dusen explained that every BAR decision is dif- ferent. There isn't always consistency in their actual decision. Councilman Bauch said he can't agree with this position. The BAR has got to apply the same standards to the relationship of a project on the site to the surrounding neighborhood. If it is desirable for screening one, then it is desirable for the screening of all. Any inconsistency should be pointed out. Council Member Harris said she feels that each project has different standards of screening. Landscaping this project would be for the beautification of the project, not to hide something unsightly. The people that are going to live here do not need to be screened from view so no one can see them. *MOTION CARRIED WITH HARRIS AND MORGAN VOTING NO. (Revoted below) Council Member Stoknes asked to change her vote. MOVED BY STOKNES, SECONDED BY HARRIS, THAT THE VOTE BE RECONSIDERED.* ROLL CALL VOTE: DUFFIE YES HARRIS YES MORGAN YES BAUCH NO SIMPSON NO STOKNES YES *MOTION CARRIED 4 YES; 2 NO. Mayor Van Dusen explained that a yes vote is to overrule his decision. *TIE VOTE: 3 YES, 3 NO. The evidence presented by Mr. Goe would not be admitted. Ann Crain, appellant, pointed out that on the planning staff's report dated March 27, 1986 on the Valley View Estates (Page 5 -B), appropriate landscape transition to adjoining property should be provided. The report states that the landscape plan shows dense evergreen shrubs along the southwest and west property lines. The BAR stated they should have 6 foot tall evergreens planted 40 feet apart. She questioned if this would provide a dense screen. Attorney Haney placed the North Hill Reservoir Staff Report as Exhibit 52 even though it was not admitted. Dick Goe pointed out that they have been told there are unavoidable impacts, and that they have been dealt with by the BAR. They can only conclude they are erroneous. They have tried to show that the density of the screening required TUKWILA CITY COUNCIL February 24, 1987 Page 7 VALLEY VIEW ESTATES APPEAL Testimony (cont.) 3 77 *THIS IS NOT A VERBATIM TRANSCRIPT by the Comprehensive Land Use Plan is not to beautify the building. It is intended as a transition use. The normal zoning buffering does not exist here. These apartments, under both the old and new zoning codes, would require a lesser density buffer between the single family residential area and the apartments. The only alternative is to use landscape as the buffer. The planning staff recommended it; the BAR considered it and decided that a 40 foot distance between trees represented some sort of a buffer. It does not. All they have asked for is that there be a dense buf- fering use of landscaping. The BAR erred by not making the density known in their decision. They showed last night why the noise needs to be mitigated, and they showed tonight how it can be mitigated. They have explained how the Dba grada- tions work and how you can attenuate them to make this a liveable area. The BAR chose not to deal with those. If they didn't deal with it, it was an error. If there is an error in the BAR decision, Council must find there was an error and find in favor of the citizens. The appellants have completed their presentation. Mr. Beeler presented two exhibits for the records which were provided on February 17, 1987, but were not entered into the record. Both exhibits came from Attorney Haggard: Exhibit 53, Applicant's Brief on the BAR Appeal; Exhibit 54, Letter on the Appeal addressed to Attorney Haney. Mr. Beeler asked that the City be allowed to present their testimony in a single meeting. He is unable to wpresent tomorrow night. Councilman Simpson stated that the last three hours have been very frustrating. It is hard to make a decision when discussion keeps jumping around. This is very important to both the applicants and the appellants. I want to hear both sides clearly and make a decision. Councilman Duffie suggested that the hearings be postponed for two weeks. The City should have one night to present their testimony. Council Member Morgan asked the Planning Director if they are ready to give their presentation. Mr. Beeler said they are ready. They do not need the time in between. Attorney Haney stated that Attorney Haggard has no objection to continuing this over. MOVED BY BAUCH, SECONDED BY SIMPSON, THAT THIS HEARING BE CONTINUED TO THE 16TH OF MARCH.* Dennis Robertson commented that it seems inappropriate to them that the applicant should have two weeks to work on their material. REVOTE ON PAGE 8 *MOTION CARRIED, hearing is continued. MOVED BY MORGAN, SECONDED BY HARRIS, TO RECONSIDER THE VOTE TO CONTINUE FOR THE PURPOSE OF ADMITTING TWO EXHIBITS. MOTION CARRIED. Vote will be on the motion to continue the meeting. TUKWILA CITY COUNCIL February 24, 1987 Page 8 VALLEY VIEW ESTATES APPEAL Testimony (cont.) ADJOURNMENT 11:00 p.m. ROLL CALL VOTE: DUFFIE NO HARRIS NO MORGAN NO BAUCH YES SIMPSON YES STOKNES YES *TIE VOTE: 3 NO; 3 YES. MAYOR VAN DUSEN VOTED NO. MOTION FAILED. Exhibits 53 and 54 are now officially admitted for the record. Dennis Robertson, speaking for the appellants, said they have no objection with the hearing being continued two weeks. MOVED BY HARRIS, SECONDED BY SIMPSON THAT THE MEETING BE CONTINUED FOR TWO WEEKS, TO MARCH .TH. MOTION CARRIED. Gar} -1 Van 3 7 *THIS IS NOT A VERBATIM TRANSCRIPT usen, 191 Maxine Anderson, City Clerk