022-16 - Resolution - Exemption to Paul Berg for Kinsley LaneRESOLUTION NO. 022-16
A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, GRANTING
AN EXEMPTION FROM THE VIEW PROTECTION OVERLAY DISTRICT
REGULATIONS UNDER POMC 16.20.712 TO PAUL BERG FOR PROPERTIES
LOCATED AT 803, 809, 815, AND 821 KINSLEY LANE; AND ADOPTING FINDINGS
AND CONCLUSIONS
WHEREAS, exemptions from the city's View Protection Overlay District (VPOD)
regulations are authorized pursuant to the requirements under POMC 16.20.712; and
WHEREAS, the city received a request for VPOD exemptions from Paul Berg on
December 30, 2015, for the properties located at 803, 809, 815, and 821 Kinsley Lane, with the
application and supporting materials attached to this resolution as Exhibit 1 and incorporated
fully herein by this reference (the "Berg VPOD Exemption Request"); and
WHEREAS, the city properly noticed, pursuant to POMC 2.04.015 (through publication
of a notice in the city's designated newspaper, mailing notices to all residents within 300 feet of
the subject properties, and posting a public hearing notice on the subject properties) and the
city council conducted a public hearing on the Berg VPOD Exemption Request at their regular
council meeting on February 23, 2016; now, therefore,
THE, CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES
AS FOLLOWS:
SECTION 1. Findings. Pursuant to POMC 16.20.712, and having considered in detail both
the oral and documentary evidence received concerning the Berg VPOD Exemption Request, the
Port Orchard City Council now makes and adopts the following Findings of Fact and Conclusions:
(a) Finding: The "WHEREAS" clauses set forth above are hereby adopted as part of
the city council's findings of fact in support of the VPOD exemption approved by this resolution.
(b) Finding: No significant view is present at the subject properties included in the
Berg VPOD Exemption Request and the construction of two-story single family structures at the
subject properties will not block any significant views from neighboring properties.
(c) Conclusion: Pursuant to POMC 16.20.712(a), granting the Berg VPOD Exemption
Request is not detrimental to the public health, safety, or welfare or create significant adverse
effects to other properties and improvements in the view protection overlay district.
(d) Finding: The proposed use to be constructed upon granting of the Berg VPOD
Exemption Request are four (4) single family residences, which is consistent with the
Residential Medium Density land use designation found in the comprehensive plan. The view
protection overlay district is not addressed in the city's comprehensive plan.
Resolution No. 022-16
Page 2 of 15
(e) Conclusion: Pursuant to POMC 16.20.712(b), granting the Berg VPOD Exemption
Request is in conformance with the comprehensive plan.
(f) Finding: The very limited views of adjacent property owners would not be
obstructed or reduced if the subject properties in the Berg VPOD Exemption Request were
developed to the maximum height and dimension as allowed by the underlying zone.
(g) Conclusion: Pursuant to POMC 16.20.712(c), granting the Berg VPOD Exemption
Request does not cause the views of adjacent property owners to be obstructed or reduced if
the exempted properties were developed to maximum height and dimensions allowed by the
underlying zone.
(h) Finding: The city's setback and height restrictions ensure that the solar access of
neighboring properties to the subject properties is not impacted. No testimony or materials
were entered into the record to claim that granting the Berg VPOD Exemption Request would
reduce solar access from neighboring lots.
(i) Conclusion: Pursuant to POMC 16.20.712(d), granting the Berg VPOD Exemption
Request does not reduce the solar access of neighboring lots.
SECTION 2. VPOD Exemptions Granted: Consistent with the Findings and Conclusions in
Section 1 herein, exemptions from the requirements of the View Protection Overlay District
under POMC 16.20.700 are hereby granted for the properties located at 803, 809, 815, and 821
Kinsley Lane on parcel 262401-4-032-2001 (a parcel on which a preliminary short plat approval
has been issued).
ADOPTED by the City Council of the City of Port Orchard on this 23rd day of February 2016,
and SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 23rd
day of February 2016.
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Resolution No. 022-16
Exhibit 1
RECEIVED
CITY OF PORT ORCHARD DEC 3 0 2015
Department of Community Development
M6 Prospect Street CITY OF POR I' COI'dCHARD
Port Orchard, WA 98366 COMMUNITY DEVELOPMENT
Phone (36o) 874-5533 - Fax (36o) 876-498o
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APPLICATION FOR VIEW PROTECTION OVERLAY DISTRICT EXEMPTION
Applicant Information
Are you theowner of the property? B"YES ❑ NO If not, provide contact information on page 2.
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Name: 1(A U- L tJ D M A P- C- T A 8 E R. (,-
Company Name/DBA: M 4- P B (x i L-De 0- S Zr,) Q.
Mailing Address: JOB L3 3 )-9STe_,.T- oy,1 �Cr �}Ar2 C/� 1n1� � 315
City/State/Zip Code: Ga C> ('i-d x6c) & VJ A `� i i J_ r'_
Phone No.am O -61 _ Fax No. )S3 , 4eZ
E-mail Address: K a 'e C d"L v T 7 S N Q '!
Please include the following:
❑ A statement addressing each of the decision criteria in POMC 16.20.712 (1 - 2).
Print clearly (use ink) or type:
General location of property and/or address: d" &4 A-, Ow-c__6 r�
Location: Section(s)
Township
Range
Assessor's Parcel Number: 2_4 0-2- L-Vt� I L4 - O 3Z - Zbp 1
Size of Parcel: . S a.f, Is property within floodplain? aO O YES
Existing Use: C Pt I v ,,',,J -,r3
Present Zoning Classification: f2QS'r U l? N'T "4_
Comprehensive Plan Designation: 1kQ 5 Z_0Q N T )�4 (-
Proposed use of the property: (Use a separate page if necessary)
Form 010a -View Protection Overlay District Exemption Application (6/2/14) Page 1 of 2
Vp E 001;;-1 Is
Owner Information (if different than applicant)
Name:
Company Name/DBA:
Mailing Address: _
City/State/Zip Code:_
Phone No.
E-mail Address:
STATE OF WASHINGTON
;) Resolution No. 022-16
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Exhibit 1
DEC 3 0 2015 File #V PCCX-3- )S
CITY OF PORT ORCHARD
COMMUNITY DEVELOPMENT
Fax No.
S1 datuRe of Owner (Must be no`farized)
Print Name of Owner
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certify that I know or have satisfactory evidence that _
is the person who appeared before me, and said person acknowledged tha h s e) signed this
instrument and acknowledged it to be 8/her) free and voluntary act for the uses and purposes
mentioned in the instrument.
WITNESS MY HAND AND OFFICIAL SEAL this 3) day of 20
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Resolution No. 022-16
Exhibit 1
CITY OF PORT ORCHARD
NOTICE OF PUBLIC HEARING
The Port Orchard City Council will hold a public hearing during the regularly -scheduled meeting on
Tuesday, February 23, 2016, at 7:00 p.m., to consider an exemption from the View Protection
regulations in Port Orchard Municipal Code 16.20, for single family residences at 803, 809, 815, and 821
Kinsley Lane (AKA 903 Sidney Ave), Assessor's Tax Parcel No's. 262401-4-032-2001.
Any person or public agency expressing an interest is invited to attend the public hearing and/or submit
written comments to the Department of Community Development on or before 4:30 PM, February 23,
2016. Further information is available from the Department of Community Development, City of Port
Orchard, 216 Prospect Street, Port Orchard, WA 98366.
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Resolution No. 022-16
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2/17/2016
Port Orchard Municipal Code Resolution No. 022-16
Exhibit 1
16.20.712 VPOD — Exemptions. 0 SHARE i
.................. _......................................................................................................................................................................................................................................................................................................
(1) It is recognized that, due to topography and other conditions, there may be a number of parcels or lots within the
view protection overlay district that do not have views or, if constructed upon, would not reduce or obstruct a view from
an adjoining property.
(2) A property owner may petition the council to have his property exempted from the view protection overlay district.
Upon resolution of the city council, the council may exempt a property from the requirements of this chapter upon the
adoption of findings and conclusions by the city council, that:
(a) The granting of the exemption would not be detrimental to the public health, safety, or welfare or create
significant adverse effects to other properties and improvements in the view protection overlay district;
(b) The granting of such exemption would be in conformance with the policies and goals of the comprehensive
plan;
(c) The view of adjacent property owners would not be obstructed or reduced if the property to be exempted were
developed to maximum height and dimensions allowed by the underlying zone;
(d) The granting of such exemption would not reduce the solar access of neighboring lots. (Ord. 046-07 § 2 (Exh.
A)).
http://www.codepublishing.comANA/PortOrchard/ 1/1
Resolution No. 022-16
L= M-STE
City of Port Orchard
Appearance of Fairness Doctrine
Procedures
1.0 Overview.
The appearance of fairness doctrine restricts council members from discussing the merits of
certain types of land use matters and appeals that will or could be heard by the council. In
hearing such land use matters and appeals, the council acts in a quasi-judicial capacity, that is
like a court, and the council is therefore required to follow certain constitutional due -process
rules.
Specifically, the courts have ruled that discussions about a pending case should occur only at a
formal public hearing where all interested parties have an equal opportunity to participate.
Citizens, however, are welcome to discuss any issue with the city's staff.
2.0 Applicability of the Appearance of Fairness Doctrine.
The Appearance of Fairness Doctrine is a requirement of Washington law that protects the
integrity of quasi-judicial public hearings before the city council. The Appearance of Fairness
Doctrine imposes the following requirements:
When the law which calls for public hearings gives the public not only the
right to attend but the right to be heard as well, the hearings must not only be
fair but must appear to be so. It is a situation where appearance are quite as
important as substance. The test of whether the appearance of fairness
doctrine has been violated is as follows: Would a disinterested person, having
been apprised of the totality of a [council]member's personal interests in a
matter being acted upon, be reasonably justified in thinking that partiality may
exist? If answered in the affirmative, such deliberations, and any course of
conduct reached thereon, should be voided. Zehring v. Bellevue, 99 Wn.2d
488 (1983).
3.0 Types of Hearings to Which the Doctrine Applies
The Appearance of Fairness Doctrine applies only to quasi-judicial actions before the council.
Quasi-judicial actions are defined as actions of the city council that determine the legal rights,
duties, or privileges of specific parties in a hearing or other contested proceeding. Quasi-judicial
actions do not include the legislative actions adopting, amending, or revising comprehensive,
community, or neighborhood or other land use planning documents of the adoption of area -wide
zoning ordinances or the adoption of a zoning amendment that is of area -wide significance.
RCW 42.36.010.
4.0 General Obligations Under the Doctrine
Councilmembers should recognize that the Appearance of Fairness Doctrine does not require
establishment of a conflict of interest. Rather, a violation of the Appearance of Fairness
Doctrine occurs when there is an appearance of a conflict of interest to the average person. This
may involve the councilmember or a councilmember's business associate or a member of the
Resolution No. 022-16
Exhibit 1
City of Port Orchard
Appearance of Fairness Doctrine --Procedures
councilmember's immediate family. It could involve ex parte communications, ownership of
property in the vicinity, business dealings with the proponents or opponents before or after the
hearing, business dealings of the councilmember's employer with the proponents or opponents,
announced predisposition, and the like.
5.0 Procedures for Implementation of the Appearance of Fairness Doctrine
5.1 Prior to Any Quasi -Judicial Hearing. Prior to any quasi-judicial hearing, each
councilmember should give consideration to whether a potential violation of the Appearance of
Fairness Doctrine exists. If the answer is in the affirmative, no matter how remote, the
councilmember should disclose such facts to the city attorney, or to the mayor who will seek the
opinion of the city attorney, as to whether a potential violation of the Appearance of Fairness
Doctrine exists. The city attorney, or the mayor, shall communicate such opinion to the
councilmember and the mayor (if reporting by the city attorney).
5.2 Disqualification of a Councilmember. Anyone, including a member of the
public, seeking to disqualify a councilmember from participating in a decision on the basis of a
violation of the Appearance of Fairness Doctrine must raise the challenge as soon as the basis for
disqualification is made known or reasonably should have been made known prior to the
issuance of the decision; upon failure to do so, the Doctrine may not be relied upon to invalidate
the decision. RCW 42.36.080. The party seeking to disqualify the councilmember shall state with
specificity the basis for disqualification. Should such challenge be made prior to the hearing, the
mayor shall direct the city attorney to interview the councilmember and render an opinion as to
the likelihood that an Appearance of Fairness violation would be sustained in superior court.
Should such a challenge be made in the course of a quasi-judicial hearing, the mayor shall call a
recess, if necessary, to permit the city attorney to make such interview and render such opinion.
5.3 When Council Conducts a Hearing. When the council conducts a hearing to
which the Appearance of Fairness Doctrine applies, the mayor —or in the case of a violation of
that individual, the Deputy Mayor —will ask if any councilmember knows of any reason that
would require such member to excuse themselves pursuant to the Appearance of Fairness
Doctrine, the form of the announcement is as follows:
"All council members should now give consideration as to whether they have:
(1) a demonstrated bias or prejudice for or against any party to the
proceedings;
(2) a direct or indirect monetary interest in the outcome of the proceedings;
(3) a prejudgment of the issue prior to hearing the facts on the record; or
(4) ex parte contact with any individual, excluding city staff, with regard to an
issue prior to the hearing.
If any council member should answer in the affirmative, then the council member
should state the reason for their answer at this time so that the chair may inquire
of the city attorney as to whether a violation of the Appearance of Fairness
Doctrine exists."
Page 2 of 4
Resolution No. 022-16
Exhibit 1
City of Port Orchard
Appearance of Fairness Doctrine --Procedures
The mayor shall have the authority to request a councilmember to excuse him/herself on the
basis of an Appearance of Fairness violation.
If two or more council members believe that another council member is in violation of the
Appearance of Fairness Doctrine, such council members may move to request a council member
to excuse him/herself on the basis of an Appearance of Fairness violation. In making such a
request, the mayor or other council members shall take action that is consistent with the opinion
of the city attorney.
Notwithstanding the request of a party, the mayor, or other council members, the council
member may participate in any such proceeding.
5.4 Lack of Quorum. If an Appearance of Fairness challenge to a council member
would cause a lack of a quorum, or would result in a failure to obtain a majority vote as required
by law, any such challenged council member shall be permitted to fully participate in the
proceeding and vote as though the challenge had not occurred, only if the council member
publicly discloses the basis for disqualification prior to rendering the decision. Such participation
shall not void the decision by reason of violation of the Appearance of Fairness Doctrine. RCW
42.36.090.
5.5 Consequences of Violation of the Appearance of Fairness Doctrine. The
remedy for action taken by the city council in violation of the Appearance of Fairness Doctrine is
to void the action.
5.6 Actions That Do Not Violate the Appearance of Fairness Doctrine. No
member of the council may be disqualified by the Appearance of Fairness Doctrine for
conducting the business of his/her office with any constituent on any matter other than a quasi-
judicial action then pending before the council. RCW 42.36.020.
Candidates for city council may express their opinions about pending or proposed quasi-judicial
actions while campaigning. RCW 42.36.040.
5.7 Ex Parte Communications. During the pendency of any quasi-judicial
proceeding, no member of the council may engage in ex parte communications with opponents
or proponents with respect to the proposal which is the subject of the proceeding unless that
person:
(a) Places on the record the substance of any written or oral ex parte communications
concerning the decision of action; and
(b) Provides that a public announcement of the content of the communication and of the
parties' rights to rebut the substance of the communication shall be made at each hearing where
action is considered or taken on the subject to which the communication related.
Page 3 of 4
Resolution No. 022-16
Exhibit 1
City of Port Orchard
Appearance of Fairness Doctrine --Procedures
This prohibition does not preclude a councilmember from seeking in a public hearing specific
information or data from such parties relative to the decision if both the request and the results
are a part of the record. Nor does such prohibition preclude correspondence between a citizen
and his/her elected official if any such correspondence is made a part of the record when it
pertains to the subject matter of a quasi-judicial proceeding. RCW 42.36.060.
5.8 Prior Advisory Proceedings. Participation by a councilmember in earlier
proceedings that result in an advisory recommendation to a decision -making body (council,
planning commission, or hearing examiner) shall not disqualify that person from participating in
any subsequent quasi-judicial proceeding. RCW.42.36.070.
Page 4 of 4