The URL can be used to link to this page

Home My WebLink AboutCouncil MIN 10-22-2003 Special FEDERAL WAY CITY COUNCIL Special Meeting/Public Hearing Council Chambers - City Hall October 22, 2003 - 7:00 p.m. Minutes I. CALL MEETING TO ORDER Mayor Burbidge called the special meeting of the Federal Way City Council to order at the hour of 7:04 p.m., for the purpose of conducting a public hearing on the appeal of the Hearing Examiner's decision on the Federal Way Sound Transit Center. Mayor Burbidge advised this is a quasi-judicial proceeding and stated the City Attorney advises the City Council-not the City Staff-during this public hearing; therefore, Attorney Pat Richardson would be seated at the dais. Councilmembers present: Mayor Jeanne Burbidge, Deputy Mayor Dean McColgan, and Councilmembers Jack Dovey, Eric Faison, Linda Kochmar and Mike Park. CouIlcilmember Gates' absence and reason therefor is noted later in the proceeding. City Staff present: City Attorney Pat Richardson, Assistant City Attorney Karen Jorgensen, Senior Planner Lori Michaelson and City Clerk Chris Green. II. PUBLIC HEARING W..12eal of Hearing Examiner's Decision on the Federal Way Transit Center . Staff Report . Argument on Motion to Strike . Argument on Land Use . Citizen Comment . Council Deliberation Mayor Burbidge opened the public hearing at 7:05, followed by her reading of the introduction, appearance of fairness and hearing procedure to be followed this evening. A copy of the public hearing outline for this quasi-judicial proceeding is attached hereto and incorporated by this reference. Mayor Burbidge advised Councilmembers they should recognize the Appearance of Fairness Doctrine does not require establishment of a conflict of interest, but whether there is an appearance of conflict of interest to the average person. She also advised Councilmember Mary Gates previously recused herself from participation in this appeal hearing due to a conflict of interest-she currently serves as a member of the Sound Transit Board. ((;((5)[Pl{ Federal Way City Council Special Meeting/Public Hearing October 22, 2003 - Page 2 of 6 There was no verbal response from any Councilmember when Mayor Burbidge asked for disclosure of any Councilmember's interest in the property or issue at hand. She also asked Council to place on record the substance of any communication each has had since this appeal was filed on July 31, 2003, with either the opponents or proponents of the Federal Way Transit Center-no disclosures were brought forth. Mayor Burbidge then asked persons who anticipate testifying or speakiIlg during this hearing to please stand, raise their right hand and take an oath to affirm their testimony shall be the truth. STAFF REPORT Senior Planner Lori Michaelson presented a brief summary of the analysis of the alleged errors, and the specific factual findings of fact and conclusions disputed in the notice of appeal. Counsel for both parties were in attendance-David Larson, Stephanie Hicks and Allen Wallis for the appellants-Steve Sheehy for the respondent. Both the appellant and the respondent advised how they wished to designate their allotted times for both the argument concerning the motion to strike alleged errors, and for the argument concerning the appeal of the land use application. ARGUMENT ON MOTION TO STRIKE Mayor Burbidge first called on Mr. Sheehy to present respondent Sound Transit's argument on alleged errors 8, 13 and 14, followed by Ms. Hicks' responsc, as one of the attorneys for the appellants. A lengthy Council discussion with respect to the argument all the motion to strike alleged crrors 8, 13 and 14 ensued. MOTION BY DEPUTY MAYOR MCCOLGAN TO ALLOW ALLEGED ERROR 8 AND ALLEGED ERROR 13 AND TO STRIKE 14; SECOND BY COUNCILMEMBER DOVEY. THE MOTION FAILED AS FOLLOWS: Burbidge Gates Kachmar Park no absent/recused yes no Faison Dovey McColgan no yes yes MOTION BY COUNCILMEMBER FAISON TO GRANT RESPONDENT'S MOTION TO STRIKE ALLEGED ERRORS NO. 13 AND 14 AND DENY RESPONDENT'S MOTION TO STRIKE ALLEGED ERROR NO.8; SECOND BY COUNCILMEMBER PARK. FRIENDLY.AMENDMENT BY COUNCILMEMBER KOCHMAR TO TAKE MOTIONS ONE BY ONE; COUNCILMEMBER FAISON ACCEPTED THE FRIENDLY AMENDMENT. Federal Way City Council Special Meeting/Public Hearing October 22, 2003 - Page 3 of 6 FIRST MOTION TO START WITH ERROR NO. 14-GRANT RESPONDENT'S MOTION TO STRIKE ALLEGED ERROR NO. 14 PASSED AS FOLLOWS: Burbidge Gates Kochmar Park yes absent/recused yes yes Faison yes Dovey yes McColgan yes SECOND MOTION BY COUNCILMEMBER FAISON TO DENY RESPONDENT'S MOTION TO STRIKE ALLEGED ERROR NO.8; SECOND BY COUNCILMEMBER PARK. Due to some confusion with the motion on the floor, Mayor Burbidge asked Councilmember Faison to repeat his motion. (REPEATED BY MAKER) SECOND MOTION BY COUNCILMEMBER FAISON TO DENY RESPONDENT'S MOTION TO STRIKE ALLEGED ERROR NO.8; SECOND BY COUNCILMEMBER PARK. THE MOTION PASSED AS FOLLOWS: Burbidge Gates Kachmar Park yes absent/ recused yes yes Faison yes Dovey yes McColgan yes THIRD MOTION BY COUNCILMEMBER FAISON TO GRANT RESPONDENT'S MOTION TO STRIKE ALLEGED ERROR NO. 13; SECOND BY COUNCILMEMBER PARK. Due to more confusion with the motion on the floor, Mayor Burbidge asked Councilmember Faison to again repeat his motion. (REPEATED BY MAKER) THIRD MOTION BY COUNCILMEMBER FAISON TO GRANT RESPONDENT'S MOTION TO STRIKE ALLEGED ERROR NO. 13; SECOND BY COUNCILMEMBER PARK. THE MOTION FAILED AS FOLLOWS: Burbidge Gates Kachmar Park yes absent/ recused no yes Faison yes Dovey no McColgan no Steve Sheehy, Respondent's attorney, advised he would like to withdraw Sound Transit's motion on striking the Casey letter (Alleged Error No. 13) to enable the hearing to go forward in the interest of time. Federal Way City Council Special Meeting/Public Hearing October 22, 2003 - Page 4 of 6 ARGUMENT QNLAND USE Stephanie Hicks and David Larson, Appellant's attorneys, touched briefly on the standard of review and presented their argument on land use. Allen Wallis, Counsel for appellant Dan Casey, also addressed Council. Counsel for the parties responded to a variety of Council questions. At 8:40 p.m., Mayor Burbidge announced a brief lO-minute recess; Council returned to chambers at 8:52 p.m., and Mayor Burbidge reconvened the special meeting. Following the closure of Ms. Hicks' presentation, Respondent's attorney Steve Sheehy presented his argument on land use issues. Ms. Hicks and Mr. Larson were then provided with additional rebuttal time on behalf of the appellants. CITIZEN COMMENT Daryl Reichstein - opposes approval of transit center-Attorney Hicks submitted a letter written by Mr. Reichstein dated October 22, 2003-the letter was read into the record with the understanding it could be later denied if determined Mr. Reichstein is not a party of record and his letter not admissible. Mayor Burbidge asked City Clerk Green to mark the letter as an exhibit to these proceedings-the letter is attached hereto and marked as Exhibit 1. pam Kebre - opposes approval of transit center-concerned about traffic congestion. lIector Santa Cruz - opposes approval of transit center-concerned about traffic congestion. Ryan Tacke - opposes approval of transit center-concerned about traffic congestion and pedestrian safety. Dan Casey - opposes approval of transit center-doesn't believe the transit center belongs in the city center core. Sheryl Nevers - opposes approval of transit center-feels there has been a lack of public input. There being no additional citizen comment and following final comment by counsel for the Appellants and Respondents, Mayor Burbidge closed the acceptance of arguments and testimony at the hour of 9:52 p.m., and invited Councilmembers to deliberate the issues in reference to specific documents and exhibits. COUNCIL DELIBERA nON Following a lengthy discussion by Councilmembers, Mayor Burbidge announced an approximate lO-minute recess at 10:25 p.m.; she reconvened the special meeting at 10:40 p.m. Federal Way City Council Special Meeting/Public Hearing October 22, 2003 - Page 5 of 6 Mayor Burbidge offered several options: (1) to continue with questions and deliberation; (2) to commence deliberation of the alleged errors one by one; or (3) to go into executive session, if felt necessary. It was the consensus of Council to commence deliberation of the alleged errors. Alleged Error No.1: Mayor Burbidge read the text of the alleged error and asked for comment or questions by Council~hearing none, she moved to Alleged Error No.2. Alleged Error No.2: Mayor Burbidge read the text of the alleged error and asked for comment or questions by Council-hearing nOlle, she requested an executive session. At 10:43 p.m., Mayor Burbidge announced a lO-minute executive session as cited on the agenda, pursuant to RCW 42.30. 140(2)-Appellant's Attorney David Larson objected to the executive session~City Attorney Pat Richardson noted his objection for the record. Council returned to chambers at 10:53 p.m., and Mayor Burbidge reconvened the special meeting/public hearing. Discussion then centered on whether or not to continue the hearing at this time-continuing to a later date due to the lateness of the eveIling and the many issues surrounding each alleged error. City Clerk Green explained the legal requirements for continuing the hearing to a date specific to enable her to post the new date and time at the closure of tonight's proceedings. MOTION BY DEPUTY MAYOR MCCOLGAN TO CONTINUE THE PUBLIC HEARING TO MONDAY, OCTOBER 27, 2003, AT 7:00 P.M., IN COUNCIL CHAMBERS; SECOND BY COUNCILMEMBER KOCHMAR. THE MOTION PASSED AS FOLLOWS: Burbidge Gates Kachmar Park yes absentlrecused yes yes Faison Dovey McColgan yes yes yes Councilmember Park requested a verbatim traIl script of the evening's public heariIlg prior to the continuation hearing on Monday evening. City Clerk Green advised she will attempt to locate a court reporter to provide the transcript for tonight's public hearing prior to Monday's proceedings. III. EXECUTIVE SESSION Quasi-Judicial Matter/Pursuant to RCW 42.30.140(2) No additional executive session was necessary. Federal Way City Council Special Meeting/Public Hearing October 22, 2003 - Page 6 of 6 IV. ADJOURNMENT Mayor Burbidge announced the special meeting/public hearing is continued to Monday, October 27, at 7:00 p.m., and adjourned the special meeting/public hearing at the hour of 11:00 p.m. r N. Christine Green, CMC City Clerk A. Introduction Qt.~ G; ~OJ l1JlJ- 04' FEDERAL WAY CITY COUNCIL FEDERAL WAY TRANSIT CENTER APPEAL PUBLIC HEARING WEDNESDAY, OCTOBER 22, 2003 This is a quasi-judicial proceeding. The City Attorney advises the City Council and not thc City Staff during this proceeding. Therefore, I have asked her to sit with City CounciL I will now open the public hearing to consider the appeal ofthe Federal Way Transit Center Land Use Application submitted by Sound Transit. Under RCW 36.70B.020 subsection 1 and Federal Way City Code, Section 22-451 a public hearing must be conducted to consider the appeal of the Federal Way Transit Center land use application submitted by Sound Transit. This is a "closed record hearing," which means that the Council may consider only the evidence that was before the Hearing Examiner, and the briefing submitted in this appeal; no new evidence may be presented by anyone unless as stated in FWCC 22-451 subsection 4, it relates to the validity of the Hearing Examiner's decision and it was not known or could not have been known at the time of the Hearing Examiner's decision, or the Hearing Examiner improperly excluded or omitted evidence. The purpose of this hearing is to determine whether the Hearing Examiner's decision granting Sound Transit's land use..appfu:ation for the Federal Way Transit Center should be reversed, or affirmed. , ! This hearing is being recorded. Therefore, prior to speaking please state your name and address. I would now ask th.at the representatives of the Appellants and Respondent please identify themselves for the record. [David Larson shall introduce himself for Appellant; Stephen Sheehy for Respondent, Sound Transit.} B. Appearance of Fairness City Council Rule 12.3 Addresses the Appearance ofFaimess. The rule states: Council members should recognize that the Appearance of Faimess Doctrine does not require establishment of a conflict of interest, but whether there is an appearance of conflict of interest to the average person. This may involve the council member or a Council member's business associate, or immediate family. It could involve ex parte (outside the hearing) communications, ownership of property in the vicinity, business dealings with the proponents an/or opponents before or after the hearing, business dealings of the Council member's employer with the proponents and/or opponents, announced predispositions, and the like. Proper to any 1 quasi-judicial hearing, each Council member should give consideration to whether a potential violation of the Appearance of Faimess Doctrine exists. Council member Gates has recused herself from this appeal hearing due to her conflict of interest in this matter. Does any Council member have an interest in the property or issue? Council, can you hear and consider this matter in a fair and object manner? Council, I ask you to place on the record the substance of any communication each has had since this appeal was filed on July 31,2003, with the opponents or proponents of the Federal Way Transit Center. Does any participant object to any Council member's participation? If so, please state your objection and reason now. C. Hcarin2: Procedure The public hearing will be conducted in the following manner: 1. According to the Notice sent to the parties dated August 8, 2003, the Appellants and Respondent each have 20 minutes to argue Sound Transit's Motion to Strike Alleged Errors, and approximately 22 minutes for a total of forty-five (45) minutes to argue the land use application appeal. They may divide their time as they wish, and will state their time limitations on the record after full explanation of the procedure. 2. Staff will be provided approximately five (5) minutes to present a summary of the analysis of the alleged errors and disputed findings or fact and conclusions as identified in the Notice of Appeal and the written arguments. 3. Before proceeding with the appeal ofthe land use application, Council will address the Respondent's Motion to Strike Alleged Errors. 4. After hearing the presentations regarding the Motion to Strike Alleged Errors, Council will deliberate, and then decide by motion if any of the alleged errors should be stricken. 5. Turning to the Land Use Application for the Federal Way Transit Center, the Council shall hear Appellants' and the Respondent's arguments. Appellants are those parties who filed a notice of appeal as required under Federal Way City Code, Sections 22- 446 and -447. The Council may ask questions during the presentations. 6. Public Comment. Those individuals who participated in the Process IV (four) Hearing Examiner hearing are listed on the distribution list and may provide public 2 comment (clerk has a copy of list), provided that comment is limited to the issues raised by the Appellants' Notice of Appeal as required by Federal Way City Code, Section 22-451, subsection c. If anyone desires to speak, please state your name and address and wait before speaking to allow the City Clerk the opportunity to verify your name is on the list of those who participated in the hearing and or requested receipt of the Hearing Examiner's decision at the time ofthe hearing, as required by Federal Way City Code Sections 22-443, 445 subsection f, and 447 subsection a. Public testimony will be limited to three (3) minutes per person. 7. The representatives for Appellants and Respondent will have an opportunity to rebut public comments. 8. The portion ofthe hearing for Council to accept testimony and arguments will then be closed. 9. Council will deliberate and decide by motion whether to grant the appeal and reverse the Hearing Examiner's decision, or deny the appeal and affirm the Hearing Examiner's decision. Council's decision will be finalized in a written document for the next regular City Council meeting on November 4, 2003, and will become final on that date. Questions to Representatives: . How do Appellants and Respondent wish to allocate their time for argument concerning the motion to strike alleged errors? . How do Appellants and Respondent wish to allocate their time for argument concerning the appeal of Sound Transit's land use application? OATH: At this time, I would ask that each person who anticipates testifying or speaking this evening to please stand and raise your right hand for the oath: Do you, and each of, you swear or affirm that the testimony you shall give in the case in this appeal hearing shall be the truth? Please answer by stating "I do." Staff Presentation: Lori Michaelson, AICP, Senior Planner, will be allowed 5 minutes to present the analysis of the alleged errors and the specific factual findings and conclusions disputed in the notice of appeal. 3 MOTION TO STRIKE ALLEGED ERRORS Areument on Motion to strike alleeed errors: Respondent Sound Transit argument Appellants' argument Council deliberation Alleeed Errors 8, 13, and 14: Alleged Error 8: Appellants allege that the hearing examiner's decision is in error (on page 15, paragraph 8(B) because, "[f]or all the respons [reasons] previously stated this statement is in error." Alleged Error 13: Appellants allege that the hearing examiner's decision is in error because of, "[a]ll matters raised in the attached letter from Dan Casey dated June 29, 2003." Alleged Error No. 14: Appellants state that they, ".. . reserve the right to add to and/or modify the particulars of this initial appeal as justice so requires." [Motion Option 1:] I move to grant Respondent's Motion to Strike Alleged Errors (choose one or more of numbers - 8, 13, 14). [explain that the stricken errors will not be heard in this appeal] [Motion Option 2:] I move to deny Respondent's Motion to Strike Alleged Errors 4 APPEAL OF SOUND TRANSIT'S LAND USE APPLICATION . Argument of Sound Transit's land use application Appellants' argument and Council questions Respondent's argument and Council questions [Option - Appellants' rebuttal if reserved time and Council questions] . Public comment State name and address City Clerk verifies name on the list City Clerk times comment period of 3 minutes · Does either representative want to rebut public comment? · I will now close the acceptance of arguments and testimony · Council members deliberate issues and reference specific documents and exhibit numbers DELIBERATION OF ALLEGED ERRORS: [Reference to specific documents and exhibit numbers.] Be sure to strike out if the motion to strike passes on Errors 8, 13, and/or 14. Alleged Error No.1: Appellants allege that he hearing examiner's decision is in error (on pages 7-8, paragraph 6(C)) because, "[t]he Tukwila decision referred to does not control this matter. " Alleged Error No.2: Appellants allege that the hearing examiner's decision is in error (on pages 8-9, paragraph 6(D)) because, "[t]he decision did not include the entire text ofthe Comprehensive Plan section sited and failed to consider the amendments to the Comprehensive Plan made in 2001 by the City Council which was made part of Exhibit 9." 5 Alleged Error No.3: Appellants allege that the hearing examiner's decision is in error (on page 11, paragraph 7(B)) because, "[t]he decision made in the legislative process is not relevant and the hearing examiner failed to consider the Twin Lakes Park and Ride capacity. The project does not comply with the transportation goals and policies of the comprehensive plan. There is no evidence in the record that there are, or will be, significant job opportunities within walking distance of the transit center that will reduce dependency on the automobile and improve pedestrian circulation. In fact, the opposite is true. A giant park and ride downtown will clog streets with commuters going to other cities, thereby discouraging nearby office and other business development. Alleged Error No.4: Appellants allege that the hearing examiner's decision is in error (on page 12, paragraph 7(D)) (portion of decision relating to alternative site selection) as, "[t]he legislative actions ofthe City of Federal Way do not support the proposed location for a parking garage as proposed." Alleged Error No.5: Appellants allege that the hearing examiner's decision is in error (on page 13, paragraph 7(E)) because, "(t]he Park and Ride will not provide a more diverse, multi- modal transportation system with the city center. The comprehensive plan does not specify a high capacity transit station at the intersection ofS. 316th and 23rd Ave. S., and, in fact, it specifies a low rise pedestrian friendly transit center, not a parking garage with no room for the types of act ivies envisioned by the comprehensive plan. The location of the parking garage as proposed will unduly burden the downtown with two very large park and rides two blocks apart causing multiple entry points for transit related traffic to the north and south ofthe 320th." Alleged Error No.6: Appellants allege that the hearing examiner's decision is in error (on page 13-14, paragraph 6(F)) because, "[i]t is undisputed that there has been no public participation in this application since Sound Transit submitted its application to the city in November 2002. Previous outreach showed ovetwhelming opposition to the proposed location. Previous outreach addressed hypothetical locations, and did not involve the requirements of the Federal Way Municipal Code to require public input after the application was made." 6 Alleged Error NO.7: Appellants allege that the hearing examiner's decision is in error (on page 15, paragraph 8 (A)) because, "[t]he city did not authorize a Park and Ride of the kind and nature proposed. The 2001 amendments to the comprehensive plan were not considered." Alleged Error No.8: Appellants allege that the hearing examiner's decision is in error (on page 15, paragraph 8(B)) because, "[f]or all the respons [reasons] previously stated this statement is in error." Alleged Error No.9: Appellants allege that hearing examiner's decision is in error (on pages 15-16, paragraph 8(C)) because, "[t]he addition of transit oriented development will create crime and vagrancy which is a significant adverse impact. There was no provision for 'design elements' that would address security. The proposed center will not 'ensure the success of the transit center and the economic vitality of the commercial core.''' Alleged Error No. 10: Appellants allege that the hearing examiner's decision is in error (on page 16, paragraph 8(D)) because, "[t]he streets are not adequate and the proposed project will limit chances for future growth. There are insufficient traffic mitigation improvements." Alleged Error No. 11: Appellants allege that the hearing examiner's decision is in error (on page 17, paragraph 9) because, "[t]he findings regarding Citizens for a Vibrant City Center were not addressed completely, and the hearing examiner cannot simply defer to other bodies to avoid its duty to address the issues raised by this group." Alleged Error No. 12: Appellants allege that the hearing examiner's decision is in error (on page 18-19, paragraphs 8, 9, 10, and 11) because, "[t]he basis for the conclusion is not supported per the previous reasons stated for this appeal." Alleged Error No. 13: Appellants allege that the hea.t:ing examiner's decision is in error because of, "[a]ll matters raised in the attached letter from Dan Casey dated June 29,2003." 7 Alleged Error No. 14: Appellants state that they, ".. . reserve the right to add to and/or modifY the particulars of this initial appeal as justice so requires." [Motion Option 1:] I move to affirm the Hearing Examiner's approval of Sound Transit's land use application and adopt the Hearing Examiner's findings and conclllsions. (Motion Option 2:] I move to affirm the Hearing Examiner's approval of Sound Transit's land use application and adopt the Hearing Examiner's findings and conclusions as modified by council deliberations. (Motion Option 3:) I move to reverse the Hearing Examiner's Decision and deny Sound Transit's land use application. [state reason] . The representatives for the Appellants and the Respondent may submit proposed findings of fact and conclusions of law to the City Attorney if they desire. The proposals should be submitted no later than noon on Tuesday, October 28, 2003. · I would ask the City Attorney to prepare written findings of fact and conclusions of law for review and adoption at the next regular Council meeting November 4, 2003, consistent with Council's decision on the record. k:\document\pubhrg\Sound Transit Appeal 8 .., ',.I ~ ......... ... v..." 'I \~ . "" I I ill 1\ U ~ 1;' II NO. :n~ L !-' . October 22, 2003 j/ P.O, R". <;nO,l I{(JSIiN I'ROPERTIES Udlovu^" W^ !JHIHl'J-500J 1:><; ~~'" 6'/:lll "HONE 42$ 4:\4 (;7():\ ,^" ( Rr-t G .?, 0/ OCT 22 '03 PH 3=26 FAX RECEIVED Ms. Stephanie lUcks C/o Williams. Kastner & Gibbs PLLC Via t:lcsimile: (206) 628~6611 ocr 22 2003 WilLIAMS, KASTNER & GIBBS SEATTLE TIME s. 1I/cK.S Re: Sound Trcmsit Park & Ride Dear Stephanie: Wc arc informing you that weare unable (0 aUend the meeting at City Hall in Federal Way. On behalf of Hillside Plaza Associates we strongly oppose the approval orthe city's decision to construct the Sound Transit Park & Ridc located at 3 16th and 2yd. If you havc any questions, please call us a( (425) 454-6611. Best regards, ~~~~~n Ptopertieli ~~-?~ Oaryl Rcichstcin Property Manager F.XHf8IT I -