HomeMy WebLinkAbout09292003CITY OF PORT TOWNSEND
MINUTES OF THE SPECIAL SESSION OF SEPTEMBER 29, 2003
The City Council of the City of Port Townsend met in special session this twenty-ninth day of
September, 2003, at 6:30 p.m. in the Port Townsend Council Chambers of City Hall, Mayor
Kees Kolff presiding.
ROLL CALL -- PLEDGE OF ALLEGIANCE
Councilmembers present at roll call were Freida Fenn, Joe Finnie, Kees Kolff, Geoff Masci,
Catharine Robinson, and Michelle Sandoval, and Alan Youse was excused.
Staff members present were City Manager David Timmons, City Attorney John Watts, BCD
Director Jeff Randall, and City Clerk Pam Kolacy.
PUBLIC HEARING
Appeal of the Hearing Examiner's decision on the Preliminary plat of Laurel Heights
Application LUP 03-022
Mayor Kolff stated that the public hearing began on September 8 and that at that time all
arguments were heard and the public hearing was closed, meaning all who wished to speak had
the chance to do so. He stated that the council had begun asking questions of speakers when the
meeting was continued to this date.
He then said the meeting would be resumed with further questions and answers for questions
raised by Council. Prior to doing so, he asked if any council member has any appearance of
fairness issues to disclose.
Ms. Fenn stated that she had led a successful effort to encourage the Rite Aid Corporation not to
site in Port Townsend in partnership with Joey Pipia, who is the primary spokesperson for the
neighborhood group. She stated that Mr. Pipia also worked on her campaign and that their
families are friends. She said that having carefully considered the issues of fairness and
appearance of fairness, she has reviewed all the tapes, materials and transcripts and believes she
could be impartial and base a decision on the facts in the record and the legal criteria, however
because of her long political and friendship history the public might question whether or not she
could be fair when the primary spokesperson for the group is a personal friend.
Ms. Fenn left the meeting.
Mr. Finnie stated that he met with the City Manager and City Attorney this afternoon for about
30 minutes in regard to the hearing.
Mayor Kolff asked if there were any objections from anyone in the room to any member of the
council continuing to participate. There were none.
City Council Special Meeting Page 1 September 29, 2003
Mayor Kolff asked if anyone who was not present at the last meeting has reviewed the complete
record of the meeting.
Mr. Watts asked Mr. Finnie if he had reviewed the actual tape or video recording of the
September 8 meeting. Mr. Finnie said he had not. Mr. Watts stated the meeting might have to
be postponed pending that review unless appellants are willing to waive the actual review of the
meeting tapes and allow Mr. Finnie to review the minutes of the meeting.
Mr. Watts stated the minutes are about 20 pages long, and it might be possible to recess the
meeting for a short time to allow Mr. Finnie to review the written minutes if that would be
acceptable to the appellants.
Ms. Grahn stated that the appellants would like to review the minutes as well.
RECESS
Mayor Kolff declared a recess at 6:40 p.m. so that Mr. Finnie and the appellants could review the
minutes from September 8.
RECONVENE
The meeting was reconvened at 7:10 p.m.
Mayor Kolff proposed that in order to have Mr. Finnie participate fully, the appellant, applicant,
and staff will be given a maximum of five minutes to do a brief recap presentation, then Mr.
Watts will comment and the meeting will pick up with a continuation of Council member
questions.
Mr. Watts stated that since Mr. Finnie did not actually review the video or audio tapes of the
September 8 proceedings, them is a question about whether he can participate or whether the
meeting should be postponed. The appellant has agreed in lieu of Mr. Finnie reviewing the
audio or video tapes, that if Mr. Finnie acknowledges he has read the minutes of September 8
and if he has any questions about those minutes he should feel free to ask those questions. In
addition if applicant, appellant and staff will be given five minutes each to summarize their
arguments from September 8 then the appellant would waive any issue with respect to Mr. Finnie
not having reviewed the tapes of the September 8 meeting.
Mr. Watts then asked Mr. Finnie if he had reviewed the minutes of the City Council meeting of
September 8.
Mr. Finnie stated he had reviewed the minutes.
Mr. Watts asked if Mr. Finnie understood he is free to ask any questions of any speaker that he
may have as a result of reading those minutes. Mr. Finnie stated that he understood.
City Council Special Meeting Page 2 September 29, 2003
Mr. Watts stated that the minutes include a number of references to maps and diagrams and
asked whether Mr. Finnie felt he understood the minutes without having to refer to those maps
and diagrams. Mr. Finnie stated he has reviewed all the maps in the original documents and if
he needs clarification of any issue relating to them he will ask at that time.
Mr. Watts asked Ms. Grahn if appellants agree that Mr. Finnie may participate. Ms. Grahn
answered that they agree.
The meeting moved on to the initial presentations.
Applicant John Williams, representing Laurel Heights, LLC, stated he was not going to rehash
everything that was said and that he trusts Mr. Finnie has read the record. He added one
clarification based on a question from Ms. Sandoval relating to the east buffer. He stated there
seems to be a misconception that there are three neighbors to the east, however there are only
two. The Pipia property is adjacent to the land to the north, not to the project currently under
discussion. The Plattner property already has a 75 foot buffer which puts them 300 plus feet
away and the Nelson property is 125 feet away with an 80 foot road buffer. Other than that, he
stated applicants will stand by the record.
John McDonagh, BCD Planner stated he wished to stand on the record presented in the meeting
minutes and that the project was accurately summarized at that time.
Ande Grahn, representing appellants, stated she wished to paraphrase a statement from the
appeal as it expressed the concerns of the group. She stated, as is often the case, a needed
solution upon closer scrutiny has unintended consequences. She stated that while consistent with
the subdivision code criteria, it doesn't respect single family character or provide the best
possible planning. She reminded the council that they do have authority under the subdivision
code to modify or remand the application.
Joey Pipia stated that the crux of why we are here hinges on one of the subdivision criteria, that
approving the proposed subdivision will result in adequate provision for public health, safety,
and general welfare. He stated that the appellants do not believe this criteria is being adequately
addressed by the applicant.
Mr. Watts stated he had one additional comment about Mr. Finnie's statement that he met today
with the City Attorney and City Manager. He said the entire discussion concerned the
procedural stance of the matter. Mr. Finnie was asked whether or not he had reviewed the
notebooks, and the tape of the 2-hour neighborhood meeting. He added that at that time the
question of review of the tapes of the September 8 Council meeting was overlooked. They did
discuss what the options were for the council and they are the same as outlined in the Council
packet agenda bill. He stated that there was no substantive discussion about what course of
action should be taken or what Mr. Finnie should or should not do, that only procedural matters
were discussed.
Mayor Kolff then asked if any Council members had further questions for any speaker or staff
member.
City Council Special Meeting Page 3 September 29, 2003
Ms. Robinson stated that in the appeal on page #1, the appellants requested that we consider a
PUD rather than a subdivision and that her recollection is that a PUD or subdivision is up to the
applicants' choice as to what they want to do in their project - it is not something the city tells
them this or that. She stated that the appellants indicated that there was some consistency of
review regarding using single family for some things and multi-family for others. She asked if a
PUD process would make various aspects of the review more consistent.
Mr. McDonagh stated that from staff's perspective, this would not be the case. He stated the
PUD process is optional in the sense it allows property owners to modify setbacks, densities,
etc., almost everything but height. If there is not desire to modify any of the prescribed
development standards, there is no benefit to going through the PUD process. Being able to do
multi-family, whether that would be simpler or more efficient going through the PUD process -
perhaps, if any of the development proposed in this project met the city's adopted definition of
what is multi-family - but it does not, all structures proposed meet the city's definition of single-
family attached dwellings.
Ms. Robinson stated there was a statement somewhere that said for low-income housing,
developers often choose a PUD process, that's why I was asking. Does it usually have to do with
density?
Mr. McDonagh said it has to do with density, with ability to lessen typical infrastructure costs
thereby being able to pass the affordability of housing on to the tenants. That would be one
advantage for a developer for a low income housing development to do a PUD.
Mr. Masci pointed out an inconsistency regarding the date of the Hearing Examiner's findings.
Mr. Watts clarified that the correct date of the findings is August 1.
Ms. Sandoval asked if there is anything in the code that defines single family housing; she stated
there seems to be an inconsistency because the northern property is restricted to single family
dwellings but the southern units are also called single family dwelling.
Mr. McDonagh stated there is no inherent conflict - the zoning code clearly makes a distinction
between attached and detached single family housing on appropriately sized lots.
Mr. Kolff stated he recalled reading that the developers wanted to transfer development rights
from the conservation easement in the calculations - does the 6.1 acres include the bonus for the
conservation easement or is that the underlying density?
Mr. McDonagh stated that is the underlying density. He said in essence, if the landowner wishes
to use that density he is placing in a conservation easement, he would have to use a PUD.
Mr. Kolff asked if that would be inconsistent with the covenant which says there will be 30
residences? If the applicant goes back and asks for a PUD, he said he sees a conflict between the
covenant they are agreeing to and keeping the option open for a PUD of higher density.
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Mr. McDonagh stated the applicant has about 30 lots, not typical 5000 square foot lots, so only
has to combine existing platted lots to get to 20,000 square feet so the density on the remaining
northern lands at 5,000 square foot lot standards would be somewhere in the neighborhood of
what's being proposed here, about 50 units.
John Williams stated that the wording in the covenant is intended to reflect there will be only 30
units built in the entire parcel and if the wording isn't clear enough, it can be changed. The only
way a PUD would be considered is if a change to the road system is needed; he stated the
applicants are not looking for more density.
Ms. Sandoval asked for confirmation of what McClellan Street is going to look like.
Mr. McDonagh stated there is no portion of McClellan abutting the project that is now open; it is
not vacated, it is an existing platted street that goes through Nor'West. This is a preliminary
rendering and they assumed we would require them to connect the street.
Ms. Sandoval stated she is hoping to get confirmation on roads requested to be closed
permanently and the reasoning for the city not wanting to go down that route.
Mr. McDonagh stated that from the perspective of BCD and Public works, permanent closure of
these roads would be premature when we don't yet know how the area will be developed.
Mr. Robinson asked whether knowledge of ownership and intent of that property is sufficient to
trigger preliminary plat approval of the property to the north.
Mr. McDonagh stated that from staff's perspective, no. SEPA clearly allows a project to be
phased. If the applicant wishes to develop the south property, we need basic baseline
information about the northern lands to watch for cumulative environmental impacts so they can
be mitigated. In this case we wanted them to show traffic impacts, and stormwater impacts. It
is likely we will require them to dissolve the lot lines of the northern property.
Ms. Robinson said that in the SEPA it is stated that mitigations that were imposed on the current
project, that when the northern property project is developed, those mitigations move forward
into the SEPA review of the northern property project so they are not forgotten - does that
address the cumulative impact?
Mr. McDonagh stated it forms a basis for the SEPA.
Mr. Finnie stated that one of the core concerns of the community group is the stormwater
detention pond. He asked what assurance they have that we will use the best available science
to assure this pond will perform its stormwater collection function.
Mr. McDonagh noted that if there had been any potential for flooding, the project would have
been redesigned. Regarding West Nile Virus, it is somewhat new for the city to be dealing with
that. The local health district did agree to assist in evaluating the adequacy of the pond; the
Hearing Examiner also modified some conditions relating to the southwest pond, specifically
City Council Special Meeting Page 5 September 29, 2003
condition 11, minimize standing water - that is the chief implementation of best management
practices.
Mr. Kolff asked if the applicant can state there will never be water in the detention pond.
Tom Cleverdon stated it depends on the soils on site - this soil is Type C which is not the most
infiltrative soil. He noted various bioretention areas on the map and said that with a bioretention
area, you take a fairly significant area, overexcavate it and then put back amended soil. Type C
soil would be mixed with compost and sand and small trees and shrubs are planted so it acts as a
holding detention area. Stormwater runs off and if the rain event is not that large, it will infiltrate
or run off very slowly following normal land contours. On this site, if you had normal B type,
sand or gravel, it could be handled all on site. Once final design and construction is underway, a
number of test pits will be dug to quantify to a greater degree how much infiltration we will be
able to get so the biofiltration area can be sized. He said they have rarely seen any failures in
retention ponds due to flooding; they have spillways, a catchbasin for overflow and water will be
metered out through small orifices that will allow stormwater to run out at various rates
calculated. If a clog occurred, there is an emergency riser pipe and if that clogged, the water
would go over a spillway. Normally on a 2-10 year storm event, you wouldn't see more than a
few feet in the pond, and that would stay less than 24 hours.
Ms. Robinson asked about the life of bioretention ponds and what sort of maintenance is
required.
Mr. Cleverdon stated that only landscaping is needed. If the soils are not as infiltrative, grain
rock and underdrain will be put in but normally the ponds will go on forever - the only unknown
is if the material breaks down.
Ms. Sandoval asked whether this is the only way of dealing with storm runoff; she stated there is
not a storm drain plan that has been adopted by the city - she inquired if a high density
development would have a regular drainage system as opposed to a storm drain or if this is state
of the art.
Mr. Cleverdon stated this is fairly typical of most developments. He said you want to make sure
the city's system doesn't get over infiltrated and make sure your main line doesn't get
overloaded.
Ms. Robinson asked if discussion of the MDNS is off limits.
Mr. Watts stated the appeal of the MDNS is off limits but to the extent the issue relates to
subdivision approval, it may be raised.
Ms. Robinson asked if questions regarding a performance bond on the facilities is within their
purwiew.
Mr. McDonagh referred to page 37 of the MDNS where mitigation measures are laid out, and
noted almost all relate to stormwater.
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Ms. Sandoval asked if the agreement can be outlined more specifically now.
Mr. Watts stated that a detailed agreement will be approved by staff and his office prior to final
plat, and the process is similar to those approved as part of other projects like Treehouse,
Safeway, etc. He noted these are somewhat routine agreements that provide for ongoing
maintenance and a detailed maintenance plan. A feature of this plan is that there needs to be a
funding mechanism to be sure the homeowners association can fund the plan.
Ms. Robinson asked who monitors the system.
Mr. McDonagh said there is no ongoing reporting as this is a private stormwater system.
Mr. Kolff asked if there was consideration of bonding as opposed to a maintenance agreement.
Mr. McDonagh stated it was considered, but has not been the city's past practice, it is not
normally required and not in the code.
Ms. Sandoval asked why the applicant made the choice to apply for a subdivision rather than a
PUD.
John Williams: that was very preliminary, at the first meeting we considered a number of
options and decided subdivision was more appropriate. PUD seemed to be getting complicated
and not seeking any concessions so seemed better for developer.
Ms. Sandoval asked whether all roads would have sidewalks. Mr. McDonagh stated they
would. She asked if there would be exterior lighting, bike racks and active as well as passive
recreation facilities.
Mr. McDonagh stated there is street lighting only on critical intersections so specific locations
were determined as part of the preliminary plat approval. There is no requirement for bike
racks. He stated there is half a basketball court and a covered picnic area in addition to the
general active grassy play area.
Mr. Robinson asked if bike lanes are included. Mr. McDonagh stated this meets the R-II density
standards and there is no requirement for them.
Ms. Robinson asked about the adequacy of parking within the development based on parking
patterns and traffic at Nor'west.
Ms. Grahn stated that the observation of neighbors to Nor'West Village is that people didn't park
at the rate of 1.5 cars per unit, but more like 4. She stated the appellants suggest that you ask a
third party traffic engineer to go out and look at what's happening at Nor'West Village as those
are people in the same income strata.
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Mr. Kolff expressed concern about access for children along Discovery and asked if speed tables
have been seriously considered.
Mr. McDonagh stated there is a one time fair share contribution from the developer to a crossing
at Sherman Street. He added that there are a number of other developments in the area that need
to be considered when discussing what a fair share contribution would be.
Mr. Kolff asked about the discrepancy in terms of the number of children anticipated. Staff has
estimated 30-36, the developer estimated 50-55 and the neighborhood estimates over 100. He
asked where the figures came from.
Mr. McDonagh stated staff had contacted Nor'West Village and looked at details on Port
Townsend demographics. He stated it would be impossible to specify an exact number.
Ms. Robinson asked if the manager would be monitoring parking at the development.
Mr. Williams stated that would be part of the resident manager's duties. He added there is no
evidence there would be 4-5 vehicles per unit.
There being no further Councilor questions, Mayor Kolff asked if any speaker wished to
comment to clarify any issues raised by the Council.
Daniel Wilovski: offered comments that were not geared to clarification.
Terry Gibson, traffic engineer, stated that in answer to the alleged 4-5 vehicles per unit at
Nor'West Village, he stated that applicant's estimates of traffic were conservative as they used
1.5 vehicles per unit as opposed to .6 vehicles per unit which is the standard for attached single
family. He stated that in his experience, low income housing residents typically have fewer
vehicles than standard housing residents.
Ms. Grahn stated in regard to Ms. Robinson's concern about covenant language, the language
(condition 5 on page 15) does not include the number of detached residences but simply the
condition that they have to be detached. She added on the best available science issue that she
hopes the city will hold development review engineers to the best available science and that the
Department of Ecology has adopted new standards.
Mr. Pipia stated that he reviewed the tape and wanted to respond specifically to Mr. Randall's
statement that the council must review the appeal based on the subdivision standards, and
referred to the "catchall" phrase regarding providing appropriate public health and welfare
standards. He stated this is a point of law. He also said Mr. Randall stated there is no low
income housing criteria, but criteria were referred to. In regard to the traffic engineer's
statement, the question that needs to be asked is how close does it put us to the lowest level of
service. He added that the property referred to as the Nelson property is now owned by Mr.
Walker and is not 180 feet away but just on the other side of Hancock Street. He stated that the
property adjacent to his is used for infiltration and the detention pond has moved into the
northern section which is disingenuous as the property is being used to help create this
City Council Special Meeting Page 8 September 29, 2003
development. He also asked for closer scrutiny of sidewalks when coupled with normal R-II
setbacks.
Ms. Robinson asked what would trigger a signalized intersection.
Mr. Gibson stated that signals are warranted based on level of service but are based on volumes.
He said it is doubtful a traffic signal would be warranted in the foreseeable future.
Susan Langlois added clarification information to the process for people who want to get on the
Section 8 housing voucher list.
Jennifer Pipia: said that Mr. Kolff had asked for verification in regard to Mr. Plattner's
comments about the development being smaller, noting that if it were smaller it would not be
economically feasible. She referred to a website listing many smaller developments.
John Williams: noted that most of those listed were developed by non-profit organizations.
Michael Hyland (Jefferson County Housing Authority): at the last meeting, Ms. Sandoval asked
the developer if the development would affect the waiting list that the Housing Authority has.
The answer is yes, it would because those people are low income residents of Jefferson County
and they would qualify for housing likely at Laurel Heights.
No one else wished to comment, and Mayor Kolff closed this portion of the hearing so the
council could move on to deliberation and action.
RECESS
Mayor Kolff declared a recess at 9:02 p.m. for the purpose of a break.
RECONVENE
The meeting was reconvened at 9:10 p.m.
Motion: Mr. Masci moved that we deny the appeal, affirm the Hearing Examiner's August 1,
2003, decision granting preliminary subdivision approval for the plat of Laurel Heights. Mr.
Youse seconded.
Masci: proposed community change is always painful, a few years ago we (this council) voted
to affirm the decision of prior councils, those under the previous form of government, to use
Hearing Examiners exclusively to remove bias and prejudice from the permit approval process.
We did at that time reserve appellate rights for ourselves. Interestingly, the County does not do
this. However, our task is to weigh the facts of the project against the law involved.
Sometimes one person's concept of fact differs from another's. I view our jobs as reviewing the
Hearing Examiner's decision of August 1, 2003, and to determine whether it conforms to our
law. I do not view, and I suspect that the law does not view, this appellate process as an open
door to change the PTMC or our Comp Plan in relation to this site specific project. Other venues
City Council Special Meeting Page 9 September 29, 2003
exist to provide for those requests outside of tonight's forum. In regard to the NRD appeal of the
Hearing Examiner's decision of August 1, 2003, upon review of the record I have the following
comments to make. NRD's appeal is based on eight requests or disputations with the record of
the Hearing Examiner's decision of August 1, 2003. In sequence, my observations and
contributions to the record of this deliberation are as follows:
Appeal Point #1: dispute with finding 4 of the Hearing Examiner: dispute the Comp Plan
inclusion of up to fourplexes in single family residential zoning and references the intent of the
Comp Plan. My comment - Heating Examiner rightfully references Housing Policy 5.3 and
Policy 7.5. Appellant argument #1 fails.
Appeal Point #2: dispute with finding 8 of the Hearing Examiner - dispute of dispersion and
references phasing and covenant of the applicant. My comment - the single family covenant
and phasing of project does indeed provide for dispersal through dilution. The Hearing
Examiner's decision is affirmed. No cogent argument was offered to overturn the Hearing
Examiner's decision.
Appeal Point #3 - dispute with Hearing Examiner's finding #15 - traffic studies are disputes in
re their adequacy. My comments - the mitigations from the threshold MDNS provide for
adequacy of traffic impacts. The study was adequate. A review of Mr. Plattner's comments in
the record do not meet factual refutal standards. I suggest we affirm the Hearing Examiner's
decision on this point.
Appeal Point #4 - dispute with finding # 16 of the Hearing Examiner's. adequacy of the SEPA
stormwater facility references - fears of system failure and West Nile Virus. Comment - catch
basins, dry wells and drainage pumps are well proven traditional methodologies for adequate
stormwater control and detention. The applicant also applies the new Department of Ecology
standards of low-impact development techniques for stormwater dispersal in a natural and
ecologic manner consistent with our stormwater regulations that are relevant and applicable in
this matter. Threshold MDNS mitigates the potentiality of viral concerns insofar as that can be
done. References to County interventions re the West Nile Virus for this site specific
development appear beyond the jurisdiction of this appeal and this council.
Appeal Point #5 - dispute finding #22 of the Hearing Examiner - it references internal
inconsistency within the Comp Plan per these issues and requests after the fact rectification of
supposed Comp Plan inconsistencies The redress asked for multiple decision reversals covered
in appeal points 1-4. Comment - the Comp Plan was approved by CTED and all applicable state
agencies with commendations. The Hearing Examiner confirmed project conformity with state,
city, and federal zoning and land use, environmental and health regulations, plans and
procedures. Multiple sections of the Com Plan are cited for confirmation. Affirm this section
of the Hearing Examiner's decision. Deny the appeal of point #5
Appeal Point #6 - disputes finding #22 of the Hearing Examiner (I suppose that's a typo) re the
public services and it cites a universal range of possible public services needed. My comment -
probably a reference to Hearing Examiner finding #23; however that finding is supported by the
threshold MDNS, mitigations and common sense. The applicant cannot be held responsible or
City Council Special Meeting Page 10 September 29, 2003
liable for the universal range of possibilities cited by the applicant [appellant]. Affirm the
Hearing Examiner's findings #22 and #23.
Appeal Point #7 - disputes finding #25 of the Hearing Examiner and requests redress per multi-
family design guidelines and require additional buffers beyond those already proposed. My
comments - citation of the threshold MDNS mitigations and design element compliance is
sufficient to deny this appeal point. I suggest we affirm the Hearing Examiner finding #25 and
deny appeal point #7.
Appeal Point #8 - appears to be a general redress request, proposes modification of SEPA
MDNS and expanding the scope of SEPA beyond the current exempt status. My comment - this
is beyond the scope of this appeal process and not apparently germane to the Heating Examiner's
decision about the plat of Laurel Heights subdivision and SEPA appeal of the same. Hearing
Examiner conclusions of law beginning on page 12 of his decision cover in detail mitigations
and protections for the public interest. Additional stipulations commencing on page 13 and
ending on page 25 appear to provide further conditions to insure public law compliance of the
project. Denial of this appeal point and affirmation of the Hearing Examiner's decision of
August 1, 2003, is endorsed and recommended.
The representative for the appellant, Ande Grahn, has stated further on page 21 of the September
8 minutes, middle of the page, "so the least creative project possible is the one consistent with
subdivision code but that doesn't require going through the discretionary process that is the PUD
process." And again tonight, at the microphone, she stated "it is consistent with subdivision
codes but..." and then continued on in a different vein. And I use this point to illustrate that
even the appellant's representative admits that the subdivision codes were met with and
complied with and I feel that the appellant has failed to demonstrate a factual and legal basis for
the appeal. I do not deny the strong and overriding emotion that may be the driver to the appeal
process and I feel that the appeal was rightfully made in the hopes that some type of additional
mitigation could be made. However, I support denial of the appeal and affirmation of the
Hearing Examiner's decision in re File No LUP03-022, the Preliminary Plat Application of the
Laurel Heights LLC and of conditional approval without further conditions or mitigations.
Thank you.
Michelle Sandoval: I guess I'll go at it a little bit different by listing my concerns rather than
going through the numbers one by one. I'll just go ahead and list my concems that I have with
the subdivision approval or this whole process.
One is the low income housing vs. single family housing inconsistencies. In reading through
some of the applicant's applications as well as some of the staff reports, it mentions the low
income housing a number of times and yet there's no standards that it would be held to and I feel
like it was used when it was beneficial and yet there was no low income housing standards that
we could apply. I have serious concerns that we kept - in reading through here - it seems
contradictory and perhaps that was more of a lack of clarification in the code, but it often seemed
odd to me that on the very first application it stated what kind of housing is this going to be and
it says "low income housing" and then there was nothing that would create any sort of oversight
in regard to it being low income housing. It didn't say "single family housing". So that seemed
City Council Special Meeting Page 11 September 29, 2003
in conflict to me through this whole thing. A paradox, it seemed, was between a variety of
citizens' concerns between the ghettoization aspect and the integration that our Comp Plan
demands and yet I can understand why the community wants buffers because it's going to be a
very large impact though 51 units may not be that large for many towns it's huge for us. I think
that we have to acknowledge that. I know that, in going down to Southern California to visit my
mother's house during the time that the Treehouse project was being built, there they were 3700
hundred houses and we were building in the 30's here but 51 houses in a neighborhood is a huge
impact and I have concerns about the "ghettoization" of the area given that it seems to be one
contiguous, from Ted Shoulberg's apartments to Nor'West to this additional situation and there
has been some consideration about the buffers from the applicant which is good I suppose, and
yet at the same time I feel that that buffer is exactly what is going to create the "ghettoization"
that people are unhappy about so that's a conflict for me as to whether that buffer is really
helping or it is actually creating what people are disturbed about.
I find the market study and, once again, the reference to low income housing in all those
different aspects, very contradictory. Given that I've read through here that the need for low
income housing and the Section 8 at 112 people waiting for vouchers and yet the applicant says
that most of these people are just going to be most likely changing houses so that seems odd to
me that we're not actually housing additional people who are on the waiting list but rather
upgrading current people - it doesn't seem to be actually getting to the goal. And in addition,
the management practices that are currently in place won't address the fact that the 112 will
come from this area. That's probably my underlying concern that the 112 on this list aren't
gong to necessarily be looked at. There's no provisions that specifically say that. So that's one
of my number one concerns. I think we should be housing Port Townsend people and not
necessarily just opening it up, because we do need low income housing here and, but I think it
should be very specific to the people that live here. Because there were mentions continually of
concerns of additional people coming to this area and the burden it would put on social services.
So I think if people are already living in the area and looking for a good place to live, that would
be more appropriate.
The next issue I have concem with - or finishing with this market study - I would say that 53%
of all County low income people - if I'm getting the numbers right- the 53% was in a letter here
- would be housed here. And I'm wondering if that is an inordinate amount in regard to fair
share housing consideration in the Comprehensive Plan.
My next concern is in regard to the restrictive covenant to the north, be more explicit in regard to
that and the traffic study, whether or not we need further review of that. I am also, to be very
frank, think that, yes, the applicants have met what the subdivision requires but that doesn't
mean that I don't feel for the community that lives around it, so I believe that this should not -
that the applicants have, in fact, followed the law - but I don't think that we should let go of the
concerns of the citizens given that we can have some impact on the project as it goes forward.
So that's my viewpoint of this. I would have liked to have seen the applicant - we live in a small
community and many times when people who are developers come from outside the area there is
a certain amount of prejudice that goes along with that or resentment from the community
because the developer doesn't live in this community and so there is a feeling that they're getting
their good stuff and the community is bearing the brunt of it and I would certainly have felt a
City Council Special Meeting Page 12 September 29, 2003
whole lot better about this had the applicant considered to go through that PUD process because
I think that it could have been a win/win situation and that was their choice so I understand that,
but all the same it seems confusing to me that the codes would allow such an all rental facility
that, even thought it's determined to be single family, could be allowed in this non-PUD area and
that is a concern that I think this council, if they find it appropriate, should look at in the future.
I think it is probably not currently appropriate to say "hey, all bets are off now" because the
applicant has proceeded to go through this in good faith. But I certainly would like to see that
this neighborhood gets their consideration over some of their concerns. So I would like to try to
make sure that some of these conditions are considered.
Joe Finnie: Somebody needs to say this. This is probably the most thoroughly prepared and
documented subdivision application I have mn across in 6 years and it is certainly the most well
thought out and logical community appeal expressing their legitimate concerns over the impact
of this development in their neighborhood. When I first read these materials my initial reaction
was this is an enormous development - there are real scale and density issues of concern and that
there are obviously going to be impacts on that neighborhood that would have to be addressed by
the developer. I read all the materials but the most heartbreaking, of course, was the two and a
half inches of letters, 133 some odd comments. But after I got done with all of it and even
before I read the Hearing Examiner's response to the appeal and then the Building Department's
comments, I realized that my job as a council member is to ask myself the question, "what is the
legal basis for me to deny or uphold this appeal?" That's the issue I'm faced with. I went back
again and addressed my emotions but I said to myself, geez I think this is too big, but the fact of
the matter is, that if these had been single family units, they could have had more units. Then I
said well, in recognizing the letters and the concerns of the community, there are too many units
of people in an economic class. But that is, too even go there, is prejudicial. And to selectively
determine who among low income applicants could be cited for housing would be selective and
illegal under the law. Then I went back and I looked at impacts and I looked at the various
consulting responses as a part of the subdivision application and the troth of the matter is, is that
I don't know if any of those consultants data and recommendations represent best available
science, but they are persuasive and the Hearing Examiner and the Building Department of the
City of Port Townsend accepted those as findings of facts and I, as an individual, may disagree,
but it represents opinion and it is not a point of law and a basis for me to deny the applicant's
subdivision permit. So then I'm faced with what I think - and I'm not an attorney - and I could
be getting myself into trouble trying to sound like one. But then it came down to the issue of
development regulation which I'm satisfied from being told by my Building Department and the
City of Port Townsend Hearing Examiner, that the subdivision applicant has satisfied, and
crossed the t's and dotted the i's on every aspect of this submission and it meets the development
regulations. But there is an apparent conflict between the development regulations that we
operate under today and the Comprehensive Plan. The development regulations speak to the
fact that you can put fourplexes on properly sized lots in R II zoning. But the Comprehensive
Plan calls for dispersion of low income housing units throughout the city. But in this case, the
applicant who has followed the law, the present law, in its submission, rules and it is really going
to be the responsibility of the City Council to address this apparent conflict after the fact. I'm
not trying to persuade you to agree with me but that's my assessment of the situation as hard as
that is for us to swallow here tonight and I sympathize with the appellant - Michelle, I agree with
City Council Special Meeting Page 13 September 29, 2003
what you said - I don't know what we're going to do to protect this community, we'll try to find
out what to do, but I have no legal basis to uphold the appeal and I will vote to deny the appeal.
A1 Youse: Just in general, I agree with the point that the applicant has done everything right. I
don't disagree that possibly some intentions in the Comp Plan weren't followed by rules that we
use to determine these things, but I think the applicant did everything right. Some people take
more - are more emotional about how their neighborhoods change and other people are less. I'm
one of the ones that is less emotional about how my neighborhood changes, but nevertheless I
agree with Joe's point probably the most in the fact that we are going to have to look at it for
future development. This particular development has been laid out, in my opinion, better than
(?) and they have met the letter of the law and I expect to always see some argument with the
way things are done but if it meets the letter of the law you just set a stage for future changes to
your rules that the city goes by. I seconded the motion and I stand by that.
Catharine Robinson: I agree, as difficult as it can be as a member of this community, that by
law we have to deny the appeal. I can't find anything that would allow me not to deny the
appeal. At the same time I do have some concerns and I agree with Michelle, that I would like to
find a way to have some of the neighbor's concerns addressed, and because I might forget it if I
don't say it right now, I was struck by this document that was in my box tonight, "Port
Townsend as a Commons, Living By Association or Living in Community" - and to piggyback
on Michelle's point of people coming in to the community to do something in the community
and often the community feels "done to" rather than supported and included - and this really
speaks to that in a very interesting way and I hope that more people can read this for further
discussions - in some way it was a very interesting document.
As to the PUD versus the subdivision, you know, they are given the choice, they are not
mandated to go one way or the other. They made their choice and I don't think we can take that
away from them at this point. The Comp Plan inconsistencies - yes they're there, and now we
know about them, and I would agree, that I would like to see us have some discussion about
policy and regulations that will support the policy and really flush out the intention there.
I don't want to go through each of the appellant's points but I do have some - I would like to talk
about how we can include some of the concerns into real mitigations in this.
Kees Kolff: I'd like to make a few comments and then maybe we can go back and much on
whether there are some additional mitigations or conditions. I agree that this has been a very
difficult issue to look and to understand, that there are some inconsistencies in both the record as
well as between our zoning and Comp Plan. However, I have some serious concerns that in fact
our Comprehensive Plan is not being adequately supported by the Hearing Examiner's decision
and there are several statements in his write-up that I think specifically - that I specifically think
are incorrect. First of all, in terms of the approval for a subdivision, it states specifically that
utilities and other public services necessary to serve the needs of the proposed subdivision shall
be made available, including open space, drainageway, streets, alleys, other public ways, etc.
etc., parks, playgrounds, schools, sidewalks, and I think we've - I have found myself focusing on
little mitigation issues here and there to make it more environmentally tolerable, to somehow
mitigate the overall size of this development, but I continue to come back to the issue of are we
City Council Special Meeting Page 14 September 29, 2003
really providing a service and the public services that the public who is going to be living in this
subdivision deserve and need. And I draw your attention to the two letters that we have from
people who provide services in this community and these are part of the records, one is from
Lutheran Community Services really questioning the ability to provide the services that would be
required for this type of development. And the second one is from, I believe it was the Mental
Health, Jefferson County Mental Health division. So I do have some significant concerns that in
fact we are meeting not the Comprehensive Plan requirements, which I'll quote in a moment, but
the actual criteria for a subdivision. I mean it states very specifically that public services
necessary shall be met. It also says that approving the proposed subdivision will serve the public
use and interest and adequate provision has been made for the public health, safety, and general
welfare. And again, I have some real questions that allowing this large development is without
providing adequate public service, is really providing for the public health, safety, and general
welfare. And I'd like to quote a few things from the Hearing Examiner's report. And he does
acknowledge the Comprehensive need to "disperse multi-family housing and special needs
housing throughout the city" and then he goes on to state in his analysis, that "the proposed
preliminary plat does conform with and is clearly contemplated by the City's Comprehensive
Plan." I don't agree with that statement and I don't see how he could interpret that this
development was contemplated in the Comprehensive Plan with the Comprehensive Plan clearly
states that the dispersion of this type of housing is what is required. It doesn't say "encourage
dispersion" it uses encourage in many ways, our Comprehensive Plan, encouraging incentives
for certain types of development, but it says specifically that we need to disperse this type of
development - low income housing. He then goes on to state, and I'm quoting from page 11,
rather on page 10, he says that on and off-site mitigations "have been imposed via the threshold
MDNS to ensure full range of streets, utilities and other public services are provided to the
proposed development." Again, I do not agree that the full range of public services required
have been adequately addressed, in particular I would draw your attention to social services and
to child care, and again we have documentation from experts, from people in the community,
that state that child care is a significant problem and that we know that these families require
adequate child care in order for them to take advantage of employment opportunities and other
ways in order to improve their lives.
The Hearing Examiner goes on to say on page 13, "pursuant to RCW 58.17.110 and as
conditioned below, the proposed development will include appropriate provisions for the public
health, safety, and general welfare." Again, I disagree with that statement. I do not see that we
have adequately considered the social service implications, the general welfare - not so much for
the neighbors living near this development - and I think the neighbors and the developer have
done a tremendous job in terms of looking at the mitigations with regard to environmental issues,
buffers, trails, things of that sort - and so I'd like to commend both the neighbors and the
developer and staff on working through that, but I still think there is a major, major discrepancy
with what our Comprehensive Plan clearly specifies is a requirement.
So I cannot support the motion. Unless perhaps it had a certain number of additional conditions
that might further mitigate the issues that I see are clearly lacking and that have not been
adequately addressed by the Hearing Examiner. The most obvious to me, but I'm not sure if it
would fly with this group, is that if fewer units were included then it would have less of an
impact on social services, on child care, on the general welfare - I think it would be less
City Council Special Meeting Page 15 September 29, 2003
grouping, I think it would offer for more dispersion so the first thing I would like to do is offer a
motion and see if there is a second, to limit the number of units to 32 units.
Geoff Masci clarifies that Mr. Kolff wishes to amend the main motion.
Motion to amend by Kolff: limit the number of units to 32 as opposed to 51 as put forward.
Second by Sandoval.
M. Sandoval: I would like to continue discussion about this rather than, I mean, with all due
respect, I have a hard time just looking at these motions in black and white without actually
coming together as a council here, and really trying to work this for a solution that could work,
both for the fact that I agree with Kees that there are many things in the Comp Plan that seem to
be in conflict but nevertheless there is a subdivision code, in my opinion, that is in place that
these applicants have followed and so what we have is a conflict between those two things as
opposed to, you know, if it was the Comprehensive Plan amendment that would be different, but
what we have is somebody following the law of the subdivision in conflict with the Comp Plan.
So I feel that the applicant has provided to the letter of the law what he is supposed to; at the
same time, within the spirit of the law, I would like to hopefully discuss perhaps some conditions
that this council could agree on and move forward to both make sure that the developer could
move forward with his project but still take into consideration some of these concerns that the
neighborhood has. And if we could, you know, reach that happy medium I think it would be
terrific but I don't know if just putting one up and one down and one up and one down is going
to really get us anywhere. So I would just say perhaps we could do this in a more free flowing
manner if you're open to it and I look to Geoff and to A1 because typically you're up or down on
a motion as opposed to massaging it a bit - so I'm asking you.
G. Masci: you're asking me? Am I allowed to respond?
I made a motion which was to deny the appeal and affirm the Hearing Examiner's findings in
their entirety. An alternative provided by staff was to deny the appeal in part, affirm the Hearing
Examiner and make modifications. So Mr. Kolff has proposed an amendment to back door from
motion #1 to motion #2. I'd like to remind my colleagues that this is a hearing and we are
involved in making a determination involving matters of law and the voting up and down is the
way that has been found through legislative bodies, of determining how to increase the corpus of
the law or to create new law. I would suggest that if we want discussion on Mr. Kolff's
amendment we each contribute but I will certainly make a move to call the previous question at
that point so that we can vote on that, because that's going to be required.
M. Sandoval: So you still didn't answer my question. Are you willing to look at some of these
concerns I had as a portion of this discussion this evening for purposes of additional
considerations.
G. Masci: Think out what you're asking. The end result is the same. If we vote up or down the
amendment it will either pass or fail and we move on to the main motion, it either passes or fails
and then one of you can make an amendment or a motion to do something else.
City Council Special Meeting Page 16 September 29, 2003
M. Sandoval: I was trying to have us work as a group here, I was trying to get us into a
discussion about some of the considerations ....
K. Kolff: IfI could interject for a moment, Michelle, that was actually my intent was to engage
people in a dialogue and one way to do that was to make a motion to amend the motion that was
on the floor. Another possibility would have been for me to read two or three additional
conditions that I would love to see attached to this and see if there is support for that. So let me
proceed in that fashion, since there was not a second to my..
M. Sandoval: there was a second.
K. Kolff: I had forgotten that Michelle has seconded that motion. So I'd love to see whether or
not there's - do you think there is any legal standing we can have in order to reduce the size of
this particular development?
G. Masci: According to me, personally, I don't think you can do that and I don't think you
should do that. I think you will be leaving the City open to not just an appeal but further more
magnificent legal considerations on the part of the applicant.
J. Finnie: What I would recommend you do is withdraw your motion, and withdraw the second,
and then we don't have to vote on it right now. And then perhaps what you could do is to
identify kind of in bullet form each of the areas, because what you've done is you've trapped us
in voting on one item and we're probably not best served by doing that - it might then at least
would allow you to talk about the other areas of concern you've got. I would just caution you on
this, the whole idea of proposing to the Council to change an allowable number of units from an
application that has been deemed to be proper, begs the whole question of speaking to the
business case from which they originally did the submission and I would advise you to go as far
away from that idea as you possibly can. But I would be more than willing, and I don't know,
Michelle, if this helps you, but more than willing to just have a more general discussion on areas
of concern and see where we can take it from there.
K. Kolff: I think that sounds reasonable and I will withdraw my motion.
M. Sandoval: And I will withdraw the second.
K. Kolff: Unless there is any objection from anyone on Council ...
all right. The second, in general, the areas of concem I had were the size of this development
and clearly that's problematic for me but it seems it would be problematic to change that. The
second is the amount of pervious surface, I would love to see a requirement, or impervious
surface, particularly if we're looking at the stormwater issues, I would love to see a condition
that says that pervious pavement is required as opposed to encouraged. This was alluded to in
the Hearing Examiner's report. I'd love to see it specified that patios are required and not just
encouraged and I believe that, in fact, the developer has stated that they would be willing to do
that. I do have some concerns about this fund, particularly with the maintenance fund,
particularly with these houses, this development area changing hands and management issues
and problems that have been raised as potential problems. I would love to see some performance
City Council Special Meeting Page 17 September 29, 2003
bonding for both the detention pond, the building maintenance, and perhaps even for nuisance
issues that might arise. Those have been concerns of the neighborhood. And those are the main
issues that I would see.
[unintelligible statement from unknown speaker[
K. Kolff: the performance bonding for building maintenance, number one, the detention pond
functioning, number two, and the issue of nuisance. With such a large development being
managed by a single manager, I know that in the record there has been talk about how other
properties like this have had difficulty in terms of overall management. I know that the record
from the Police Department noted that there are increased calls from this type of development
and therefore I think it might be reasonable to have some performance bonding for all of those
issues, those three. So those are my main areas of concern.
M. Sandoval: just a point of clarification, ifI may. In regard to the account that was mentioned,
there was an account already previously mentioned that was going to be set up and what was that
for specifically?
J. McDonagh: (garbled) .. and the emergency vehicle access ways along Thomas Street,
maintenance of the stormwater pond, and the Hearing Examiner, in his, gravel path and
emergency vehicle routes, and that's it.
M. Sandoval: okay, so trails, emergency access and stormwater facilities. So there already is an
account that is required - it is not very specific in regard to the amount or the way that it
functions, as I recall, but there is a set up for that. Because that was one of my concerns was the
actual clarification of exactly how that account worked and the length of time of that account.
I'll go ahead and go on with my concerns.
Clarification of the restriction of the property to the north - in addition, actually this is just my
thoughts given that talk about the ghettoization - I, quite frankly, think that it should be all open
to all neighborhoods. I think that that's the way that true integration is and it would just be
interesting to consider having that buffer that exists currently that's going to be kept there
actually when that next single family detached area is developed, to have the buffer moved to the
next spot so that you'd have a low income housing adjacent to single family housing and then
you have more of a true integration there and so you have a buffer now, and then you allow that
buffer to just move up to what would that be, like 23rd Street. But that just seemed to me that
that would be a way to perhaps mitigate that ghettoization in the future by at least having one
other neighborhood interconnected.
The kids center had been proposed, put on the table, taken offthe table, I certainly would like to
see that. I know that the developer has said that has remained on the table, I believe, I would
actually like to see that put into place. And many communities, I don't know if we have an
ability to do this, but many communities in Southern California where I came from, Northern
California where I lived for awhile, had the ability to ask the developer to provide for payment in
lieu for some of these support systems that we are talking about. I don't know that that's legal
here but I'd certainly like to hear about if it is because I think that the experts that did write these
City Council Special Meeting Page 18 September 29, 2003
letters have a good point in regard to the support systems. And, it brings up another of my
concerns that's been talked about and that is that fair share for the developer. How far or how
short or how tightly drawn is that fair share - I mean, we see the impacts of this are going to be
large and we want to be fair to the developer and fair to the community so that's why I think in
that one area of the support systems, I would like to explore how that can be achieved.
And, two other, quickly, the traffic study, though I heard it and read a variety of different things,
if I could get Council agreement I'd certainly love to have a third party look at the traffic
situation. And lastly, I've already mentioned it, I'd really like to see some provision in the
management, that it's existing Jefferson County residents that are housed so that we actually do
get that list of people waiting for housing, you know, bring it down, so that we're actually being
effective that way in terms of our affordable housing needs here in the city.
A1 Youse: I don't agree with any of what you or Michelle said, Kees. That's where I stand.
G. Masci: you prefaced your possible mitigations with reference to health and welfare criteria. I
disagree with you. My public service experience informs me that there are numerous services
available in this community that were not cited in the record and I'm not going to insert them at
this point. You also cited as a reference Laurie Strong's letter which was on the stationery of the
Jefferson County Mental Health but her letter does not reference Board approval or agency
approval and I would have to view Laurie Strong's letter as a personal opinion, not an opinion of
an organization - an organization that has just completed a family and mental health building.
Limiting the size to 31 based on - already everyone has stated that the subdivision size that has
been proposed meets the qualifications that are in our law. Even the buildout of the second
phase would meet the situation of our laws that are in existence right now and that's the playing
field that the applicant is playing on. Having sat through some of these hearings where we have
attempted to redesign the project for the benefit of the developer [sic], the project always
disappears and it is an undeniable fact that low income housing is required in this community
and low income housing is required to a degree greater than the 51 units being proposed. I sit on
the Board of Directors of South Seven in Hadlock and we're waiting for sewage plants to go into
place and we're providing low income senior and frail senior housing. And the fact that the
developer is also utilizing other monies and other funds there are strings attached to those monies
and funds about volume, income bases, services provided, and their application meets those other
funding source requirements which are stringent and also provide checks and balances on the
development itself. As far as the impervious surface and the pervious pavement required, that
may be visionary but it's not within our code and it would be an extraneous imposition on the
applicant. As far as patios being required, well you and I always argue about group hugs and
this would be group patios, again, it would be an imposition of your aesthetic and taste upon
something that isn't delineated in law. As far as the maintenance fund, they have pledged to it
on the conditions and were they to sell the development, the buyer would be subject to the
conditions of the maintenance fund, would be bound by that and the City, which usually has a
City Attorney, would have the legal clout to enforce the maintenance fund and for us to
micromanage the financing of the maintenance fund is, well, just absurd.
Michelle, the north development specified - as a developer yourself, I'm surprised that you want
to impose such restrictions on other developers - there is - they have already specified that they
City Council Special Meeting Page 19 September 29, 2003
are putting in single detached housing in, which takes care of the dilution and dispersal affect.
The ghettoization issue, I think, has been effectively dealt with by both of you. Mr. Kolff made a
statement consistent with some of the letters about "this type of development" - well, that
subcategorizes the residents of this development - I'm looking around the room and I can
probably point out, myself included, people who would qualify to live in this development and I
personally resent the fact that I am being categorized as "this type of person" to be placed in
"this type of development" and my only comment to two of you on the ghettoization issue is
shame on you for taking the bait.
As far as the kids' center is concerned, there is some Supreme Court decision, Dolan versus
somebody, that does not allow you after the fact to impose conditions such as this and although
it is nice and would be an amenity if built, if the developer is not proposing the developer
certainly should not be compelled to do something which is a basis of your aesthetic, but not
necessarily their business plan.
As far as the payments in lieu and the developer's fair share, Michelle you brought these up as
another back door to increasing impact fees - the developer has already, already is going to
provide infrastructure to the city in terms of stormwater planning which is consistent with our
draft stormwater regulations, which is consistent with the Department of Ecology low impact
development standards, and they are putting in streets, curbing, infrastructure that we as a city
could not possibly afford. They are taking on their backs the burden to improve our city and
serve our citizens.
As far as the traffic study, on the third party, as a developer you have probably experienced
traffic studies yourself, I know on projects that I have proposed to the City and I trust the opinion
of the traffic engineer because they went to the highest and most stringent traffic study data to
impose a further burden on themselves so that the project would be just right. And as far as
existing Jefferson County residents being prioritized, I think the U.S. Constitution and federal
law would prohibit you from doing that and would probably negate or at least open up a can of
worms in terms of preferential treatment and discrimination against certain types of low income
people as opposed to other low income people. I don't think you can limit the developer to that,
as visionary and as well intentioned as that is. I cannot support the amendment to my motion
and I will certainly vote against it.
M. Sandoval: there wasn't actually an amendment but ifI may clarify for the record, I'm a real
estate agent, I'm not a developer and I think that you actually know that but I want to say that
you can call me - I know some people think real estate agent is a dirty word, some people think
developer is - but I built my own house but I'm not a developer. I've never done a 51 unit
multifamily or single family so let's, you know. - this is unfortunately, what I was trying to not
do, Geoff and I've asked you in good faith and full confidence that we could work together to
make this a truly win/win for both the developer, who had many of these issues already agreed
upon, that we could come forward in a non-antagonistic manner, together and I find it extremely
disheartening that you take such an adversarial position when we're trying to work for the
community. So, in regard to servicing Jefferson County residents in low income housing, there
are many precedents, I have studied it because of my desire to have low income housing in this
city and I can cite you many places that specifically say not only do certain developers have to
City Council Special Meeting Page 20 September 29, 2003
provide a certain percentage but then the housing authority had taken the idealistic visionary
steps as you would suggest, to make sure that you are housing people who work locally. It is for
the purposes of making sure that the service industry people that are being displaced throughout
this county and having to drive an hour and a half away to some area, can live in the tom that
they work in. It is not unheard of, it is happening all over the place and I am suggesting that we
could take that step. In regard to not wanting to clarify the bonding or the account or the
clarification of the restrictions for the northern properties, the reason that we currently have some
of the conflicts that we have today, I the code versus the Comprehensive Plan is because of the
lack of specific clarifications. I'm just - I'm not trying to put an undue burden here on the
developer, because I believe he has done his job - but what I'm trying to do is make sure that it's
clear - so I find it unfortunate that you would take the swacks that you did at me, but I still hope
that Catharine and Mr. Finnie would consider working towards this, some of these concerns that
I have brought forward along with Kees.
City Attorney John Watts: perhaps to help the Council work some of the issues ....
K. Kolff: if you would, let me make one quick response to what Geoff said because he also did
accuse me of making disparaging comments about the people who might be in these rental units,
and that was not at all my intent when I said "this type of development" I was referring to rental
units that have high turnover, and in particular, if you look at the letter from Kristen Anderson,
she says "rental units tend to generate more police calls." So her experience is that rental units
generate more calls. So when I'm talking about a burden on the city for this type of
development, I'm talking about a large number of rental units located in one neighborhood
where there would be more calls to the police. So I'm not talking about the people, I'm talking
about the nature of the type of development.
J. Watts: a number of issues have come up in the council discussion. I'm going to talk about
some of them and not necessary in the order of importance. The desire to clarify the restriction
on the number of units that can be placed on the parcel to the North - the Hearing Examiner does
not specify that that is limited to a set number. The developer indicated in the developer's
comments tonight that he was agreeable to making that condition explicit at not more than 30, so
that could be deemed an agreed amendment to the Hearing Examiner's decision by the developer
and that could be the end of that discussion unless the Council wished to have further discussion
on that matter. So, again, the developer has agreed - not more than 30 units on the parcel to the
North as a clarification.
The developer, in my conversation with the developer here a minute ago, the issue that the mayor
brought up about requiring patios, making that an explicit condition, the developer has no
problem with that issue.
With respect to the account for maintenance of the storm pond and the gravel trail, the developer
has agreed in conversation with me just a minute ago, that the developer would agree that in
addition to the account requirement, and correct me if I have overstated this, that the developer
would agree to have a cash account which would be the equivalent of a bond, although going out
and buying a bond a) is costly because you are actually putting money into a bonding company
and b) this type of bond may not even be available on the market, so having a cash account that
City Council Special Meeting Page 21 September 29, 2003
the city could access in the event of a code enforcement situation or to enforce a condition of plat
approval, makes as much sense as a bond - it makes more sense than a bond. And so the
developer has agreed that in addition to providing the account, the developer would post a cash
account of $5,000. Now granted, $5,000 doesn't go to correcting a lot of problems but the way
that the restrictive covenant and maintenance account language would be set up would be that
this money would be posted, it would be posted in a bank account in the developer's name, but in
a blocked account that would allow the city to access the account and utilize it for these specified
purposes: nuisance, maintenance, trail maintenance, things like that and if the city did access it
and did use it for those matters, the developer would be required to replenish the account. This is
in addition to all of the other tools the City has to enforce its codes which would include things
like notices of code violation, and imposition of civil penalties and fines of up to $100 per day.
So I believe that the $5,000 cash account is a partial but workable solution to some of the
concerns that have been addressed.
In connection with the suggested clarification or change of condition to remove the barrier to the
north, in the conversation that I just had with the developer, the developer indicated that he
would be willing to consider that and I believe, do that, if that was a Council imposed condition.
M. Sandoval: I don't know if anybody else agrees with that, it was just an idea of mine.
{unintelligible - from audience?]
J. Watts: let's come back to that one or put that offto the side for now. In response to the issue
that came up about the daycare center. The developer has always been willing to build the
project and fund up to one half of its total cost, but only to do that during the course of the
construction of the project.
J. Williams: the land would be free of course
J. Watts: the land would be free
J. Williams: further than that, we would fund half the price of building it, requiring only half of
the building cost, but no cost for the land.
J. Watts: so it seems to me that if the Council wanted to take up the developer on that proposal,
then that would leave it to either the City or a non-profit or third parties to come in and figure out
how to pay the balance of the one half.
In connection with the issue that Council member Masci raised about the Oregon decision, this
was the U.S. Supreme Court, dealt with the issue of imposing conditions and making sure that
conditions that are imposed are fair, reasonable, have a nexus to the project and are proportional
to the impacts coming out of the project and it seems to me that a 50 percent contribution by the
developer toward a day care center might be a reasonable - reasonably proportionate to the
impact of such an impact.
City Council Special Meeting Page 22 September 29, 2003
Traffic study - my comment there is that I don't see in the record evidence that challenges the
traffic study information provided by the applicant's traffic engineer. You can't say that it might
be better to get another study, you have to be able to point to facts that say the evidence that has
been presented is defective or flawed and therefore justifies further analysis. So I'm not sure
there is evidence in the record to support that condition.
Likewise, I haven't researched the issue of whether the city can impose as a condition of a
project like this, that local residents get first come first served. It seems to me that does get into
areas of unlawful discrimination but again I haven't researched that issue. It would surprise me
if that condition could be lawfully imposed. It would seem to me that the proper forum for that
condition to be imposed would be through the state grant and I presume that that is not part of
the state grant for the city to come in and impose that as a local condition - to me it would be
very problematic. So those are some of the issues and some possible resolutions ...
J. Finnie: Impervious surface
J. Watts: oh, and impervious surface, the applicant has indicated to me that that would be an
unacceptable condition - it's not workable, is very costly. I don't know enough about the issue
to know whether or not that's true or not, I just asked the applicant for his take on whether or not
he would be willing to do something and he says no. So with respect to the vegetation to the
north, carry on your conversation, I'll see whether or not we can get something more on that.
J. Finnie: Just a couple of thoughts. I mean, this wasn't so painful. All right, I want to
commend you for sticking with this. Here are a couple of cautions I'm going to give us. First of
all, we have to steer through a situation where we only can do, we only can modify certain things
here, right, and that's the man who can tell us when we cross the line. And one of the things you
did, which was a good idea, you started out your monologue an hour ago by speaking to certain
disagreements you had with the hearing examiner's report, and you were looking within it - I
thought when you started to look at things where the developer implied he'd do certain things
and you wanted to change it to make it explicit, I thought that was a good approach because, if
the developer would agree with it, because it already spoke to an issue that was gray within the
framework of the hearing examiner's report. It may be, that in addition to the patios, there may
be some other refinement to the development that would be attractive to the development that
would not be cost prohibitive that would also blend into the community. I suggest we look at
those. The suggestions made here, with the exception of the traffic and parking study, I agree
with those, and I think we should find some way without keeping us here until 4 in the morning,
to task somebody to wordsmith these and make them a part of this motion tonight. I don't think
we're so far away from trying to evidence good faith and still act within the law and I'm
cautioning you not to take this beyond the law. I think the idea of- what worried me about a
traffic study is - I mean, I read the traffic study - I don't know if it is a good traffic study or not,
except it's don't by professionals, but if we impose another traffic study we are also delaying the
project. There is an economic consequence of those kinds of actions that I think are beyond the
scope of our authority here tonight if we're trying to work this through. So I'm just cautioning
you - I encourage what you're doing, I support these specific initiatives and what you might
want to think about is figuring out the mechanics of how we're going to get them into law.
City Council Special Meeting Page 23 September 29, 2003
G. Masci: OK, so I think I can solve part of Joe's challenge. I could, with possibly a little sweet
talking from Michelle. I'll withdraw my original motion and move down to Number #2 by
denying the appeal in part and affirming the Hearing Examiner's decision with modified
conditions as those proposed by the developer and I'll specify those because I wrote them down.
IfI have assurance from the rest of the council that we will vote and not discuss until 4:00 in the
morning, because, in the spirit of compromise, the developer has stepped forward to self limit
themselves and I can respect their business case from their point of view. So, if it's acceptable
to everyone, I'm looking for consensus here,
K. Kolff: which is what you need in order to withdraw your motion, by the way.
G. Masci: so I need a response from everyone.
K. Kolff: I think it's a wonderful idea.
J. Finnie: Are you willing to withdraw your motion?
G. Masci: OK, consider the motion withdrawn and I will go ahead and make a motion to deny
the appeal in part and affirm the Hearing Examiner's decision with modified conditions, limiting
the, specifying that the north parcel will be limited to 30 detached homes, that patios will be
provided in the south section constructions, that the maintenance fund as specified in the MDNS
will be supplemented by a cash account of $5,000 and that the developer will provide land for a
day care center at no cost - at no charge
J. Finnie: they'll donate the land.
G. Masci: they'll donate the land, thank you Joe - and donate up to one half the building cost
and build with an appropriate partner in that issue. I think that's all.
J. Finnie: with that construction occurring coincident with the project.
G. Masci: that's the motion
M. Sandoval: could I see if you would be friendly to one amendment and that is to keep the cash
account at $5,000 - so if it had to be withdrawn that it would always be at that level.
K. Kolff: I'll second that motion.
J. Watts: and just to clarify on the cash account, that it can be used for any code enforcement
matter, not just limited to the trail or the stormwater maintenance.
G. Masci: that's the omnibus motion.
K. Kolff: so now we have a motion on the floor.
City Council Special Meeting Page 24 September 29, 2003
J. Watts: the developer has indicated that the patio needs to be further be clarified to be either
patio or deck, depending upon the lay of the land.
G. Masci: okay I will rephrase the patio as patio or deck, is that acceptable to the seconder?
K. Kolff: it is. Perhaps we should ask if the developer is willing to have any additional
conditions put on -
G. Masci: stop
K. Kolff: he's being so helpful
G. Masci: no, no
K. Kolff: are there any further comments or conditions we have not considered that are dear to
anyone here?
G. Masci: I call for the question
K. Kolff.' all right, the question has been called. I believe this is just a resolution so it's a voice
vote. Actually, perhaps, should we have Pam read the motion? Please, Pam, so we can be sure.
P. Kolacy: OK, the motion is to deny the appeal in part and affirm the Heating Examiner's
decision with modified conditions as followed: that the north parcel will be limited to 30
detached homes, that patios or decks (depending on the lay of the land) will be provided in the
south section constructions, that the maintenance fund specified in the MDNS will be
supplemented by a cash account of $5,000, to be used for any code enforcement matter that
arises and that that account will be replenished to remain at $5,000 when it is drawn upon, that
the developer will provide land for a day care center and will donate up to one half of the
building cost and will build the building sharing the cost with an appropriate partner with
construction coincident with the construction of the project.
K. Kolff.' all right, all in favor of the motion as read by Pam please signify by saying "aye".
[Finnie, Masci, Youse, Robinson, Sandoval and Kolff voted yes]
Any opposed? [None]
It is unanimous, thank you all very much.
J. Watts: the follow up motion could be for staffto incorporate the additional conditions that
were part of the main motion into the draft resolution which is really the same as the resolution
with additional conditions.
G. Masci: so moved
K. Kolff second
City Council Special Meeting Page 25 September 29, 2003
K. Kolff.' ok, it has been moved and seconded. All in favor please signify by saying aye
[Finnie, Masci, Youse, Robinson, Sandoval and Kolff]
Any opposed? [None]
It's unanimous.
Before we adjourn I do want to thank the developer for his time and efforts and cooperation and
the community for all the time and effort they put into this project and the staff for their hard
work and the council for all of the time and deliberation in coming up with some additional
conditions.
ADJOURN
There being no further business, the meeting was adjourned at 10:32 p.m.
Attest:
Pamela Kolacy, CMC
City Clerk
City Council Special Meeting Page 26 September 29, 2003