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HomeMy WebLinkAbout01182005 . CITY OF PORT TOWNSEND CITY COUNCIL MINUTES OF THE REGULAR SESSION OF JANUARY 18, 2005 CALL TO ORDER AND PLEDGE OF ALLEGIANCE The City Council of the City of Port Townsend met in regular session this eighteenth day of January, 2005, at 6:30 p.m. in the Port Townsend temporary Council Chambers in the Cedar Room ofthe Waterman & Katz Building, Mayor Catharine Robinson presiding. ROLL CALL Council members present at roll call were Frank Benskin, Freida Fenn, Kees Kolff, Geoff Masci, Laurie Medlicott, Catharine Robinson, and Michelle Sandoval. Staff members present were City Manager David Timmons, City Attorney John Watts, Fire Chief Mike Mingee, and City Clerk Pam Kolacy. CHANGES TO THE AGENDA . Mayor Robinson suggested that the following items be moved to "Unfinished Business" prior to "Special Business" so that Council members recused from the Tapper item may leave the meeting. There were no objections. FIRE DEPARTMENT Chief Mike Mingee announced the promotion of Firefighter/Paramedic Curt Kilgore to Lieutenant. Chief Mingee introduced new Firefighter/Paramedic Sam Neville. COMMENTS FROM THE PUBLIC (Consent and non-agenda items) Beth Wilmart of Jefferson County Community Network spoke in support of Council approval of the letter formally endorsing the Guide to Prevention in Jefferson County (consent agenda item.) Kellie Ragan also spoke in support of endorsement of the Guide to Prevention. Diane Hoffman recommended a four-way stop be installed at the intersection of Hastings and Sheridan. . City Council Business Meeting Page I January 18,2005 PROCLAMATION · Mayor Robinson read a proclamation declaring January 30, 2005 through April 4, 2005 "A Season for Nonviolence in Port Townsend." Reverend Pam Douglas Smith and Rich Rackowski were present to receive the proclamation. SPECIAL PRESENTATION City Manager David Timmons stated that a number of guests from Croatia were present at the meeting. A delegation is visiting Port Townsend as part of the exchange program sponsored by USAID and IIMC. Representatives from each city spoke to the Council and presented gifts from Croatia. RECESS The Mayor declared a recess at 7: 15 p.m. for the purpose of a break. RECONVENE The meeting was reconvened at 7:30 p.m. CONSENT AGENDA · Motion: Mr. Masci moved for approval of the following items on the Consent Agenda. Ms. Fenn seconded. The motion carried unanimously, 7-0, by voice vote. Approval of the following Bills, Claims and Warrants Vouchers 92617 through 92705 in the amount of $542, 191.30 Vouchers 92503 through 92608 in the amount of $164,485.50 Vouchers 105051 through 105057 in the amount of $72,080.77 Approval of Minutes: December 13,2004 Approval of Resolution: Resolution 05-005 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND, WASHINGTON, DESIGNATING THE CITY MANAGER AS APPLICANT AGENT FOR THE STATE OF WASHINGTON PRE-DISASTER MITIGATION GRANT PROGRAM COMPETITIVE (PDMc ) APPLICATION AND GRANT Approval of Actions: · City Council Business Meeting Page 2 January 18, 2005 Approval of endorsement letter to Jefferson County Community Network for the Guide · to Prevention in Jefferson County. Proposed City Manager evaluation process was approved as presented in the packet. UNFINISHED BUSINESS WRIA 17 STATUS REPORT Councilor Kolff stated that the work of the WRIA 17 Planning Unit has been endorsed by the County, and that the group is close to agreement on the issues. Water reserves remain an outstanding issue and the group is attempting to reach consensus within the policies set by various agencies. He noted that if consensus were not reached on this issue, the Department of Ecology would make the decision according to its policy and deadline. He noted that the planning unit would be finished this month with currently funded activities but is hoping for a grant from DOE to continue the planning process. GOLF COURSE TASK FORCE REPORT · Gary Baird directed the Council to the executive summary report of the task force included in the packet and briefly reviewed the major recommendations. The Council agreed to set a workshop for discussion of the report for February 28. LTAC COMMITTEE REPORT Councilor Medlicott reported that a recommendation has been made by the Lodging Tax Advisory Committee (8-2 vote) to provide $5,000 from the LTAC reserve fund to support free parking at Fort Worden. She added that the committee expressed dismay that the issue of tapping reserves for this purpose did not come forward to LTAC during the budget process; she also stated that the Committee is concerned about the integrity of the LTAC reserve funds which are earmarked and detailed for mitigation of the Hood Canal Bridge closure. She said the Committee wished to remind Council that the marketing of Port Townsend was curtailed sharply last July and to also remind the Council that marketing results not only in visitors who contribute to the L T AC funds, but also directly to the General Fund. NEW BUSINESS ADVISORY BOARD APPOINTMENTS Motion: Mr. Masci moved to accept the Mayor's recommendation and confirm the following appointments. Mrs. Medlicott seconded. The motion carried unanimously, 7- 0, by voice vote. · City Council Business Meeting Page 3 January 18, 2005 . Planning Commission Harriet Capron, position 2, term expires 12/31/05 Roger Lizut, position 6, term expires 12/31/08 Lyn Hersey, position 5, term expires 12/31/08 Historic Preservation Committee Richard Berg, position 5, term expires 05/01/06 Arts Commission Lucy Congdon Hanson, position 9, expires 05/01/07 RESOLUTION 05-006 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND AUTHORIZING THE CITY MANAGER TO EXECUTE A COLLECTIVE BARGAINING AGREEMENT WITH LOCAL UNION NO. 589 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS FOR POLICE DEPARTMENT EMPLOYEES EFFECTIVE JANUARY 1,2005 THROUGH DECEMBER 31, 2007 . Mr. Timmons noted that the bargaining union membership has voted to accept the contract and staff recommends ratification by the City Council. Motion: Mr. Masci movedfor approval of Resolution 05-006. Mrs. Medlicott seconded. The motion carried unanimously, 7-0, by voice vote. RESOLUTION 05-007 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND, WASHINGTON, APPROVING HEARING EXAMINER RECOMMENDATION REGARDS TAPPER HOME OCCUPATION Councilors Masci and Sandoval recused themselves from the proceedings and left the meeting room. City Attorney Watts also recused himself and left the room. Mayor Robinson read the rules of procedure for the closed-record quasi-judicial hearing. She noted that two Councilors have recused themselves and asked if there were any objections from anyone regarding participation of the remaining Council members. There were none. A letter dated January 18, 2005 ("Re: Adjacent Properties") was submitted to the Council by Bruce J. Tapper for the record. . City Council Business Meeting Page 4 January 18, 2005 . Mayor Robinson then stated she recommends that Council adjourn to executive session for discussion of the matter, noting a legal exception to the executive session rules that allows the Council to discuss a quasi-judicial matter between named parties in that manner. She stated her intent would be to return to open session for further discussion and action. Ms. Fenn noted she had mixed feelings about discussion in executive session as people have come to attend a public hearing and she thought the matter would be publicly discussed. Ms. Robinson stated that the public hearing was conducted before the Hearing Examiner. City Manager Timmons noted that an executive session would be appropriate for purposes of deliberation on legal issues related to the matter but added that having this discussion in executive session was not a requirement. Ms. Fenn stated she would be comfortable with an executive session if at some point in the deliberation there were a need to clarify issues relating to legal exposure for the city but believes the remainder of discussion should be in the public domain. . Mayor Robinson said the Council does not have legal advice tonight because the City Attorney is unable to represent the Council and outside council was not able to schedule the time to attend. If Council desires the attorney to be present, another meeting could be scheduled. Motion: Ms. Robinson moved that the Council discuss the matter in executive session. Mr. Benskin seconded. Mr. Kolff asked for more clarification from the City Manager. Mr. Timmons stated that there may be issues which compromise the City's position on appeal that should be discussed in executive session in terms of potential litigation and the integrity of an appeal. He stated that the Council could begin the discussion and ask that he bring a point of order if he believes the discussion enters that area. Vote on motion to adjourn to executive session carried, 3-2, by voice vote, Koljf and Fenn opposed. Mr. Kolff asked that staff first make a presentation covering the facts for Council's information. There were no objections. . Mr. Timmons stated that he has reviewed the Hearing Examiner's decision with counsel Steve DiJulio of the Foster, Pepper law firm. He said that although the original appeal and determination rested on evidence as to whether the Tappers had established a valid home occupancy during the time they owned the property, the Hearing Examiner ruled on another principle, which was backed up by Foster Pepper's review - the Hearing City Council Business Meeting Page 5 January 18, 2005 . Examiner ruled on a narrow legal premise that related to the "chain" of occupancy. The decision stated that ifthere was a continuity of home occupation for a period of time, then sale ofthe property to the Tappers would have been unbroken and the home occupancy would have run with the land or property. Based on testimony during the public hearing, it was determined that the prior owner, Dr. Masci, had not occupied the property during a two-year period. Based on that evidence alone, the "chain" had been broken and occupation after that was not legally established, therefore non-complying, and so could not be transferred with the sale of the property. Other facts then became moot as that was the premise relied upon. Mr. Di Julio has stated this is a sound opinion consistent with his interpretation and recommended that the Director's determination be amended to reflect the Hearings Examiner's findings. According to the Hearing Examiner's conclusion, any arguments that followed are not relevant because at that one point the chain of occupation is broken and from that time forward no legal home occupancy had been established by a permit granted by the city. Ms. Fenn stated that the Hearings Examiner ruled on that narrow point and stated there was no need to further analyze the rest of the case. She noted that the Council received this as a recommendation but is free to accept, reject, or add as long as the Council's findings are based on the record. She stated the Council could also postpone and ask for legal counsel to be present when a decision is made. Mr. Timmons stated that in that case it would be appropriate to adjourn to frame the legal issues and then have counsel review and get back to us. . Mr. Kolff stated that if the Council has questions about the legal standing of Dr. Masci's home occupation and how that relates to all of this it would be better handled in executive seSSIOn. Ms. Robinson stated her questions are of a legal nature. EXECUTIVE SESSION The Council adjourned to executive session at 7:55 p.m. with an estimated time of20 minutes. At 8: 15, Mayor Robinson announced the Council would be in executive session for 10 more minutes. RECONVENE The meeting was reconvened at 8:25 p.m. Mayor Robinson noted that the Council had discussed legal issues relevant to the matter and asked if Councilors had further discussion. . City Council Business Meeting Page 6 January 18, 2005 . Mr. Kolff disclosed that one of his family members did see one ofthe Tappers one time several years ago but that he has had no further contact with them and does not feel that his opinions or participation are affected in any way. Ms. Fenn stated that after reading the Hearing Examiner's opinion, she finds herself in agreement with the determination and recommendations; in addition she was convinced by the facts that residency at the site of the home occupation is required and that requirement had not been met. She added that the Hearing Examiner gave one reason to change the determination and by reading the record, she found additional reasons that could have been findings of fact to support the same outcome. She believes that to be more complete it would be good for the Council to address and stated she would like to add additional findings. . Mr. Kolff stated he concurs with Ms. Fenn's statement and believes there was a significant question about whether or not occupancy was adequate in order to maintain the standing of the home occupation status; he has a question about whether there was an appropriate grandfathering that went on before the Tappers purchased, in particular because there was no written evidence that there ever was a legal home occupation in the residence before the Tappers purchased it. In 1996, the home occupation ordinance was adopted and at that time a permit should have been applied for and since that never occurred it seems it would be extremely difficult for anyone to go back and say they had a legitimate home occupation. A legal record was required and none exists, so the claim of grandfathering puts the City in a difficult legal situation when people claim they are "grandfathered" but there is no evidence to support that. He stated the Hearing Examiner never went to that chronological time because he stopped in 1983 or 4 and therefore he stated he would like to add this issue as an additional concern and have it added to the resolution. Motion: Mr. Koljf moved that the Council send Resolution 05-007 back to staff to include in the resolution that we not only accept the Hearing Examiner's Findings of Fact, Conclusions of Law and Recommendations, but that the Council also have our own Findings, in particular referring to the two other times when the chain of home occupation use was broken and will leave it up to staff and legal counsel to craft that language in an appropriate way. Mrs. Medlicott seconded. Amendment: Ms. Fenn offered an amendment that the situation in the Finding not be described as a "chain" as she believes a person could come to the same decision on any of the single findings and that each stand alone. Accepted as a friendly amendment. Amendment: Mr. Benskin offered an amendment to state the specific time periods in the resolution (i.e., 1996 and 2001) and include afinding regarding whether or not there was reestablishment of Dr. Masci's home occupation there at the time he moved back. Accepted as a friendly amendment. . City Council Business Meeting Page 7 January 18, 2005 . Ms. Fenn clarified that when Council refers to "staff' it means the City staff will pass language by the special counsel so when the Resolution returns it will have been reviewed by the firm of Foster, Pepper. Vote: motion as amended carried unanimously, 5-0, by voice vote. Mr. Timmons stated the revised resolution would come before the Council at the February 7 meeting. He reminded the council that they are still operating under quasi- judicial rules so should not discuss the issue among themselves or with others. FUTURE AGENDAS In answer to Mr. Benskin's inquiry, Mr. Timmons stated that the Council would be holding a workshop on January 31 to discuss the DSD reorganization. Materials will be provided to the. Council prior to the meeting. ADJOURN There being no further business, the meeting was adjourned at 8:35 p.m. Attest: . Otlm-J1- ct{¡LÔ Pamela Kolacy, CMC City Clerk . City Council Business Meeting Page 8 January 18,2005