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12/12/2005 - Regular - MinutesCity of Port Orchard Council Meeting Minutes Regular Meeting of December 12, 2005 PRESENT: KIM E. ABEL, MAYOR COUNCILMEMBERS: Rita Diienno John Clauson Todd Cramer Robert Geiger, Mayor Protem Carolyn Powers Ron Rider -excused Rick Wyatt -excused ALSO PRESENT: Planning Director Long-Woods, Police Chief Townsend, Treasurer Tompkins, City Clerk Etgen, Deputy Clerk Merlino and City Attorney Combs. 6:30 P.M. CALL TO ORDER Julie Graves, Kitsap County Housing Authority, led the audience and Council in the Pledge of Allegiance. APPROVAL OF AGENDA Mayor Abel reversed the order of the Public Hearings as they were presented on the agenda, moving the "Proposed Changes to the Critical Areas Ordinance" first on the agenda, due to a large citizen's attendance and then "Proposed Changes to the Zoning Ordinance." Mayor Abel removed Business Item 6B "Authorization for Mayor to Sign Agreement with Reid Muller for Surveying McCormick Well Field Property" from the agenda. AUDIENCE COMMENTS FOR ITEMS NOT LISTED ON AGENDA Julie Graves, Kitsap County Housing Authority, discussed the application the Housing Authority is submitting for the Brown Field Clean-Up Grant for property located at 920 Mitchell Avenue. The Housing Authority is requesting this grant allocation from the Environmental Protection Agency (EPA) for environmental clean up. Ms. Graves advised copies of these documents have been submitted to the City for review. Ken Attebery, Port of Bremerton, asked for the City's assistance with two State Highway Corridor Studies. The areas for the studies are SR3 from the City of Shelton to the City of Bremerton and SR16 from the Pierce County line to Gorst. The State Department of Transportation is considering the 1.2 million dollar project in their budget. The Port will be requesting legislature funding for this Study, however the Port is also seeking small financial support from local jurisdictions. The Port's goal is to obtain assistance from as many local jurisdictions as possible. Minutes of December 12, 2005 Page 2 of 12 PUBLIC HEARING Proposed Changes to the Critical Areas Ordinance. Planning Director Long-Woods reported this is the 5th public meeting regarding proposed changes to the Critical Areas Ordinance. The process started in August with a Joint Study Session between Council and the Planning Commission. Testimony and discussion at a public meeting by the Planning Commission resulted in a proposal to Council. Public comments and further discussion at a Council meeting on November 14, 2005 resulted in Council directing staff to identify proposed changes to the City of Port Orchard Critical Areas Ordinance and indicate whether the proposed changes were "minor, housekeeping" changes or "major, substantive" changes. Planning Director Long-Woods further commented the State has proposed changes within all Kitsap County jurisdictions to the Wetland Rating Systems, Stream Typing, and proposed buffers using Best Available Science. When the City originally adopted the current Critical Areas Ordinance, it followed the County's lead; however, this time the County's process was controversial and at one time there were three drafts under consideration. It was determined through the Joint Study Session with the Planning Commission that Council would move forward with an independent process. It was determined during discussions with the State that neither the State Department of Fish and Wildlife or the Department of Ecology had adopted the Wetland Rating System or Stream Typing Criteria. During the review process it was additionally determined there was a Wetlands Inventory conducted for the City 15 years ago. It was determined through discussions with the Planning Commission to make minimum changes to the current ordinance based on the fact that there are two existing salmon-bearing streams with 200' buffers within the City limits, along with associated plans specific to habitat and water quality protection for those streams. Ms. Long-Woods stating she is hoping to prepare a comprehensive Wetland Inventory of all those areas as identified in 1990 to discover how much of the wetland resource has disappeared. If there has been a great loss, she reported, it would be important to work on those changes necessary to protect and enhance the resources. In conclusion, Planning Director Long-Woods reported that staff would like to start the 60-day review process by preparing a first draft document for SEPA review and send it to the Department of Community Trade and Economic Development. Final action on this ordinance cannot take place until the end of the 60-day review process; therefore, if adopted tonight, final action cannot take place until February 2006 at the earliest. At 6:46 p.m. Mayor Abel opened the continued Public Hearing from November 14, 2005 to public testimony. Dr. Karl Duff, Doctor of Science from MIT, advised he presented a large packet of documentation a few days ago, and requested an additional 24 hours to make sure all documents are entered into the record. Minutes of December 12, 2005 Page 3 of 12 Dr. Duff commented in his opinion, the Critical Area Ordinance is not about science. Dr. Duff reported the documents, which were prepared by Mr. Flora, were turned into Kitsap County last year and Kitsap County was asked to have these documents considered as a base line for the Best Available Science. According to Dr. Duff these documents were not submitted. Dr. Duff reported he researched many hours on the criteria of 200-250' wetland buffers placed on developable lands. Mayor Abel advised Dr. Duff this Public Hearing is for testimony on the proposed changes to the Port Orchard's Critical Area Ordinance. Dr. Duff advised one of the most important areas for discussion is what constitutes "The Constitutional Taking." Dr. Duff entered into the record an Advisory Memorandum signed by Governor Christine Gregoire that defines what is involved in a "Constitutional Taking". The key words are that anytime a government occupies private property even on a part-time basis, it is considered "A Consitutional Taking" and requires compensation, and no provision for this has been provided in the City's Critical Areas Ordinance. Dr. Duff referred to page 18 of the Kitsap County's Best Available Science Document, which summarizes six different conditions recommended for buffers. Dr. Duff expressed a concern that a non-creditable expert witness reviewed these conditions. Mayor Abel again reminded Dr. Duff to keep his comments relevant to the Port Orchard's Critical Areas Ordinance. Dr. Duff suggested the Council to read the following reference materials: The Skeptical Environmentalist by Bjorn Lomborg Natural Process by Eric Vanmarcke City Attorney Combs reminded the audience this Public Hearing is only about the amendments proposed to the City of Port Orchard's Critical Areas Ordinance. Dan Flora, Bainbridge Island resident, advised his background in research relates to wetland buffers. Mr. Flora disclosed he has not read the Port Orchard Critical Areas Ordinance, however he felt his comments would be relevant to buffers. City Attorney Combs commented the proposed amendment to the Critical Areas Ordinance regarding wetland buffers only references a 5' change on a minor wetland buffer. Mayor Abel reiterated City Attorney Combs comments that the one change being proposed in the Critical Areas Ordinance goes from a 25' wetland buffer to a 30' buffer. Dr. Duff reported he was not invited to attend a Public Hearing; he was invited to extend his comments that were presented a few months ago. Mayor Abel apologized Minutes of December 12, 2005 Page 4 of 12 for the lack of communication and assumed his presentation would be a part of the Public Hearing. City Attorney Combs advised in fairness to everyone present, there will be another Public Hearing after the 60-day review period, which would allow for a broader discussion of the Critical Areas Ordinance. This Public Hearing will be sometime in February 2006. Mayor Abel asked if the Council would like to hear more information on the general buffer issues relating to the Critical Areas Ordinance this evening. Council Member Clauson commented the Council was asked to make minimum changes to the Ordinance, and move forward with the 60-day review. This would allow the City to be in compliance with state requirements. Once this requirement was reached, the City could spend more time reviewing the Ordinance in depth and make major changes to the document next year. Don Flora applauded the City on their Wetland Inventories and encouraged the City to consider working with other jurisdictions that have wetlands on hardpan soils. Richard Brown, local realtor, expressed a concern with not allowing the Council to hear the scientific information. Mr. Brown asked how the City could defend its ordinance if the Council did not hear the scientific information. Mr. Brown further expressed a concern that the City's decision will be appealed on its lack of information. Mayor Abel asked for a consensus from the Council from those who wanted to hear the scientific information. Council Member Geiger reported his impression was that the full scientific information would be heard at a later date. Council Member Powers and Council Member Cramer advised they were ready to hear the full presentation. Council Member Powers expressed a concern, that if it does not make any difference to what is being presented at this review process, it might be better to hear the presentation at the second Public Hearing in February 2006. Council Member Powers also commented the City should listen to all of the creditable witnesses. Council Member Clauson advised he has no opposition to hearing the full presentation, however his impression was that minor review changes to the Critical Areas Ordinance would meet state requirements and then the Council would move into full discussion of the ordinance. Minutes of December 12, 2005 Page 5 of 12 City Attorney advised information is good to hear, however cautioned the Council that this Public Hearing is a continued Public Hearing that was advertised only for consideration of proposed changes to the Port Orchard Critical Areas Ordinance. Council Member Dilenno suggested the Council set a second meeting in February to allow the new Council Members an opportunity to hear this information and only address the changes proposed to Port Orchard's Critical Areas Ordinance this evening. Council Member Cramer offered an apology to all those present, however, acknowledged the City should follow protocol. At this time, Mayor Abel asked for further public testimony regarding the proposed changes to the Port Orchard Critical Areas Ordinance and apologized for any miscommunication regarding the Public Hearing. Ron Rice, 369 Sedgwick Road, referred to two references in the WAC as follows: 1) Once the City starts the review of the Critical Areas Ordinance and it does not meet "Best Available Science," the City has an obligation to respond to that objection. 2) If the City does not have the resources to address those issues, the City can depend on the State's publications, however, the preferred is a qualified environmentalist on site. Richard Robohm, Wetland Specialist for the Washington State Department of Ecology, Northwest Regional Office in Bellevue, expressed a concern with the City of Port Orchard's process, in that it does not reflect what the Growth Management Act mandates. Mr. Robohm stated it is important for the City to get together with the people from the Community Trade and Economic Development to discuss how to move forward, because this is the only jurisdiction that is proposing to update the Critical Areas Ordinance. The process for the Public Hearings and public discussions are all part of a comprehensive look at the Critical Areas Ordinance. The Growth Management Act Hearings Board will be looking at the whole package. Mr. Robohm presented for the record a letter of comments and attachments. Mike Eliason, Kitsap County Association of Realtors, asked the City to reconsider how the City is adhering to their procedures by restricting public hearing comments to only the amendments; the City should consider the issues that are not being discussed. The City's decision could be appealed and the appeal could be lost. City Attorney Combs commented the City Council will have another Public Hearing prior to the adoption of the Critical Areas Ordinance to discuss it in greater detail. This Public Hearing is only for the amendments proposed to the Critical Areas Ordinance as a continuation of the November 14, 2005 Public Hearing. Minutes of December 12, 2005 Page 6 of 12 Gil Michael, 228 Seattle Avenue, referred to the proposed changes to the Critical Areas Ordinance as listed in the Agenda Staff Report: • Chapter 2, Section 2(1)(d) -Revised definition of "Category IV Wetland" per County definition to 5,000 square feet. • Chapter 2, Section 2(2) -Category IV Wetlands: Isolated Wetlands Mr. Michael advised these proposed changes revise the definitions of the Category IV Wetlands from 10,000 square feet to 5,000 square feet. Mr. Michael requested the City retain wording in the current ordinance and maintain the definitions for the Category IV Wetlands and Isolated Wetlands at 10,000 square feet. Richard Brown, local realtor, expressed a concern with the City leaving the wetland buffers at 200', since the City had not received proper scientific information. Mr. Brown further commented the hearing process has to start over, because the City did not hold the hearings properly, they need to be opened continuously for public comments. Jeff Davis, Washington State Department of Wildlife, expressed a concern with receiving the document late and not having sufficient time for review and comment on the proposed changes. Mr. Davis presented a letter from the Department of Community, Trade and Economic Development, and referred to page 4 of the document "Principles Regarding State Agency -Local Government Coordination on GMA Actions" and read as follows: "Local Governments will make evety effort to seek out state agency participation as early in the process as possible. State agencies will make evety effort to respond to such requests as early as possible. For significant issues, this should be in advance of a formal public participation process and will allow reasonable time for comments to be prepared and discussed prior to a formal planning commission recommendation. " Mr. Davis expressed a concern with the City's process, stating that the state agencies received their documents late in the process, therefore allowing no time for comments on the proposed changes. Alison O'Sullivan, Suquamish Tribe, reiterated the same concerns with not having sufficient time to review the proposed changes. Jack Hamilton commented he has read the proposed changes to the Critical Areas Ordinance, and advised the City is not in compliance with the Growth Management Act, specifically due to the 14 non-prioritized goals in the GMA. These goals must be considered in the creation of the City's Critical Areas Ordinance. Mr. Hamilton further commented as soon as the City started the review process, the City was obligated to consider each of the 14 goals. Minutes of December 12, 2005 Page 7 of 12 Mr. Hamilton reported the City does not have a matrix within the Ordinance that would illustrate if the City is successful in protecting Critical Areas. There is no monitoring system, and no base line establishment process to determine what the initial condition of the Critical Areas is. In response to a question by Council Member Powers, City Attorney Combs advised if the City is going to leave the document as it stands, the Council must analyze the document and make sure that it meets all the criteria as mandated by the Growth Management Act. At 7:52 p.m. with no further public testimony, Mayor Abel closed the Public Hearing, except for those documents Dr. Karl Duff requested to submit within 24 hours. Council Member Dilenno moved and Council Member Clauson seconded a motion to move forward with the SEPA review and GMA process and in February 2006 start the review of the "Best Available Science" for setback, buffers, etc, while the City is conducting the Wetlands Inventory. The following modifications were also made to the City's Critical Areas Ordinance: • Page 27, Chapter Two, Section 2{1)(d) retain the definition of Category IV Wetlands to 10,000 square feet • Page 27, Chapter Two, Section 2{b) retain the definition of Isolated Wetlands to 10,000 square feet • Page 28 leave Category IV at 25 feet • Page 29 leave section 4{6){d) 25 feet for minimum buffer • Page 29 leave Section 4{7){ c) 30°/o slope • Page 53 and 54 retain language relating to Geological Hazard and Concern • Page 55 delete Section 3{1){f) "Vegetation Removal" • Page 55 retain current language relating to Seasonal Restrictions as "Major new development, and where required for minor new development" • Page 55 retain current language relating to Field marking Requirements as "For major new development the ... " • Page 73 delete -"Appendix A -Washington State Wetlands Rating System Categories" and retain the City's current Appendix A Motion as presented passed unanimously. Council Member Clauson moved and Council Member Dilenno seconded a motion to set March 6, 2006 at 6:30 p.m. as the date and time for the second Public Hearing regarding the City's Critical Areas Ordinance. Upon vote, the motion passed with four affirmative votes and one dissenting vote. Council Member Cramer cast the dissenting vote. At 8:53 pm Mayor called for a five-minute recess. Minutes of December 12, 2005 Page 8 of 12 PUBLIC HEARING Proposed Changes to the Zoning Ordinance Eliminating the Requirement for a 50-Foot Building Circle in a Planned Residential District and to Discuss Minimum lot Sizes for the Residential 4.5 Zone. Planning Director Long-Woods updated Council on the directive to perform further research on approved plats in other jurisdictions (referencing small lot developments the Council had visited) and bring back copies of layouts from those developments. The developments that were reviewed were Poulsbo Place II, Hillandale, and Erickson Cottages. Planning Director discussed the differences between the developments. Planning Director Long-Woods reported on the Planning Commission's recommendations regarding minimum lot sizes in the R4.5 zone, such as maintaining existing lot sizes as required in the other zones, and further recommend having a 50-foot minimum lot width. At 9:05 p.m. Mayor Abel opened the continued the public hearing form November 14, 2005 for public testimony. Gil Michael, 228 Seattle Avenue, Chair Planning Commission, referenced two corrections to the October 27, 2005 Planning Commission minutes as follows: 1) Page two, ih line in the motion, to read as follows:" ... W% 30°/o softscape .... " 2) Last line of motion to read as follows: "Change in wording Note 5, density bonus of up to a maximum of 6 dwelling units per acre." Mr. Michael clarified for the record why the 50-foot minimum lot width was added. If the City took away the 50-foot minimum lot circle, then there was no minimum lot width other than the required setbacks. The intent of the Planning Commission is that somewhere within the building site there would be a 50 foot section with a minimum 25-foot street frontage. Mark Kuhlman, Team 4 Engineering, thanked Council for the consideration of removing the 50-foot circle in Planned Residential Developments. Mr. Kuhlman suggested the City add language that the minimum lot frontage be applied at the midpoint of the lot. Mr. Kuhlman reminded the Council that the City did not have minimum lot size requirements in the R4.5 zones, so the City could promote or facilitate density transfers out of the green belt zones, which are always positioned adjacent to the Residential 4.5 zone. The plat of Flower Meadows is a good example of how this transfer works. There are no minimum lot size or minimum lot standards within this development. Mr. Kuhlman further recommended there should be no minimum lot size or standards within a Planned Residential Development. The PRD developments allow for flexibility Minutes of December 12, 2005 Page 9 of 12 in development standards in exchange for other amenities and other benefits to the neighborhood and community. Mr. Kuhlman advised there is a reference that the R20 zone does not allow detached housing. Mr. Kuhlman encouraged the Council to allow detached housing in all zones. Mr. Kuhlman also suggested the Council consider reducing the minimum lot size from 50 feet to 40 feet. Norm Olson, N.L. Olson and Associates, concurred with Mark Kuhlman's comments, specifically allowing detached housing in a R20 zone and a minimum lot size of 40 feet. Mr. Olson commented allowing detached housing in all zones provides a great mixture of housing. Gil Michael, 228 Seattle Avenue, resident, agreed with Mark Kuhlman and recommended the City eliminate the minimum lot size in a PRD, and further commented the City should try to use "Gross Useable Acre" rather than "Net Useable Acre" when determining densities. Mr. Michael further commented the City should have detached housing in a R20 zone and that the minimum lot width should be 40 at the lot center. Fred Chang, 319 Sidney, resident, also concurred with Gil Michael, however clarified the Planning Commission was more concerned with how many units could be placed within an acre and how that could be executed to maintain and encourage quality housing in Port Orchard. At 9:26 p.m. no further public testimony was received and the Mayor closed the Public Hearing. Council Member Clauson moved and Council Member Cramer seconded a motion to adopt Planning Commission Resolution 21-05 with two changes: • Eliminating the minimum lot size for a Planned Residential Development and • Approve detached housing in an R20 zone At 9:30 p.m. Council Member Geiger moved and Council Member Clauson seconded a motion to continue this meeting until all agenda items are completed. Upon vote, the motion passed with Council Members Powers, Geiger, and Clauson voting in the affirmative and Council Members Diienno, and Cramer casting the dissenting votes. Council Member Dilenno moved and Council Member Clauson seconded a motion to amend the main motion by changing the minimum lot size in an R4.5 zone to 6,000 square feet, with no minimum lot size in a Planned Residential Development and 40 feet minimum width in a R4.5 zone at building point. Upon vote, the amendment carried unanimously. Minutes of December 12, 2005 Page 10 of 12 Upon vote, the amended motion to adopt Planning Commission Resolution 21-05 and eliminating the minimum lot size for a Planned Residential Development; approve detached housing in an R20 zone; change minimum lot size in an R4.5 zone to 6,000 square feet, with no minimum lot size in a Planned Residential Development; and 40-foot minimum width in a R4.5 zone at building point, carried unanimously. CONSENT AGENDA Council Member Clauson moved and Council Member Geiger seconded a motion approving the Consent Agenda. Upon vote, motion carried unanimously. A. Approval of Claim Warrants #44479-44643 in the amount of $1,086,044.18 and November 2005 Payroll Warrants #139443-139498 and Direct Deposits in the Amount of $327,455.25. B. Approval of November 28, 2005 Minutes C. Approval of November 30, 2005 Budget Study Session Meeting Minutes D. Authorization for Mayor to Accept Proposal from The Doctors Clinic for DOT/CDL Licensing Exams E. LAG Guidelines from WSDOT for Tremont Funding BUSINESS ITEMS Passage of Ordinance No. 025-05 Adopting the 2006 Budget Council Member Clauson moved and Council Member Cramer seconded a motion to approve Ordinance No. 025 adopting the 2006 budget. Upon vote, the motion passed unanimously. Authorization for Mayor to Sign Change Order No. 2 Phase I of the Joint Wastewater Treatment Plant Council Member Cramer moved and Council Member Clauson seconded a motion to authorize the Mayor to sign the Change Order with Strider for a total amount of $60,000 plus sales tax as outlined in Strider's Settlement Offer. Upon vote, the motion passed unanimously. Passage of Ordinance No. 027-05 Parking Fines Council Member Cramer moved and Council Member Dilenno seconded a motion to approve Ordinance No. 027-05 amending section 10.12.430 of the Port Orchard Municipal Code increasing monetary penalties for parking infractions. Upon vote, motion passed with four affirmative votes and one dissenting vote. Council Member Geiger cast the dissenting vote. Approval of Modification to Approve Hotel/Motel Funding Agreement - Western Washington Center for the Arts Minutes of December 12, 2005 Page 11 of 12 Council Member Clauson moved and Council Member Diienno seconded a motion to revise the 2005 Funding Agreement for Western Washington Center for the Arts removing the stipulation of a collaborative effort with the Performing Arts Guild. Upon vote, the motion passed unanimously. Authorization for Mayor to Sign 2006 Humane Society Contract Council Member Cramer moved and Council Member Geiger seconded a motion to authorize the Mayor to sign the 2006 contract with the Kitsap Humane Society. Upon vote, the motion passed unanimously. Passage of Ordinance No. 026-05 Authorizing a Commander Position in the Police Department Councilmember Clauson moved and Council Member Geiger seconded a motion to approve Ordinance No. 026-05 amending Port Orchard Municipal Code Section 2.16.030 to provide for the position of Police Commander and establishing a job description and wage rate. Upon vote, motion passed with four affirmative votes and one dissenting vote. Council Member Diienno cast the dissenting vote. Passage of Resolution No. 039-05 Authorizing Pay Scale for Parking Enforcement Officers Council Member Powers moved and Council Member Diienno seconded a motion to adopt Resolution No. 039-05 updating the salary step schedule of Public Service Officer-Parking Enforcement. Upon vote, motion passed unanimously. Council Member Clauson moved and Council Member Diienno seconded a motion to excuse Council Member Cramer from the December 27, 2005 City Council Meeting. Upon vote, the motion passed unanimously. Council Member Clauson moved and Council Member Powers seconded a motion to excuse Council Member Diienno from the December 27, 2005 City Council Meeting. Upon vote, the motion passed unanimously. EXECUTIVE SESSION-Pending Litigation [RCW 42.30.110 (1)(i)(Al and (B)l Council went into executive session at 9:51 p.m. The Mayor reconvened the meeting into regular session at 10:10 p.m. City Attorney Combs submitted to the City Council for their review, a draft Ordinance regarding GUMPD (Government Use Master Plan District). The following committee meetings were set during the Council meeting: r~~t~~~~{chf~LlQhls/VVVV~o~~r19~2oQS,,;/VV']J;;~~;tthTs;y~~/V's ~VVV'/VVVVVVVV'V/'''A/'vV~~V'AJ/V,/VV'A~~~ /VVVv/VVV/V'/V'V'A~/'VVVV'V/J Minutes of December 12, 2005 Page 12 of 12 ,.~/'-J v'"~A/' ,. ,.., ""'~'~"/v'"-/'V'vA~, ~A/' /V V'V'VVV~~/VV'- ' Sewer Advisory Committee \ Dece~~~r ~;.2005 \ Karche~~~~~~ Sewer ~ ,..,,,..'-JVV'-./"-/ ,f '""' '/ " '-'-"-/V'V'-./' ",/'-/',/'/'V'v"./'-/'.A/'...A~'.../'./'vA,~/'v,..'v·-"/VV~~'..~~./'v-~·y~,J~~/' .. /'-/'-/'-/'/'< ADJOURNMENT At 10:12 Mayor Abel adjourned the meeting. Kim E. Abel, Mayor