Letter to Editor: Law requires Edmonds councilmembers to follow — or change — the Comprehensive Plan

Dear Editor:

Edmonds police can’t arbitrarily arrest people and the courts can’t convict someone just because they don’t like or agree with them. They can’t make up laws to fit their viewpoints. They can’t play favorites. There are codes, processes, and laws. Apparently, some on the Edmonds City Council don’t understand or are confused by adopted land use legislation, like our Comprehensive Plan and the State Growth Management Act. Both are fundamentally laws, not just “verbiage.”

During the Edmonds City Council meetings, Councilmembers Petso and Bloom stated that they do not support including residential uses in the Harbor Square Master Plan. Councilmember Bloom relayed her strong belief that residential was incompatible with a “destination” and stressed there was nothing in the Comprehensive Plan about residential for Harbor Square. Councilmember Fraley-Monillas expressed interest in a “destination” where there would be a variety of “boutique hotels.” The term “destination” was used numerous times by these councilmembers to describe the intent of the current Comprehensive plan for this area. Clearly, they have not read their own plan, or have only read the parts they agree with.

The word “destination” appears on pages 44, 51 and 52 and is used to describe the whole City of Edmonds or the end of Main Street, should the ferry terminal actually be moved.

The Comprehensive Plan does not state anywhere that this Harbor Square site is a “Destination.” It does state that this site is supposed to contain mixed-use development. Besides that, destinations and mixed use are not mutually exclusive. Think Winslow, Mill Creek Town Center, New York City.

Mixed-use development is exactly what needs to happen at this underutilized, near transit and open space, 11-acre parcel.

According to the Municipal Research and Services Center of Washington:

… mixed-use development is a useful tool for implementing Growth Management Act (GMA) direction for encouraging compact development in urban growth areas, innovative land use management, efficient multimodal transportation systems and utility provision, and other GMA goals.

When people live or work close to the essentials that they need on a day-to-day basis, they can reduce the time and travel required. Walking and cycling become practical means of travel, rather than having to drive to services in separate zones. A complementary mix of uses is of key importance – the uses must support each other…

If Councilmembers Petso, Fraley-Monillas and Bloom do not want any residential in this area or want to change the use to “boutique hotels,” then they need to go through the State-mandated process of amending the existing Comprehensive Plan like the Port did.

By continuing to insist on eliminating residential, capping heights at 35 feet or less, and requiring 150-foot buffers, these councilmembers put any redevelopment and restoration of the Marsh at risk.  They run counter to the vision of growth management and the Edmonds Comprehensive Plan. Sadly, if they prevail, the outcomes will have the opposite effect of what these councilmembers say they believe in – a better environmental, economic and social quality of life for Edmonds residents. They also set the city up for an appeal process with the Growth  Management Hearings Boards should there be an appeal.

Adopting the plan with amendments or doing it as a “substitute amendment” — meaning offering a newly written amendment — is the next step. Environmental, seismic, traffic and other studies come next. A more detailed actual development plan and zoning changes don’t occur until the city and port have that information. Reputable developers will only work with both if the process is fair and the demands reasonable.

I encourage the council to work with the Port as a partner and not as an adversary. It is disturbing to hear some of our council continue to accuse the port management and commissioners as “arrogant.”

Work with the port to pass balanced, reasonable and realistic amendments to this plan. Provide enough guidance to assure the residents that any development reflects the character and commitment to community we share, as outlined in the Comp Plan, but also be flexible enough that we don’t inadvertently turn away good projects because we have attached so many strings, we strangle ourselves.

Councilmembers take an oath to uphold existing laws. The Comprehensive Plan is an existing, binding document that guides our planning, policies and strategies for land use, housing, transportation, utilities, culture and capital facilities. It’s a good plan. If you don’t like it, get the votes to change it, but please stop making stuff up.

See below for a copy of the plan.

https://www.edmondswa.gov/images/COE/Government/Departments/Development_Services/Planning_Division/Plans/Comp_plan.pdf.

Maggie Fimia
Edmonds

  1. Ms. Fimia,

    I believe you are stating that the current Comprehensive Plan states that the Harbor Square site is supposed to contain mixed-use development. I was under the impression that the Harbor Square property is currently zoned General Commercial (CG) via a 1980 contract rezone. I believe this contract rezone limits uses at Harbor Square to commercial uses (residential use is not allowed) and a height limit of 35 feet. Are you implying that the 1980 contract rezone is inconsistent with the current Comprehensive Plan and must be changed?

    I’m truly trying to understand this process. If the property is already supposed to be zoned for mixed-use, why haven’t they simply applied for a rezone. Is the Comprehensive Plan Amendment needed first for some reason? Please expand on zoning laws versus Comprehensive Plan if you feel that would help citizens better comprehend how this is supposed to work.

    Are you stating that councilmembers would need to go through the State-mandated process of amending the existing Comprehensive Plan to keep the property’s current General Commercial Zoning where no residential uses are allowed? I truly am confused so any help would be appreciated.

  2. Ms Fimia,

    I drew great pause when I read the third and fourth sentences of your letter. In your third sentence you state that “They can’t play favorites”. I fear that citizens can’t simply accept this statement and believe it. What would you say if the City of Edmonds settled a 3 party lawsuit involving a wetlands with ONE party only, while at the same time apparently excluding the State Department of Ecology from the Settlement process even though Ecology had asserted its responsibilities related to the wetland? What if I told you that the City has acted to meet the terms of a settlement proposal related to a 2 party lawsuit by taking action against another Edmonds citizen that was not a party to that lawsuit? Your statement about favoritism sounds good on the surface, but my opinion is that it may not consistent with history in Edmonds. That may have something to do with the mistrust in this City.

    In your fourth sentence you state that there are codes, processes, and laws. What happens when there are contradictory laws? Whose job is it to make sure these codes, processes and laws are followed? I thought that was the Mayor’s responsibility under E.C.C. 2.01.010.

    What would you do if the City tried to buy this disputed Harbor Square property for some type of public purpose because of the strong citizen involvement and differing views as to the property’s best use. There is precedent for such in Edmonds. One that I am aware of relates to a vacant lot on Main Street across from the Driftwood Theatre.

    Former Mayor Haakenson wrote a related article that was published in the Beacon on September 8, 2005 that included the following selected quotes:

    1. Referring to a community meeting, Haakenson stated – “What I witnessed that night was a classic case of citizen involvement.”

    2. “The City is boxed in by two contradictory laws: one is to protect critical areas and the second is our duty to allow for “reasonable use” on private property.”

    3. “There is a third solution, and that is that the City could just simply buy these types of wetlands in order to protect and preserve them. Available funds for such a purchase could come from the parks acquisition fund, and I believe matching grant funds could be found as well.”

    4. “Currently the City Council has designated that fund for use for the purchase of 11 acres of school district property, so we have no available funds to purchase wetlands if they become available.”

    5. “I would recommend to the council that we find a way to purchase that site from the property owner and include it in our park land inventory.”

    On October 18, 2005, the City Council conducted an Executive Session and decided to buy the related lot for $199,675 (3 lots had been privately purchased for a total of $175,000 months earlier). Why the City did not buy the other two lots for our park land inventory is an unknown mystery. Where they found the money is another unknown mystery.

    Under State Law, the City Council MAY meet in Executive Session to CONSIDER purchasing real property ONLY “when PUBLIC KNOWLEDGE regarding such consideration would cause a likelihood of INCREASED price.” The public had knowledge that the City was considering purchasing the real property on Main Street across from the Driftwood Theatre. The matter was discussed in open public session during the October 4, 2005 City Council Meeting. The October 4, 2005 meeting minutes indicate that the property owner was in negotiations with the City for the City to purchase the property.

    A strong argument can be made that the City Council did NOT have a legal reason to meet in Executive Session on October 18, 2005 to discuss this real property purchase. I believe the discussion should have taken place in Open Session as the public already had knowledge of the potential purchase.

    I’ve requested the October 18, 2005 Executive Session minutes related to the $199,675 real estate purchase that closed over 6 YEARS ago. The City continues to claim Attorney Client privilege and redact Page 1 of the October 18, 2005 Executive Session minutes. I wonder why? How can citizens possibly know if all codes, processes and laws were followed when we can’t see the related Executive Session minutes after so many years have passed?

    I’d love to have a comprehensive discussion of the City’s codes, processes and laws that includes a discussion of contradictory laws, code errors and ambiguities. I’d also like to discuss whose job is it to make sure the City’s codes, processes and laws are followed.

  3. Ms. Fimia,

    I’ll provide one more example of an action I believe was inconsistent with the proper following of codes, processes and laws. The City of Edmond’s new Critical Areas Ordinance was passed by the City Council on November 23, 2004. The ordinance was required to be published promptly after the vote and it would have been effective 5 days after publishing. The City did not publish the new CAO for 79 days and then the City acted as if the delay publishing delayed the effective date of the new law until February 15, 2005. A land use application was filed January 18, 2005 that was allowed to vest under the old critical areas laws. In my opinion, it became the burden of citizens to try and get the City to establish an effective date of early to mid December, 2004 instead of the Mayor making sure that the new law was effective closer to the date the City Council passed the new CAO.

    Who do you think should have had this burden . . . Mayor, Council or citizens impacted by the delay publishing?

  4. Part I
    I am responding to Mr. Reidy’s first comment and questions. His issue with prior process and decisions going back to 2004 may be related to the Harbor Square Master Plan in that some people in Edmonds, as he references, may not have trust in their City government to be straight with them. That is a common and ongoing challenge for all of us and too much to deal with in a comment. I will say that his suggestion of buying this parcel from the Port to return it to wetlands would require an enormous sum of money, not just for purchase but also for demolition, restoration, buying out leases, bio remediation (any necessary soil clean-up) and ongoing maintenance. Some parcels make sense and are doable, this is not one of them.

    Getting into The Growth Management Act, Regional Plans, the Edmonds Comprehensive Plan, The Harbor Sq. Master Plan and the related documents are not for the faint of heart – but while they are dense, they are very readable. It is not unlike wading through the Edmonds Marsh – fascinating but slow. I’ll provide the links at the end of this response to the documents for those who want more detail and original sources.

    The over arching document that guides all planning in Washington State is the Growth Management Act passed in 1990. The Legislature passed it after decades of sprawl, degradation of wetlands and sensitive areas and growing traffic congestion among other problems associated with bad planning. It requires counties and cities (with some exception) to develop and implement comprehensive plans that look at land use, transportation, housing, utilities, capital investments and cultural investments in a holistic way. On page 1 of the “Comp” plan, the first of seven “Purposes” of the plan is “To provide a framework for moving the Edmonds community toward a sustainable future that integrates and responds to environmental, economic and social needs in a way which meets the needs of the present without compromising the ability of future generations to meet their own needs.”

    “Framework,” is the key word. Under this framework comes specific codes, policies, zoning, operating and capital budgets. They should all be aligned – not easy, but the reason Comprehensive amendments have to go through a vigorous process and how all legislation should be held up to see if it is consistent with our Comp Plan.

    Page 34 of the December 2012 adopted Comp plan has a good chart that shows us the hierarchy of land use designations and subsequent zoning and density. There are two kinds of maps of the City. One shows the “Designation” the broadest classification. They include: Activity Center, Corridor Development, Park or School site, Single Family (Urban 1, 2,3, Resource), High or Medium Density Multi Family, Mixed Use, Community, Neighborhood Commercial – three different designations, Highway 99, Edmonds Way, Westgate Corridors, Hospital or Medical, Master Plan Development or Public Use/Park /Open Space. The other shows the zoning. The land use designations are the broadest. Under each come a range of allowed zoning. The zoning map shows the specific zoning allowed for each parcel.

    “Master Plan Developments are areas dominated by a special set of circumstances which allow for a highly coordinated, planned development, with phasing over time.” Pg. 67 of the Edmonds Comprehensive Plan. This is the tool the Port of Edmonds is using to be able to redevelop that property at Harbor Square.

    Part II to come

    References:

    Harbor Sq. Master Plan – city link

    https://www.edmondswa.gov/government/departments/development-services-home/planning-division-home/plans-long-range-planning/harbor-square-master-plan.html

    Comprehensive Plan

    https://www.edmondswa.gov/images/COE/Government/Departments/Development_Services/Planning_Division/Plans/Comp_plan.pdf

  5. The more I think about this Harbor Square situation, the more confused I get.

    The following article is available on MRSC’s website:

    The Unassailable Right to Make Any Decision You Want: Avoiding Judicial Intervention in Local Land Use Decision Making

    June 2012

    By Phil Olbrechts, Attorney, Olbrechts and Associates, PLLC

    I believe the article makes the case that City Council denials of Comprehensive Plan Amendment Requests are final and can’t be appealed because the City Council has the legislative discretion to make these final decisions.

    Ms. Fimia represents that the Comprehensive Plan states that the Harbor Square Site is supposed to contain mixed-use development.

    Combining Ms. Fimia’s point about mixed use with the concept that denials of Comprehensive Plan Amendment Requests are final and can’t be appealed is tough. I simply don’t understand the reason for the Port’s Comprehensive Plan Amendment Request. Why would the Port go down a path where the City Council can deny their request and the Port would have no appeal rights? Why did the Port not simply pursue a rezone? I believe they would have appeal rights if a rezone request was denied.

    Ms. Fimia – I still would appreciate an answer to the following questions:

    1. Are you implying that the 1980 contract rezone is inconsistent with the current Comprehensive Plan and must be changed?

    2. Do you know why has the Port requested a Comprehensive Plan Amendment instead of applying for a rezone?

    3. Are you stating that Councilmembers would need to go through the State-mandated process of amending the existing Comprehensive Plan to keep the property’s current General Commercial Zoning where no residential uses are allowed?

    Just to clarify one point, I did not suggest the City buy Harbor Square in whole or in part. I merely reported that the City has purchased disputed properties before for inclusion in the City’s park land inventory. I drive by this property across the street from the Driftwood Players Wade James Theatre all the time and I certainly don’t see a park there. I never have understood why we spent almost $200,000 for park land so close to the huge Yost Park.

  6. Ken:

    The land on Main St, across from Wade James Theatre was purchased from Michel Construction in order to prevent a home from being constructed there.

  7. Hi Ron, I understand that. I believe the City’s solution to the controversial Main Street land use application in 2005 was inconsistent with other City actions. Furthermore, I have to wonder if buying a single .23 acre private lot to end a land use controversy is a proper use of public funds. Wouldn’t the property have to meet some type of public need? Why does the City continue to redact the related Executive Session meeting minutes so many years later when an argument can be made that they should not have been in Executive Session in the first place? If buying private property to end a land use controversy is a proper use of public funds, I would think the City would be wise to have codes, processes and laws in place to ascertain that this proactive City step is done fairly and consistently.

    The City didn’t intervene and buy the controversial critical area property in my neighborhood. Imagine how different the quality of life in my neighborhood would be if the City had done so. Imagine how different the Breske’s life would be if the City had bought their controversial property. The Breske’s may have been better off if their property contained a wetland as opposed to this apparent City requirement that their private property be used for stormwater overflow purposes.

    I have never been able to understand the City’s stance related to the Breske’s property. The City bought the property on Main Street and that property sits unused while the City has identified a public need for the Breske property but the City doesn’t buy their property. Instead, the City allows that public need to interfere with the Breske’s private use and enjoyment of their property. It might be possible that the Breske’s would have been better off if the City had condemned and taken their property for public stormwater purposes. Imagine if the City simply told the property owners at Five Corners that the City needs to use portions of their private property for the Roundabout without compensating them for such.

    Why do I bring all of this up? I do so for two main reasons. First, to simply point out that the City has established a precedent of buying property to end land use controversies, albeit on an inconsistent basis. Second, to express my opinion related to Ms. Fimia’s points that the City can’t play favorites and that there are codes, processes and laws which must be followed. My sad opinion is that this has sometimes not been the case in the City of Edmonds.

    As I stated in post 2 above – I’d love to have a comprehensive discussion of the City’s codes, processes and laws that includes a discussion of contradictory laws, code errors and ambiguities. I’d also like to discuss whose job is it to make sure the City’s codes, processes and laws are followed.

  8. Please appreciate that the City reserved a Temporary Construction Easement on my property against my will over FOUR (4) years ago. The City has never had a PUBLIC NEED for my property to construct, repair or maintain a public utility or service, yet the Temporary Construction Easement continues to cause my family great harm.

    In July of 2009, a citizen had a lawsuit against the City related to Ordinance #3729. I was not a party to that lawsuit. Records I obtained much later via a public record request indicate that the citizen’s attorney made an offer to the former City Attorney to drop the lawsuit if Reidys’ shed and trees were removed by the Deadline Date of August 6, 2009. I have no reason to believe that the City Council was ever made aware of this legal settlement offer. There were no Executive Sessions during the related time period.

    The City of Edmonds employed the Temporary Construction Easement area in its related August of 2009 Code Enforcement Efforts. This is why I have tried to warn some of the property owners at Five Corners that the City has established a precedent of Code Enforcement related to Temporary Construction Easements. Imagine the uproar if the City required permanent removal of improvements at Five Corners so they could make temporary use of the private property at Five Corners during the construction of the Roundabout. Now imagine if the City pursued such Code Enforcement when the City had no plans to do any work within the public Temporary Construction Easement area.

    So, when I see Ms. Fimia make comments related to playing favorites and referencing that there are codes, processes, and laws, I feel a duty to notify my fellow citizens that you can’t simply assume such things. It is beyond ironic that Ms. Fimia refers to Councilmembers Petso, Bloom and Fraley-Monillas in her letter. My experience is that these three Councilmembers strive to perform their role as legislators at a high level and appear very prepared to deal fairly with the issues brought before them for their legislative review.

  9. I hesitate saying anything here for fear of a long detailed response, but I will take a chance. Ken what would be helpful for the reader’s would be for you to write a article for MEN that SUMMERIZES the issues you are so passionate about. When I see the long details you present, sometimes have to take a breath before digging into all the detail. I know you have some very good points but they often get lost for the casual reader.

    In my work days we always were trained on how to give an “elevator” presentation. It forced us to summarize the key points in a very short window of time and still get the message across. The key to a blog is to get people to read and understand a point and if they are overwhelmed they may not even wade into the detail.

    You can write what you want, but I am more likely to ready it if it is summarized. For example, I am currently on vacation out of town and will get back to reading all you stuff when I can find the time to do so. Now I have to get ready for golf so I will come back later.

  10. Thanks for your interest Darrol. My situation dates back to 2007 and has many layers to it. I’ll try to state a main part of it as clearly and briefly as possible:

    The City retained a Temporary Construction Easement on my property via an Ordinance of Vacation, Ordinance 3729. The related State law, RCW 35.79.030 includes the following:

    “The ordinance may provide that the city retain an easement or the right to exercise and grant easements in respect to the vacated land for the construction, repair, and maintenance of public utilities and services.”

    The City has never had a PUBLIC NEED to construct, repair, and/or maintain public utilities and services on my property. The easement was retained so the City could issue a developer a right of way permit to use my property. The easement term is tied to the life of the developer’s preliminary plat.

    The easement has impacted my family and I’s lives in many horrible ways. As such, I continue to discuss it in my effort to warn others. Thanks for taking the time to read this. Ken

  11. Hi Damon! I have often wondered how something like this can possibly take place in the City of Edmonds. The March 17, 2009 City Council Meeting Minutes document that the former City Attorney told the City Council the following before their vote to retain the easement on my property:

    The City’s goal was to reach a compromise that would allow construction of the retaining wall without removing the shed.

    On March 25, 2009,the City served me an order to “Remove the shed encroachment within the reserved construction easement within 20 working days of the issuance of this notice.” The City apparently was so eager to code enforce against my shed that they did so BEFORE the Temporary Construction Easement was even effective under the law!

    What happened to the goal of not removing my shed?

    Then, on April 1, 2009, the City Attorney stated in a letter that after review of the previously approved engineering plans, it appears the retaining wall structure stops well short of the location of the shed.

    If the City truly had a goal of not removing my shed, I believe all the City had to do was redefine the location of the easement so it wasn’t next to my shed. Such a redefined easement would still have violated RCW 35.79.030, but at least the City couldn’t have employed the easement to code enforce against my shed. It would have been so easy to avoid years of turmoil.

    For years, I’ve conducted a detailed online search across the country for a similar event. I have never found one other example of a City vacating an easement and then retaining a different easement for the sole purpose of issuing a permit to a private party to use the retained easement. My fee title property is burdened by this temporary construction easement to this very day.

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