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020-19-A - Ordinance - Temporary Six-Month Moratorium on Acceptance of Certain Development in the 580 & 660 Water ZonesORDINANCE NO. O2O-19-A AN ORDINANCE of the City of Port Orchard, Washington, adopted pursuant to RCW 35A.63.220 and RCW 36.70A.390; imposing a temporary six-month moratorium on the acceptance of certain development in the 580 & 660 water zones of Port Orchard; setting forth findings of fact in support of this moratorium; imposing the moratorium; stating the effect on vested rights; providing for exclusions; authorizing interpretative authority; providing for severability; declaring an emergency; setting the duration; and establishing an immediate effective date. WHEREAS, the City Council adopted the emergency moratorium under Ordinance No. O2O-19 on June Lt,2Ot9, which established a six-month moratorium on the acceptance of certain development in the 580 & 560 water zones of Port Orchard; and WHEREAS, in accordance with State law, a public hearing on the adoption of Ordinance No. 020-19 was held on July 23,20L9, which is less than 60 days after the adoption of Ordinance No. 020-19; and WHEREAS, the City Council desires to reaffirm Ordinance No. 020-19 and amend it by adopting this updated Ordinance No. 020-19-A to add findings of fact based on additional information obtained by the City, information provided to the City by interested parties, and after conducting the public hearing; and WHEREAS, within the express terms of the Growth Management Act, the Washington State Legislature has specifically conferred upon the governing bodies of Washington cities the right to establish and adopt moratoria related to land uses; and WHEREAS, the City possesses land use jurisdiction and regulatory authority over the City's incorporated lands; and WHEREAS, the City Council of the City of Port Orchard (City) updated the City's Comprehensive Plan in 2016, which includes a Utilities Element that serves as the City's guiding or strategy document to ensure that the City will have adequate utilities available for projected growth; and WHEREAS, the City updated its water facilities plan in 2011 and is currently in the process of a complete update which is expected to be completed by the end of this year or in early 2O2O; and WHEREAS, as a result of the work on updating the water facilities plan, the City has Ordinance No.020-19-A Page 2 of 8 discovered that there are deficits in the current water facilities, particularly in the 580 & 660 water zones; and WHEREAS, these deficits are in both the water storage and in the water source for these zones; and WHEREAS, the prior water system plan assumed that the City's two wells in the 580 zone produced 875 gallons per minute (gpm), however, the recent data shows that the two wells only have a capacity of 540 gpm; and WHEREAS, the source capacity from the City of Bremerton to the 580 zone is only guaranteed at the volume of 350 gpm under an existing agreement between the City of Port Orchard and the City of Bremerton; and WHEREAS, the updated calculations performed by the City's water consultant (BHC Consultants) demonstrate that the source of supply requirements for the 580 zone exceed existing water supply; and WHEREAS, the pump station that serves these zones does not have an emergency generator which means that the supply is not "continuous and uninterruptible"; and WHEREAS, on June LO, 2OL9, the Fire Marshall who serves the City of Port Orchard informed the City that the fire flow and fire storage requirements in the 580 zone require 2,875 gpm for a 2 hour period. Prior to this notice, the maximum fire flow and storage requirement was assumed to be 1,500 gpm for a 2 hour period; WHEREAS, the City's water consultant recommends that in order to develop additional equivalent residential units (ERUs) in the 580 zone, additional storage and supply must be developed to serve those ERUs; and WHEREAS, the City has consulted with the Department of Health Office of Drinking Water (DOH) about the possible over-allocation of water source and storage in the 580 and 660 zones. DOH reviewed and confirmed the City's calculations and supported the City's imposition of a moratorium on additional connections in these zones until the system deficits were addressed; and WHEREAS, the minimum water standby storage assumption recommended by DOH in the 2009 Water System Design Manual is 200 gallons per ERU; and Ordinance No.020-19-A Page 3 of 8 WHEREAS, the City's current water facilities plan provides that the water storage facilities and other improvements in the 580 & 660 zones are to be completed by a private developer to serve its development; and WHEREAS, the City and the private developer entered into an agreement in 2OO7 whereby the developer would build the legally required water storage and other water facilities in conformance with city code to serve the expected growth from that development in the 580 & 660 water zones; and WHEREAS, although there have been permits issued in the past to the developer to construct these improvements, those permits expired many years ago without the construction occurring; and WHEREAS, in the intervening twelve (1-2) years since the City and the developer entered into an agreement for construction of the water facilities, the water design manual as adopted by the State Department of Health has changed which impact the scope of the water storage and other facilities required for serving the 580 & 660 zones; and WHEREAS, the City Council has significant concerns about development and growth in the 580 & 660 water zones, which is shown on Map 1 as attached hereto, due to the availability of adequate water storage facilities and source for serving that area and for the ability to provide uninterrupted water supply; and WHEREAS, the City Council finds that unless the City acts immediately to preserve the status quo, there are likely to be adverse impacts on the City and its citizens, including to the health, safety and welfare of the people and property in the 580 & 660 water zones; and WHEREAS, the City Council's concerns regarding likely adverse impacts related to growth and development require immediate attention and include, but are not limited to, developing adequate water source for the 580 & 660 zones and working with the developer in that area to increase water storage capacity to serve the expected growth and to ensure continuous supply of water in order to accommodate groMh and development in this area; and WHEREAS, the increase in water source, water storage and improvements necessary to ensure adequate supply are critical to ensuring water supply and adequate fire flow for the growing 580 & 660 zones; and Ordinance No.020-19-A Page 4 of 8 WHEREAS, the City has determined that there are no water connections remaining in the 580 or 660 zones because the facilities for source and storage of those zones have reached maximum capacity; and WHEREAS, based on these and related concerns, the City Council has determined that a limited moratorium on development within the 580 & 660 water zones is in the best interests of the City to allow sufficient time for a plan to increase water source, water storage and to ensure continuous supply and to ensure that the goals of the City's Comprehensive Plan are being met to the Council's satisfaction; and WHEREAS, the moratorium imposed herein promotes the public good and is necessary for the protection of public health, property, safety, and welfare; and WHEREAS, the City Council declares that a public emergency exists requiring that the City's moratorium become effective immediately upon adoption; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Findings of Fact; Re-Affirmation of Moratorium. Based on the public hearing held on July 23, 2OL9, the recitals set forth above are hereby adopted as the City Council's findings of fact in support of the moratorium established by this ordinance. This ordinance re-affirms the findings of fact and the moratorium originally adopted as Ordinance No. 020-19 on June tL, 2Ot9 and adopts additional findings of fact based on the public hearing. Section 2. Moratorium lmposed. As authorized by the police powers of the City as set forth, for example, in Article Xl, Section 11, of the Washington State Constitution, and pursuant to statutory authority set forth, for example, in RCW 36.704.390 and RCW 35A.63.220, and unless expressly excluded under Section 3 and Section 4 of this ordinance, the City hereby imposes a moratorium, as described in this Section 2, for those properties located in the 580 & 660 water service zones as shown on the attached Map #1 requesting the following ("Permit Applications"): All building permit applications for the construction of buildings and structures which need to be connected to water, in either the 580 or 660 water service zones, included or otherwise described in Chapter 20.2OO of the Port Orchard Municipal Code ("POMC"). Ordinance No.020-19-A Page 5 of 8 Section 3. Effect on Vested Rights. The moratorium imposed under Section 2 of this ordinance shall apply prospectively only, and shall operate to prevent acceptance of Permit Applications submitted after the effective date of this ordinance. Nothing in this ordinance shall be construed to extinguish, limit, or otherwise infringe on any permit applicant's vested development rights as defined by state law and City of Port Orchard regulations, provided that such a permit applicant has filed a complete Permit Application before the effective date of this ordinance. Section 4. Exclusions. The provisions of this moratorium shall not apply to any Permit Applications or projects that are specifically excluded by the Exclusions set forth in this ordinance. These Exclusions, unless expressly modified by the City Council, are specifically limited to: L. "Legislative Approvals" and "Quasi-Judicial Decisions by City Council" (i.e. Type lV and V decisions) as identified on Table 20.22.020 of POMC 20.22 for projects that are already vested. 2. Permits and approvals that are vested by contract, such as those covered by an approved development agreement. However, even if a Development Agreement is applicable, applications for building permits in the 5S0 & 660 zones are subject to this moratorium, unless otherwise exempted by this section. 3. Permits and approvals for additions, alterations, or remodels to existing buildings when such additions, alterations, or remodels do not require additional water capacity. 4. Permits and approvals for emergency repairs or construction to protect people or property necessitated by a hazardous event or natural disaster (e.g., geologically unstable slope, fire, flooding, earthquake). 5. Land Disturbing Activity Permits, Stormwater Drainage Permits, and other land use permits and approvals. 6. Permits and approvals for signs. 7. Permits and approvals for emergency medical and disaster relief facilities Ordinance No.020-19-A Page 6 of 8 8. Building permit applications in the 580 & 660 zones that have been submitted prior to the effective date of the moratorium. Section 5. Public Hearing. Pursuant to RCW 354.63.220 and RCW 36.704.390, the City Council duly held a public hearing at a City Council meeting within 60 days of adoption of this ordinance in order to take public testimony and to consider adopting further findings of fact, or before August LO,2OL9. The Council held this public hearing forJuly 23,20L9, prior to adoption of this amended ordinance which reaffirmed and amended Ordinance No. 020-19. Section 6. lnterpretive Authority. The City of Port Orchard Director of Community Development, or designee, is hereby authorized to issue official interpretations arising under or otherwise necessitated by this ordinance. Section 7. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this ordinance be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Section 8. Declaration of Public Emergenc.y; Effective Date; Duration. The City Council hereby declares that an emergency exists necessitating that this Ordinance take effect immediately upon passage by a majority plus one of the whole membership of the Council, and that the same is not subject to a referendum (RCW 354.12.130). The Council further declares that due to the declared public emergency, this ordinance necessary for the protection of the public health, public safety, public property, and public peace, shall take effect and be in fullforce immediately upon its adoption. Without an immediate moratorium on the City's acceptance of non-exempt development applications, such applications could become vested, leading to a development and use of property without adequate water facilities to serve these properties. Therefore, the moratorium must be imposed as an emergency measure to protect the public health, safety and welfare, and to prevent a flood of applications to the City in the 580 & 660 zones. Pursuant to Matson v. Clark County Boord of Commissioners, 79 Wn. App. 641 (1995), non-exhaustive underlying facts necessary to support this emergency declaration are included in the "Whereas" clauses above, all of which are adopted by reference as findings of fact as if fully set forth herein. This moratorium Ordinance No. 020-19-A Page 7 of 8 shall take effect immediately, and shall remain effective for six (5) months, unless terminated earlier by the City Council. Provided, that the Council may, at its sole discretion, renew the moratorium for one or more six (6) month periods in accordance with state law. This ordinance or a summary thereof consisting of the title shall be published in the official newspaper of the City. Section 9. No Special Duty Created. lt is expressly the purpose of this Ordinance to provide for and promote the health, safety and welfare of the general public and not to create or otherwise establish or designate any particular individual, class or group of persons who will or should be especially protected or benefited by the terms of this Ordinance. No provision or term used in this Ordinance is intended to impose any duty whatsoever upon the City or any of its officers, agents, or employees, for whom the implementation or enforcement of this Ordinance shall be discretionary or mandatory. Nothing contained in this Ordinance is intended nor shall be construed to create or form the basis of any liability on the part of the City, or its officers, employees or agents, for any injury or damage resulting from any action or inaction on the part of the City, its officers, employees or agents. Section 10. Publication. This Ordinance shall be published by an approved summary consisting of the title. Section 11. Effective date. This Ordinance shall take effect and be in full force and effect immediately upon passage, as set forth herein, as long as it is approved by a majority plus one of the entire membership of the Council, as required by RCW 35A.12.130. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the Clerk in authentication of such passage this 23'd day of July 2019. Robert Putaansuu, Mayor Ordinance No.020-19-A Page 8 of 8 ATTEST: Bra MC, City Clerk APPROVED AS TO FORM: nifer rtson, ney for Port Orchard PUBLTSHED: hDg)JT 2, 7Oie EFFEcrlvE DArE:JOfy A3, aOie 0 2,500 5,0001,250 Feet ÍÎ$³ ÍÎ$³ÍÎ$³")P ")P W W W W W W W W W W !(R !(R !(R !(R !(R !(R !(R !(R SIDNEY RD SWUNIONAVESE CEDAR RDSIDNEY AVESTATE HWY 3 SWSE SEDGWICK RDTREMONTSTWBETHEL RD SERIDGERIMTRLSESTATEH WY 1 6 S WBEACHDRESE MILE HILL DRTUFTSAVEEUNNAM ED3RDAVEWBETHEL BURLEY RD SEMITCHELLAVERETSILRDES W LAKE FLORA RD ANDERSONHILLRDSWW BELFAIR VAL L E Y R D SW O LDC L IF T O N RD SW BERRY LAKE RD HARRIS RD SEB AY ST OLALLAVALLEYRDSESOUTH ST WOODS RD EFEIGLEYRDWPOTTERYAVELONGLAKERDSEHAWKSTONEAVESWJACKSONAVESEFIRCRESTD R S E MITCHELLRDSESE NORTH ST O L N E YAVESESE MULLENIX RD KITSAP ST CLOVER VALLEY RD SESW BAY STMCCORMICKWO O D S DRSW FAIR V I EW LAKERDSWSE H O R STMANRDTRACYAVENW C ST MAYHILLDR SE SE KING RD SE FRAGARIA RDBETHELAVEPORTORCHARDBLVD CALIFORNIAAVEESABER LN SEM CCARYRDSWALASKAAVESESE RAVENRIDGE CT S ROUFE ST W STATE H W Y 1 6 SE SALMONBERRY RD SUNNYSLOPERDSWORCHARDAVESEE CHESTER RDSE BIELM EIE R RD SENAV IGATIO N LNSTATE HWY 3 WALASKAAVEEASPE N STSEEBBERTDRSESE LUND AVE LUNDAVESESW BARNEY WHITERD CHAN T INGC IRSWRAMILLER LN SECONVERSEAVESESE LAK E V A LLEYRDW PLEAS A N TSTN E O L D BELFAIRHWYPHILLIPS RD SEARNOLDAVEEWOLVE SRDPERDEMC OAVESEVISTARA M ADRESE BEAR TREE LN SWS I SKINCIRKCPLSEPORTSID EDRLINCOLNAVESERICHARDSAVE S EWEST AVEHULLAVEPONDEROSADRSEW S HE RMAN H E I G H T SRDKENTAVEWSWSE D GWICK R DGLENWOODRDSWOLNEYAVEECALIFORNIAAVESESE TUCCI PL NEBRASKASTSES E BLUEB ERRY RD E COLLINS RD HORIZON LANE EAST SEHORIZON LN SES W VERONACTE POLK AVE NELOGYARDRDSHERMANAVELAKEVIEWDRSESINCLAIRWAYSE BAKER RD BOWE LN SEFAIRVIEW BLVD SWS AGESTCROSSING PLSW STATEHWY3NWSWIMPERIALWAY W F ST SW N IXONLOOPVICTORYDRSWPERRYAVENSW MILLER RD CAB RINI DRSEGARFIELDAVESEBABY DOLL RD EKNIGHTDRSEM A RYMACDR S W SW J H RD WOODS RD SEBRASCH RD SEVAN DECAR RD SELIDSTROMRDESE VAN SKIVER RD BABY DOLL RD SEGLE N E AGLEAVESWHARLAND LN SECREEKVIEWCTSELIPPERT DR WLO NEBEARLNSW SE GARFIELD ST W E ST SW WILDWOOD RD PELICANLNSESANDDOLLAR RD W M AYVOLTR D S E S W CLEVENGERLNLOCKERRDSESELIDER RD WMCKENNAFALLS RD J M DICKENSON RD SWSW HA R P E R R D SW COOK RD WSTAT EHWY 16RAMP AIKEN RD SEGEIGER RD SESTATEHWY16SESE SCOFIELD RDRETSIL R DSESW LEGA CYLNSEOVERAA RDBEARCREEKDEWATTORD SW LIDER RD PERUAVEEWOODCHUCKLNSEAIRPORT WAY SWSE HIG HRIDGE CT MOUNT AINVI EWRDECAS ECOLNTROONAVESWECASCADED R SE DO N ATOLNS E RIMLN SE WILLOCK RD SW COZY LN SE SOHOLT LN S E O LA LLA VA L L E Y R D SE B OBCAT LN WE Y ERS LNSWSWLAS SO DR C RUISERLO OPSWMINARD RD W WYVE RNDRSECON WHIT LNSWRAYRDSE DOR M A R DRSECHARLESTONBLVDCAMPUSPKWYHINKLEY RD SEWICKS LAKE RD SWMENZIES RD SEKRIEGLERLAKEACCESSRDSW YOUW O O DWAY SEDEE P L A K E RDSCHWEITZERPLSWALBRIGHTAVESENO R T HMISSION R D WMAYRANCHLNSWCASTLETONRD S WLUM SDEN RD MADRONADRSE PHILLIP SRD SESWSTATIONCIRDickerson CreekMissionCreekBla ckja ck Creek Hazel C reek CoulterCreekEastF ork UnionRiver FragariaCreekG o r s t C r e e k CurleyCreekN o r t h East Fork Uni onRiverHeinsCreek OlallaCreekParishCreekBear CreekBeaverCreekBur l e y CreekAndersonCreekRu b y CreekUnionRiver SalmonberryCreekS quare Creek Water System: City of Port Orchard.Kitsap County base data.Data sources supplied may not reflect current or actual conditions. This mapis a geographic representation based on information available. It does not represent survey data. No warranty is made concerning the accuracy, currency,or completeness of data depicted on this map.BHC Consultants LLC., assumes no responsibility for the validity of anyinformation presented herein, nor any responsibility for the use or misuse of the data. P:\Mapping\Maps_Generated\Port_Orchard\projects\17-10527.00\002\maps\Tech Memo\Fig 1 Moratorium Area - 11x17.mxd 6/11/2019 ctolentino COPYRIGHT © 2019 BHC CONSULTANTS LLC., ALL RIGHTS RESERVED Figure 1Moratorium AreaCity of Port Orchard, Washington June 2019# LOW ZONE(260 ZONE) HIGH ZONE(390 ZONE) 580 ZONE 580 ZONE 660 ZONE(PROPOSEDZONE) S i n c l a i r I n l e t S i n c l a i r I n l e t L o n g L o n gL a k e L a k e Legend Existing Water System !(R Reservoir W Wells ÍÎ$³PRVs ")P Pump Station 1" 2" 3" 4" 6" 8" 10" 12" 16" 18" Unknown Base Layers Port Orchard WaterService Area Moratorium Area City of Port Orchard Roads/ROWs Water Bodies Rivers/Creeks 580 ZONE Ordinance No. 020-19-A Attachment 1