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Council MIN 10-21-1997 Regular FEDERAL WAY CITY COUNCIL Re~lar Meetif!g Council Chambers - Cíty Hall October 21, 1997 - 7:00 p.m. MINUTES I. CALL MEETING TO ORDER Mayor Priest opened the regular meeting of the Federal Way City Council at 7:05 p.m., in Council Chambers, City Hall, Federal Way, Washington. City Council present: Mayor Mahlon "Skip" Priest, Deputy Mayor Hope Elder; Councilmembers Michael Park, Ron Gintz and Phil Watkins and Jack Dovey. Mary Gates' absence was excused. City Staff present: City Manager Ken Nyberg, Deputy City Manager Philip Keightley, City Attorney Londi Lindell, City Clerk Chris Green and Deputy City Clerk Bob Baker. II. PLEDGE OF ALLEGIANCE Bob Kellogg led the flag salute. III. PRESENTATION Plannin¡r Commissioner Introductions Councilmember Watkins presented Certificates of Appointment to Karen Kirkpatrick, Planning Commissioner and William Drake, Alternate. IV. CITIZEN COMMENT Lynda Jenkins spoke in favor of negotiating a lease agreement with the Historical Society to manage the Fisher's Pond residence for the purpose of providing a parks interpretive center and Historical Society services. Doug Smith, SeaTac Mall, spoke of concerns regarding the non-conformance council bill currently before the Council. The concerns relate to tenant improvements and proportional methods of compliance. He presented Council with copies of correspondence to the Land Use!Transportation Committee dated September 15 and October 6 relative to these issues. OR I GINAL CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21, 1997 - PAGE 2 Keith Dearborn, Counsel to Ed Dunn, Jr., also spoke regarding the non-conformance council bill currently before the Council. He stated the more he learns about the proposed ordinance, the more worried he gets. He stated redevelopment costs for the Dunn Lumber building currently exceed 50% of the valuation of the site. Alison Corrigan, on behalf the Chamber of Commerce Board of Directors, thanked all for the recommended changes to the non-conformance code. She asked the Council to also review codes as they relate to water quality and street improvements. She asked for two changes - I) utilize a proportional improvement requirement; and 2) eliminate tenant improvements as a trigger for water quality. Ed Stewart spoke in favor of Phil Watkins' no vote on the issue of the Lakehaven assumption. He urged other council members to listen to the public and change their votes. He stated it is a lot easier to "talk about it than do it." V. CONSENT AGENDA a. b. c. d. Minutes/October 7 1997 - Re¡¡:ular Meeting Minutes Civic Theatre Bid Award Scholarships & Fee Reduction Steel Lake Park Operations Building Roof Bid Award National Maintenance Contractors Amendment Skyhawks Sports Academy Contract Council Bill #179/Gambling Tax Code Amendment/Enactment Ordinance APPROVED ORDINANCE #97-301 King Conservation District!Re¡¡ional Needs Assessment Historical Society BuildinglFishers Bog Street Poli¡;y Guidelines e. f. g. h. i. j. COUNCILMEMBER DOVEY MOVED APPROVAL OF THE CONSENT AGENDA ITEMS AS PRESENTED; second by Councilmember Gintz. The motion carried as follows: VI. Priest Gates Gintz Dovey Elder Watkins Park yes excused absence yes yes yes yes yes ORDINANCES a. Council Bill # 180/Lakehaven Utility District AssumptionlEnactment Ordinance APPROVED ORDINANCE #97-302 CITY COUNCil. REGULAR MEETING MINUTES - OCT. 21,1997 - PAGE 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, RELATING TO AND PROVIDING FOR THE ASSUMPTION OF JURISDICTION OF THE ASSETS, FACILITIES AND OPERATIONS OF LAKEHA YEN UTILITY DISTRICT, A MUNICIPAL CORPORATION, PROVIDING FOR THE FUTURE CREATION OF A WATER AND SEWER UTILITY BOARD AND PROVIDING THAT NO WATER OR SEWER UTILITY TAX SHALL BE IMPOSED ON NON-CITY RESIDENTS, TO THE EXTENT AUTHORIZED BY LAW, AND THAT NO WATER OR SEWER UTILITY TAX SHALL BE IMPOSED ON CITY RESIDENTS WITHOUT A MAJORITY VOTE OF SUCH RESIDENTS, TO THE EXTENT AUTHORIZED BY LAW. Deputy City Clerk Bob Baker conducted a second reading of the Council Bill. The ordinance agenda bill noted the Law & Public Works Departments had made certain minor revisions to the ordinance between the first and second readings. Mayor Priest asked for clarification on SEP A issues ITom Community Development Services Director Greg Moore. As the City's responsible official for administration of the State Environmental Policy Act, Mr. Moore rendered a brief explanation relative to the City's SEP A review. As part of the assumption, he was asked to determine ifSEPA review was required. He reviewed the environmental documents of the proposed assumption of 1993 & 1994. A decision was made at that time that an assumption is categorically exempt ITom review. Even ifit were not exempt there would be no significant impact that was found. He determined no additional review is required since the current, proposed assumption is the same as the previous one -- the City is merely assuming and consolidating the District with no adverse environmental impact. Mr. Moore also explained an addendum adds information about a specific project. While preparing the SEP A decision, he concluded an addendum is not required; can be prepared at any time during the process and is not appealable. Because of this, an addendum would serve no purpose at this time. MAYOR PRIEST MOVED TO AMEND PAGE 14, ADDING SECTIONS 12 & 13, AND RENUMBERING SUBSEQUENT SECTIONS ACCORDINGLY, as follows: Section 12. Water Supply. Upon the effective date of assumption, the City Manager and staff are directed to take all steps necessary, in the manner provided by law, to conclude negotiations with the City of Tacoma, the City of Auburn, or any other entity in order to secure a firm, permanent water supply, at a reasonable rate, sufficient to meet the needs of the City of Federal Way as planned for in the City's Growth Management Act Comprehensive Plan. Such steps may include, but are not limited to, arranging for City of Federal Way financial participation in Tacoma's CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21, 1997 - PAGE 4 construction and operation of the Second Supply Pipeline, or arranging City of Federal Way's financial participation in Auburn's construction and operation of the Auburn intertie. Section 13. Operation and maintenance of District's Water and Sewer System From and after the effective date of assumption, the city shall maintain and operate all of the facilities of the District's water and sewer system, whether located within the City or outside the City, except as may be provided otherwise under Section 11 above, or except those which the City Manager or his or her designee determines are unnecessary to operation of the overall water and sewer pumping stations, electronic warning systems, sewage treatment plants, water lines, water tanks, pressure relief valves, and all other facilities and equipment now or hereafter constructed as necessary to continue to furnish water and sanitary sewer service. Further the City Manager and staffare directed to take all necessary steps, in the manner provided by law, to comply with Environmental Protection Agency drinking water requirements, and to remedy existing maintenance backlogs. This may include, but not be limited to, implementation of drinking water disinfection, timely replacement of asbestos-concrete water mains, institution of a comprehensive infiltration and inflow removal program, and implementation of water line corrosion control mechanisms. The motion was seconded by Councilmember Dovey. The motion carried as follows: Priest Gates Gintz Dovey yes excused absence yes yes Elder Watkins Park yes yes yes COUNCILMEMBER GINTZ MOVED ADOPTION OF THE ORDINANCE AS AMENDED; second by Councilmember Dovey. Discussion ensued with Mayor Priest responding to comments made earlier. He stated the City is not moving forward too quickly with this issue. It has been carefully considered. He thanked Mr. Atkin for all information received. Next, he asked Ms. Lindell to respond to and provide information regarding the issue ofa memorandum fÌ'om the District's outside legal counsel claiming that an election might be required. City Attorney Londi Lindell has reviewed a letter prepared by George Mack, on behalf of the District. The letter contains a legal opinion stating, "probably a vote would be required if the City were to proceed forward with the assumption of the District." Ms. Lindell has reviewed the statutes referred to by Mr. Mack and with all due respect, strongly disagrees with his legal conclusions. CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21, 1997 - PAGE 5 Ms. Lindell raised three points which aided her in her conclusion. First, the statute the District relied upon does not apply to assumption actions. The statute the District relied upon stems fÌ"om a turn-of-the-century law which originally allowed cities to provide water and sewer as well as other utility services. The assumption statute was adopted in 1971 and deals specifically with how to proceed with an assumption action of an existing special purpose district. Second, Washington courts have long held that a specific statute will control over a more general statute when two statutes cover a similar subject. Even if the District were successful in arguing that somehow the statute applies; the assumption statute, RCW 35. 13 A, is the specific statute dealing with assumption actions and it would control over the more general statute that deals with the purchase of other types of utilities. Thus, no election is required for an assumption. The election statute is to protect public funds fÌ"om the purchase of a new utility, and does not cover a city merely stepping in the shoes of an existing special purpose district -- what the City is contemplating doing. An assumption action might actually save the ratepayers money vs. costing additional dollars. Third, Ms. Lindell raised the point that the District has never raised this issue in the past. It's interesting to note that the District has been a strong supporter of the last legislative session senate bill that was vetoed by Governor Locke which would have required an election prior to an assumption of a special purpose district. The point being -- why would the District lobby for a bill if the law currently required such an election. Therefore, Ms. Lindell's legal conclusion is that an election is not required. Mayor Priest said he had called MRSC who agreed with the City's legal conclusion. An MRSC attorney then faxed Mayor Priest something fÌ"om WFOA which discussed the procedure for sewer and water district assumptions. The attorney who prepared the analysis and "blue print" of procedures on assumption was Michael Rourke, fÌ"om Inslee Best. Mr. Ruark was Lakehaven's lead attorney on the assumption action in 1993. Mr. Gintz shared some thoughts he wrestled with for some time. He stated several reasons have been raised this evening to proceed with the assumption in order to ensure future water supply and maintaining basic water and sewer systems. He also spoke of the need to say something about the fact the Commission has been involved in such items as political infighting, including hiring a private investigator to tail a Commissioner; allegations of conflict of interest, sexual harassment and blackmail. With these items occurring and with the amount of work at hand, a concern exists --whether or not the Commissioners will have time to deal with and/or settle the problems. In addition to other publicly stated issues, the Commission (either as a Board, or individually, has: . demoted and fired a General Manager and assumed management of the District themselves. formed a litigation task force to meet in secret to strategize and fight the City's assumption of the District . CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21, 1997 - PAGE 6 ~ hired a new General Manager and fired him, which then resulted in a damage claim being filed against them had sexual harassment and blackmail charges filed against them debated proper procedures and ethics of campaign contributions engaged in questionable contract award procedures hired a private investigator to follow a fellow commissioner have been unable to answer questions about deferred maintenance have kept rates artificially low as a political bargaining chip have called manager applicants "fools" to want to take the vacant position had the top 2 candidates for General manager reject their offer of employment admitted to "dreading" attending Commission meetings caused ratepayers to pay for employees after they were terminated under "poison pill" contracts. . . a recent resolution gave employees a 3-year contract as litigation tactic...these contracts are inconsistent with good business planning-ability to layoff for economic necessity or any other reason commissioners have referred to themselves as a "political sideshow" ~ ~ ~ ~ ~ Things are not getting better as hoped for the last time the City considered an assumption action. He stands firm and believes the Council will stand firm on the assumption action. Mr. Gintz made all these statements "as respectfully" as possible as the Commissioners are all good people. They've become entangled in personalities that have not moved the District forward and have not allowed for appropriate planning. Thus, he will vote in favor of the ordinance. Councilmember Watkins recited his logic for voting no on this issue. He reminded his colleagues to be hesitant when criticizing real or imagined personal flaws of individuals. As to the policy aspects of this item, Mr. Watkins is voting no for three reasons. First, he doesn't think the City Council and City government can meet the challenges any faster or more effectively than the District at this time. Second, as to future water needs, the District is negotiating with Auburn and says that a water source will be contracted by the end of the year. Thirdly, as to maintenance of the system, if we were to assume Lakehaven, he believes the first thing we would do is hire a consultant to find out the scope of the problem and to come up with a plan to address the problem. Lakehaven has already done that. He doesn't think we can do these things any quicker or better. Finally, Councilmember Watkins stated the concern he has most direct responsibility for is the good of the City of Federal Way and the people who serve it. Deputy Mayor Elder, formerly against the assumption, is now in favor of said action. Two things which motivate her vote are I) new businesses coming to town who need assurance a water supply can be guaranteed; and 2) the mandate of the Growth Management Act -- whether we like it, or not, it is the law. This is part and parcel of the participation of the Growth Management CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21, 1997 - PAGE 7 Act. She calls some of the Commissioners mends. She is not basing her vote on personalities but for the reasons stated above. Water is the most important thing. Mayor Priest stated two major concerns of the Council are I) future permanent water supply and 2) addressing long term maintenance needs. He also underscored the fact we are paying a utility tax to the City of Tacoma right now. Some 2,600 to 3,000 residents who are not in the water/sewer district are paying an 8% utility tax to the City of Tacoma. On the wholesale water we received ITom the City of Tacoma, as a part of the intertie, we are also paying an 8% utility tax. This is the result of the District's failure to act appropriately, and get the water situation under control when it had the opportunity; and that is not on the head of the City Council. The City Council of Federal Way is not responsible for a utility tax that is now being placed on everyone one of our residence with monies going to the City of Tacoma for Tacoma streets, parks & other Tacoma projects. Ifwe would have had an appropriate water supply in the first place, we would not be paying monies to the City of Tacoma every month. Councilmember Gintz asked what Auburn charges for a utility tax, as the District is supposedly negotiating with them at this time for a water supply. City Attorney Lindell answered 4.5%. This money would go to fund Auburn projects, not Federal Way projects. The motion to adopt the ordinance as amended carried as follows: Priest Gates Gintz Dovey yes excused absence yes yes Elder Watkins Park yes no yes b. Council Bill #181/Non-Conforming Code AmendmentslIntroduction Ordinance AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTERS 16 AND 22 OF THE FEDERAL WAY CITY CODE, PERTAINING TO LAND USE AND ZONING, ADOPTING NEW DEFINITIONS, REVISING EXISTING NONCONFORMANCE PROVISIONS AND CONSOLIDATING THE REQUIREMENTS FOR PUBLIC IMPROVEMENTS INTO THE NONCONFORMANCE, ARTICLE IV OF CHAPTER 22. Deputy City Clerk Bob Baker read Council Bill #181 as presented. COUNCILMEMBER WATKINS MOVED TO AMEND THE NONCONFORMING USE PORTION OF THE LAND USE CODE BY I) REMOVING INTERIOR TENANT IMPROVEMENTS FROM THE DEFINITION OF REDEVELOPMENT AND 2) CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21,1997 - PAGE 8 SUBSTITUTING THE PERCENTAGE THRESHOLDS FOR THE DOLLAR VALUE THRESHOLDS CONTAINED IN THE PROPOSED ORDINANCE; second by Mayor Priest. The motion carried as follows: Priest Gates Gintz Dovey yes excused absence yes yes Elder Watkins Park yes yes yes COUNCILMEMBER GINTZ MOVED APPROVAL OF THE PROPOSED ORDINANCE AS AMENDED; second by Councilmember Dovey. The motion carried as follows: Priest Gates Gintz Dovey yes excused absence yes yes Elder Watkins Park yes yes yes VII. CITY MANAGER REPORT City Attorney Londi Lindell received a decision fÌ"om Judge Barnett upholding the adult entertainment ordinance as constitutional. As the judge regarded Mr. Burns claim as "baseless," summary judgment was granted. City Manager Nyberg reported on the recent first anniversary of the Federal Way Police Department. He had a notebook which contained cards and letters fÌ"om citizens which stated their support of the department and their appreciation for the service rendered over the last year. City Manager Nyberg then expressed his sincere appreciation for the fine work performed each and every day by City staff. VIII. CITY COUNCIL REPORTS Councilmember Park Public Safety/Human Services meeting Nov. 6 at 5:30 p.m. Councilmember Watkins Land Use/Tránsportation meeting Nov. 3 at 5:30 p.m. Councilmember Gintz FinancelEconomic Development meeting Oct. 23 at 7:30 a.m. Deputy Mayor Elder reported the Police Department Birthday party was a job well done. She CITY COUNCIL REGULAR MEETING MINUTES - OCT. 21, 1997 - PAGE 9 takes pride in the staff. She thanked Cary Roe for his tremendous support over the past 10 months as she served as SCATBd chair. Councilmember Dovey Parks & Recreation Committee meeting Nov. 17 at 8:00 a.m. Councilmember Dovey also reported Lakegrove Park and Mirror Lake Park are progressing well and relayed the trails are already being well-used. He thanked all staff and volunteers for their hard work. He also reported on the new light on 1st Avenue for the BPA Trail. IX. ADJOURNMENT Having no other business to come before the Council, Mayor Priest adjourned the meeting at 8:28 p.m. ~~ Robert H. Baker Deputy City Clerk