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LUTC PKT 07-21-2008 - OR"'.' '~JAL 'lVljlW City of Federal Way City Council Land Use/Transportation Committee City Hall Council Chambers July 21,2008 5:30 p.m. MEETING AGENDA 1. CALL TO ORDER 2. APPROVAL OF MINUTES: July 7, 2008 3. PUBLIC COMMENT (3 minutes) 4. BUSINESS ITEMS A. Kim Short Plat- Update on Retention Pond Information Appleton / S min. Action Fewins/Bailey /30 min. B. Sign Code C. Steel Lake Maintenance North Parking Lot Paving Project Award D. Dept. of Ecology Interlocal Agreement for Sea Lettue Removal in Dumas Bay E. Private Storm Drainage Improvements and Maintenance Responsibility Action Miller / S min. Action Miller/I 0 min. Action Miller/IS min. S. FUTURE MEETINGS/AGENDA ITEMS 6. ADJOURN Committee Members Linda Kachmar, Chair Jim Ferrell Dini Duclos City Staff Cary Jyf. Roe, P.E., Assistant City Manager/Emergency Manager Darlene LeMaster, Administrative AssistantII 253-835-2701 G:\LUTClLUTC Agendas and Summaries 2008\7-21-08 LUTe Agenda. doc City of Federal Way City Council Land Use/Transportation Committee July 7, 2008 5:30 PM City Hall City Council Chambers MEETING MINUTES In attendance: Committee Chair Linda Kochmar, Council Member Jim Ferrell, Committee Member Dini Duclos, Assistant City Manager/Chief Operations Officer/Emergency Manager Cary Roe, City Staff Attorney Monica Buck, Planning Manager Isaac Conlen, Director of Community Development Services Greg Fewins, Acting Deputy Public Works Director Marwan Salloum, City Traffic Engineer Rick Perez, Street Systems Project Engineer John Mulkey, Street Systems Project Engineer Brian Roberts, Contract Planner Jim Harris, Building Official Lee Bailey, Senior Planner Deb Barker, Deputy City Attorney Aaron Walls, Development Services Manager Will Appleton, Deputy Public Works Director Ken Miller, Senior Planner Janet Shull and Administrative Assistant II Darlene LeMaster. 1. CALL TO ORDER Committee Chair Kochmar called the meeting to order at 5:30 PM. All members were present. 2. APPROVAL OF MINUTES The June l6, 2008 LUTC meeting minutes were approved. Moved: Ferrell Seconded: Duclos Passed: Unanimously, 3-0 3. PUBLIC COMMENT The following public comment related to Item A, "Sign Code" on the agenda. Marilyn Gates, 31604 th Plaee SW, Federal Way - Ms. Gates confirmed that Council is in possession of her proposal from the July 1 Council meeting. Ms. Gates acknowledged quality customer service in dealing with the City, specifically to Cary Roe and Brook Lindquist. Ms. Gates commented that it appears that civic functions are severely affected by our current sign code. How will the public get informed of some of the civic functions that are offered? Couldn't temporary signage for civic and political agendas be considered? Ms. Gates asked Committee Chair Kochmar to consider going back to the former sign code enforcement practices until this issue can be resolved. Sam Pace, Board of Realtors, 29839 154th Ave SE, Kent - Mr. Pace distributed suggestions for the proposed sign code amendment language. Council has the discretion to amend the sign code so that it will coincide with the first objective in our existing sign code. Mr. Pace believes the City's current sign code to be very problematic. Bob Kellogg, Federal Way Kiwanis - Mr. Kellogg has recently put out signs for the Kiwanis Salmon Bake and for the Federal Way Famer's Market. Roughly one third of these signs have been removed by sign code enforcement. Mr. Kellogg has been putting signs out for years and has in good faith made every attempt to place the signs according to the sign code as he understands it. Each year it is getting more and more difficult to put out signs. Mr. Kellogg requests a better understanding of how to determine the proper location for sign placement and hopes that staff will address that in their presentation. Maureen Donhauser, Realtor, 416 SW 346th Place, Federal Way - Ms. Donhauser is also frustrated with the current sign code and feels something needs to change. It would be in all party's interest. She hopes this issue will be resolved sooner than later. Additional public comment: Namcy Combs, 30441 21st Ave SW, Federal Way - Ms. Combs feels that signage is inconsistent throughout the city. She has observed businesses go out of business because they couldn't display the proper signage to bring in business. Next," Ms. Combs transitioned from signs to stop signs and her continued effort to get a four-way stop at 21st Ave SW and SW 304th St. G:\LUTC\LUTC Agendas and Summaries 2008\7-07-08 Minutes.doc Land UsefTransportation Committee Page 2 July 7, 2008 James Madison, Federal Way - Mr. Madison arrived late in the meeting and was offered an opportunity to comment. Mr. Madison requests that no final approval be given to the Chi Kim Short Plat until the detention pond is 100% complete. 4. BUSINESS ITEMS A. Sign Code Greg Fewins and Lee Bailey provided background information on this item. Staff acknowledged that there is a perception from the public that the City has increased sign enforcement, although that is not the case. Mr. Fewins reviewed the part of the code that this issue relates to, Chapter 22, Section 1600 "Prohibited Signs." Mr. Bailey presented slides depicting a variety of examples of legal and illegal signage per our sign code and explained the sign pick up procedure. King County realtors have been mailed detailed instructions on sign placement and how to determine the utility corridor (public right of way). Committee Member Duclos commented that based on prior comment, the City's policy for sign pick up is much more difficult than it claims to be. Committee Member Duclos inquired as to how the $5 sign pick up fee was implemented. Staff did not have that information available at this time. Committee Member Ferrell inquired on open house signs and any outreach that has been provided to the real estate companies. Mr. Bailey responded "Open House" signs seem more prevalent, probably due to current market trends. Open house signs are not being targeted. The City does not remove illegally placed signs on evenings or weekends, the time when most open houses are occurring. Mr. Fewins added that a few years ago, Council built a provision into the code for open house signs stating that as many as ten signs would be allowed per event; however, placement was not allowed in the public right of way. Committee Member Ferrell asked if staff had stepped up sign enforcement. Mr. Fewins responded that the City provides "content neutral enforcement:" and does not target any particular signs. Committee Member Duclos spoke on behalf of citywide civic events: Kiwanis Salmon Bake, Farmers Market, Knutsen Theatre, etc.. .If we can't easily discern what is a properly placed sign, how can we expect others to? In order to place signs per the sign code, the signs would be so far back off the road, they would not be visible to drivers driving by. This effects more than realtors. Committee Member Duclos is in favor of time allowances for signs for special events. Committee Chair Kochmar wants to see the following aspects of the sign code examined: Equality for all signs; the constitutional right to freedom of speech; $5 fme - there needs to be an exemption made for good faith effort on sign placement; clearer instructions on sign placement and determining the boundaries of the public right of way; make sure our contracted maintenance and our own crews understand the code, temporary signage provisions, and, ways to identify owner of signs. Committee Chair Kochmar requested staff coordinate with Tacoma and Pierce Co. on the language in their sign codes as well as construct a matrix, comparing Federal Way to other neighboring cities. Committee Chair Kochmar also requested that staff look at the possibility of revising the code to allow for signage (ie. Banner) across a main arterial in the City Center for large events. Committee Chair Kochmar invited any additional public comment on this issue at the end of the presentation. Mr. Fewins asked for clarification on the direction that staff needs to be going. Committee Chair Kochmar asked staff to put into action those items that can be done quickly without a code amendment and then, come back to the next LUTC meeting with suggestions for code amendments to the sign code. Mr. Fewins states the City remains very conservative on the signs they pick up and staff will work with Vadis (contracted litter control service) to make sure the sign code is understood and that signs are not inadvertently removed. Committee Member Duclos suggested encouraging those individuals effected or impacted by the current sign code to work with staff on possible solutions. Deputy City Attorney Walls gave a brief overview of case law. The initial focus is on the government interest at stake, then making certain the City stays content neutral. The sign code has a purpose section. The purpose behind the code is to eliminate visual clutter, provide for the health and safety of all pedestrians and drivers, and prevent obstruction in the public right of way. The code should be written in a way that is enforceable. Enforcement should be clear and easy to follow by all parties. G:\LUTC\LUTC Agendas and Summaries 2008\7-07-08 Minutes.doc Land Useffransportation Committee Page 3 July 7, 200S Sam Pace- Mr. Pace spoke on how he appreciates what the Committee says about too many signs; however that is not what the Constitution says. The Constitution says that all people have a right to reach willing listeners. A city cannot attempt to shut down free speech. Case law supports this. "Right of way " is not a legal picture. Right of way is a legal description on a legal document. Mr. Pace has provided suggestions for code language. The code language should take into consideration what is really wanted; then it can be more effectively enforced. A summary matrix of both onsite and offsite sign code provisions for all cities in King, Pierce and Snohomish Counties is available at www.nwrealtor.com. Staff may find this helpful. Karla Collabag, Federal Way Farmers Market - Ms. CoUabag did not receive the same legible version of what was sent to realtors in regard to sign placement; rather a crude version that was very difficult to figure out. Requesting clear instructions seems reasonable especially since permit fees have been paid in order to place signs. Mr. Fewins commented that it is not that the sign code can't allow the signs that have been discussed; the current sign code does not allow them. In order to move forward and allow for some of these signs, code amendments will need to be made. The sign part of this is secondary to the main issue of how does Council want to address from a policy standpoint, the use of public right of way. Committee Member Ferrell asked if Mr. Fewins knew of any neighboring cities that allow signage in the public right of way. Mr. Fewins responded that this information has been gathered and he will present it at the July 21,2008 LUTC meeting. Mr. Fewins also noted that careful thought needs to go into making the policy choice of allowing signs in the public right of way. Bob Kellogg - Mr. Kellogg requests a meeting with Mr. Fewins tomorrow (July 8, 2008) to go out in the field and be shown exactly what is wrong with some of the sign placement for the Kiwanis Salmon Bake. There was no action taken. This item was for information only. B. Setting Public Hearing Date for the Vacation of a Portion of South 32(fh Street John Mulkey provided background information on this item. Wally Costello of Quadrant Homes introduced himself as the developer requesting the vacation. There was no further discussion. Moved: Duclos Seconded: Ferrell Passed: Unanimously, 3-0 Committee PASSED Option 1 to the September 2, 2008 City Council Public Hearing Agenda for approval. C. Grant Funding for Transportation Improvement Proiects Brian Roberts provided background information on this item. Committee Member Ferrell asked for a more detailed explanation on the funding. Mr. Roberts outlined the current funding status of the project, what funding has been secured, funding that has or will be applied for, and what the City's share of the project will be. Moved: Duclos Seconded: Kochmar Passed: Unanimously, 3-0 Committee PASSED Option 1 to the July 15, 2008 City Council Consent Agenda for approval. D. 2009-2014 Transportation Improvement Plan (TIP) Rick Perez provided background information on this item. There was no discussion. Moved: Duclos Seconded: Ferrell Passed: Unanimously, 3-0 Committee PASSED Option 1 to the August 5, 2008 City Council Public Hearing Agenda for approval. E. Brighton Park Final Plat Resolution Deb Barker provided background information on this item. There was no discussion. Moved: Ferrell Seconded: Duclos Passed: Unanimously, 3-0 Committee PASSED approval of Brighton Park Final Plat to the July 15,2008 City Council Consent Agenda for approval. G:\LUTC\LUTC Agendas and Summaries 2008\7-07-08 Minutes.doc Land UsefTransportation Committee Page 4 July 7, 2008 F. S 320th Place Preliminary Plat Small Lot Demonstration Jim Harris provided background information on this item. Committee Chair Kochmar asked if there will be compensatory wetlands on this site. Mr. Harris explained that wetland area is to be filled in two spots. Another low-grade wetland will be enhanced to increase the ecological values of the wetland Wally Costello of Quadrant Homes was present to answer any questions. He complimented Mr. Harris on his presentation and reviewed the area of the street vacation request. Moved: Duclos Seconded: Ferrell Passed: Unanimously, 3-0 Committee PASSED Option 1 to the July 15,2008 City Council Consent Agenda for approval. G. Federal Way Village Rezone Ordinance Amendment Janet Shull provided background information on this item. The applicant, John Potter, was present to answer questions of which there were none. There was no discussion. Moved: Ferrell Seconded: Kochmar Passed: Unanimously, 2-0 Committee Member Duclos recused herself. Committee PASSED Option 1 to the August 5, 2008 City Council Ordinance Agenda for a first reading. 5. FUTURE MEETING The next regularly scheduled LUTC meeting will be held July 21, 2008 at 5:30 PM. As a result of last minute public testimony by Federal Way resident James Madison, the Committee (LUTe) requested an informational staff report on the status of the water detention pond at the Chi Kim Short Plat site be added to the July 21, 2008 LUTC meeting agenda. 6. ADJOURN The meeting adjourned at 7: 11 PM. G:\LUTC\LUTC Agendas and Summaries 2008\7-07-08 Minutes.doc COUNCIL MEETING DATE: Does Not Apply ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: Chi Kim Short Plat - Informational Update POLICY QUESTION: Nt A COMMITTEE: Land Use and Transportation Comrnittee MEETING DATE: July 21, 2008 CATEGORY: D Consent D City Council Business D Ordinance D Resolution D ~ Public Hearing Other .~!~'!~..~!'.QRT ~.Y..:.....~PJ.!~...~l?p..~~!~P:"-..!?.l::ly.~.1.gp'~~_~~_ Servic.es Ma!l~g~~...__ .....~.~~..!_=....~~~E~_.~g~..__...__...__......_..__ Attachments: LUTC staff Memorandum dated July 21, 2008 Options Considered: N/A STAFF RECOMMENDATION: NtA CITY MANAGER APPROVAL: DIRECTOR APPROVAL: ~- Council Council COMMITTEE RECOMMENDATION: NtA. Itern for information only. Linda Kochrnar, Chair Jim Ferrell, Member Dini Duclos, Member PROPOSED COUNCIL MOTION: No motion necessary. Item is for information only. (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: o APPROVED o DENIED o TABLEDillEFERREDINO ACfION o MOVED TO SECOND READING (ordinances only) REVISED - 02/06/2006 COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM , DATE: TO: VIA: FROM: SUBJECT: July 2l, 2008 Land Use Transportation Committee Cary M. Roe, P.E., Assistant City Manager, Chief Operations 0 ficer, Ernergency Manager William Appleton P.E., Development Services Manager Chi Kim Short Plat - Informational Update ~ BACKGROUND At the LUTe meeting on July 7th, 2008, the cornrnittee requested that staff give an update on the status of the Chi Kim Short Plat. Staff will provide an update to the July 2151 LUTC regarding the status of the short plat. cc: Project File Day File K:\LUTC\2008\07-21-08 Chi Kim Short Plat- update.doc COUNCIL MEETING DATE: ITEM CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: Signs in public right of way. POLICY QUESTION: Should city code be amended to allow signs in public right of way? COMMITTEE: Land Use and Transportation Committee MEETING DATE: July 21,2008 CA TEGORY: o Consent o City Council Business o Ordinance o Resolution o o Public Hearing Other .........-.........--------....--.-.......................-----.-_.~._...._.._-_.._._._...._._-_........_.._.__._.._...._........--..-.....................-----...............--...---.............-.--........... -.............--...-.....--.--............................-...-.---.........---,--,,,,-,,,'---'--'- DEPT: Community Development Services STAFF REpORT By: Greg Fewins, Director Attachments: Memorandum dated July 1 S, 2008 Options Considered: 1. Amend city code to allow restricted use of public right of way for signs and direct priority of the amendment in the Planning Commission work program. 2. Establish stakeholder group to investigate right of way sign issues in more depth. 3. Take no action, thereby continuing current city code prohibitions on signs in public right of way. ... .................................................................... .............-..-......................-. ........................................................................--...-...........-.-............................. ..... STAFF RECOMMENDATION: If council takes action directing staff to modify the code, staff recommends that the code amendments be inclusive of recommendations contained in the July 1 S, 2008 staff memorandum provided by LUTC, SKCAR and ci staff. CITY MANAGER ApPROVAL. DIRECTOR ApPROVAL: w Council Committee Council COMMITTEE RECOMMENDATION: Cornmittee Chair Comrnittee Mernber Comrnittee Member PROPOSED COUNCIL MOTION: (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: o APPROVED o DENIED o TABLEDIDEFERREDINO ACTION COUNCIL BILL # 1ST reading Enactment reading ,~ Federal Way MEMORANDUM DATE: July 15,2008 To: Land Use and Transportation Committee FROM: Greg Fewins, Director of Community Development servi~f VIA: Cary M. Roe, P.E., Assistant City Manager, COO, Emergency Manager ~ RE: Signs in Public Right of Way This memorandum provides follow up on a variety of issues raised at the July 7, 2008 Land Use and Transportation Committee meeting related to signs in public right of way. Policv Question Should city code be amended to allow signs in public right of way? Current Code The following paraphrases the relevant Federal Way City Code ("FWCC") section related to signs located in public right of way: FWCC section 22-1600 - Prohibited Signs: "The following signs or display are prohibited in all zones within the city. Prohibited 'signs are subject to removal by the city at the owner's or user's expense pursuant to FWCC 22- 1604: (14) Right-of-way signs including any sign in a public right-of-way except governmental signs." The following is a summary of city code allowances for off site real estate signs pursuant to FWCC section 22-1599(d)(w)(I): . Must be located on private property. . Maximum of ten off site signs per agent. . Minimum separation of 200 feet unless indicating a turn. . Maximum six square feet per sign face. . Removed each day. . Permitted only between sunrise and sunset when the seller or agent is at the property. The following is a summary of city code allowances for off site civic event signs pursuant to FWCC section 22-1599(e)(Table 1): . Must be located on private property. . No restrictions on the number of signs. . Maximum six square feet per sign face. . Maximum height five feet. . Allowed thirty days prior to the event and removed five days after the event. Policv Issues Amending city code to allow signs in right of way could: . Improve visibility for commercial business and public events. . Increase city right of way maintenance costs. . Create potential traffic, bicycle and pedestrian hazards. . Create varying levels of sign clutter potentially impacting aesthetics. . Require content neutral regulation of signs allowed within the right of way. . Create additional enforcement workload to regulate illegal signs. Other Jurisdiction's Requirements Staff researched other city codes and the Seattle-King County Association of REALTORS ("SKCAR") website (see exhibit A - 'Regulation of Residential (Single-Family) Real Estate Signs' Matrix) regarding allowances for signs in public right of way. While the city's regulation of signs in public right of way must be content neutral, SKCAR's survey is narrowed in scope to "A" board open house real estate signs. The SKCAR matrix indicates that 33 of the 63 surveyed cities and counties allow "A" board signs in the public right of way. SKCAR's research is consistent with the city's research. Ofthose agencies that do not allow signs in right of way, enforcement of illegal signs range from none to strict. Land Use and TransDortation Committee SU2:2:ested Chan2:es At the July 7 meeting, committee members discussed a number of potential areas to consider if the code is to be amended. In addition, committee members asked staff to indicate if these suggestions would require a code amendment or could be implemented administratively. LUTC Suggested Code Amendments: . Allow signs in right of way on a short term basis. . Develop alternatives to fines for illegal signs. . Require contact information on signs placed in right of way. . Establish a city sponsored "banner" for public events. LUTC Suggested Administrative Changes: . Reduce rigid enforcement/clarify right of way. o Staff Solution: Use significant vertical structures (e.g. light standards; fire hydrants; signs) rather than flush or below ground structures (e.g. vaults) and beyond roadway maintenance areas to establish right of way enforcement areas. . Better manage city maintenance of right of way related to illegal sign pick up. o Staff Solution: Continue to instruct right of way maintenance staff and contractors to not pick up substantive signs in right of way. . Establish stakeholder group to assist with code amendments. Seattle-Kine: County Association of REAL TORS Sue:e:ested Chane:es The following is a summary ofSKCAR's suggested changes to the city's sign code addressing real estate signs in the right of way (refer to exhibit B). In addition to the current provisions for off site real estate signs located on private property (maximum ten per agent; separation of 200 feet; maximum six square feet per sign face; removed each day; only allowed between sunrise and sunset; seller or agent must be on site), the following changes are proposed to allow off site signs in the right of way. . Prohibit on trees, foliage, utility poles, regulatory signs, directional signs, government signs or informational signs. . May not interfere with vehicular, bicycle, wheelchair or pedestrian travel. . Shall not be placed on street median strips. . Shall not block traffic views, driveways or curb cuts. If the Council decides to amend city code to allow signs in right of way, City staff concurs with these types of additional regulations applied in a content neutral manner to all types of signs. Additional Staff Sue:e:ested Code Chane:es If the Council decides to amend city code to allow a variety of content neutral signs in right of way, City staff suggests consideration of the following in addition to LUTC and SKCAR recommended changes: . Establish specified performance or distances from sidewalks or street edge where no sidewalk exists. . Establish maximum height requirements. . Limit hours to less than sunrise to sunset. . Restricted to "A" board signs and prohibit stake signs. . Prohibited in street side planter strips. . Require low cost "permit". . Issue "sticker" system for permitted signs to improve enforcement efforts. Policy Options The following are three policy alternatives related to this issue: 1. Amend city code to allow restricted use of public right of way for signs and direct priority of the amendment in the Planning Commission work program (refer to exhibit G). 2. Establish stakeholder group to investigate right of way sign issues in more depth. 3. Take no action, thereby continuing current city code prohibitions on signs in public right of way. Exhibits A SKCAR 'Regulation of Residential (Single-Family) Real Estate Signs' Matrix B SKCAR 'Language for Proposed Amendment' undated C SKCAR 'Real Estate Signs: Constitutional Issues and Legal Considerations' dated July 7, 2008 D SKCAR 'Why Real Estate Off-Premises Open House A-Board Signs are Critical dated July 7, 2008 E 'Testimony of Sam Pace' (presented to July 7, 2008 LUTC Meeting) F Marylyn Gates Letter Dated June 25, 2008 G 2008 Planning Commission Work Program \'<' ~ ~ c<\ ;:, t:: ;, C ~v C '" ~~ .- '- 00'7 ~ QI E ..... 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B ..... c::: bO c::: cd c::: = . a ...... 8 en] e 0 .s C:::.!=9 or.;; .- - '1: 0 bI) C/} 5 ~ 8,.E ~:9 ~ ~ ~ =<l> ] 2' .g .; '6 .~ 5 '<<l~"<::"'-<>"'S" >.,::;::l"'> tt::(t)c............ ~cd::sCl:SO=-(t)Ooo o t;;~"'Oi g~-a..2!~::a f3 S ~gz S Q() Q Q ~ Q() - -.. \C Q -i:i Q) ~ "0 0.. ~ '" Q) "0 o U 1:1 b.O Vi 1:1 .9 ... u :a '" .;:: ;::l ...... ~ 1:1 ;::l o U b.O 1:1 ~ <t:i <> ,:: <<l -d <l> ~ ,.9©~ "0 Z .~ 0-< E~'-'''' <l> f-; 1i 6h ~.-d g 'en -d cd~...=~(t) ;::l.- ,:: .... ~ 2 g.8.~,.9 ~~o~~ ~ ~ u u crJ ...... <> <<l i:: o <> <l> '" <<l <l> E: ...... <> <<l i:: o <>~ ~c) ..!:!u ~crJ <l> b/) '0 <<l i:: o <>~ <l>~ ~u ..!:!u ~crJ ~ ~ ~ o o ~ SEATTLE-KING COUNTY ASSOCIATION OF REALTORS~ 12410 SE 32ND STREET, SUITE 100, BELLEVUE, WA 98005 PH: (42.5) 974-1011 · WA: 800.540.3277 · FAX: (425) 974.1032. EMAIL: REALTOR@NWREALTOR.COM WEBSITE: WWW.NWREALTOR.COM [B REALTOR'" LANGUAGE FOR PROPOSED AMENDMENT 22-1599 (d) (2) w. Real estate signs. 1. Off-site. The number of otT-site real estate signs shall be limited to 10 per property per agent; provided, however, that there shall be a minimum separation of 200 lineal feet between such signs, except that signs may be placed less than 200 lineal feet apart when necessary to indicate a turn or change in direction of travel. The area of such signs shall be no greater than six square feet per sign face. All off-site real estate signs must be removed each day at the conclusion of the open house or other sales event and are permitted only between sunrise and sunset when the seller or the agent are in attendance at the subject property. 2. On-site. The number of on-site real estate signs shall be limited to one per agent per street frontage or public entrance if no street frontage exists. For dwelling units, the area of the sign shall be no greater than six square feet per sign face. For other uses and developments, the size shall not exceed 32 square feet per sign face. All on-site real estate signs must be removed when the sale closes, or in the case of a rental or lease, when the tenant takes possession. 3. Notwithstanding the provisions ofFWCC 22-1600 (l4), 13-III, l3-V(Division 1) and 13-VI, the off-site real estate signs allowed by subsection I of this section, and the on-site dwelling unit real estate signs allowed by section 2 of this section, may be placed in the public right-of-way, provided however: (i) they shall comply with all other requirements of FWCC 22-1955 (d) (2) (w), (ii) they shall not be placed on (or attached to) trees, foliage, utility poles, regulatory signs, directional signs, government signs or informational signs (iii) they shall not be placed in a manner that interferes with vehicular, bicycle, wheelchair or pedestrian travel, (iv) they shall not be placed on street median strips, (v) they shall be outside of vehicular and bicycle lanes, and (vi) they shall not block traffic views, driveways or curb cuts. 'EXHIBIT & - REALTOR. - is a registered mark of the National Association of REALTORS' SEATTLE-KING COUNTY ASSOCIATION OF REALTORS. 12.410 SE 32.ND STREET, SUITE 100, BELLEVUE, WA 98005 [>H: (425) 974-1011 · WA: 800.540.3277 · FAX: (425) 974.1032. EMA(L: REALTOR@NWREALTOR.COM WEBS(TE: WWW.NWREALTOR.COM IB REALTOR' A White Paper Prepared For The City of Federal Way By The Seattle-King County Association of REAL TORS@ Regarding Off-Site Open House Signs July 7, 2008 . Real Estate Signs: Constitutional Issues and Legal Considerations Freedom of Speech Real Estate signs fall within the constitutionally guaranteed right of Freedom of Speech. That guarantee is established in both the First Amendment to the United States Constitution, and Article I, Section 5 of the Washington State Constitution. The First Amendment provides in relevant part that: "Congress shall make no law...abridging the freedom of speech... " it's interesting to note that the First Amendment's constitutional protection of Freedom of Speech applies to actions by the City regarding real estate signs because Speech is a Liberty Interest protected by the 14th Amendment to the United States Constitution. The Washington State Constitution provides in relevant part: Article I (Declaration of Rights), Section 5 (Freedom of Speech): "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. " Although I am not a Washington lawyer, it's my impression that Article I, Section 29 of the Washington State Constitution makes the State constitutional guarantee of Freedom of Speech "Mandatory." I suspect it is a mandate that applies to the City, at least in part, because the existence of the City is only authorized pursuant to the provisions of Article Xl (of the same Washington State Constitution under which the Freedom of Speech is guaranteed). In analyzing Freedom of Speech cases, the Washington State Supreme Court said in State v. Lotze, 92 W2d 52 appeal dismissed 444 U.S. 921 (1979): EXHIBIT c. ....._.~ REALTOR" - is a regisrered mark of the National Association of REALTORS' "A statutory restraint imposed upon a First Amendment Freedom bears a heavy presumption against its constitutionality. Freedman v. Maryland, 380 U.S. 51 (1965)." (emphasis added) In addition to the Federal First Amendment constitutional protections, there appears to be a su fficient basis under State v. Gummll 106 Wn.2d 54 ([986) for Washington Courts to vindicate even stronger State constitutional protections of the speech than is provided under federal law. Of particular relevance in this regard are the following Gunwall Factors: . As can be seen by comparing the First Amendment with Section 5 of Article I, the textual language (of the parallel provisions regarding Freedom of Speech) in the Federal and State Constitutions is different. Those differences include a stronger aversion to prior restraint in the Washington Constitution which articulates a clear and expressed preference for post-publication remedies. . The history of the development of the parallel provisions is also different. The Federal Constitution appended Freedom of Speech protections in the First Amendment while the Washington State Constitution begins the very creation of constitutional government in Article I (under powers reserved to the states) with a Declaration of Mandatory Rights. . There are structural differences between the Federal and State Constitutions. The Federal Constitution grants government limited power authorizing it to exercise only those powers that are constitutionally enumerated. On the other hand, the State Constitution imposes limitations on the otherwise plenary power to do anything not expressly forbidden. . Article I, Section 29 of the Washington Constitution appears to create a particular state interest. Section 29 makes clear that the Declarations of Rights in Article I of the Washington State Constitution are intended to create "Mandatory" protections guaranteeing Freedom of Speech from abridgement by a municipal entity that depends for its very existence upon the authorizations set forth in Article XI of the Washington State Constitution. 'Commercial Speech' Is Protected Commercial speech is protected. There is no general First Amendment exception for Commercial Speech. Commercial speech is "speech that proposes a commercial transaction." Clearly, the temporary off-site open house signs that are currently permitted propose a commercial transaction. The United States Supreme Court has made it clear that commercial speech is protected under the Federal Constitution. See: Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), Bigelow v. Virginia, 421 U.S. 809 (1975). In Central Hudson Gas & Electric v. Public Servo Comm'n 447 US 557,561-562 (1979) the United State Supreme Court said: "The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted commercial regulation. Virginia Pharmacy Board, 425 U.S. at 761-762. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the 'highly paternalistic' view that government has complete power to suppress or regulate commercial speech. '[P]eople will perceive their own best interests if only they are well enough informed, and...the best means to that end is to open the channels of communication, rather than to close them...' Id., at 770; see Unmark Associates. Inc. V. Willingboro, 431 U.S. 85,92 (1977)." (emphasis added) Interestingly, the Unmark case involved an attempt by the City of Willingboro to limit the use of on-site real estate signs. There is no general First Amendment exception for Commercial Speech. Commercial Speech is protected. The display of temporary Open House signs proposes a commercial transaction. Indeed, it is a commercial transaction for one of the true necessities of life: housing, a place to live, protection from the elements, a family's home. This Particular Commercial Speech Involves a Critical Public Policv: Housin2 The measure of the true nature of the necessity of housing is reflected in the fact that every single level of government has huge financial and policy commitments to housing: . Federal Government The Federal Government has a huge commitment to housing in the forms of Title VIII of the Civil Rights Act of 1968 as Amended by the Fair Housing Amendments Act of 1988, the Department of Housing and Urban Development, VA loan programs, FHA loan programs, its support of housing with Community Development Block Grant monies, its sanction of the Home Loan Bank Board together with the 12 National Home Loan Banks, and its facilitation of the 'secondary financial markets' (including Fannie Mae, Ginny Mae and Freddie Mac) to ensure that financing is available for housing, to name but a few. . State Government At the State level, the measure of the true nature of the necessity of housing is reflected in the fact that the Growth Management Act (GMA) expressly includes housing as an enumerated goal. It also requires a separate mandatory Housing Element, not only in Countywide Planning Policies, but also in the comprehensive plan of every municipality covered by the Act, including the City of Federal Way. Moreover, the State has a financial commitment to housing by way of its State Bond Program, The State Housing Trust Fund and the Washington Housing Finance Commission. In addition, the State also has additional policy commitments to housing as reflected in the work of the various State and Gubernatorial Commissions whose sole focus is Housing Issues. . Local Government At the Local Level, the Countywide Planning Policies (as well as GMA) requires that the comprehensive plan for the City of Federal Way must include a Housing Element. Further, the provisions of the City's Housing Element must be consistent with both the Countywide Planning Policies and GMA. The City also has a specific, quantified housing target under Appendix 2 of the Countywide Planning Policies, and a responsibility to plan to accommodate low and moderate income housing under Appendix 3 and the Housing Policies of the Countywide Planning Policies. Real Estate signs are commercial speech that is currently allowed, and which involves an absolute necessity of life: Housing. As explained in greater detail below, the free flow of commercial information about a proposed transaction for a necessity of life as important and fundamental as Housing does much more than simply promote intelligent market choice by consumers, and assist in reliable decision-making. Fair Housine The off-site real estate directional signs in question here are also essential - absolutely and critically essential - in the nation's ability to discharge the worthy spirit and mission of the Federal Fair Housing mandates. Title VIII of the Civil Rights Act of 1968 as Amended by the Fair Housing Amendments Act of 1988 embodies the simple and morally correct position that our communities should be open to all people. In December of 1988, the Federal Trade Commission issued a report entitled The Residential Real Estate Brokerage Industry. That FTC report, which has been cited with approval by the United States Supreme Court [see: Ladue (1994)], points out the important contribution of real estate signs in opening communities to people in a way that is not discriminatory. The basis for the FTC's conclusion is obvious: Real estate signs are not only an important, inexpensive and effective means of marketing real estate, they are also discrimination proof. A real estate sign invites any person - regardless of race, creed, color, sex or national origin - to locate and consider the purchase or rental of the property that is available if they can afford it. The real estate signs make it impossible for any real estate broker, landlord, owner or organization to deny thatthe property is available, and, hence, make discrimination substantially impossible. The Nature of the Sellers' and REAL TORS@' Commercial Speech It is worth noting that this commercial real estate-related speech: . Is not deceptive . [s not misleading . Is not inaccurate or false . [s not obscene or profane . Is not libelous or slanderous . Is not loud, raucous or noisy . Is not aggressive . Is not coercive . Is not likely to incite violence . Is not conduct . Does not intimidate, and · Does not advocate unlawful conduct Instead, it is a factually accurate message that helps a family to locate a home that is being offered for sale. Cities Carry The Burden of Proof To Justify A Re2;ulation of Speech In regulating the constitutionally protected commercial speech in real estate signs, a city has two distinct and separate sets of burdens: The first set of burdens involves the legality of the restrictions on commercial speech. See: Central Hudson Gas & Electric v. Public Servo Commtn 447 US 557, 561-562 (1979). City's have the entire burden to prove: o That the regulation is content neutral o That it directly advances a 'compelling state interest,' and o That the proposed ordinance reaches no further than absolutely necessary to accomplish a 'compelling state interest' The second set of burdens involves the legality of the time, place and manner restrictions on commercial speech. See: Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293 (1984). A city has the entire burden to prove: o That the Time, Place and Manner restrictions are "narrowly tailored" o That the Time, Place and Manner restrictions advance a significant and compelling governmental interest, and o That the Time, Place and Manner restrictions leave open ample effective alternative channels for communication of the information. We will offer just a few observations on three of the most immediately relevant portions of theses standards: (1) The Lack of Effective Alternatives, (2) The Necessity For the City To Prove a "Compelling State Interest", and (3) The Requirement that Any New City Regulations Must Reach No Further Than Is "Absolutely Necessary": 1. Lack of Effective Alternatives The available evidence demonstrates that the majority of buyers use the temporary open house directional signs to find the house that is for sale. An on-site sign does not get them to the house. Both the Federal Trade Commission, and the Supreme Court in the Ladue case, have expressed their belief that the alternatives to real estate signage are If ...far from satisfactory." This is critical for two reasons: (1) the lack of effective alternatives is a key element considered by Courts, and (2) the lackof effective alternatives also makes it much more difficult for the City to satisfy its legal burden of proof when attempting to justify its regulations. In the Sixth Circuit case of Cleveland Area Board of Realtors v. The City of Euclid, the National Institute of Municipal Law Officers, the Ohio Municipal League and the Ohio Municipal Attorneys Association appeared Amici Curiae, The parties attempted to argue the availability of sufficient "n~w technology" alternatives including cable TV, computer billboards and the web/information superhighway. The Court was not persuaded by the argument. They lost. Newspapers are not targeted, are more expensive, and are not as effective because the place from which the message is delivered is far removed from the place where a sign would be located. In addition, unlike a sign, a newspaper cannot confirm for a reader (by the presence of the newspaper at the intersection) that the Buyer has reached the point when the direction of travel must change in order to progress towards the home that is for sale. The alternatives are more expensive, are not as effective, are unevenly available (especially among less affluent potential buyers), cannot be targeted as well, and are not as helpful for buyers because they do not have the same functional utility. 2. Necessity For the City To Prove a "Compellin2 State Interestlf The city faces a very high burden in connection with its responsibility to justify any additional regulation of real estate signs. Any additional regulation (and any existing regulations) must be supported by a "compelling state interest." Earlier in this White Paper we made reference to the decisions of the United States Supreme Court in the Unmark and Ladue cases. Although the Ladue case involved on-site signs, I would note that the 'state interest' alleged by the City of Ladue stated, in part, that real estate signs: "...create 'ugliness, visual blight, and clutter, tarnish the natural beauty of the landscape as well as residential and commercial architecture, impair property values, substantially impinge upon the special privacy and ambience of the community and may cause safety and traffic hazards to motorists, pedestrians and children.''' These reasons were not sufficient to keep the City of Ladue from losing the case three times. 3. Re2ulations Must Reach No Further Than Absolutelv Necessarv Though not proposed here by the City of Federal Way, it may be worth mentioning that we believe requiring permits for Open House A-Board signs would violate the U.S. Supreme Court standard articulated in the Clark case. Because a permit constitutes a form of prior restraint, any city regulation will be granted no deference by the Courts. The City must-justify any regulation under the microscope of the "Strict Scrutiny" test. Bad Public Policv In addition, requiring permits for Real Estate Temporary Open House Signs would be bad public policy for several additional reasons: (a) Administering the permit system tends to cost more than cities are able to recover. In King County, only one city (Lake Forest Park) recently had a permit system, and they are unable to cover the cost of administering the program. The Council eliminated the requirement. Kent used to have a permit requirement for Real Estate Open House Signs. They too eliminated the permit program because it just didn't work very well. The anticipated benefits weren't worth the problems it created. More recently, Auburn also considered a registration requirement and likewise chose not to go there. (b) In addition, many of the most severe costs (such as disruption of other work city staff is trying to get done) tend to be more onerous fo~ the City than the financial shortfall. (c) The city isn't "open for business" to issue permits when many "open houses" get scheduled (Friday evening for a Sunday afternoon open house). Given the reasons families sell, the lack of access to permits when they are needed can be a real hardship on families that need to sell quickly. The City Can It Meet its Burden of Proof On Constitutional Issues Bv Usin2 A "Bootstrappin2:" Ar2ument That Relies on The Practices of Other Cities In attempting to meet its exclusive burden of proof, the City of Federal Way would not be able to satisfy the constitutional standards of review with a Bootstrap Argument that attempts to justify adding new regulations because some other city has one on the books. It would be a serious mistake for any city to rely on a Bootstrap Argument that is grounded in the notion that a city's effort to restrict real estate signs with combined prohibitions on safe placement in the right-of- way and new enforcement policy (amounting to a defacto ban on off-site signs) would be constitutional if the City were relying upon the ordinance of a neighboring jurisdiction. Any city's defense of its sign ordinance will necessarily depend upon the strength or weakness of the totality of that city's own record, and not the un-litigated record of another city. There are no ordinances from neighboring jurisdictions with this City's record. There are no ordinances from neighboring jurisdictions that have been defended successfully before an appellate court. 80th the State Supreme Court and federal trial and appellate courts have ruled in favor of more commercial speech regarding off-premise signs, both in the Kitsap case, and in the 8allen case. The Ri2ht to Reach Willin2 Listeners In a Public Forum Importantly, the combination of the City of Federal Way's prohibition on safely-placed off-site real estate signs in the public right-of-way, together with the City's new enforcement policy, effectively operates as a defacto ban - a ban that effectively, and unconstitutionally, prohibits the delivery and receipt of all communicative commercial speech between real estate buyers, sellers and their respective agents using off-site real estate signs. In addition to the problems created for speakers, this also runs afoul of the right of speakers to reach willing listeners. In evaluating Freedom of Speech cases, the courts do not forget the right of speakers to reach willing listeners. As noted in footnote # 1 in the Policy White Paper we are submitting contemporaneously with these observations on the law, an analysis of the right to reach willing listeners in a public forum must begin with three observations: First, sellers and REAL TORS@ currently have the legal right to put up temporary off- premises open house directional signs. Those off-site signs have traditionally played an important role in the efficiency of our local real estate market, and in supporting the Federal Fair Housing amendments to the Civil Rights Act. Second, the Freedom of Speech implies the right to reach willing listeners. The freedom would mean nothing if the City could require all communication to be made in places where nobody but the speaker was aware of the communication, or where the effect of the regulations is so extreme as to eliminate all, or most all, opportunities to place an off- site real estate sign within the City. Third, Washington's Constitution strongly favors remediation of violations rather than prophylactic prior restraint on constitutionally protected commercial speech. The right to communicate views to others on a street in an orderly and peaceable manner has been recognized by the United States Supreme Court in Hague v. crG.. 307 U.S. 496, 517 (1939). In Us. v. Grace, 461 U.S. 171, 177 (1982) the Court also said: "It is also true that 'public places' historically associated with the free exercise of expressive activities such as streets, sidewalks and parks, are considered, without more, to be 'public forums.'" In fact, the streets and sidewalks have consistently been considered a public forum. In Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,45 (1982) the United States Supreme Court said the streets are" ...quintessential public forums, the government may not prohibit all communicative activity." (emphasis added). See also: Burson v. Freeman, 504 U.S. 191 (1992); Boos v. Barry, 485 U.S. 312 (1988). The Washington Supreme Court also considers these to be public forums. [n the Collier decision, Justice Guy, writing for the majority and relying upon Boos v. Barry, 485 U.S. 312 (1988), held that: "The parking strips in which Collier and his supporters placed his political signs lie between the 'streets and sidewalks' and thus are part of the 'traditional public forum.' Because these places occupy a special position in terms of First Amendment protection, the government's ability to restrict expressive activity is very limited. Boos v. Barry, 485 U.S. 312, 318, 99 L. Ed. 2d 333,108 S. Ct. 1157 (1988)." We note that in those situations when speakers have been denied this traditional public forum, the cases have tended to involve speech and conduct unlike anything associated with the REAL TORS@' placement of temporary operi house signs; for example, cases involving intimidation, aggression, physical contact and conduct blocking the sidewalk in front of an abortion clinic. Other cases, such as City Council v. Taxpayers For Vincent, 466 U.S. 789 (1983), have involved stringing signs over utility wires, and posting of signs on utility poles. The REAL TORS@ do not advocate such conduct. Thank you for the opportunity to offer these comments. Sincerely, SEATTLE-KING COUNTY ASSOCIATION OF REAL TORS@ ~p~ Sam Pace, JO, MBA, GRI Housing Specialist SEATTLE-KING COUNTY ASSOCIATION OF REALTORS~ [2.4[0 SE 32.NO STREET, SUITE [00, BELLEVUE, WA 98005 PH: (425) 974'10[[ . WA: 800.540.3277 . FAX: (425) 974.1032 lB REALTOR' EMA1L: REALTOR@NWREALTOR.COM WEBSlTE: WWW.NWREALTOR.COM A White Paper Prepared For The City of Federal Way By The Seattle-King County Association of REAL TORS@ Regarding Off-Site Open House Signs July 7, 2008 Why Real Estate Off-Premises Open House A-Board Signs Are Critical A family's home is not like stocks and bonds. Families don't wake up one morning, see that "the market is up" and decide to sell the roof that is over their head. Instead, it is usually a significant change in a family's personal circumstances that prompts a sale. What kinds of changes may prompt the purchase of a home, or the sale of a house? A family is blessed by the birth of new children and needs a larger home. It may be a marriage. Or a divorce. There may have been a death in the family. [t might be ajob promotion. Ajob transfer. Or it might be the result of getting laid-:off at work. Often, the need to sell is immediate, or even urgent. Real Estate Signs Are Critically I mportant For Sellers Safely-placed, portable, off-premises A-Board Open House residential real estate directional signs are critical for the families we serve who need to sell. - The evidence from the Puget Sound Region is clear: families who need to sell, but who do not have effective access to these off-site signs, experience significantly longer marketing times. For example, the City of Mukilteo loosened its restrictions on real estate off-site Open House Signs after it learned that the its restrictive policy had increased marketing times by 22% compared to Everett, even though the cities share a significant common border. For a family trying to sell a home, the longer Time on Market can have significant financial consequences. [fa family must carry multiple mortgage payments (or more likely both a mortgage payment and a rental payment) while they wait for their home to sell, it can be a real and substantial financial hardship on the family. [fthe financial hardship causes the family to be unable to make multiple housing payments in a timely manner, the resulting blemishes on their credit report may make it very difficult for them to qualify for a new home loan. Alternatively, if they lack the resources to even attempt to make multiple payments they may not be able to move at all, despite what may be an urgent need to do so. REALTOR" - is a registered mark of the National Association of ~'T D _. - they lack the resources to even attempt to make multiple payments they may not be able to move at all, despite what may be an urgent need to do so. It's worth remembering that real estate markets go up, and come down. When stronger markets cool (which happens periodically, because markets are cyclical) the effect of such differences in the amount of time a home is on the market become even more onerous. Off-premises Open House directional signs are also important for Sellers who want to sell their own property without a REAL TOR@. Candidly, there is a financial incentive for our industry to support the elimination of all open house signs in the right-of-way. Doing so would eliminate the most effective marketing tool available to those families who want to sell For Sale By Owner, or FSBO (pronounced "tizz-bow"). How important are these signs for FSBO sellers? We suspect that they are at least as important to FSBO sellers as they are to REAL TORS@: The Real Estate Insider Report indicated that 75% of their survey respondents (real estate agents) identified signs as their most effective sales technique. Restricting a FSBO's opportunity to use these signs to direct people to their home that is for sale would be a significant step in the direction of giving REAL TORS@ a virtual monopoly on selling homes. It would help to ensure sellers would have fewer, if any, effective alternatives to engaging the services of aREAL TOR@. But market times would be longer for sellers, and finding a home would be much more difficult for buyers. As we explain below, it would also be inconsistent with the objectives of the 1988 Federal Fair Housing Amendments to the Civil Rights Act of 1968. REAL TORS@ might make more money, but that doesn't make it good public policy. We note that the city of Federal Way does not have an outright express ban on all off-premise residential real estate open house signs. However, the combination of the City's ban on signs in the right-of-way (the legal status of which is highly suspect) and the City's recently revised enforcement practices operate to create a defacto-ban on the potential for such off-site signage to be effective in communicating constitutionally protected commercial speech, both because there are few places such signage is now allowed, and where allowed it is often too far removed from willing listeners to be effective. I I [n evaluating Freedom of Speech cases, the courts do not forget the right of speakers to reach willing listeners. Analysis of the right to reach willing listeners in a public forum must begin with three observations: First, sellers and REAL TORS@ currently have the legal right to put up temporary off-premises open house directional signs. Those off-site signs have traditionally played an important role in the efficiency of our local real estate market, and in supporting the Federal Fair Housing amendments to the Civil Rights Act. Second, the Freedom of Speech implies the right to reach willing listeners. The freedom would mean nothing if the City could require all communication to be made in places where nobody but the speaker was aware of the communication, or where the effect of the regulations is so extreme as to eliminate all, or most all, opportunities to place an off-site real estate sign within the City. Third, Washington's Constitution strongly favors remediation of violations rather than prophylactic prior restraint on constitutionally protected commercial speech. The right to communicate views to others on a street in an orderly and peaceable manner has been recognized by the United States Supreme Court in Hague v. eI.G., 307 U.S. 496, 517 (1939). [n U.S v. Grace, 461 U.S. 171, 177 (1982) the Court also said: "It is also true that 'public places' historically associated with the free exercise of expressive activities such as streets, sidewalks and parks, are considered, without more. to be 'public forums. ,n Real Estate Signs Are Also Increasingly Important for Buyers National research studies demonstrate that 42% of all buyers used signs in locating the home they purchased. Even more important, however, 17% of all of the buyers found the home they purchased using ONL Y the signs. Those are national tigures. The local data is also compelling. John L. Scott Real Estate, Inc. (the second largest residential brokerage firm in Washington State and one of the largest firms in the nation) engaged the services of Hebert Research (a well-known and highly regarded research company located in Bellevue) to analyze the role of signs in the buying process. The Hebert Company's research revealed the following: In Western Washington, 50.5% of the buyers said that they found out about the open houses they visited using the real estate signs (as opposed to using ne~t:spapers. their agent, brochures, weekly reports, referral by friends or family, television, or other means). It may also be worth noting that respondents who "... were 46-50 years old were significantly more likely to have found out about open houses by seeing signs when driving around... " A more extensive outline of legal issues supported by that research were supplied to the full City Council last week, prior to the referral of this issue to the Council's Committee. Bill Hurme of John L. Scott's New Solutions Group summarized the results of research conducted by the Company regarding two new home communities that the firm represented. The first is in Renton, and the second is in Bellevue (on Cougar Mountain). In Renton, 57% of the sales were to buyers who did not come to the site the first time with a real estate agent accompanying them. In Bellevue, where the new homes were priced between half In fact, the streets and sidewalks have consistently been considered a public forum. [n Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1982) the United States Supreme Court said the streets are "...quintessential public forums, the I!overnment mav not prohibit all communicative activity." See also: Burson v. Freeman, 504 U.S. 191 (1992); Boos v. Barry, 485 U.S. 312 (1988). The Washington Supreme Court also considers these to be public forums. [n the Collier decision, Justice Guy, writing for the majority and relying upon Boos v. Barry, 485 U.S. 312 (1988), held that: "The parking strips in which Collier and his supporters placed his political signs lie between the 'streets and sidewalks' and thus are part of the 'traditional public forum.' Because these places occupy a special position in terms of First Amendment protection, the government's ability to restrict expressive activity is very limited. Boos v. Barry, 485 U.S. 312,318,99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988)." More recently, when confronted with municipal limitations on commercial speech in the form of signs, both the Washington Supreme Court (in the Kitsap case) and both the Washington Federal District Court and 9th Circuit Court of Appeals (in the Ballen case) have vindicated entitlements to more commercial speech and signage, not less. [n those situations when speakers have been denied these traditional public forums, the cases have tended to involve speech and conduct unlike anything associated with the REAL TORS'@ placemenfoftemporary open house signs; for example, cases involving intimidation, aggression, physical contact and conduct blocking the sidewalk in front of an abortion clinic. Other cases, such as City Council v. Taxpayers For Vincent, 466 U.S. 789 (1983) have involved stringing signs over utility wires, and posting of signs on utility poles. The REAL TORS@ do not advocate such conduct. and three-quarters of a million dollars, 83% were to buyers who did not come to the site the first time with a cooperating real estate agent accompanying them. Based on his experience of more than 20 years selling new homes, Mr. Hume estimates that: "...fewer than half of the customers who have outside agents or buyerts agents come to the community the first time with their agent. In fact, it's almost certainly under 30%. " Many buyers use the off-premises directional signs to search independently for a home, and then contact aREAL TOR@ to represent them only after they have identified a property in which they arc interested. The off-premise signs that direct them to the properties playa critical function in this dynamic. Finally, as it relates to buyers, there is one other group that makes extensive use of the signs: First Time Buyers. Buying their first home is a big, big, step for many families. This is especially true when the average sales price in King County (for single family homes and condominiums combined) that closed last month (June 2008) was $502,727 (Data for June 2008 released earlier today by the NWMLS). These kinds of prices can scare the daylights out of First Time Buyers. Not surprisingly, many First Time Buyers prefer to tip-toe gently into the raging torrent of our current real estate market. By using the off-premise signs to locate homes that are for sale (and which may be tucked away in a cul-d-sac or on a dead end road far from any arterial street), they can attempt to get a sense of the market at their own pace, instead of being in the car with an agent. Real Estate Sign age Plays a Critical Role in Fair Housing Title VIII of the Civil Rights Act of 1968 as Amended by the Fair Housing Amendments Act of 1988 embodies the simple and morally correct position that our communities should be open to all people. In December of 1988, the Federal Trade Commission issued a report entitled The Residential Real Estate Brokerage Industry. That FTC report, which has been cited with approval by the United States Supreme Court [see: Ladue (1994)], points out the important contribution ofreal estate signs in opening communities to people in a way that is not discriminatory. The basis for the FTC's conclusion is obvious: Real estate signs are not only an important, inexpensive and effective means of marketing real estate, they are also discrimination proof. A real estate sign invites any person.- regardless of race, creed, color, sex or national origin - to locate and consider the purchase or rental of the property that is available if they can afford it. The real estate signs make it impossible for any real estate broker, landlord, owner or organization to deny that the property is available, and, hence, make discrimination substantially impossible. Safely-placed temporary Open House A-Board signs provide an important affirmative message about where, and how, to find the property that is available. As demonstrated above, and by the materials submitted to the City Council last week) that proposition clearly born out by the available data. The City should restore the right of sellers and REAL TORS@ to make effective use off-site Open House signs because doing so facilitates achievement of the objectives of the Federal Fair Housing act. Consistency in Off-premises Real Estate Signage Regulations Is Important For the Real Estate Industrv The majority (ifnot most) of cities in King County allow placement of temporary off-site Open House A-Board directional signs in, or on the periphery ot: the right-of-way with the following kinds of restrictions: · They may not be placed on (or attached to) trees · They may not be placed on (or attached to) foliage · They may not be placed on (or attached to) utility poles · They may not be placed on (or attached to) regulatory signs · They may not be placed on (or attached to) directional signs · They may not be placed on (or attached to) informational signs · They may not interfere with vehicular, bicycle, wheelchair or pedestrian travel · They must be outside of vehicular lanes · They must be outside of bicycle lanes · They must not block traffic views · They may not block driveways · They may not block curb cuts · They may only be in place between dawn and dusk, and must be picked up at the end of each day · They may not exceed six square feet per side in area, and 36 inches in height · They may not be used unless the (real estate) agent or seller is physically present at the property that is for sale or rent. These are all reasonable restrictions we can live with, and which the cities have a demonstrated ability to live with. They strike a reasonable balance between the need of families to get their homes sold, or to find a new home, and the cities' need for public safety. It is an approach that has worked pretty well. We recommend and support such an approach. Additionally, we note that such an approach is consistent with FWCC 22-1956 which includes the following purposes of signage which have been acknowledged in ordinance by the city of Federal Way: o Recognize the visual communication needs of all sectors of the community for identification and advertising purposes o Protect the public health, safety, and welfare by regulating the placement, removal, installation, maintenance, size, and location of signs o Support and enhance the economic well-being of all businesses within the city, and in particular recognize the needs of all businesses to identify their premises and advertise their products; As an industry, we believe that in recommending and supporting such an approach, we have a moral responsibility to try to meet cities at least halfway, and hopefully we can do even better than that. Part of our ability to do so means that our Association must recognize that we have an industry \vith significant turnover. It's been said that: About a third of the people licensed by the state are on their way into, or are recent additions to, our industry; and Approximately an additional one third are solidly established in the business; and The remaining one third are on their way out of the industry. This Rule a/Thumb is probably not too far from the mark. The Multiple Listing Service statistics indicate that over time, members have averaged about .3 (note: that's point three) transactions per month. In other words, about one transaction every three months. Some will do better, and some will not do that well. Recently, on average, it's probably been a bit less than that. The commission on that one transaction every three months is usually divided evenly between the listing and selling brokerages. Typically, the agent receives one half of that apportioned amount, or 25% of the total commission. With a typical commission on an averaged priced King County home, the agent receives an average of about $2,513.64 per month. That's before 8&0 taxes, E&O insurance, cell phone and pager expense, car expense, laptop computers, PDAs, health insurance, mandatory continuing education expenses, MLS dues, REAL TOR@dues and personalized marketing expenses. Obviously, some are doing much better than average, but many are not doing that well and are forced by economic necessity to move on. Real Estate is a very tough industry with high turnover. One of the ways real estate agents are forced to respond to these economic realities is to "cover more ground" and be extremely flexible about how far they will travel for work. As a result, in the course of a single year an individual agent may work (list homes) in multiple jurisdictions ranging from Marysville or Snohomish on the North, to Tacoma or Graham on the South. They may also work between Snoqualmie on the East, and Federal Way or Normandy Park on the West. Consistency in the sign code standards becomes very important in facilitating compliance with city sign codes. On the issue if signage, our Association tries to respond to these industry dynamics in three ways: First, we ask cities to adopt and retain more consistent standards regarding the right-of- wa y so that new agents (or agents working outside the city in which their office is located) don't have a significantly different set of sign code standards in each of the more than 40 jurisdictions in the region in which our members work. This is especially important considering that in King County alone there are now at 39 incorporated cities. In fact, we believe the only county in the nation with more local government jurisdictions is Cook County (Chicago), Illinois. Along with this White Paper we are providing the City with a document titled "LANGUAGE FOR PROPOSED AMENDMENT" that we believe would address the problems with the City's current approach to real estate signage, and do so in an appropriate, balanced and constitutional way. Second, we believe we have a responsibility to educate our members about the issues of signage. We take that responsibility very seriously. Examples of the kinds of efforts we make include: . Major lead articles in our industry newspaper, NW REporter, on safe sign placement, and new legal developments, . Articles on specific sign code requirements, . "Broker Updates" stressing legal sign placement, safety for vehicular and pedestrian traffic, and timely removal of open house signs; . Targeted e-mail updates to our 8,000+ members. We can target faxes to specific problem areas; and . Distribution of information provided to our Association by City Code Compliance Officers. Third, we have established a new program to use peer pressure in concert, and in cooperation, with city code compliance officers. And we've added staff that help to ensure it works well. Cities can levy a fine, pick up a sign, or otherwise hold folks accountable if a problem is created. But candidly, we can offer an additional (and sometimes even more effective) "hammer" to the compliance "tool kit" available to your City's code compliance officers if they desire to make use of it. We have the systems in place to be of assistance. In addition to any other appropriate City action, if a code compliance officer observes a violation, the City's compliance officer can contact our Association's Public Affairs Department. This is usually accomplished by calling or faxing David Crowell, the Director of Govemment and Public Affairs. Phone: (425) 974-1011. Fax: (425) 973- 1032. Upon receipt of the information, David Crowell faxes a rather stem (almost nasty) letter to the offending agent's broker (the agent's boss) on Association letterhead, outlining the specifics of the situation and telling them their agent is creating a problem for the rest of the industry by engaging in sharp practices. David also includes either a summary, or the actual text, of the city's relevant sign code provisions. On behalf of the Association, we ask them to clean up their act, and immediately correct the problem. The code compliance officer also receives a copy of the letter so that he or she knows we have followed up quickly with the agent's Broker. That's not the kind of paperwork Brokers like to see coming across their desk. They don't appreciate an agent causing those kinds of problems. Brokers tend to respond to such information by "aggressively rolling the stone downhill," so to speak. By including a copy of the sign code provisions with David's letter, we also create the opportunity for the broker to have a "teachable moment" with the agent about the requirements of the sign code. (Having the entire real estate-related sign code provisions in a single section of the City's sign code is especially helpful in this regard, even though that may make the sign code appear to be longer). Our use of peer pressure is an approach that works, not only because the self policing is effective, but also because it provides the code compliance officers with an additional option to deal with any problems efficiently. We respect the fact that a code compliance officer's time is an asset, just like cash. In fact, the City pays for it with cash. Working together we can help to make their job easier and free up that resource for other kinds of city code compliance issues. David Crowell of the Association's staff can provide a sample of the kind of form we've put together for those code compliance officers who want to make use of this additional tool, as well as sample letters we've prepared to get the Broker's attention, and ring the agent's bell. We appreciate the opportunity to work with the City (both in addressing the new problems with the City's approach to its sign code, and in offering specific language to address those problems as they relate to. real estate signs under FWCC) and to offer our assistance with our self-policing peer pressure program should the City desire to make use of it. Thank you for the opportunity to offer these comments. Sincerely, SEATTLE-KING COUNTY ASSOCIA nON OF REAL TORS@ ~p~ Sam Pace, JO, MBA, GRI Housing Specialist SEATTLE-KING COUNTY ASSOCIATION OF REALTORS. 12410 SE 32ND STREET, SUITE 100, BELLEVUE, WA 98005 PH: (425) 974-IOII . WA: 800.540.3277 · FAX: (425) 974.1032 EMAIL: REALTOR@NWREALTOR.COM WEBSITE: WWW.NWREALTOR.COM IB REALTOR' Testimony of Sam Pace Housing Specialist Seattle-King C;ounty Association of REAL TORS@ A. Uniqueness of the Good Being Advertise~ byReal Estate Signs 1. The location ofthe good (i.e., property) for sale is different with each sale. 2. Unlike signs advertising businesses or most goods and services, real estate signs are inherently temporary. B. Necessity of Real Estate Signs to the Home-Buying Process 1. Real estate signs are essential to finding a home. a. The most common method (35.1 %) of searching for a home before meeting an agent is driving around neighborhoods. HEBERT RESEARCH, INC., JOHN L. SCOTT BUYERS AND SELLERS RESEARCH (EXECUTIVE SUMMARY), at 7 (Jan. 2001). b. Over half of buyers find the home they eventually purchase themselves. Of these, 43.9% find the home by driving around. HEBERT RESEARCH, INC., JOHN L. SCOTT BUYERS AND SELLERS RESEARCH (EXECUTIVE SUMMARY), at 13 (Jan. 2001); see also HEBERT RESEARCH, INC., JOHN L. SCOTT, at 19 (Feb. 2003) (where buyer, rather than agent or third party, finds home, it is by driving around neighborhoods 39% of the time). c. The most common activity of prospective buyers - both before and after meeting and agent - is driving around neighborhoods (76% of respondents). HEBERT RESEARCH, INC., JOHN L. SCOTT, at 22, 23 (Feb. 2003 ). EXHIBIT REALTOR" - is a registered mark of the National Association of REALTORS" &:: 2. Real estate signs are essential to finding open houses. a. The most common method of finding information about open houses is driving around neighborhoods (58%). HEBERT RESEARCH, INC., JOHN L. SCOTT, at 29 (Feb. 2003). 3. Real estate signs al-e essential to finding a buyers' agent. a. For Sale signs are the third most common method of finding a buyer's agent. HEBERT RESEARCH, INC., JOHN L. SCOTT BUYERS AND SELLERS RESEARCH (EXECUTIVE SUMMARY), at 9 (Jan. 2001); see also HEBERT RESEARCH, INC., JOHN L. SCOTT, at II (Feb. 2003). C. Necessity of Real Estate Signs to the Home-Selling Process 1. After the Multiple Listing Service, For Sale signs are considered the most effective method of advertising a house. HEBERT RESEARCH, INC_, JOHN L. SCOTT, at 60 (Feb. 2003). 2. For Sale signs are the third most common method of finding a seller's agent. HEBERT RESEARCH, INC., JOHN L. SCOTT, at 12 (Feb. 2003). D. Inadequacy of Alternate Means of Communicating Home Sales 1. Case law recognizes that other means of communicating housing sales - e.g., newspaper advertisements, listing with agents - are not adequate because they involve higher costs and reduced autonomy. Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 93 (1977); Cleveland Area Board of Realtors v. City of Euclid, 88 F.3d 382,388-89 (6th Cir. 1996); Eastern Bergen County Board of Realtors, Inc. v. Borough of Fort Lee, 720 F. Supp. 51, 54 (D.N.J. 1989). 2. Internet advertising is not a substitute for real estate signs. a. After the Multiple Listing Service (MLS), having a sign in front of your home is considered the most effective method of advertising; the Internet is the third most effective method after the MLS. HEBERT RESEARCH, INC., JOHN L. SCOTT, at 60 (Feb. 2003). b. Driving around neighborhoods is the most common search method prior to meeting an agent; the Internet is the second most common method. HEBERT RESEARCH, INC., JOHN L. SCOTT BUYERS AND SELLERS RESEARCH (EXECUTIVE SUMMARY), at 7 (Jan. 2001). c. Of buyers who find their home themselves, 43.9% find it by driving around neighborhoods; 22.2% find it on the Internet. HEBERT RESEARCH, INC., JOHN L. SCOTT BUYERS AND SELLERS RESEARCH (EXECUTIVE SUMMARY), at 13 (Jan. 2001). . d. The most common method of finding information about open houses is driving around neighborhoods; the Internet is the third most common method. HEBERT RESEARCH, INC., JOHN L. SCOTT, at 29 (Feb. 2003 ). e. For Sale signs are the third most common method of finding a buyer's agent; the Internet is the eighth most common method. HEBERT RESEARCH, INC., JOHN L. SCOTT BUYERS AND SELLERS RESEARCH (EXECUTIVE SUMMARY), at 9 (Jan. 2001); see also HEBERT RESEARCH, INC., JOHN L. SCOTT, at 11 (Feb. 2003) (third most common versus sixth most common). f. For Sale signs are the third most common method of finding a seller's agent; the Internet is the ninth most common method. HEBERT RESEARCI!, INC., JOHN L. SCOTT, at 12 (Feb. 2003). E. Importance of Real Estate Signs in Guaranteeing Equal Access to Housing 1. Real estate signs help prevent steering, i.e., showing a listing only to certain racial, social, or economic groups. See Greater Baltimore Board of Realtors v. Hughes, 596 F. Supp. 906,923 (D. Md. 1984). 2. Real estate signs help prevent "panic selling." See Unmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, cj6 n.l 0 (1977); City of Chicago v. Prus, 453 N.E. 2d 776, 789 (Ill. App. Ct. 1983). 3. Real estate signs convey accurate information regarding matters of great importance to families and the greater community. See Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85,96 (1977); Greater Baltimore Board of Realtors v. Hughes, 596 F. Supp. 906, 925 (D. Md. (984). F. Reduced Aesthetic and Safety Concerns with Real Estate Signs 1. On-site real estate signs are self-policed by the resident, alleviating aesthetic and safety concerns common to other types of signs. See City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994). 2. On- and off-site signs are policed by SKCAR and other REAL TOR@ associations, alleviating aesthetic and safety concerns common to other types of signs. a. Through articles and broker updates, SKCAR and other REAL TOR@ associations routinely educate member agents and brokers about municipal code compliance and signage safety concerns. Examples of such publications, e.g., Real Estate Signs: Practice ttSafe" Placement, SEATTLE-KcNO COUNTY ASSOCCATfON REAL TOR@, Sept./Oct. 1994, at 1. b. SKCAR's Public Affairs Department routinely works in concert with municipal code compliance officers to inform member agents of non- compliance and to correct or remove non-compliant signs. G. Heightened Protection for On-Site Real Estate Signs 1. On-site real estate signs enjoy heightened protection because they involve speechfrom the home. See City of Ladue v. Gil/eo, 512 U.S. 43, 58 (1994); County Republican Comm. v. Arlington County, 790 F. Supp. 618, 627 n.7 (E.D. Va. 1992), rev'd and vacated in part on other grounds, 983 F.2d 587 (4th Cir. 1993 ). Thank you for the opportunity to offer these comments. SEATTLE-KING COUNTY ASSOCIA nON OF REAL TORS@ ~p~ Sam Pace, JD, MBA, GRI Housing Specialist Seattle-King County Association of REAL TORS@ 29839 - 154th Ave SE Kent, W A 98042-4557 sam pace(tV,concentric. net Direct: (253) 630-5541 Fax: (253) 630-5542 Cell: (253) 569-2663 , &!:&llll&h &n AcM~ rewirUJ.J 'tf:fif1v/ ,(eM leJap~ 10 .<1, aJ!lJO SlfJa/O .<1'~O . t . . June 25, 2008. To: The City Council, City of Federal Way, Washington. From: Marylyn Gates, ABS, Realtor, Windermere Real Estate South, Inc. Federal Way, Washington. - Dear Council Members, On behalf of the hard working Real Estate Agents in the City of Federal Way, I would like to put forward a proposal to amend the Sign Code Ordinance as it relates to Real Estate Open House Signs and Directional Arrows. Instead of the requirement to place signs beyond all utility easements, the code should be altered to read; that a time limit of 4 hours on weekends or weekdays, with the exception of new construction developments of 3 or more homes. They should be limited to 6 hours a day. Obviously none of the signs should cause an obstruction. I am curious how the City defines the "human" signs who stand on street corners waving all kinds of signs - business advertising, open houses and political? They definitely cause obstructions. I would suggest that the current code requiring a detailed knowledge of every street in Federal Way's utility easement location is unreasonable. Especially when its adherence would necessitate placement in obscured or concealed locations, which of course obviates the reason for their use. Over the EXHIBIT F - past 4/5 years the public has had to put up with very little of this signage because homes were selling with such alacrity that open houses for brokers or the public were unnecessary. In the past 6-12 months all this has changed. The inventory has increased 4 fold (see attached graph) and the sales have plummeted. This trend seems to have coincided with a Council directive to strictly enforce sign compliance. I am sure this order came from the sincerest of motives and was intended to stop the proliferation of signs affixed to utility poles, many of which were advertising many of the sharp practices that are currently the bane of our industry. I would like to think that the City would work with us to help its residents sell their homes thus increasing its revenue through the excise tax. This is potentially far more lucrative than charging hapless Real Estate Agents $5 per piece to redeem their signs! Agents have had to revamp their promotional techniques and are collaborating with each other to hold joint open houses in a given area. This comes with the hope that it will encourage more potential Buyers and/or Agents to view the inventory, particularly if they can see several homes in close proximity. With this comes the proliferation of signs, but it is rarely for more than 2-2.5 hours at weekday lunchtimes for Broker/Agents and a maximum of 4 hours for the general public on weekends, with the exception of new construction locations who often man their sites for longer periods. You might want to contact representatives of the latter for their view of what is equitable. If the current enforcement persists we will have to advise our Sellers that it will be of little use to hold Open Houses of any kind because we cannot direct people to their homes. I would just ask you to imagine how you would feel if you were trying to sell your home in these challenging times. < ~ As the City, at my request, was kind enough to change the Sign Code a couple of years ago when the workability of the existing restrictions was questioned, I have no doubt that it will again. However, we do not have the 18 months to 2 years it took on that occasion if both the City and Real Estate Professionals are to appropriately serve the residents. So, while we go through the necessary steps, I would ask the Council to direct the Compliance Department to show some considerate discretion concerning Open House signs and directional arrows. If necessary, incorporate the "hours" limitations for Open House signs, ensuring of course that they do not block walkways, and allowing freestanding directional arrows within the easements if that is the only visible area. To finish, all this was precipitated by a complete abduction of all signs from 3 different agencies that were collaboration on lunchtime Open House Tour for Agents lasting only 2 hours on June 18,2008. The irony is that on June 19th, my Windermere Office engaged in our annual Community Service Day. For the second year in a row we worked on the overgrown area in Steel Lake Park, near the skateboard facility, which had become notorious for criminal activities. I thank you for the opportunity to present this proposal. Sincerely, , Facts and Trends™ .. WnlCt8rmere , Published Jun. 2008* Location: ZIP 98003 , ZIP 98023 Months of Inventory Based on Closed Sales Price Range: $0 - No Limit SQFT Range: 0 - No Limit Single Family Homes - All Property Statuses - All Properties Prepared for you by: Marylyn Gates . Based on Closed Sales 14 12 13.1 & 0 10 I- Z W > 8 Z LL 0 6 (f') ::r: I- Z 4 0 :: 2 o 3107 4107 5107 6107 7107 8107 9107 10107 11107 12107 1108 2108 3108 4108 5108 Copyright @ Trendgf3phix, Inc. '"All reports are published Jun 2008, based on data available at the end of May. 2008. This representation is based in whole or in part on data supplied by the NWMLS. Neither the Board or its MLS guarantees Of is in any way responsible for its accuracy. Data maintained by the Board or its MLS may not reftect aU real estate activity in the market Report reftects activity by all brokers participated in the MLS. THIS CHART SHOWS THE NUMBER OF MONTHS IT WOULD TAKE TO SELL THE CURRENT INVENTORY COMPAREO"'WITH MARCH, 07. i.e. 3.4 Mooths compared to 12.8 months currently. hHOO! MAI.~ fjJ ClassIc Federal Way Signs From: . "Sam Pace"<sampace@concentric.net> To: mjgatesre@yahoo.com Friday, June 27, 2008 1 :26 PM In evaluating Freedom of Speech cases, th~ courts do not forget the right of speakers to reach willing listeners. Analysis of the right to reach willing listeners in a public forum must begin with three observations: First, sellers and REAL TORS@ currently have the right to put up temporary off-premises open house directional signs. Second, the Freedom of Speech implies the right to reach willing listeners. The freedom would mean nothing if the City could require all communication to be made in places that made it very difficult for the speaker was aware of the communication. Third, Washington's Constitution strongly favors remediation of violations rather than prophylactic prior restraint on constitutionally protected commercial speech. The right to communicate views to others on a street in an orderly and peaceable manner has been recognized by the United States Supreme Court in Hague v. C.I.a., 307 U.S. 496,517 (1939). In U.S. v. Grace, 461 U.S. 171, 177 (1982) the Court also said: "It is also true that 'public places' historically associated with the free exercise of expressive activities such as streets, sidewalks and parks, are considered, without more, to be 'public forums.''' In fact, the streets and sidewalks have consistently been considered a public forum. In Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1982) the United States Supreme Court said the streets are "...quintessential public forums. the government may not prohibit all communicative activity." See also: Burson v. Freeman, 504 U.S. 191 (1992); Boos v. Barry, 485 U.S. 312 (1988). The Washington Supreme Court also considers these to be public forums. In the Collier decision, Justice Guy, writing for the majority and relying upon Boos v. Barry, 485 U.S. 312 (1988), held that: "The parking strips in which Collier and his supporters placed his political signs lie between the 'streets and sidewalks' and thus are part of the 'traditional public forum.' Because these places occupy a special position in terms of First Amendment protection, the government's ability to restrict expressive activity is very limited. Boos v. Barry, 485 U.S. 312, 318, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988)." More recently, when confronted with municipal limitations on commercial speech in the form of signs, both the Washington Supreme Court (in the Kitsap case) and both the Washington Federal District Court and 9th Circuit Court of Appeals (in the Ballen case) have vindicated entitlements to more commercial speech and signage, not less. In those situations when speakers have been denied these traditional public forums, the cases have tended to involve speech and conduct unlike anything associated with the REAL TORS'@ placement of temporary open house signs; for example, cases involving intimidation, aggression, physical contact and conduct blocking the sidewalk in front of an abortion clinic. Other cases, such as City Council v. Taxpayers For Vincent, 466 U.S. 789 (1983) have involved stringing signs over utility wires, and posting of signs on utility poles. The REAL TORS@ do not advocate such conduct. THE PROCESS FOR RETRIEVING SIGNS FROM THE CITY As experienced by Maureen Donhauser of Windermere West Campus. 1. Go to City Hall. 2. Fill out a form describing sign(s). 3. Wait for a City Staff person to call you. 4. Despite the aforementioned form, you will be asked to describe the sign(s) you are looking for. 5. Make an appointment to pick up the sign(s). 6. Return to City Hall at the appointed time, fill out another form. 7. Pay the Clerk $5 per sign and wait for a receipt. 8. You will be given a printed sheet on the Sign Code to read. However, if you have a question on the Code the Clerk will tell you that you have to leave, call in and make an appointment to come back in to have any questions answered. 9. If you didn't realize immediately that the City took your sign, you have only 2 weeks before they destroy the sign without any notification - despite the fact that your name, the company's name and your telephone number are on the sign! 10. In our office you have to order a minimum of 6 signs at a cost of $200! ~ CITY OF "'" ~ Federal Way EXHIBIT B 2008 PLANNING COMMISSION WORK PROGRAM A. ITEMS TO BE CARRIED OVER INTO 2008 1. Significant Trees, Vegetation Retention, Clearing and Grading - This involves a review of and amendrnent to the current City of Federal Way zoning and subdivision code requirements related to the preservation of significant trees, vegetation retention, and site grading. 2. South 356th Subarea Plan - This is a study to determine whether the Single-Family Residential (RS) 15.0 designated parcels located south ofSW 356th Street and west of 1st Avenue South should be considered for higher density. B. New CODE AMENDMENTS 1. Amendment to increase building height in the City Center-Core (CC-C) and City Center-Frame (CC-F). These amendrnents may be expanded to also address increased building height in the Community Business (BC) and Neighborhood Business (BN) zones depending on the scope of technical and environrnental analysis needed. 2. Amendment related to the 120-foot rnaxirnum fa<;ade length requirement of the Community Design Guidelines. As buildings becorne taller, there is a need for them to be longer and wider in order to retain appropriate bulk and scale. 3. Amendment to consider reducing how open space requirements are met in the CC-C and CC-F zones. The present open space requirement for residential developrnent precludes efficient use of a site. This has become evident with the recent Symphony development. 4. Amendrnent to delete the maximum allowable density for senior housing in the BC zone. There is no rnaximum density requirernent in other commercial zones (CC-C and CC-F) which allow senior housing. In addition, other development standards such as maximum height, and required parking, landscaping, and water detention requirernents are sufficient to cap density. 5. Arnendrnent to FWCC Chapter 20, "Subdivisions," and Chapter 22, "Zoning," to incorporate Low Impact Developrnent (UD) techniques. The City has recently received technical assistance from the Puget Sound Partnership, which will be in the form of reviewing our codes and proposing code amendments to implement LID techniques. Land Use/Transportation Committee (LUTC) Staff Report Exhibit B, 2008 Planning Commission and Long Range Planning Work Program Meeting Date: December 17, 2007 Page lof2 EXHlBlT 4 ;;:"", 6. Amendrnent to allow home occupation day cares in an existing nonconforming residential dwelling in commercial zones. This arnendment is required to comply with state law. Also, re- examine the home occupation provisions for clarity and applicability in rnore unique situations, such as Adult Family Homes. 7. Amendrnent to allow the Director of Community Development Services the flexibility to determine the allowable hours of construction on a case-by-case basis. Presently, work is not allowed under any circurnstance from 8 p.rn. to 9 a.m. on Sundays and holidays. There is sometimes a reason to grant permission to work at these tirnes; for example, the Departrnent of Transportation may need to engage in construction around the clock. 8. Amendrnent to adopt regulations allowing storage containers in non-residential and/or residential zones. The code is silent on allowing this use and there has been inquires about the use of containers, more commonly on commercial property and to a lesser extent on residential property. 9. Arnendrnent related to allowing churches in all zones. Currently, churches are allowed in all residential zones and the BC, CC-C, and CC-F zones, but not in the BN, Professional Office (PO), Commercial Enterprise (CE), or Office Park (OP) zones. 10. Arnendrnent to FWCC Chapter 22, Article XVIII, "Signs," to allow off site signs, such as banners, in order to better publicize major events in our city, such as the Federal Way Symphony concerts; Festival Days events; Red, White and Blue Festival; Centerstage plays; Han Woo Ri; etc. 1:\2008 Planning Commission Work ProgramlCity CouncillExhibit B LUTC Recommendation.doc Land Useffransportation Committee (LUTC) Staff Report Exhibit B, 2008 Planning Commission and Long Range Planning Work Program Meeting Date: December 17,2007 Page 2 of2 COUNCIL MEETING DATE: 5,2008 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: North Maintenance Yard Parking Lot Paving Bid A ward POLICY QUESTION: Should the Council award the North Maintenance Yard Parking Lot Paving contract to the lowest responsive, responsible bidder? COMMITTEE: Land Use and Transportation Committee MEETING DATE: July 21, 2008 CATEGORY: [gI Consent o City Council Business o Ordinance o Resolution o o Public Hearing Other ..~!~FF RE~~~!..!l.X_~__!<en .r.~1}}!~~1-. p .E...:J2.lp~!y..~p..1.~.~...~~.!:!~~._I.?!~.l?~!l?.~................:I.!~~!=..... Pu~!~~.~~.rks............ Attachments: Land Use and Transportation Committee memo dated July 21, 2008. ~!!.C!!1.~..~.~~id~!:~.;..........____...................._.___._.___.__._..__._......................___........_..............................._.................__.__............_....___....._...... ......_.............._.._ 1. Award the bid for paving the parking lot of the North Maintenance Yard to Lakeside Industries Inc., the lowest responsive, responsible bidder in the amount of $49,278.90 and approving a 10% contingency of $4,927.89 for a total amount of $54,206.79. 2. Reject all bids for paving the parking lot of the North Maintenance Yard and direct staff to rebid the services and return to Committee for further action. 3. Do not award the paving the North Maintenance Yard bid to the lowest responsive, responsible bidder and provide direction to staff. STAFF RECOMMENDATION: Staff recommends Option 1. CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: C~ ommlttee Council Council COMMITTEE RECOMMENDATION: Place Option 1 on the August 5, 2008 Council Consent Agenda for approval. Dini Duclos, Member Linda Kochmar, Chair Jim Ferrell, Member PROPOSED COUNCIL MOTION: "I move awarding the bid for paving the North Maintenance Yard parking lot to Lakeside Industries Inc. as the lowest responsive, responsible bidder. Expenditures for this contract shall not exceed the $49,278.90 bid award and approving a 10% contingency of$4,927.89 for a total amount of$54,206. 79." (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: o APPROVED o DENIED o TABLED/DEFERREDINO ACTION o MOVED TO SECOND READING (ordinances only) REVISED - 02/06/2006 COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: TO: VIA: FROM: SUBJECT: July 21, 2008 Land Use and Transportation Committee Cary M. Roe, P.E., Assistant City Manager, Chief Operations Officer, Emergency Manager ~ Ken Miller, P.E., Deputy Public Works Director "\L-0 Steel Lake Maintenance Yard North Parking Lot Asphalt Paving Bid Award BACKGROUND: Two bids were received and opened on July 11, 2008 for the Steel Lake Maintenance Yard North Parking Lot Asphalt Paving bid. Five asphalt paving contractors were solicited from the City's Small Works Roster. Identified below are the five contractors the City notified along with their respective bids: Icon Lakeridge Paving Co. Lakeside Industries Inc. Tucci and Sons Woodworth and Co. No bid $55,034.10 $49,278.90 No bid No bid The lowest responsive, responsible bidder is Lakeside Industries Inc. with a bid of $49,278.90. The City has contracted with Lakeside Industries on several paving projects in the past and they have proven themselves to be both reliable and proficient. As a result, City staff believes Lakeside Industries can successfully execute this contract to the City's satisfaction. AVAILABLE FUNDING: The paving contract bid for the Steel Lake Maintenance Yard North Parking Lot is within budget. Therefore, staff is recommends awarding the contract to Lakeside Industries Inc. in the amount of $49,278.90 and approving a 10% contingency of $4,927.89 for a total amount of$S4,206.79. cc: Project File Day File K:\LUTC\2008\07-21-2008 Steel Lake Maintenance yard Paving Contract Bid Award.doc COUNCIL MEETING DATE: August 5, 2008 ITEM #:_ CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: Interlocal Agreernent between the State of Washington Department of Ecology ("DOE") and the City of Federal Way for Sea Lettuce Rernoval in Dumas Bay POLICY QUESTION: Should the Council authorize the City Manager to enter into an Interlocal Agreement with the State of Washington Department of Ecology for Sea Lettuce Removal in Dumas Bay? COMMITTEE: Land Use and Transportation Committee MEETING DATE: July 21, 2008 CATEGORY: IZI Consent D City Council Business D Ordinance D Resolution D D Public Hearing Other ST~!!.~!Q~!.}JY: ~~!!..Mg!~~L P .E., _Q~p.~!y- Pu~!.!.~!.Y.~E~~...!?!Et'l-,::tor _.._.._...~~!!.~_J~~~J~~_\.Y.9-.I.:~~_____....__._....__....._ Attachments: 1. LUTC Memorandum dated July 21,2008. 2. Copy of proposed Interlocal Agreement between the State of Washington Department of Ecology and the City of Federal Way. QpJ!~ns CO.I.!.~!~~E~~;... ........_.___.________..........._._......._._..____..____.._____.._......_.___...._._ ___.._...__...__....._.__ 1. Authorize the City Manager to enter into an Interlocal Agreement with the State of Washington Department of Ecology for Sea Lettuce Removal in Dumas Bay. 2. Do not authorize the City Manager to enter into an Interlocal Agreement with the State of Washington Department of Ecology for Sea Lettuce Removal in Dumas Bay and provide direction to staff. STAFF RECOMMENDATION: Staff recommends Option 1. CITY MANAGER ApPROVAL: DIRECTOR ApPROVAL: ~ Committee Council Council COMMITIEE RECOMMENDATION: Place Option 1 on the August 5, 2008 Council Consent Agenda for approval. Linda Kochmar, Chair Jim Ferrell, Member Dini Duclos, Member PROPOSED COUNCIL MOTION: "I move to authorize the City Manager to enter into an Interlocal Agreement with the State of Washington Department of Ecology for Sea Lettuce Removal at Dumas Bay. " (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: o APPROVED o DENIED o TABLEDIDEFERREDINO ACTION o MOVED TO SECOND READING (ordinances only) REVISED - 02106/2006 COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: TO: VIA: FROM: SUBJECT: July 21, 2008 Land Use and Transportation Committee Cary M. Roe, P.E., Assistant City Manager, Chief Operations Officer, Emergency Manager C41'1... Ken Miller, P.E., Deputy Public Works Director ~ Approval of the Interlocal Agreement between the State of Washington Department of Ecology ("DOE") and the City of Federal Way for Sea Lettuce Removal in Dumas Bay BACKGROUND: In 2005 the City became aware of noxious odors from decaying sea lettuce and other seaweeds along the Durnas Bay shoreline. Again, in 2006 there were several cornplaints frorn citizens regarding the odor and a community rneeting was held on November 26, 2006 to discuss the causes and which agency should take the lead in dealing with the problem. Early 2007 there was a second community meeting and an agency meeting to further discuss the problern. On March 6, 2007 a letter was sent to the Director of DOE requesting they address and deal with this problem. On July 27, 2007 a meeting was held in Olympia with Jay Manning, DOE Director, Senator Tracy Eide, Representative Priest, a City Council mernber and staff to discuss how to solve the odor problem. With the help of Senator Eide, we were able to secure $50,000 from DOE to match a $50,000 City contribution to develop a program to address the decaying sea lettuce and odor problem. Attached is the proposed interlocal agreement between DOE and the City to rernove excess seaweed from the beach. The City will reirnburse DOE for its share of the consultant and contractor costs for removing the seaweed up to $50,000. The work is anticipated to occur in August and September 2008. A contractor has been selected (Blue Marble) and the bid amount was $168,000 for the Durnas Bay and Fauntleroy sites. The City will only pay its share of the work at Durnas Bay. This is a pilot project to determine if the proposal is feasible and cost effective. The floating seaweed will be pumped into nets and taken out to a schooner in the bay for disposal. There are many concerns regarding not pumping the "rooted" eel grass and/or kelp by rnistake; the process will be monitored by DOE and other agencies. Staff is recommending executing the attached agreement. Attachment cc: Project File Day File K:\LUTC\2008\07-21-08 WA State Dept of Ecology Interlocal Agt for Sea Lettuc Removal in Dumas Bay.doc ~(Q)[?)W Ecology No. INTERLOCAL AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY and THE CITY OF FEDERAL WAY THIS AGREEMENT is made and entered into by and between the DEPARTMENT OF ECOLOGY, hereinafter referred to as "Ecology," and the CITY OF FEDERAL WAY, hereinafter referred to as the "City." IT IS THE PURPOSE OF THIS AGREEMENT to have the City provide Ecology funding to remove excess seaweed (Viva and other similar species) from the beach and shallow water of Dumas Bay in the City of Federal Way. PROJECT BACKGROUND Decomposing seaweed ("Sea lettuce") on the beach of Dumas Bay has caused odor complaints for many years. The seaweed accumulates on the beach during warm weather. The amount of seaweed accumulating on the beach is in the range of several tons per day at any time during the summer. When the seaweed decays in an environment with low dissolved oxygen, sulfur gases are produced, including hydrogen sulfide and dimethyl sulfide. Air monitoring has documented hydrogen sulfide in the nearby residences during the day near low tide. Removal of the seaweed mats will reduce or eliminate the odor problem and associated health related problems for local neighborhoods. THEREFORE, IT IS MUTUALLY AGREED THAT: STATEMENT OF WORK The City will reimburse Ecology for a consultant who will obtain the necessary permits and approvals to conduct a seaweed removal effort. The City will also reimburse Ecology for part of the seaweed removal costs at Dumas Bay during July, August, and September 2008. The selected removal contractor will dispose of the seaweed upland if permit approvals can be obtained in a timely fashion, or remove the seaweed to deeper water if no other options are available. The full scope of work for the consultant/contractor is outlined in Attachment A, Scope of Work. The project consists of several phases. The first phase is pre-permitting and includes an investigation and evaluation of various methods of seaweed removal in use in various locations in the US and worldwide. This work has been completed and the City is not responsible for cost sharing this work. Once a method is identified, the second phase is obtaining permits from the applicable agencies. The City will pay its proportional share as two sites will be permitted, one outside of the City limits. The third phase is the removal project, which can begin after July 1, 2008 as funding becomes available in the new fiscal year. Ecology will use a competitive bid process to select a removal contractor. PERIOD OF PERFORMANCE Subject to its other provisions, the period of performance of this Agreement shall commence on April 1, 2008 and be completed on December 31, 2008, unless terminated sooner as provided herein. PAYMENT Compensation for the work provided in accordance with this Agreement has been established under the terms ofRCW 39.34.130. The parties have determined that the City's cost of accomplishing the work herein shall not exceed $50,000 unless the parties mutually agree to a higher amount through a written modification to this Agreement by both parties. BILLING PROCEDURE Ecology shall submit monthly invoices to the City's Project Manager for half of the amount of the invoice received from the contractor, so that the City and Ecology are each paying half of the cost of the project, up to the City's limit of $50,000. The correct City address for invoice mailing is: City of Federal Way P.O. Box 9718 Federal Way, W A 98063-9718 Attn: Ken M i 11 er f P. E . Payment to Ecology for completed work will be made by warrant or account transfer by the City within 30 days of receipt of the invoice. Payments shall be sent to: Dept of Ecology Cashiering Unit, 2 P.O. Box 47611 Olympia, W A 98504-7611. Upon expiration of the Agreement, any ~laim for payment not already made shall be submitted within 30 days after the expiration date or the end of the fiscal year, whichever is earlier. RECORDS MAINTENANCE The parties to this Agreement shall each maintain books, records, docwnents and other evidence which sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of the service(s) described herein. These records shall be subject to inspection, review or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. All books, records, documents, and other material relevant to this Agreement will be retained for six years after expiration and the Office of the State Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period. Records and other docwnents, in any medium, furnished by one party to this agreement to the other party, will remain the property of the furnishing party, unless otherwise agreed. The receiving party will not disclose or make available this material to any third parties without first giving notice to the furnishing party and giving it a reasonable opportunity to respond. Each party will utilize reasonable security procedures and protections to assure that records and documents provided by the other party are not erroneously disclosed to third parties. INDEPENDENT CAPACITY The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that party and shall not be considered for any purpose to be employees or agents of the other party. AGREEMENT ALTERATIONS AND AMENDMENTS This Agreement may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. TERMINATION Either party may terminate this Agreement upon 30 days' prior written notification to the other party. If this Agreement is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. TERMINATION FOR CAUSE If for any cause, either party does not fulfill ina timely and proper manner its obligations under this Agreement, or if either party violates any of these terms and conditions, the aggrieved party will give the other party written notice of such failure or violation. The responsible party will be given the opportunity to correct the violation or failure within 15 working days. If failure or violation is 3 not corrected, this Agreement may be terminated immediately by written notice of the aggrieved party to the other. DISPUTES In the event that a dispute arises under this Agreement, it shall be determined by a Dispute Board in the following manner: Each party to this Agreement shall appoint one member to the Dispute Board. The members so appointed shall jointly appoint an additional member to the Dispute Board. The Dispute Board shall review the facts, agreement terms and applicable statutes and rules and make a determination of the dispute. The determination of the Dispute Board shall be final and binding on the parties hereto. As an alternative to this process, either of the parties may request intervention by the Governor, as provided by RCW 43.17.330, in which event the Governor's process will control. GOVERNANCE This Agreement is entered into pursuant to and under the authority granted by the laws of the state of Washington and any applicable federal laws. The provisions of this Agreement shall be construed to conform to those laws. In the event of an inconsistency in the terms of this Agreement, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: a. Applicable state and federal statutes and rules; b. Statement of work; and c. Any other provisions of the agreement, including materials incorporated by reference. ASSIGNMENT The work to be provided under this Agreement, and any claim arising thereunder, is not assignable or delegable by either party in whole or in part, without the express prior written consent of the other party, which consent shall not be unreasonably withheld. WAIVER A failure by either party to exercise its rights under this Agreement shall not preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement unless stated to be such in a writing signed by an authorized representative of the party and attached to the original Agreement. SEVERABILITY If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this agreement, and to this end the provisions of this Agreement are declared to be severable. 4 ALL WRITINGS CONTAINED HEREIN This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. AGREEMENT MANAGEMENT The project manager for each of the parties shall be responsible for and shall be the contact person for all communications and billings regarding the performance ofthis Agreement. The Project Manager for Ecology is: Alice Kelly akeI461@ecy.wa.gov (425) 649-7128 The Project Manager for the City is: Ken Mi J ler- r P.E., ken.mi ller@cityoffeder-alway.com, 253.835.2700. IN WITNESS WHEREOF, the parties have signed this Agreement. State of Washington Department of Ecology City of Federal Way ---=14-,. ~ ~ Signature Signature Patricia McLain Chief Financial Officer Cary M. Roe, P.E. Assistant City Manager (P. 10. Oe!> Date Date Attest: Attest: City Clerk, Laura Hathaway, CMC APPROVED AS TO FORM: APPROVED AS TO FORM: ATTORNEY GENERAL'S OFFICE CITY A TTORNEY, Patricia A. Richardson 5 Attachment A: Scope of \\:,ork Background: Seaweed production has been measured at about 6 tons per day in Fauntleroy Cove in Seattle, and may be twice as much in Dumas Bay. The odors are caused by hydrogen sulfide which is produced by rapid anaerobic bacterial growth in the seaweed and sediments. The hydrogen sulfide concentrations produced on sunny days exceed OSHA limits of 50 ppm in the open air on the beach. Ecology's Water Quality Program staff have determined that in-water disposal of the decomposing seaweed will likely degrade water quality in Puget Sound. Macroalgae such as VIva are fast cyclers of dissolved inorganic nitrogen, and outcompete other plants as more nitrogen becomes available. Moving excess plant matter to another location in Puget Sound will consume oxygen as it dies and decays. Moving it to the deep holes (with the oldest water) is the worst location because that is often where the lowest dissolved oxygen resides. Therefore, to protect water quality, the current seaweed removal plan is to remove it from the water, dewater it and dispose of it upland. History: Several seaweed removal projects have taken place at Fauntleroy Cove in Seattle. In previous years, seaweed was taken out to deeper water and released, rather than taking it out of the water completely. In 1985, 31 tons were removed from the beach during the months of July and August. The seaweed was captured on screens and relocated offshore, midway to Vashon. In 1999-2000, approximately 50 tons were removed each year using a 100-foot seine and a tugboat. The seaweed was towed out past Brace Point and released. It then redistributed along the shoreline in smaller masses that did not cause serious odor problems. Scope of work: The contractor will: 1. Perform all necessary permitting to obtain authorization to remove seaweed from Dumas Bay. Permits include: Hydraulic Project Approval from Dept. of Fish and Wildlife, Shoreline permit from City of Federal Way, and any permit deemed necessary by the US Army Corps of Engineers and Department of Ecology. Contractor shall answer questions posed by agency staff if needed, and develop any additional technical documentation, including site plans, as necessary. 2. Participate in a community meeting as a technical advisor to Ecology, as needed. 3. Mobilize and test equipment as needed, to successfully remove seaweed from Dumas Bay. 4. Perform seaweed removal at Dumas Bay. 5. Dispose of seaweed upland if permits are obtained authorizing complete removal from the water. 6 .M........M....M......M._......._.__.__._.._._....._..........__.._._._........._..____............_...._................_._____.__...._._............_..._...._............._.___.__.---.--.-............-.-..-....--.....-............-............__..__.....M__....M..__.__........._.._............._.._ COUNCIL MEETING DATE: August 5, 2008 ITEM #: CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: Private Storm Drainage Improvements and Maintenance Responsibility POLICY QUESTION: Should the City become responsible for and begin to maintain private storm drainage systems? COMMITTEE: Land Use and Transportation Committee MEETING DATE: July 21, 2008 CATEGORY: [gI Consent D City Council Business D Ordinance D Resolution D Public Hearing D Other ST A!!..~!.QRT ll.x..:....~~n Mi1.J.l?!.z. P .E.:LQ~p~.!L~?g~..~Qr.~~...Q!~~.~!~!._..__.l?_~PT: ~~!i~ W or.~.~_...._.._.. Attachment: 1. LUTC Memorandum dated July 21, 2008. Qp"!i.9..!~ Con.sic!~~ed: ._......_..._.._...__._..._.____........___._..........._._--....--......-....-...................-.-...-..................-.-.---.---.-..-.-.- 1. Do not change the existing policy and the City shall not take over the responsibility of irnprovements and maintenance of private drainage systems. 2. The City shall contract with a consultant to conduct a detailed inventory and return to Council with a recommendation based upon the results. Council DIRECTOR ApPROVAL: ~ Committee Council CITY MANAGER APPROVAL: COMMITTEE RECOMMENDATION: Place Option 1 on the August 5, 2008 Council Consent Agenda for approval. Linda Kochrnar, Chair Jim Ferrell, Member Dini Duclos, Member PROPOSED COUNCIL MOTION: "1 move to not change the existing policy and the City shall not take over the responsibility of improvements and maintenance of private drainage systems. " (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: o APPROVED o DENIED o TABLED/DEFERRED/NO ACTION o MOVED TO SECOND READING (ordinances only) REVISED - 02/0612006 COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: TO: VIA: FROM: SUBJECT: July 21, 2008 Land Use and Transportation Committee Cary M. Roe, P.E., Assistant City Manager, Chief Operations Officer, Ernergency Manager M Ken Miller, P.E., Deputy Public Works Director ~f'" Private Storm Drainage Improvements and Maintenance Responsibility BACKGROUND: At a recent LUTC rneeting, the question was raised regarding the City revisiting its Comprehensive Surface Water Management Plan Policy of not maintaining private storm drainage systems. There are numerous private commercial and residential drainage systerns throughout the City. We have records on the commercial systems but we have very little on the residential systems. Due to the lack of available information, it is therefore difficult to estimate the number of private catch basins, rnanholes, pipe, open channels, ponds, vaults, etc. It is known that there is a significant amount including hundreds of ponds/vaults and structures. There are also thousands of lineal feet of pipe and open channel. As a part of the drainage system,. the roads would also have to be inventoried as they function as part of the drainage system. To determine if the City could ''take over" these private storm drainage systerns, a detailed inventory would be required. As a part of this, the systems would have to be cleaned, inspected, field surveyed, plans prepared, down stream analyses, easements granted and perhaps even some repairs. Without this work, it would be very difficult to recornmend whether to assurne responsibility for the drainage system or not. Private drainage systems were allowed before incorporation and this same policy continues today. Private systems are designed, reviewed and constructed as such, and rnaintained by the property owners. If private drainage systerns were taken over by the City for maintenance, it would have a significant impact and require additional staff, equipment, supplies and revenue. The increase in revenue would have to be generated by a significant surface water fee increase. Staff recornrnends continuing the existing stormwater system ownership policy and not "take over" private systerns. cc: Project File Day File K:\lUTC\2008\007-21-08 Private Storm Drainage Imp & Maint Responsibility.doc City of Federal Way Single Family Residence Responsibility of Private Surface Water Features City of Federal Way, GIS Division 33325 8th Ave S PO Box 9718 Federal Way, WA 98063-9718 (253) 835-7000 www.cityoffederalway.com L N PugetSound Poverlv Bay- . @ General Feature Manhole . Catchbasin ~ Storm Pipe Ditch or Stream Subdivisions Identified Scale: o 0.25 0.5 ~ 1 . Mile ".-, ,.--